HomeMy WebLinkAboutCity of Tamarac Resolution R-97-1951
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July 16, 1997 - Temp. Reso. #7948 1
CITY OF TAMARAC, FLORIDA
RESOLUTION NO. R-97- l 95'
A RESOLUTION OF THE CITY COMMISSION
OF THE CITY OF TAMARAC, FLORIDA,
PROVIDING FOR THE ISSUANCE BY THE
CITY OF TAMARAC OF NOT EXCEEDING
$4,000,000 OF ITS INDUSTRIAL
DEVELOPMENT REVENUE BONDS, SERIES
1997 (SUN BELT PRECISION PRODUCTS,
INC. PROJECT), TO PAY THE COST OF
CONSTRUCTING A MANUFACTURING
FACILITY IN THE CITY OF TAMARAC;
AUTHORIZING EXECUTION AND DELIVERY
OF DOCUMENTS RELATING THERETO;
PROVIDING FOR THE NEGOTIATED SALE
OF THE BONDS; APPROVING USE OF A
PRELIMINARY AND FINAL OFFICIAL
STATEMENT IN CONNECTION WITH THE
SALE OF THE BONDS; DESIGNATING THE
INITIAL BOND TRUSTEE; MAKING CERTAIN
OTHER COVENANTS AND AGREEMENTS IN
CONNECTION WITH THE ISSUANCE OF
THE BONDS; PROVIDING FOR CONFLICTS;
PROVIDING FOR SEVERABILITY; AND
.PROVIDING FOR AN EFFECTIVE DATE,
BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF TAMARAC,
FLORIDA AS FOLLOWS:
Section 1. AUTHORITY FOR THIS RESOLUTION. This resolution is adopted
pursuant to the provisions of Chapter 159, Part II of the Florida Statutes, as amended and
other applicable provisions of law (the "Act")
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July 16, 1997 - Temp. Reso. #7948 2
Section 2. FINDINGS. It is hereby ascertained, determined and declared as
follows:
A. The City of Tamarac, Florida (the "City") is authorized by the Act to make and
execute financing agreements, contracts, deeds and other instruments necessary or
convenient for the purpose of facilitating the financing of the acquisition, construction and
equipping of projects as defined in the Act, including machinery, equipment, land, rights
in land and other appurtenances and facilities related thereto, to the end that the City may
be able to promote the economic growth of the State of Florida, increase opportunities for
gainful employment and otherwise contribute to the welfare of the City and the State of
Florida and its inhabitants, and to finance the cost of such projects by the issuance of its
revenue bonds.
B. The City, by resolution dated February 26, 1997, approved the execution of
a Memorandum of Agreement with the Sun Belt Precision Products, Inc., a Florida
corporation (the "Borrower") whereby the City agreed, subject to certain conditions and
approvals, to issue its Industrial Development Revenue Bonds (Sunbelt Precision
Products, Inc. Project), Series 1997 in an amount of up to $4,000.000.00 (the "Bonds") and
to loan the proceeds of such bonds to the Borrower to pay the cost of constructing a
manufacturing facility (the "Project") within the jurisdictional limits of the City.
C. As required by the City, the Company has caused its corporate parent,
Interplex Industries, Inc., to guaranty payment of the principal of and interest on the Bonds
(the "Guaranty")
D. The principal of and interest on the Bonds and all payments required under
the documents relating thereto shall be payable solely from the proceeds derived by the
City from the proceeds of the Guaranty and monies received pursuant to a Loan
Agreement between the City and the Borrower (the "Loan Agreement"), The City shall
never be required to (i) levy ad valorem taxes on any property within its territorial limits to
pay the principal of a premium, if any, and interest on the Bonds or to make any other
July 16, 1997 -Temp. Reso. #7948 3
payments relating to the Bonds or the Project, or (ii) pay the same from any funds of the
City other than those derived by the City under the Loan Agreement and the Guaranty; and
such Bonds shall not constitute a lien upon any property owned by or situated within the
territorial limits of the City except the Project.
E. The City held a public hearing with respect to the Bonds in accordance with
the requirements of the Tax Equity and Fiscal Responsibility Act of 1984 on February 26,
1997 at which it received and considered comments from the citizens of the City.
Section 3. FINANCING OF THE PROJECT AUTHORIZED. The financing of the
cost of the Project in the manner provided in the Loan Agreement and the Indenture
(hereinafter defined) is hereby authorized.
Section 4. AUTHORIZATION OF BONDS. Obligations of the City to be known as
"Industrial Development Revenue Bonds (Sun Belt Precision Products, Inc. Project), Series
1997" are hereby authorized to be issued in an aggregate principal amount of not
exceeding Four Million Dollars ($4,000,000.00), in the form and manner described in the
Indenture. The Bonds will be dated such date and mature in such years and amounts, will
contain such redemption provisions, and will bear interest at such rates (not exceeding the
maximum interest rate permitted by the Act or by other applicable provision of law), as
provided in the Trust Indenture between the City and First Union National Bank, as trustee
(the "Trustee") (the "Indenture").
Section 5. AUTHORIZATION OF EXECUTION AND DELIVERY OF INDENTURE.
As security for the payment of the principal of and premium, if any, and interest on the
Bonds, the Indenture, in substantially the form on file with the City Clerk as Exhibit "A", with
such changes, alterations and corrections as may be approved by the Mayor, such
approval to be presumed by his execution thereof, is hereby approved by the City, and the
City hereby authorizes and directs the Mayor to execute, and the City Clerk to attest under
the seal of the City, the Indenture and to deliver to the Trustee the Indenture, all of the
provisions of which, when executed and delivered by the City as authorized herein and by
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July 16, 1997 - Temp. Reso. #7948 4
the Trustee duly authorized, shall be deemed to be a part of this instrument as fully and
to the same extent as if incorporated verbatim herein. The City does hereby provide in the
Indenture the terms, conditions, covenants, rights, obligations, duties and agreements of
the City, the Borrower and the Trustee to and for the benefit of the holders of the Bonds.
Section 6. AUTHORIZATION OF EXECUTION AND DELIVERY OF LOAN
AGREEMENT. The Loan Agreement, in substantially the form on file with the City Clerk
as Exhibit "B", with such changes, alterations and corrections as may be approved by the
Mayor, such approval to be presumed by his execution thereof, is hereby approved by the
City, and the City hereby authorizes and directs the Mayor to execute, and the City Clerk
to attest under the seal of the City, the Loan Agreement and to deliver to the Borrower the
Loan Agreement, all of the provisions of which, when executed and delivered by the City
as authorized herein and by the Borrower duly authorized, shall be deemed to be a part
of this instrument as fully and to the same extent as if incorporated verbatim herein.
Section 7. APPROVAL OF FORM OF GUARANTY. The form of the Guaranty
issued by Interplex Industries, Inc. providing for payment of the principal of and interest on
the Bonds (on file with the City Clerk as Exhibit "C), with such changes, alterations and
corrections as may be approved by the Mayor, such approval to be presumed by his
execution thereof, is hereby approved by the City, and the City hereby authorizes and
directs the Mayor to execute, and the City Clerk to attest under the seal of the City, the
Guaranty, all of the provisions of which, when executed and delivered by the City as
authorized herein and by the Borrower duly authorized, shall be deemed to be a part of this
instrument as fully and to the same extent as if incorporated verbatim herein.
Section 8. APPROVAL OF BOND PURCHASE AGREEMENT FOR BONDS. The
Bond Purchase Agreement, in substantially the form on file with the City Clerk as Exhibit
"C", with such changes, alterations and corrections as may be approved by the Mayor,
such approval to be presumed by his execution thereof, is hereby approved by the City,
and the City hereby authorizes and directs the Mayor to execute, and the City Clerk to
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July 16, 1997 - Temp. Reso. #7948 5
attest under the seal of the City, the Bond Purchase Agreement and to deliver to the
Borrower and the Underwriter (hereinafter defined) the Bond Purchase Agreement, all of
the provisions of which, when executed and delivered by the City as authorized herein and
by the other parties thereto duly authorized, shall be deemed to be a part of this instrument
as fully and to the same extent as if incorporated verbatim herein.
Section 9. NEGOTIATED SALE NECESSARY. It is hereby found, ascertained,
determined and declared by the City that a negotiated sale of the Bonds is in the best
interest of the City and is found to be necessary on the basis of the following reasons as
to which specific findings are hereby made:
A. Industrial development revenue bonds are traditionally placed privately and
consequently a competitive sale of the Bonds would in all probability not produce better
terms than a negotiated sale.
B. The Bonds are payable solely from the proceeds of the Loan Agreement and
the Guaranty and, therefore, the City does not have a direct financial interest in the terms
of sale. The Borrower has expressed its desire not to incur the risks and expenses
attendant a public sale of the Bonds.
Section 10. AWARD OF BONDS; APPROVAL OF PRELIMINARY AND FINAL
OFFICIAL STATEMENT. The negotiated sale of the Bonds to Greenwich Partners, LLC
(the "Underwriters") at the price set forth in the Bond Purchase Agreement is hereby
authorized pursuant to Section 218.385, Florida Statutes, as amended. The use of a
Preliminary Official Statement for the Bonds in substantially the form on file with the City
Clerk as Exhibit "E" is hereby approved and ratified. The Preliminary Official Statement is
hereby "deemed final' within the meaning of Section 240.15c2-12 of the General Rules and
Regulations of the Securities and Exchange Acts of 1934. The use of a Final Official
Statement for the Bonds in substantially the form of the Preliminary Official Statement, with
appropriate information inserted, is hereby approved, and the Mayor is authorized and
directed to execute the Final Official Statement.
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July 16, 1997 -Temp. Reso. #7948 6
Section 11. TRUSTEE. First Union National Bank, a national banking association
having trust powers, is hereby designated Trustee for the Bonds.
Section 12. EXECUTION OF BONDS AND AUTHORIZATION OF ALL OTHER
NECESSARY ACTION. The proper officers of the City are hereby authorized and directed
to execute the Bonds when prepared and to deliver the same to the Trustee for
authentication and delivery to the purchasers of the Bonds upon payment of the purchase
price therefore. The Mayor, City Clerk, City Attorney, and Akerman, Senterfitt & Edison,
P.A., as the City's Bond Counsel, are designated agents of the City in connection with the
issuance and delivery of the Bonds, and are authorized and empowered, collectively or
individually, to take all action and steps to execute and delivery any and all instruments,
opinions, documents or contracts on behalf of the City which are necessary or desirable
in connection with the execution and delivery of the Bonds and which are not inconsistent
with the terms and provisions of this Resolution and other actions relating to the Bonds
heretofore taken by the City.
Section 13. NO PERSONAL LIABILITY. No covenant, stipulation, obligation or
agreement herein contained or contained in the Loan Agreement, Indenture, Bond
Purchase Agreement, Guaranty, the Official Statement or any other document executed
and delivered in connection with the issuance of the Bonds (together, hereinafter referred
to as the "Bond Documents") shall be deemed to be a covenant, stipulation, obligation or
agreement of any officer, member, agent or employee of the City or its governing body in
his individual capacity, and neither the members of the City Commission, the City nor any
official executing the Bonds shall be liable personally thereon or be subject to any personal
liability or accountability by reason of the issuance thereof.
Section 14. NO THIRD PARTY BENEFICIARIES. Except as herein or in the Bond
Documents otherwise expressly provided, nothing in this Resolution or in the Bond
Documents, expressed or implied, is intended or shall be construed to confer upon any
person, firm or corporation other than the City, the Borrower, the Underwriters, the holders
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July 16, 1997 -Temp. Reso. #7948 7
of the Bonds, and the Trustee, any right, remedy or claim, legal or equitable, under and by
reason of this instrument or any provision thereof or of the Bond Documents. This
Resolution and the Bond Documents intended to be for the sole and exclusive benefit of
the City, the Bank, the Underwriters, the Borrower, the Trustee and the holders from time
to time of the Bonds.
Section 15. PREREQUISITES PERFORMED. All acts, conditions, and things
relating to the passage of this resolution, to the issuance of the Bonds, and to the
execution of the Bond Documents, required by the Constitution or laws of the State of
Florida to happen, exist, and be performed precedent to and in the adoption hereof, and
precedent to the issuance of the Bonds, and precedent to the execution and delivery of the
Bond Documents, have happened, exist and have been performed as so required.
Section 16. GENERAL AUTHORITY. The members of the Commission of the City
and its officers, attorneys, engineers or other agents or employees are hereby authorized
to do all acts and things required of them by this Resolution and the Bond Documents, or
desirable or consistent with the requirements thereof, for the full, punctual and complete
performance of all the terms, covenants and agreements contained in the Bonds, the Bond
Documents and this Resolution.
Section 17. SEVERABILITY OF INVALID PROVISIONS. If any one (1) or more
of the covenants, agreement or provisions herein contained shall be held contrary to any
express provisions of law or contrary to the policy of express law, though not expressly
prohibited, or against public policy, or shall for any reason whatsoever be held invalid, then
such covenants, agreements or provisions shall be null and void and shall be deemed
separable from the remaining covenants, agreements or provisions and shall in no way
affect the validity of any of the other provisions hereof.
Section 18. REPEALING CLAUSE. All resolutions of the City or parts thereof in
conflict with the provisions herein contained are, to the extent of such conflict, hereby
superseded and repealed.
July 16, 1997 - Temp. Reso. #7948 8
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Section 19. EFFECTIVE DATE. This resolution shall become effective upon
signature by the Mayor or upon becoming effective without the Mayor's signature.
PASSED, ADOPTED AND APPROVED this IZ3 day of , 1997.
ATTEST:
CAROL A. EVANS
CITY CLERK
I HEREBY CERTIFY that I
have approved this
RESOLUTION as to form.
1AS
MITCHELL S. K A
CITY ATTORNEY
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JOE SCHREIBER
MAYOR
RECORD OF 00
MAYOR -9 HREIB R
DIST 1: COMM. McKA
DIST 2: VIM MISHKIN
DIST 3: COMM. SULTi
DIST 4: - .COMM. ROBE.
VOTE
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TRUST INDENTURE
between
CITY OF TAMARAC, FLORIDA
and
FIRST UNION NATIONAL BANK
TRUSTEE
Relating to
$3,300,000
City of Tamarac, Florida
Industrial Development Revenue Bonds
Series 1997
(Sun Belt Precision Products, Inc., Project)
Dated as of August 1, 1997
WPO:ITDICKSDN.TAMARAC-$UNBELTIINDENTURE.
JU1y 15, 1997 4:56pm
EXHIBIT "A”
TEMP RESO *7948
TABLE OF CONTENTS
Parties . .
. . .
. . . . . . . . . . . . . . . . . . . . .
1
Recitals .
. . .
. . . . . . . . . . . . . . . . . . . . .
1
Granting Clauses
. . . . . . . . . . . . . . . . . . . . .
. . 3
ARTICLE I
DEFINITIONS . . . . . . . . . . . . . . . .
. 5
Section
101.
Definitions . . . . . . . . . . . . . .
. 5
Section
102.
Use of Words . . . . . . . . . . . . .
. 7
ARTICLE II
THE
BONDS . . . . . . . . . . . . . . . . .
. 9
Section
201.
Issuance of Bonds . . . . . . . . . . .
. 9
Section
202.
Details of Bonds . . . . . . . . . . .
. 9
Section
203.
Executicrl of Bonds . . . . . . . . . .
. 9
Section
204.
Authentication . . . . . . . . . . . .
. 9
Section
205.
Form of Bond . . . . . . . . . . . . .
. 10
Section
206.
Delivery of Bonds . . . . . . . . .
. 10
Section
207.
Mutilated, Destroyed or Lost Bonds
10
Section
208.
Registration of Principal and Interest
10
Section
209.
Payment on Saturday, Sunday or Holiday
11
Section
210.
Interest Commencement Date . . . . .
11
Section
211.
Cancellation . . . . . . . . . . . .
. 11
Section
212.
Temporary Bonds . . . . . . . . . . . .
. 11
Section
213.
Additional Bonds . . . . . . . . .
. 12
Section
214.
Book Entry Bonds and Agent Therefor.
12
Section
215.
Issuer to Facilitate Use of Securities
Depository . . . . . . . . . . . . . . .
14
ARTICLE III
REDEMPTION
OF BONDS BEFORE MATURITY . . . . .
15
Section
301.
Redemption . . . . . . . . . . . . . . .
15
Section
302.
Notice of Redemption . . . . . . . . . .
15
Section
303.
Redemption Payments . . . . . . . . . . .
16
Section
304.
Cancellation . . . . . . . . . . . . . .
16
ARTICLE IV
GENERAL COVENANTS . . . . . . . . . . . . . .
17
Section
401.
Payment of Principal and Interest . . . .
17
Section
402.
Performance of Covenants . . . . . . . .
17
Section
403.
Instruments of Further Assurance . . . .
17
Section
404.
Recordation of Financing Statements . . .
18
Section
405.
Books of Record and Account; Inspection
18
Section
406.
List of Bondowners . . . . . . . . . .
18
Section
407.
Lien of Trust Indenture; Enforcement of
Obligations and Rights . . . . . . . . .
18
WPO:ITDICKSON.TAMARAC-SUNBELT]INDENTURE.
July 15, 1997 4:56pm i
Section 410. Covenants of Issuer Not to Take or
Permit Actions or Conditions That Would
Cause Interest to be Subject to Federal
Income Taxation . . . . . . . . 18
Section 411. Continuing Disclosure . . . . . . . . . . 19
ARTICLE V REVENUE AND FUNDS . . . . . . . . . . . . . . 20
Section
501.
Creation of Funds
Section
502.
. . . . .
Use of Moneys in Bond Fund . . .
20
20
Section
503.
Interest Account
Section
504.
. . . . . . •
Bond Redemption Account
. 21
Section
505.
. . . . . •
Non -presentment of Bonds
• 21
Section
506.
. . . • . • •
Reserved.
. 21
Section
507.
. . . . . . . . • . . .
Reserved.
• 22
Section
508.
. . . . . . . . . . .
Reserved.
22
Section
509.
. . . . . . . . .
Fees, Charges and Expenses of Trustee
22
and Paying Agent .. . . .
22
Section
510.
Moneys to be Held in Trust
22
Section
511.
Refunds to Company
. . . . . . . . . .
. 22
ARTICLE VI
CUSTODY AND APPLICATION OF PROCEEDS OF BONDS
24
Section
601.
Disbursement of Proceeds; Issuance
Costs ••
24
Section
602.
Deposit intheLoan Account . . • , .
24
Section
603.
•
Disbursements from the Loan Account
,
24
Section
604.
Transfer to Bond Fund . . . . . . . . . .
24
ARTICLE VII
INVESTMENTS
. . . . . . . . . . . . . . . . .
26
Section
701.
Investment of Moneys in Funds
26
Section
702.
Arbitrage Requirements . . . . . . . . .
27
ARTICLE VIII
POSSESSION,
USE AND RELEASE OF MORTGAGED
PROPERTY
. . . . . . . . . . . . . . . . . . .
28
Section 801.
The Company's Right to Possess, Use and
Enjoy . . . .
. . . . . . . . . . . . . .
28
ARTICLE IX
DISCHARGE OF LIEN
. . . . . . . . . . . . .
29
Section 901.
Discharge of Lien
. . . . . . . . . . . .
29
ARTICLE X
DEFAULT PROVISIONS AND REMEDIES OF TRUSTEE
AND
BONDOWNERS . . . . . . . . . . . . . . . .
30
Section 1001.
Events of Default . . . . . • • •
30
Section 1002.
Acceleration
Section 1003.
.
. . . . •
Trustee's Right to Enter and Take
Possession . .
30
. . . . . . . . . . . . .
30
WPO:(TDICKSON.TAMARAC-SUNBELT)INDENTVRE.
July 15, 1997 4:56pm
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Section
1004.
Other Remedies; Rights and Obligations
with Reference to Remedies .
31
Section
1005.
Right of Majority of Bondowners to Take
Charge . . . . . . . . . . . . . . . . .
32
Section
1006.
Appointment of Receiver . . . . . . . . .
32
Section
1007.
Waiver by Issuer of Benefit of Laws and
Rights of Appraisement and Redemption
32
Section
1009.
Remedies Vested in Trustee . . . . .
34
Section
1010.
Rights and Remedies of Bondowners . .
34
Section
1011.
Termination of Proceedings . . . . . . .
35
Section
1012.
Waivers of Events of Default . . . . . .
35
ARTICLE XI
THE
TRUSTEE . . . . . . . . . . . . . . . .
37
Section
1101.
Acceptance of Trusts . . . . . . . . . .
37
Section
1102.
Fees, Charges and Expenses of Trustee
39
Section
1103.
Notice to Bondowners of Default . . .
40
Section
1104.
Intervention by Trustee . . . . . . . . .
40
Section
1105.
Successor Trustee . . . . . . . . . . . .
40
Section
1106.
Resignation by Trustee . . . . . . . . .
41
Section
1107.
Removal of Trustee . . . . . . . . . . .
41
Section
1108.
Appointment of Successor Trustee;
Temporary Trustee . . . . . . . . . . . .
41
Section
1109.
Successor Trustee . . . . . . . . . . . .
41
Section
1110.
Right of Trustee to Pay Taxes and Other
Charges . . . . . . . . . . . . . . . . .
42
Section
1111.
Trustee Protected in Relying Upon
Resolutions, etc . . . . . . . . . . . . .
42
Section
1112.
Trustee Which Has Resigned or Been
Removed Ceases to be Paying Agent . . . .
42
Section
1113.
Paying Agent's Fees and Charges . . . . .
42
Section
1114.
Appointment of Co -Trustee or Separate
Trustee . . . . . . . . . . . . . . . . .
43
ARTICLE XII
SUPPLEMENTAL
INDENTURES AND AMENDMENTS
TO THE
LOAN AGREEMENTS . . . . . . . . . . . .
45
Section 1201. Supplemental Indentures Not Requiring
Consent of Bondowners . . . .
45
Section
1202.
Supplemental Indentures Requiring
Consent of Bondowners . . . . . . . ,
. . 45
Section
1203.
Amendments to the Loan Agreement . .
. . 46
Section
1204.
Procedures for Amendments . . . . . .
. . 46
Section
1205.
Rights of Company . . . . . . . . . .
. . 47
ARTICLE XIII
MISCELLANEOUS . . . . . . . . . . . . . .
. . 48
Section
1301.
Consents, etc. of Bondowners . . . .
. . 48
Section
1302.
Limitation of Rights . . . . . . . .
. . 48
Section
1303.
Severability . . . . . . . . . . . .
. . 48
Section
1304.
Notice . . . . . . . . . . . . . . .
. . 49
WPO:[TDICKSON.TAMARAC- SUNBELT) INDENTURE.
July 15, 1997 4:56pm i i i
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Section 1305. Florida Substantive Law Governs . . . . . 49
Section 1306. Uniform Commercial Code . . . . . . . 49
Section 1307. Counterparts . . . . . . . . . . . . . . 49
WPO:[TDICK5ON.TAMARAC-SUNHELTIINDENME.
July 15, 1997 4:56pm iv
TRUST INDENTURE 0
THIS TRUST INDENTURE executed as of August 1, 1997 by and
between CITY OF TAMARAC, FLORIDA, a public body corporate and
politic (the "Issuer"), duly existing under the laws of the State
of Florida, as party of the first part, and FIRST UNION NATIONAL
HANK (the "Trustee"), as party of the second part;
W I T N E S S E T H:
All terms used herein and not defined shall have the
meaning given in Article I.
WHEREAS, the Issuer is authorized under Chapter 159,
Part II, Florida Statutes, and other applicable provisions of law
(the "Act") to make and execute financing agreements, contracts,
deeds and other instruments necessary or convenient for the
purpose of facilitating the financing and refinancing of certain
projects, including machinery, equipment, land, rights in land
and other appurtenances and facilities related thereto, to the
end that the Issuer may be able to promote the economic
development of the State of Florida, increase opportunities for
gainful employment and otherwise aid in improving the prosperity
and welfare of said State and its inhabitants, and to provide
such financing through the issuance of revenue bonds; and
WHEREAS, the Issuer proposes to issue its $3,300,000 in
principal amount of Industrial Development Revenue Bonds,
Series 1997 (Sun Belt Precision Products, Inc. Project) (the
"Bonds") pursuant to this Indenture to finance the acquisition,
construction and equipping of a manufacturing facility located in
Tamarac, Florida (the "Project") and to lend the proceeds of the
sale of the Bonds to Sun Belt Precision Products, Inc., a Florida
corporation ("the Company"), pursuant to a Loan Agreement (the
"Agreement") of even date herewith between the Issuer and the
Company; and
WHEREAS, it has been determined that the estimated amount
necessary to finance the cost of the acquisition, construction
and equipping of the Project, including necessary expenses
incidental to the issuance of the Bonds, will require the
issuance, sale and delivery of Bonds in the aggregate principal
amount of $3,300,000, as hereinafter provided; and
WHEREAS, all things necessary to make the Bonds, when
authenticated by the Trustee and issued as in this Trust
Indenture provided, the valid, binding and legal obligations of
the Issuer according to the import thereof, and to constitute
this Trust Indenture a valid lien on the Mortgaged Property and a
valid pledge of revenues to the payment of the principal of and
WPO: (TDICKSON. TAMARAC- SUNBELT) INDM47URE.
July 15, 1997 4:56pm 1
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interest on the Bonds, in accordance with the creation, execution
and delivery of this Indenture and the creation, execution and
issuance of the Bonds, subject to the terms hereof, have in all
respects been duly authorized;
NOW, THEREFORE, KNOW ALL MEN BY THESE PRESENTS, that the
Issuer in consideration of the premises and the acceptance by the
Trustee of the Trusts hereby created and of the purchase and
acceptance of the Bonds by the owners thereof, and the sum of One
Dollar ($1.00), lawful money of the United States of America, to
it duly paid by the Trustee, at or before the execution and
delivery of these presents, and for other good and valuable
considerations, the receipt of which is hereby acknowledged, and
in order to secure the payment of the principal of and interest
on the Bonds according to their tenor and effect and the
performance and observance by the Issuer of all the covenants
expressed or implied herein and in the Bonds, subject to all of
the provisions hereof, does hereby grant, bargain, sell, convey,
mortgage, assign and pledge unto the Trustee, and unto its
successor or successors in trust, and to them and their assigns
forever, for the securing of the performance of the obligations
of the Issuer hereinafter set forth (hereinafter, the "Trust
Estate) :
WPO:(TDICXSON.TAMARAC-StRMELT]INDENTVRE, 2
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All rights of the Issuer under the terms of the Loan
Agreement, including without limitation, all the rights and
interest of the Issuer in and to the Note (except the rights of
the Issuer to indemnification and the payment of certain fees)
and all Revenues and the proceeds thereof;
II
All the rights and interest of the Issuer in and to the Bond
Fund and the Loan Account and all moneys and investments therein,
but subject to the provisions of this Indenture pertaining
thereto, including the making of disbursements therefrom.
III
All the rights and interest of the Issuer in and to the
Mortgage.
IV
Any other property hereinafter pledged or coming into the
possession of the Trustee.
All amounts paid under the Guaranty (except the rights of
the Issuer to indemnification and reimbursement of fees and
expenses) .
TO HAVE AND TO HOLD all the same with all privileges and
appurtenances hereby conveyed and assigned, or agreed or intended
so to be, to the Trustee and its successors in said trusts and to
them and their assigns forever;
IN TRUST NEVERTHELESS, upon the terms and trusts herein set
forth for the equal and proportionate benefit, security and
protection of all owners of the Bonds issued under and secured by
this Indenture with the privileges, priority or distinction as to
lien of the Bonds as provided in the Bond form for the Bonds;
provided, however, that if the Issuer, its successors or assigns,
shall well and truly pay, or cause to be paid, the principal of
the Bonds and the interest due thereon, at the times and in the
manner provided in the Bonds, according to the true intent and
meaning thereof, and shall make the payments into the Bond Fund
as required under Article V or shall provide, as permitted
hereby, for the payment thereof by depositing or causing to be
deposited with the Trustee the entire amount due or to become due
thereon, and shall well and truly keep, perform and observe all
the covenants and conditions pursuant to the terms of this
WPO:[TDICKSON.TAMARAC- SUNBELT) INDENTURE.
July 15, 1997 4:56pm 3
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Indenture to be kept, performed and observed by it, and shall pay
to the Trustee all sums of money due or to become due to it in
accordance with the terms and provisions hereof, then upon such,
final payments this Trust Indenture and the rights hereby granted
shall cease, determine and be void; otherwise, this Indenture to
be and remain in full force and effect.
THIS INDENTURE FURTHER WITNESSETH, and it is expressly
declared, that all Bonds issued and secured hereunder are to be
issued, authenticated and delivered and all property hereby
assigned and pledged and the income, revenues and receipts and
other sums of money payable or receivable under the Loan
Agreement, hereby assigned and pledged are to be dealt with and
disposed of under, upon and subject to the terms, conditions,
stipulations, covenants, agreements, trusts, uses and purposes as
hereinafter expressed, and the Issuer does hereby agree and
covenant, with the Trustee and the respective holders from time
to time of the Bonds, as follows:
WPO:[TDICKSON.TAMARAC-SUNBELTIINDENTEME.
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ARTICLE I
DEFINITIONS
Section 101. Definitions. In addition to the words and
terms elsewhere defined in this Trust Indenture, the following
words and terms as used in this Trust Indenture shall have the
following meanings:
"Act" - Chapter 159, Part II, Florida Statutes, and other
applicable provisions of law.
"Bonds" or "bonds" - the bonds issued under and secured by
this Indenture, designated as provided in Section 202 of this
Indenture.
"Bond Fund" - the fund of the Issuer created by Section 501
of the Indenture into which the funds specified in Article V are
to be deposited and out of which disbursements are to be made as
expressly authorized and directed by this Indenture.
"Clerk" - The person holding the office and performing the
duties of Clerk of the Issuer.
"Code" - The Internal Revenue Code of 1986, as amended from
time to time, including, when appropriate, the statutory
predecessor of the Code, and all applicable regulations
thereunder whether proposed, temporary or final, including
regulations issued and proposed pursuant to the statutory
predecessor of the Code, and, in addition, all official rulings
and judicial determinations applicable to the Bonds under the
Code and under the statutory predecessor of the Code and any
successor provisions to the relevant provisions of the Code or
regulations.
"Company" - The borrower under the Loan Agreement.
"Continuing Disclosure Agreement" - That certain Continuing
Disclosure Agreement between the Company and the Trustee dated as
of the date hereof, as amended from time to time in accordance
with its terms.
"Government Securities" - Direct or fully guaranteed
obligations of the United states of America (including any such
securities issued or held in book -entry form or the books of the
Department of the Treasury of the United States of America).
"Guaranty" - The Guaranty Agreement dated as of August 1,
1997 from Interplex Industries, Inc. to the Issuer and the
Trustee, as supplemented and amended.
WPO:ITDICKSON.TAMAPAC-SUNBELT) MEN= . S
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"Indenture" - This Trust Indenture, together with all
indentures supplemental hereto.
"Issuer" - The City of Tamarac, Florida, a public body
corporate and politic of the State of Florida.
"Loan" - The loan from the Issuer to the Company evidenced
and governed by the Loan Agreement.
"Loan Account" - The account created by Section 602 into
which the portion of the proceeds of the sale of the Bonds
specified in Section 602 is to be deposited and out of which
disbursements are to be made in the manner and for the purposes
specified in Article VI of this Indenture.
"Loan Agreement" - The Loan Agreement between the Issuer and
the Company dated as of August 1, 1997, providing for a loan to
the Company for payment of the Project costs.
"Mayor" - The Mayor of the Issuer, elected from time to
time, or the Vice --Mayor acting by virtue of the incapacity or
absence of the Mayor.
"Mortgage" - The Mortgage (Including Security Agreement,
Assignment of Rents and Leases, and Future Advances) given by the
Company to the Issuer to secure the loan made by the Issuer to
the Company under the Loan Agreement, dated as of August 1, 1997,
and appearing of public record in the office of the Clerk of the
Circuit Court of the county in Florida in which the Project is
located having been filed of record.
"Mortgaged Property" - All of the properties, whether real
or personal, tangible or intangible, mortgaged and pledged to the
Issuer under the Loan Agreement as well as all other properties
which, under the terms of this Indenture subsequently become
subject to the lien of the Indenture, including the properties,
interests and rights set forth in the granting clauses of this
Indenture.
"Note" - The promissory note executed and delivered by the
Company to the Issuer pursuant to the terms of the Loan
Agreement.
"Outstanding hereunder" - "Bonds outstanding hereunder" -
All Bonds which have been authenticated and delivered under the
Indenture except:
(a) Bonds canceled because of payment or redemption
prior to maturity;
WPO:(TDICKSON.TAMAPAC-SUNBELT)INDENTME.
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(b) Bonds for the payment or redemption of which cash
or investment securities in the amount required by Section 901 of
the Indenture shall have been theretofore deposited with the
Trustee (whether upon or prior to the maturity or redemption date
of any such Bonds) provided that if such Bonds are to be redeemed
prior to the maturity thereof, notice of such redemption shall
have been given or satisfactory provision shall have been made
therefor, or a waiver of such notice satisfactory in form to the
Trustee shall have been filed with the Trustee; and
(c) Bonds in lieu of which others have been
authenticated under Section 207.
"Owner" or "Bondowner" or "owner of the bonds" - The
registered owner of any Bond.
"Paying Agent" - The bank or trust company named by the
Issuer as the place at which the principal of and interest on the
Bonds is payable. The original Paying Agent is the Trustee.
References to Paying Agent include any alternate Paying Agent.
"Person" - Includes natural persons, firms, associations,
corporations and public bodies.
"Project" - The improvements, equipment and facilities being
financed out of the proceeds of the Bonds, together with other
expense in connection therewith, including architectural and
engineering fees, and the costs of the issuance of the Bonds.
"Revenues" - The income, including penalties and interest,
derived by the Issuer under the Loan Agreement and the Mortgage
and from the Mortgaged Property, and also amounts payable under
the Guaranty.
"State" - The State of Florida.
"Temporary Bonds" - Bonds issued pursuant to Section 212 of
the Indenture if definitive bonds are not available upon the
initial delivery of the Bonds.
"Trustee" - The Trustee appointed from time to time
hereunder, whether original or successor, with the original
Trustee being First Union National Bank, Miami, Florida. The
Trustee is also a Paying Agent and Registrar.
"Underwriter" - Greenwich Partners, LLC, or its successors
or assigns.
Section 102. Use of Words. Words of the masculine gender
shall be deemed and construed to include correlative words of the
feminine and neuter genders. Unless the context shall otherwise
WPO: (TDICKSON. TAMARAC- SUNBELT] INDENTURE. 7
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indicate, the word "bond," "owner," "holder," and "person" shall
include the plural, as well as the singular, number.
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ARTICLE II
THE BONDS
Section 201. I nuance of Bonds. No Bonds may be issued
under the provisions of this Indenture except in accordance with
this Article.
Section 202. Details of Bonds. There is authorized to be
issued under this Indenture bonds which shall be designated
"Industrial Development Revenue Bonds, Series 1997 (Sun Belt
Precision Products, Inc., Project) (the "Bonds"), and shall be in
the original principal amount of $3,300,000. The Bonds will be
dated August 1, 1997, and interest thereon shall be payable as
set forth in the form of Bond set forth as Exhibit "A" to this
Indenture. The Bonds shall be issued in registered form, in
denominations of $5,000 or integral multiples thereof and the
principal amount shall be payable, unless sooner redeemed in the
manner provided in this Indenture, as set forth in the form of
Bond.
Section 203. Execution of Bonds. The Bonds shall be
executed on behalf of the Issuer by its Mayor (by his original or
facsimile signature) and attested by the Clerk (by his original
or facsimile signature) thereof, and shall have impressed thereon .
the seal of the Issuer. The Mayor and Clerk shall file the
certificates required by the Uniform Facsimile Signature of
Public Officials Act (Section 113.34, Florida Statutes) and
otherwise comply with the provisions of that act, and their
facsimile signatures shall have the same force and effect as if
they had personally signed. In case any officer whose signature
or facsimile of whose signature shall appear on the Bonds shall
cease to be such officer before the delivery of such Bonds, such
signature or such facsimile shall nevertheless be valid and
sufficient for all purposes, the same as if he had remained in
office until delivery.
Section 204. Authentication. Only such Bonds as shall
have endorsed thereon a Certificate of Authentication
substantially in the form set forth on the form of Bond duly
executed by the Trustee shall be entitled to any right or benefit
under this Indenture. No Bond shall be valid and obligatory for
any purpose unless and until such Certificate of Authentication
shall have been duly executed by the Trustee, and such
Certificate of the Trustee upon any such Bond shall be conclusive
evidence that such Bond has been authenticated and delivered
under this Indenture. The Trustee's Certificate of
Authentication on any Bond shall be deemed to have been executed
if signed by an authorized officer of the Trustee, but it shall
WPO-CTDICKSON.TAMARAC-SUMELTIINDENTURE. 9
July 15, 1997 4:56pm
not be necessary that the same officer sign the Certificate of
Authentication on all of the Bonds issued hereunder.
The Trustee shall not initially authenticate the Bonds until
having received those items required by Sections 4.2 and 6.1 of
the Loan Agreement.
Section 205. Form of Bond. The Bonds issued under this
Indenture shall be substantially in the form set forth in
Exhibit "A" hereto with such appropriate variations, omissions
and insertions as are permitted or required by this Indenture.
Section 206. Delivery of Bonds. Upon the execution and
delivery of this Indenture, the Issuer shall execute and deliver
to the Trustee and the Trustee shall authenticate the Bonds and
deliver them to or at the direction of the Underwriter upon
payment of the purchase price plus accrued interest from the date
of the Bonds to the date of delivery, and the Trustee shall be
entitled to rely upon any certificate, ordinance or resolution as
to the purchase price.
Section 207. Mutilated, Destroyed or Lost Bonds. In case
any Bond issued hereunder shall become mutilated or be destroyed
or lost, the Issuer shall, if not then prohibited by law, cause
to be executed and the Trustee may authenticate and deliver a new
Bond of like date, number, maturity and tenor in exchange and
substitution for any such mutilated, destroyed or lost Bond, upon
the owners paying the reasonable expenses and charges of the
Issuer and the Trustee in connection therewith, and, in case of a
Bond destroyed or lost, his filing with the Trustee of evidence
satisfactory to it that such Bond was destroyed or lost, and of
his ownership thereof and furnishing the Issuer and the Trustee
with indemnity satisfactory to them. The Trustee is hereby
authorized to authenticate any such new Bond. In the event any
such Bonds shall have matured, instead of issuing a new Bond, the
Issuer may pay the same without the surrender thereof.
Section 208. Reaistration of -Principal anddInterest . The
Issuer shall cause books for the registration and for the
transfer of the Bonds as provided in this Indenture to be kept by
the Trustee as Bond Registrar. Any Bond may be transferred only
upon an assignment duly executed by the registered owner or his
attorney or legal representative in such form as shall be
satisfactory to the Bond Registrar, such transfer to be made on
such books and endorsed on the Bond by the Bond Registrar. The
principal of any Bond shall be payable only to or upon the order
of the registered owner or his legal representative. Interest
shall be paid by check or draft at the times provided therein to
the registered owner by mail to the address shown on the
registration books.
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The person in whose name any Bond shall be registered shall
be deemed and regarded as the absolute owner thereof for all
purposes and payment of or on account of the principal of any
such Bond shall be made only to or upon the order of the
registered owner thereof, or his legal representative, and
neither the Issuer, the Trustee, nor the Bond Registrar shall be
affected by any such notice to the contrary, but such
registration may be changed as herein provided. All such
payments shall be valid and effectual to satisfy and discharge
the liability upon such Bond to the extent of the sum or sums so
paid.
Section 209. PayMent on Saturday,_g3andav or Holiday. In
any case where the date of maturity of interest on or principal
of the Bonds or the date fixed for redemption of any Bonds shall
be a Saturday or Sunday or shall be in the State of Florida a
legal holiday or a day on which banking instit'(.t,ions are
authorized by law to close, then payment of interest or principal
(and premium, if any) need not be made on such date but may be
made on the next succeeding business day not a Saturday or Sunday
or a legal holiday or a day upon which banking institutions are
authorized by law to close with the same force and effect as if
made on the date of maturity or the date fixed for redemption,
and no interest shall accrue for the period after the date of
maturity or date fixed for redemption.
Section 210. Interest Commencement Date. The Interest .
Commencement Date for Bonds issued on a date before any interest
has been paid shall be August 1, 1997. Otherwise, each Bond,
upon subsequent transfer, shall be dated as of the interest
payment date to which interest has been paid. Payment of each
installment of interest shall be made to the person in whose name
the Bond is registered on the registration books of the Trustee
as Bond Registrar at the close of business on the fifteenth day
of the month (whether or not a business day) next preceding each
interest payment date, irrespective of any transfer or change of
any such Bond subsequent to such date.
Section 211. Cancellation. All Bonds which are paid,
either at maturity or redemption prior to maturity, shall be
canceled and, at the option of the Trustee, either (i) cremated,
shredded or otherwise disposed of or (ii) returned to the Issuer.
In the case of cremating, shredding or other disposition pursuant
to (i) above, the Trustee shall execute and forward to the Issuer
an appropriate certificate describing the Bonds involved and the
manner of disposition.
Section 212. Temporary Bonds. The Issuer shall have the
right to execute and deliver Temporary Bonds reflecting the
indebtedness secured hereby, which Temporary Bonds, if issued and
delivered, shall be entitled to the same security, rights and
WPO:[TDICKSON.TAMABAC-SUNBELT]INDENTM . 1
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protection provided under this Indenture for Bonds in definitive
form. Temporary Bonds of the Issuer, if executed, authenticated
and delivered shall be replaced by Bonds in definitive form by
the Trustee when the Temporary Bonds are returned to the Trustee
for exchange. All Temporary Bonds, when returned to the Trustee
and when exchanged for Bonds in definitive form shall then be
canceled at the option of the Trustee, either (i) cremated,
shredded or otherwise disposed of and/or (ii) returned to the
Issuer. In the case of cremating, shredding or other disposition
pursuant to (i) above, the Trustee shall execute and forward to
the Issuer an appropriate certificate reflecting the Temporary
Bonds involved and the manner of disposition.
Section 213. Additional Bonds. The Issuer, at the request
of the Company and to the extent permitted by law in effect at
the time thereof, may, at its option, issue from time to time one
or more series of Additional Bonds for the purposes of making
improvements to the Mortgaged Property or acquiring equipment for
use at the Project. Additional Bonds shall be secured equally
and ratably with the Bonds and any other Additional Bonds
theretofore issued and then outstanding, except insofar as any
terms or conditions of redemption or purchase established under
this Indenture may afford additional benefit or security for the
Bonds of any particular series.
The right to issue Additional Bonds set forth in this
Indenture shall not imply that the Issuer may not issue, and the
Issuer expressly reserves the right to issue, to the extent
permitted by law, obligations under another indenture or
indentures to provide additional funds to pay Project costs, or
to refund all or any principal amount of all or any series of
Bonds, or any combination thereof, and the provisions of this
Indenture governing the issuance of Additional Bonds shall not
apply thereto.
The proceeds of the issuance and sale of any series of
Additional Bonds, including purchase premium, if any, and accrued
interest, if any, thereon to the date of delivery thereof paid by
the purchasers thereof, shall be applied simultaneously with the
delivery of such Additional Bonds in the manner provided in this
Indenture and in the supplemental indenture authorizing such
Additional Bonds.
Section 214. Book Entry „Bonds and Agent Therefor.
(a) The Bonds shall be issued only as fully registered
bonds and, except as hereinafter provided, in printed or
typewritten form, registered initially in the name of Cede & Co.,
as nominee of The Depository Trust Company ("DTC"), which shall
be considered to be the Owner of the Bonds for all purposes under
the Indenture, including, without limitation, payment by the
WPO:(TDICKSON.TAMARAC- SUNBELT) INDENTURE. 1 2
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Issuer of principal of, redemption price, premium, if any, and
interest on the Bonds, and receipt of notices and exercise of
rights of owners. There shall be one Bond for each stated
maturity date of the Bonds which shall be immobilized in the
custody of DTC with the beneficial owners having no right to
receive the Bonds in the form of physical securities or
certificates. DTC and its participants shall be responsible for
maintenance of records of the ownership interests of beneficial
interests in the Bonds by book entry on the system maintained and
operated by DTC and its participants, and transfers of ownership
of beneficial interests shall be made only by DTC and its
participants, by book entry, the Issuer having no responsibility
therefor. DTC is expected to maintain records of the positions
of participants in the Bonds, and the participants and persons
acting through participants are expected to maintain records of
the purchasers of beneficial interests in the Bonds. The Bonds
as such shall not be transferable or exchangeable, except for
transfer to another securities depository or to another nominee
of a securities depository, without further action by the Issuer.
(b) If any securities depository determines not to
continue to act as securities depository for the Bonds for use in
a book entry system, the Issuer may establish a securities
depository/book entry system relationship with another securities
depository. If the Issuer does not or is unable to do so, or
upon request of the beneficial owners of all Outstanding Bonds,
the Issuer and the Bond Registrar, after the Bond Registrar has
made provision for notification of the beneficial owners by the
then securities depository, shall permit withdrawal of the Bonds
from the securities depository, and authenticate and deliver Bond
certificates in fully registered form (in denominations of $5,000
or integral multiples thereof) to the assigns of the securities
depository or its nominee, all at the cost and expense (including
costs of printing definitive Bonds) of the Company or of the
beneficial owners of the Bonds.
(c) Prior to issuance of the Bonds, the Issuer shall
have executed and delivered to DTC a Letter of Representations
setting forth certain undertakings and responsibilities of the
Issuer with respect to the Bonds so long as the Bonds or a
portion thereof are registered in the name of Cede & Co. (or a
substitute nominee) and held by DTC. Notwithstanding such
execution and delivery of the Letter of Representations, the
terms thereof shall not in any way limit the provisions of
Section 214 hereof or in any other way impose upon the Issuer any
obligation whatsoever with respect to persons having interests in
the Bonds other than the Owners, as shown on the registration
books kept by the Bond Registrar. The Bond Registrar shall take
all action necessary for all representations of the Issuer in the
Representation Letter with respect to the paying agents and the
Bond Registrar, respectively, to at all times be complied with.
WPO:[TDICKSON.TAMARAC-SUMELT]INDEN= .
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Section 215. Issuer to Facilitate Use of Securities
De osit The authorized officers of the Trustee and the
Issuer shall do or perform such acts and execute all such
certificates, documents and other instruments as they or any of
them deem necessary or advisable to facilitate the efficient use
of a securities depository for all or any portion of the Bonds;
provided that neither the Trustee nor the Issuer may assume any
obligations to such securities depository or beneficial owners of
Bonds that are inconsistent with their obligation to any Owner
under this Indenture.
WPO:(TDICKSON.TAMAkAC-SUNBELTJINDWTURE. 4
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ARTICLE III
REDEMPTION OF BONDS BEFORE MATURITY
Section 301. Redemption. The Bonds shall be callable for
redemption prior to maturity in accordance with the provisions
pertaining thereto appearing in the form of Bond set forth as
Exhibit "A" to this Indenture.
Section 302. Notice of Redemption. Notice of the call for
redemption shall be by registered or certified mail to the owner
or owners of the Bonds not less than thirty (30) days nor more
than sixty (60) days prior to the date fixed for redemption, and
published notice of the call for redemption need not be given.
Each notice shall specify the numbers and the maturities of the
Bonds being called, and the date on which they shall be presented
for payment.
Simultaneously with notice to owners, notice of such
redemption also shall be sent by registered or certified mail to
at least two of the national information services and securities
depositories (described below) that disseminate securities
redemption notices.
Securities Depositories include 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; Pacific
Securities Depository Trust Company, Pacific and Company,
P.O. Box 7041, San Francisco, California 94120; Philadelphia
Depository Trust Company, Reorganization Division, 1900 Market
Street, Philadelphia, Pennsylvania 19103, Attention: Bond
Department; o , in accordance with the then current guidelines of
the Securities and Exchange Commission, to such other addresses
and/or such other securities depositories as the Company may
designate in writing to the Trustee.
Information services include Financial Information, Inc.
"Daily Called Bond Service," 30 Montgomery Street, loth Floor,
Jersey City, New Jersey 07302, Attention: Editor; Kenny
Information Services, "Called Bond Service," 55 Broad Street,
28th Floor, New York, New York 10004; Moody's Investors Service
"Municipal and Government," 99 Church Street, 8th Floor, New
York, New York 10007, Attention: Municipal News Reports; and
Standard and Poor's Corporation "Called Bond Record,"
25 Broadway, New York, New York 10004; or, in accordance with the
then current guidelines of the Securities and Exchange
Commission, to such other addresses and/or such other services
providing information with respect to called Bonds, or any other
such services as the Issuer may designate in writing to the
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Trustee. Failure to give notice by mailing to the Owner of any
Bond designated for redemption or to any depository or
information service shall not affect the validity of the
proceedings for the redemption of any other Bond.
Section 303. R em ti n Payments. Prior to the date fixed
for redemption, funds shall be deposited with the Trustee to pay,
and the Trustee is hereby authorized and directed to apply such
funds to the payment of, the Bonds called, together with accrued
interest thereon to the redemption date and any required premium.
Upon the giving of notice and the deposit of funds for
redemption, interest on the Bonds thus called shall cease to
accrue after the date fixed for redemption until such Bond shall
have been delivered for payment or cancellation or the Trustee
shall have received the items required by Section 207 hereof with
respect to any mutilated, lost, stolen or destroyed Bond.
Section 304. Cancellation. All Bonds which have been
redeemed shall be canceled by the Trustee and shall be returned
to the Issuer.
WPO:[TDICKSON.TAMARAC-SUNBELT]INDENTURE. � 6
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ARTICLE IV is
GENERAL COVENANTS
Section 401. Payment of Principal and Interest. The
Issuer covenants that it will promptly pay the principal of,
premiums, if any, and interest on every Bond issued under this
Indenture at the place, on the dates and in the manner provided
herein and in the Bonds according to the true intent and meaning
thereof. The principal, premiums and interest (except interest,
if any, paid from accrued interest) are payable solely from the
Revenues, which Revenues are hereby -specifically pledged to the
payment thereof in the manner and to the extent herein specified,
and nothing in the Bonds or in this Indenture should be
considered as pledging any other fundc or assets of the Issuer
(except the securing of the indebtedness evidenced by the Bonds
by the provisions of the Loan Agreement). Anything in this
Indenture to the contrary notwithstanding, it is understood that
whenever the Issuer makes any covenants involving financial
commitments, including, without limitation, those in the various
sections of this Article IV, it pledges no funds or revenues
other than the Revenues and the right, title and interest of the
Issuer in the Loan Agreement (except for the obligations of the
Company to pay Issuer's expenses and to indemnify the Issuer) and
the revenues derived from the avails of the Mortgaged Property,
but nothing herein shall be construed as prohibiting the Issuer
from using any other funds and revenues.
Section 402. Pgrformance of C v n n s. The Issuer
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. The Issuer covenants that
it is duly authorized under the Constitution and laws of the
State, including particularly and without limitation the Act, to
issue the Bonds authorized hereby and to execute this Indenture
and to make the pledge and covenants 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 Issuer according to the import
thereof.
Section 403. Instruments of Further Assurance. The Issuer
covenants that it will do, execute, acknowledge and deliver or
cause to be done, executed, acknowledged and delivered, such
Indenture or Indentures supplemental hereto and such further
acts, instruments and transfers as the Trustee may reasonably
require for the better assuring, transferring, mortgaging,
WPO: [=ICKSON. TAMARAC- SUNBELT] INDENTURE. 1
July 15, 1997 4:56pm
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pledging, assigning and confirming to the Trustee the Trust
Estate.
Section 404. Recordation of Financing Statements. The
Company has agreed pursuant to the Loan Agreement that it will
cause all financing statements related to this Indenture and all
supplements hereto to be recorded and filed in such manner and in
such places as may from time to time be required by law in order
to perfect fully the security of the Owners of the Bonds and the
rights of the Trustee hereunder, and to take or cause to be taken
any and all other action necessary to perfect the security
interest created by this Indenture.
Section 405. Books of Record and Account; Inspection. The
Issuer covenants that so long as any Bonds issued hereunder and
secured by this Indenture shall be outstanding and unpaid, the
Issuer shall keep books of record and account in which complete
and correct entries shall be made of its transactions relating to
the Project and which shall, together with all books and papers
of the Issuer, including insurance policies relating to the
Project, at.all times be subject to the inspection of the Trustee
and the owner or owners of not less than 15V in principal amount
of the Bonds then outstanding or their representatives duly
authorized in writing.
Section 406. List of Bond wne s. At reasonable times and
under reasonable regulations established by the Trustee the list
of the names and addresses of the registered owners of the Bonds
may be inspected and copied by owners (or a designated
representative thereof) of ten percent (10t) or more in principal
amount of Bonds outstanding hereunder, such ownership and the
authority of any such designated representative to be evidenced
to the satisfaction of the Trustee.
Section 407. Lien of Trust -Indenture; Enforcement of
obligations and Rights. The Issuer covenants that so long as any
Bonds authorized by and issued under this Indenture are
outstanding, it will not convey or otherwise dispose of its
interest in the Mortgaged Property, and that it will not encumber
the same, or any part thereof, or its interest therein, or create
or permit to be created any charge or lien on the Revenues
derived therefrom, except as provided in this Indenture. Nothing
contained herein shall prohibit the Issuer from issuing Bonds the
payment for which specified revenues of a particular project or
projects is pledged as provided in the Act, it being the purpose
of this covenant to limit only a subsequent pledge of the
Mortgaged Property and Revenues as defined in this Indenture.
Section 410. govenants of Issuer Not tg Take or Permit
Actions or Conditions That would Caus_e_Interest to be Subiect to
Federal Income Taxation. The Issuer and the Trustee covenant
WpO:(TDICKSON.TAMARAC- SUNBELT) INDENTURE. 1 S
July 15, 1997 4:56pm
(� , ly 1'`'`�
that neither of them shall take any action which causes or may
cause the interest payable on the Bonds to be subject to federal
income taxation. The Issuer and the Trustee specifically
covenant that the proceeds of sale of the Bonds or investment
income thereon and other amounts within the custody or control of
the Issuer or the Trustee will not be used directly or indirectly
in any manner which, if reasonably expected on the date of
issuance of the Bonds, would have caused the Bonds to be treated
as "arbitrage bonds" within the meaning of Section 148 of the
Code and the regulations thereunder applicable to obligations
issued on the date of issuance of the Bonds.
Section 411. Continuing Disclo§ure. The Trustee hereby
covenants and agrees that it will comply with and carry out its
obligations under the provisions of the Continuing Disclosure
Agreement. Notwithstanding any other provision of this
Indenture, failure of the Trustee or the Company to comply with
the Continuing Disclosure Agreement shall not be considered an
Event of Default; however, the Trustee may (and, at the request
of any Participating Underwriter (as defined in the Continuing
Disclosure Agreement) or the Owner of at least 25% aggregate
principal amount of Outstanding Bonds, shall) or any Bondowner or
Beneficial Owner may take such actions as may be necessary and
appropriate, including seeking mandate or specific performance by
court order, to cause the Company or the Trustee, as the case may
be, to comply with its obligations under this Section. For
purposes of this Section, "Beneficial Owner" means any person
which (a) has the power, directly or indirectly, to vote or
consent with respect to, or to dispose of ownership of, any Bonds
(including persons holding Bonds through nominees, depositories
or other intermediaries), or (b) is treated as the owner of any
Bonds for federal income tax purposes."
r�
WPO:(TDICKSON.TAMARAC-SUNBELT]INDENTURE. 19
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0 ARTICLE V
REVENUE AND FUNDS
Section 501. Creation of Funds. There is hereby created
and established with the Trustee a special fund known as the
"Bond Fund."
There shall be deposited into the Bond Fund as and when
received:
(a) The proceeds of the sale of the Bonds less amounts
set forth in Section 601 hereof;
(b) The payments on the Note, and other moneys paid by
the Company, pursuant to the Loan Agreement;
(c) All amounts paid under the Mortgage;
(d) All amounts paid under the Guaranty;
(e) Amounts transferred to the Bond Fund pursuant to
the provisions of Section 604 hereof; and
(f) All other moneys received by the Trustee under and
pursuant to any of the provisions of this Indenture which are not
directed to be paid in a fund other than the Bond Fund.
Money in the Bond Fund shall be kept in separate accounts
and apart from other funds or accounts and shall be pledged,
appropriated, used and transferred to other funds for the
purposes specified in this Article and while separately
designated are deemed to be moneys of the Bond Fund as defined.
These separate accounts are as follows:
(a) The Interest Account (See Section 503);
(b) The Bond Redemption Account (see Section 504);
(c) The Loan Account (see Section 602).
Section 502. Use of Moneys,. in Bond Fund. The Bond Fund
shall be in the name of the Issuer, and the Issuer hereby
irrevocably authorizes and directs the Trustee to withdraw from
the Bond Fund as specified herein sufficient funds to pay the
principal of, premium, if any, and interest on the Bonds at
maturity and redemption or prepayment prior to maturity, and to
remit the funds to the Paying Agent for the purpose of paying the
principal and interest in accordance with the provisions hereof
pertaining to payment, which authorization and direction the
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Trustee hereby accepts. The Trustee agrees to make demand under
the Guaranty for the purpose of paying when due the principal of
and interest on the Bonds if moneys in the Bond Fund are not
sufficient for such purpose.
Section 503. Interest Account. There is hereby created
with the Trustee as part of the Bond Fund an "Interest Account"
for the purpose of paying interest on the Bonds. The Trustee
will cause to be transferred to the Interest Account in the Bond
Fund an amount sufficient to pay the interest on the Bonds as the
same become due, and to be used for no other purpose unless
authorized by Section 511 hereof. The amount so transferred to
the Interest Account shall be made at least one (1) day prior to
the interest payment specified in Section 1403.
Section 504. Bond Redem Lion Account. There is hereby
created with the Trustee as part of the Bond Fund a "Bond
Redemption Account" for the purpose of paying the principal and
premium, if any, on the Bonds issued under the Indenture.
After making deposits hereinabove required to be made to the
Interest Account, the Trustee will cause to be transferred to the
Bond Redemption Account an amount sufficient to pay the principal
of and premium, if any, as the same becomes due at maturity or at
redemption prior to maturity. All moneys in the Bond Redemption
Account shall be used solely for the purpose of paying the
principal and premium, if any, of the Bonds at maturity or at
their early redemption.
It shall be the duty of the Trustee to see to the withdrawal
from the Bond Redemption Account at least one (1) day before the
maturity or redemption date of any Bond issued hereunder and then
outstanding and see to the deposit with the Paying Agent, if a
different institution, of an amount equal to the amount due for
such Bonds for the sole purpose of paying the same, and no
withdrawal from the Bond Redemption Account shall be made for any
other purpose.
Section 505. Non. -presentment of Bonds. In the event any
Bonds shall not be presented for payment when the principal
thereof becomes due, either at maturity or otherwise, or at the
date fixed for redemption thereof, if there shall have been
deposited with the Paying Agent for that purpose, or left in
trust if previously so deposited, funds sufficient to pay the
principal thereof, together with all interest unpaid and due
thereon, to the date of maturity thereof, for the benefit of the
owner, all liability of the Issuer to the owner thereof for the
payment of the principal thereof and interest thereon shall
forthwith cease, terminate and be completely discharged, and
thereon it shall be the duty of the Paying Agent to hold such
fund or funds, without liability for interest thereon, for the
WPO:[TDICXSON.TAMAP-AC- SMELT) INDEN= . � 1
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C7
•
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benefit of the owner of such Bond who
restricted exclusively to such fund or
whatever nature on his part under this
respect to, the Bond.
Section 506. Reserved.
Section 507. Reserved.
Section 508. Reserved.
shall thereafter be
funds, for any claim of
Indenture or on, or with
Section 509. Fees Charges and E2Menges of Trustee and
Paying Acrent. It is understood and agreed that pursuant to the
provisions of the Loan Agreement, the Company agrees to pay the
reasonable fees, expenses and charges of the Trustee and Paying
Agent as authorized and provided by this Indenture. The Company
is to make payments on statements rendered by the Trustee. All
such additional payments under the Loan Agreement which are
received by the Trustee shall be expended solely for the purpose
for which such payments are received, and the Trustee hereby
agrees to make payment for said purposes.
Section 510. Moneys to be _Held in Trust. All moneys
required to be deposited with or paid to the Trustee 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 which redemption
has been duly given, shall, while held by the Trustee, constitute
part of the trust estate and be subject to the lien hereof. If
the Issuer shall receive any moneys pursuant to applicable
provisions of the Loan Agreement, it will forthwith upon receipt
thereof pay the same over to the Trustee to be held, administered
and disbursed by the Trustee in accordance with the provisions of
the Loan Agreement, pursuant to which the. Issuer may have
received the same. Furthermore, if for any reason the Loan
Agreement ceases to be in force and effect while any Bonds are
outstanding, and if the Issuer shall receive any moneys derived
from the Mortgaged Property, it will forthwith upon receipt
thereof pay the same over the Trustee to be held, administered
and disbursed by the Trustee in accordance with provisions of the
Loan Agreement that would be applicable if the Loan Agreement
were then in force and effect, and if there be no such provisions
which would be so applicable, then the Trustee shall hold,
administer and disburse such moneys solely for the discharge of
the Issuer's obligations under this Indenture.
Section 511. Refunds to Cam an . Anything herein to the
contrary notwithstanding, so long as an event of default has not
occurred and is continuing under this Indenture or under the Loan
Agreement, the Trustee is authorized and directed to refund to
the Company on January 1 annually all excess amounts remaining in
WPO:(TOICKSON.TAMARAC-SUNBELT]INOENTURE. 22
July 15, 1997 4:56pm
(� I 1� ' ��
the Bond Redemption and the Interest Accounts of the Bond Fund
after payment of all amounts due in the previous twelve months
including the Trustee's fees and expenses. The foregoing
notwithstanding, moneys in the Interest Account and Bond
Redemption Account in the Bond Fund being held pending redemption
of Bonds shall not be refunded to the Company.
•
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WPO.(TDICXSDN.TAMARAC- SUNBELT) INDENTURE. i 3
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g - 5 -7-1 �f
0 ARTICLE VI
CUSTODY AND APPLICATION OF PROCEEDS OF BONDS
Section 601. Disbursement of Proceeds; Issuance Casts.
When the Bonds have been executed as provided in this Indenture,
they shall be delivered to the Trustee which shall authenticate
them and deliver them to the Purchaser. The Trustee shall
disburse the moneys received as proceeds of the Bonds as
specified in the written instructions of the Issuer for the
following purposes and none other:
The costs of issuing the Bonds in the amount designated by
the Issuer shall be deposited into a temporary fund hereby
created and designated the "Cost of Issuance Fund" and applied at
the written direction of the Company to pay costs associated with
the issuance of the Bonds. On the date which is six months from
the date of issuance of the Bonds, the Trustee shall transfer any
balance in the Cost of Issuance Fund to the Bond Fund to be
applied toward payment of the interest due on the Bonds.
The balance shall be applied as provided in Section 602
hereof .
Section 602. Deposit in the Loan Account. After making
the necessary use of funds as provided in Section 601 above, the
Trustee shall then deposit the remainder of the proceeds in a
special account of the. Issuer in the "Loan Account".
Section 603. Disbursements from the Loan Account. Moneys
in the Loan Account shall be disbursed to the Company for Project
costs which shall include costs of acquisition, costs of
construction, architect's and engineer's fees, payment of interim
indebtedness of the company incurred for Project costs, and all
other necessary expenses incidental to the accomplishment of the
purposes of the Loan Agreement if permitted by the Code. The
Trustee shall disburse funds from the Loan Account upon
presentation of a completed Requisition in the form attached as
Exhibit "C" to the Loan Agreement. The Trustee shall be under no
obligation to investigate the accuracy of the matters set forth
in such Requisition, but shall rely on the matters asserted
therein.
Section 604. Transfer to Bond Fund. Whenever the Company
shall notify the Trustee in writing that any balance remaining in
the Loan Account will not be needed for completion of the Project
pursuant to Section 4.8 of the Loan Agreement, the remaining
balance shall be deposited into the Bond Redemption Account and
used to redeem Bonds on the first optional redemption date or to
pay principal of the Bonds if, in the opinion of bond counsel
WPO:(TDICKSON.TAMARAC-SUNBELTIINDENTURE. 2 4
July 15, 1997 4:56pm
(,? -� -7- � '�S
acceptable to the Trustee, such use will not affect the
excludability from gross income of the interest on the Bonds for
federal income tax purposes.
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C-rr7-/q.4-
0 ARTICLE VII
Section 701. Investment of Moneys in Funds. Moneys on
deposit with the Trustee shall be invested at the written
direction of the Company as follows:
(a) Moneys held for the credit of the Loan Account
shall, upon direction by the Company, be invested and reinvested
by the Trustee in (i) Government Securities, (ii) commercial
paper rated A-1 or better by Standard & Poor's, (iii) savings
accounts, time deposits or certificates of deposit in any bank,
including the Trustee, organized under the laws of the United
States of America or any State thereof having a combined capital,
surplus and undivided profits, or net worth, of not less than
$10,000,000, provided that such accounts or deposits shall be
secured by Government Securities to the extent not insured by the
Federal Deposit Insurance Corporation, (iv) money market funds or
pooled or mutual investment funds whose assets consist primarily
of United States Treasury obligations or securities issued or
guaranteed by the United States Government or any agency thereof
(including any such fund managed by the Trustee) and whose
average maturity of such investment is less than twelve (12)
months, (v) tax-exempt securities rated "A+" or better by
Standard & Poor's, (vi) pooled or mutual investment funds whose
assets consist of tax-exempt securities rated "A+" or better by
Standard & Poor's, and (vii) other securities or investments
which are, at the time of investment, approved by Standard and
Poor's for the investment of similar funds for bonds rated "A+"
or better.
All investments shall have maturity dates, or be
subject to redemption by the owner at the option of the owner, or
shall have terms for repurchase, on or prior to the dates the
funds will be needed as reflected by a statement of the duly
designated representative of the Company which statement must be
on file with the Trustee prior to any investment.
(b) Moneys held for the credit of the Interest Account
or Bond Redemption Account in the Bond Fund or any other fund or
account shall to the extent practicable be invested and
reinvested in Government Securities or obligations listed in
Section 701(a)(ii), (iii), (iv) or (vi) which will mature, or
which will be subject to redemption by the holder thereof at the
option of the holder, not later than the date or dates on which
the money held for credit of the particular account shall be
required for the purposes intended.
WPO:(TDICKSON.TAMARAC- SUNBELT) INDENTURE. 2 JU1y 15, 1997 4:56pm
r S i V b
(c) obligations so purchased as an investment of
moneys in any fund or account shall be deemed at all times a part
of such fund or account. Except as provided in Section 507, any
profit and income realized from such investments shall be
credited to the fund or account and any loss shall be charged to
the fund or account.
Section 702. Arbitrage Reggirements. In compliance with
the provisions of Section 148 of the Code and regulations
thereunder, all investments and reinvestments made under this
Article VII shall be subject to the following:
(a) In the event that the Company is of the opinion
that it is necessary or advisable to restrict or limit the yield
on the investment of any moneys held in the Loan Account, the
Bond Fund or any other fund in order to avoid the Bonds being
considered "arbitrage bonds" within the meaning of Section 148 of
the Code, or any proposed, temporary or final regulations
thereunder as such regulations may apply to obligations issued as
of the date of original issuance and delivery of the Bonds, the
Company may issue to the Trustee a written certificate to such
effect together with appropriate, specific written investment
instructions, which the Trustee shall follow.
(b) The Issuer shall not make or agree to make any
payments or participate in any non -arms -length transaction which
would have the effect of reducing the earnings on investments,
thereby reducing the amount required to be rebated to the United
States under Section 148(f) of the Code and regulations
thereunder.
(c) The Company has undertaken in the Loan Agreement
to make the determinations required by paragraph (b) of this
Section 702 and to provide statements to the Trustee to the
effect that all actions with respect to the Bonds required by
Section 148(f) of the Code has been taken. The Trustee shall be
entitled to rely upon such determinations and statements as a
sufficient determination of the facts therein contained.
WPn:[TDICKSDN.TAMARAC- SUNBELT) INDENTURE. 2 7
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•
0 ARTICLE VIII
POSSESSION, USE AND RELEASE OF MORTGAGED PROPERTY
•
•
Section 801. The om an 's Right to Rossess,Use and
En?ov. So long as not otherwise provided in this Indenture or
the Loan Agreement, the Company shall be suffered and permitted
to possess, use and enjoy the Mortgaged Property and
appurtenances.
WPO:(TDICKSON.TAMARAC-SUMMTJINDENTURE.
July 15, 1997 4:56pm 28
ARTICLE IX 0
DISCHARGE OF LIEN
Section 901. Discharge of Lien. If the Issuer shall pay
or cause to be paid to the owners of the Bonds the principal and
interest to become due thereon at the times and in the manner
stipulated therein, together with all fees and expenses due the
Trustee and if the Issuer shall keep, perform and observe all and
singular the covenants and promises in the Bonds and in this
Indenture expressed as to be kept, performed and observed by it
on its part, then these presents and the estate and rights hereby
granted shall cease, determine and be void, and thereupon the
Trustee shall cancel and discharge the lien of this Indenture,
and execute and deliver to the Issuer such instruments in writing
as shall be requisite to satisfy the lien thereof, and reconvey
to the Issuer the estate hereby conveyed, and assign and deliver
to the Issuer the estate hereby conveyed, and assign and deliver
to the Issuer any property at the time subject to the lien of
this Indenture which may then be in its possession, including
trust funds, except funds held by it for the payment of the
principal of and interest on the Bonds.
Any Bond shall be deemed to be paid when payment of the
principal of and premium, if any, and interest on such Bond
(whether at maturity or upon redemption or otherwise), either
(i) shall have been made or caused to be made in accordance with
the terms of the Indenture, or (ii) shall have been provided for
by irrevocably depositing with the Trustee, in trust and
irrevocably setting aside exclusively for such payment,
(1) moneys sufficient to make such payment or (2) Government
Securities (provided that such deposit will not affect the tax--
exempt status of the interest on any of the Bonds or cause any of
the Bonds to be classified as "arbitrage bonds" within the
meaning of Section 148 of the Code), maturing as to principal and
interest in such amount and at such times as will provide
sufficient moneys to make such payments, and all necessary and
proper fees, compensation and expenses of the Trustee and any
Paying Agent pertaining to the Bonds with respect to which such
deposit is made and all other liabilities of the Company under
the Loan Agreement shall have been paid or the payment thereof
provided for to the satisfaction of the Trustee.
The Issuer may at any time surrender to the Trustee for
cancellation by it any Bonds previously authenticated and
delivered hereunder, which the Issuer may have acquired in any
manner whatsoever, and such Bonds upon such surrender and
cancellation, shall be deemed to be paid and retired.
•
WPO:[TDICKSON.TAMAPAC-SUNBELT]INDENTURE. 2 9
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0 ARTICLE X
DEFAULT PROVISIONS AND
REMEDIES OF TRUSTEE AND BONDOWNERS
Section 1001. Events of Default. If any of the following
events occur, subject to the provisions of Section 1012 hereof,
it is hereby defined as and declared to be and to constitute an
"event of default";
(a) Default in the due and punctual payment of any
interest on any Bond hereby secured and outstanding;
(b) Default in the due and punctual payment of the
principal of, and premium, if any, on any Bond hereof secured and
outstanding, whether at the stated maturity thereof, or upon
proceedings for redemption thereof, or upon the maturity thereof
by declaration;
(c) Default in the performance or observance of
covenants, agreements or conditions to be performed in this
Indenture, the Loan Agreement, or in the Bonds contained, and the
continuance thereof for a period of fifteen (15) days after
written notice to the Issuer by the Trustee or by the owners of
not less than ten percent (10t) in aggregate principal amount of
Bonds outstanding hereunder.
The term "default" shall mean default by the Issuer in the
performance or observance of any of the covenants, agreements or
conditions on its part contained in this Indenture, or in the
Bonds outstanding hereunder, exclusive of any period of grace
required to constitute a default an "event of default" as
hereinabove provided.
Section 1002. Acceleration. Upon the occurrence of an
event of default, the Trustee may, and upon the written request
of the owners of twenty-five percent (25k) in aggregate principal
amount of Bonds outstanding hereunder, shall, by notice in
writing delivered to the Issuer, declare the principal of all
Bonds hereby secured then outstanding and the interest accrued
thereon immediately due and payable and such principal and
interest shall thereupon become and be immediately due and
payable.
Section 1003. Trustee's Right to Enter and Take Possession.
Upon the occurrence of an event of default, the Issuer, upon
demand of the Trustee, shall forthwith surrender to it the actual
possession of, and it shall be lawful for the Trustee, by such
officer or agent as it may appoint, to take possession of, all or
any part of the Mortgaged Property with the books, papers and
WPO:[TDICKSON.TAMARAC- SUNBELT] INDENTURE. 3
July 15, 1997 4:56pm
accounts of the Issuer pertaining thereto and to hold, operate
and manage the same, and from time to time to make all needful
repairs and improvements as the Trustee shall deem wise; and the
Trustee, with or without permission, may collect, receive and
sequester the rents, revenues, issues, earnings, income, products
and profits therefrom (exclusive of any of the foregoing which
may have been pledged to secure other obligations of the Issuer)
and out of the same and any moneys received from any receiver of
any part thereof pay, and/or set up proper reserves for the
payment of, all proper costs and expenses of so taking, holding
and managing the same, including reasonable compensation to the
Trustee, its agents and counsel, and any charges of the Trustee
hereunder and any taxes, assessments and other charges prior to
the lien of this Indenture which the Trustee may deem it wise to
pay, and all expenses of such repairs and improvements and apply
the remainder of the moneys so received by the Trustee in
accordance with the provisions of Section 1008 hereof. Whenever
all that is due upon such Bonds and installments of interest
under the terms of this Indenture shall have been paid and all
defaults made good, the Trustee shall surrender possession to the
Issuer, its successors or assigns; the same right of entry,
however, to exist upon any subsequent event of default.
While in possession of such property the Trustee shall
render annually to the owners of the Bonds, at their addresses as
set forth on the bond registration book maintained by the
Trustee, a summarized statement of income and expenditures in
connection therewith.
Section 1004. Oder Remedies; Rights and obligations with
Reference to Remedies. Upon the occurrence of an event of
default, the Trustee may, as an alternative, proceed either after
entry or without entry, to pursue any available remedy by suit at
law or in equity to enforce the payment of the principal of and
interest on the Bonds then outstanding hereunder, including
without limitation, foreclosure and mandamus.
Upon the occurrence of an event of default, the Trustee
shall, if so requested in writing by sixty-six and two-thirds
percent (66-2/3t) in value of the registered owners of the Bonds,
assign to the registered owners of the Bonds all its right, title
and interest in the Loan Agreement and the Note and Security
Documents required, defined and identified in the Loan Agreement
in exchange for the Bonds, which assignment shall be full and
complete satisfaction and discharge of all liabilities and
obligations of the Issuer on the Bonds and of the Trustee under
this Indenture.
If an event of default shall have occurred, and if it shall
have been requested in writing so to do by the owners of twenty-
five percent (25*) in aggregate principal amount of Bonds
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July 15, 1997 4:56pm
e-�7-1 5.E
outstanding hereunder and shall have been indemnified as provided
in Section 1101 hereof, the Trustee shall be obligated to
exercise such one or more of the rights and power conferred upon
it by this Section and by Section 1003 as the Trustee, being
advised by counsel, shall deem most expedient in the interests of
the Bondowners.
No remedy by the terms of this Indenture conferred upon or
reserved to the Trustee (or to the Bondowners) is intended to be
exclusive of any other remedy, but each and every such remedy
shall be cumulative and shall be in addition to any other remedy
given hereunder or now or hereafter existing at law or in equity
or by statute.
No delay or omission to exercise any right or power accruing
upon any default or event of default shall impair any such right
or power or shall be construed to be a waiver of any such default
or event of default or acquiescence therein; and every such right
and power 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 Bondowners, shall extend to or
shall affect any subsequent default or event of default or shall
impair any rights or remedies consequent thereon.
Section 1005. Right of Majority of Bondowners to Take
Charge. Upon indemnifying the Trustee to its satisfaction, the
owners of a majority in aggregate principal amount of Bonds
outstanding hereunder shall have the right, at any time, by an
instrument or instruments in writing executed and delivered to
the Trustee, to direct the method and place of conducting all
proceedings to be taken in connection with the enforcement of the
terms and conditions of this Indenture, or for the appointment of
a receiver or any other proceeding hereunder; provided that such
direction shall not be otherwise than in accordance with the
provision of law and of this Trust Indenture.
Section 1005. Appointment_of Receiver. Upon the occurrence
of an event of default, and upon the filing of a suit or other
commencement of judicial proceedings to enforce the rights of the
Trustee and of the Bondowners under this Indenture, the Trustee
shall be entitled, as a matter of right, to the appointment of a
receiver or receivers of the Mortgaged Property and of the rents,
revenues, issues, earnings, income, products and profits thereof,
pending such proceedings with such powers as the court making
such appointment shall confer.
Section 1007. _Waiver by Issuer of Benefit of Laws and
Rights of Anpraisement and Redem tion. in case +of an event of
default on its part, as aforesaid to the extent that such rights
WPO:[TDICKSON.TAMARAC- SUNBELT IINDENTURE. 3
July 15, 1997 4:56pm
may then lawfully be waived, neither the Issuer nor anyone
claiming through it or under it shall or will set up, claim or
seek to take advantage of any appraisement, valuation, stay,
extension or redemption as now or hereafter in force, in order to
prevent or hinder the enforcement of this Indenture, but the
Issuer, for itself and all who may claim through or under it,
hereby waives, to the extent that it lawfully may do so, the
benefit of all such laws and all right of appraisement and
redemption to which it may be entitled under the laws of the
State.
Section 1008. Ap-plication of Available Moneys. Available
moneys collected pursuant to this Article X shall be applied by
the Trustee (after paying its reasonable fees and expenses,
including legal fees and expenses) as follows:
(a) Unless the principal of all the Bonds all have
become or shall have been declared due and payable, all such
moneys shall be applied:
FIRST: To the payment to the persons entitled
thereto of all installments of interest then due, in the order of
the maturity of the installments of such interest, and, if the
amount available shall not be sufficient to pay in full any
particular installment, 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 persons entitled thereto of
the unpaid principal of any of the Bonds which shall have become
due (other than Bonds called for redemption for the payment of
which moneys are held pursuant to the provisions of this
Indenture), in the order of their due dates, with interest on
such Bonds from the respective dates upon which they become due,
and, if the amount available shall not be sufficient to pay in
full Bonds due on any particular date, together with such
interest, 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; and
THIRD: To the payment of the interest on and the
principal of the Bonds, and to the redemption of Bonds, all in
accordance with the provisions of Article V of this Indenture.
(b) If the principal of all the Bonds shall have
become due or shall have been declared due and payable, all such
moneys shall be applied to the payment of the principal and
interest then due and unpaid upon the Bonds, without preference
or priority of principal over interest or of interest over
principal, or of any Bond over any other Bond, ratably, according
to the amounts due respectively for principal and or privilege.
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(c) If the principal of all the Bonds shall have been
declared due and payable, and if such declaration shall
thereafter have been rescinded and annulled under the provisions
of this Article then, subject to the provisions of paragraph (b)
of this section, in the event that the principal of all the Bonds
shall later become due or be declared due and payable, the moneys
shall be applied in accordance with the provisions of
paragraph (a) of this Section.
whenever moneys are to be applied by the Trustee pursuant to
the provisions of this Section, such moneys shall be applied by
it at such times, and from time to time, as it 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 it shall deem another
date more suitable) upon which such date interest on the amounts
of principal to be paid on such dates shall cease to accrue. The
Trustee shall give such notice as it may deem appropriate of the
deposit with it of any such moneys and of the fixing of any such
date and shall not be required to make payment to the owner of
any unpaid Bond until such Bond shall be presented to the Trustee
for appropriate endorsement or for cancellation if fully paid.
Section 1009. Eamedies Vested in Trustee. All rights of
action (including the right to file proof of claim) under this
Indenture or under any of the Bonds may be enforced by the
Trustee without the possession of any of the Bonds or the
production thereof in any trial or other proceeding relating
thereto 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 Bond hereby
secured, and any recovery of judgment shall be for the equal
benefit for the owners of the outstanding Bonds in the order
herein provided (subject to the right of the Trustee to its
reasonable fees and expenses, including legal fees and expenses).
Section 1010. Rights and Remedies of Bondowners. No owner
of any Bond shall have any right to institute any suit, action or
proceeding in equity or at law for the enforcement 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
default has occurred of which the Trustee has been notified as
provided in subsection (g) of Section 1101, or of which by .the
subsection it is deemed to have notice, nor unless such default
shall have become an event of default and the owners of twenty-
five percent (25t) in aggregate principal amount of Bonds
outstanding hereunder 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
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institute such action, suit or proceeding in its own name, nor
unless also they have offered to the Trustee indemnity as
Provided in Section 1101; nor unless the Trustee shall thereafter
fail or refuse to exercise the powers hereinbefore granted, or to
institute such action, suit or proceeding in its own name; and
such notification request and offer of indemnity are hereby
declared in every such case at the option of the Trustee to be
conditions precedent to the execution of the powers and trusts of
this Indenture, and to any action or cause of action for the
enforcement of this Indenture or for the appointment of a
receiver for any other remedy hereunder; it being understood and
intended that not one or more owners of the Bonds shall have any
right in any manner whatsoever to affect, disturb or prejudice
the lien of this Indenture by 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 t'-.e manner herein provided for the equal
benefit of the owners of all Bonds outstanding hereunder.
Nothing in this Indenture contained shall, however, affect or
impair the right of. any Bondowners to enforce the payment of the
principal of and interest on any Bond at or after the maturity
thereof, or to the obligation of the Issuer to pay the principal
of and interest on each of the Bonds issued hereunder to the
respective owners thereof at the time and place in the Bonds
expressed.
Section 1011. T rm'nat'on of Pro-c-e-adincrs. In case the
Trustee shall have proceeded to enforce any right under this
Indenture by the appointment of a receiver, by entry or
otherwise, and such proceedings shall have been discontinued or
abandoned for any reason, or shall have been determined adversely
to the Trustee, then and in every such case the authority and the
Trustee shall be restored to their former positions and rights
hereunder with respect to the property herein conveyed and all
rights, remedies and powers of the Trustee shall continue as if
no such proceedings had been taken, except to the extent the
Trustee is legally bound by such adverse determination.
Section 1012. Waivers of_Fven_ts of Default. The Trustee
may in its discretion waive any event of default hereunder and
its consequences and rescind any declaration of maturity of
principal, and shall do so upon the written request of the owners
of (i) 50% in aggregate principal amount of all the Bonds
outstanding hereunder in respect of which default the payment of
principal and/or interest exists, or (ii) SO% in principal amount
of all the Bonds outstanding hereunder in the case of any other
default, provided, however, that there shall not be waived
(a) any event of default in the payment of the principal of any
Bonds issued hereunder and outstanding at the date of maturity
specified therein or (b) any default in the payment of the
interest or of Bond Fund moneys unless prior to such waiver or
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rescission all arrears of interest, with interest at the rate
borne by the Bonds in respect of which such default shall have
occurred on overdue installments of interest or all arrears of
Bond Fund payments, as the case may be, and all expenses of the
Trustee and Paying Agent, 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 discontinue or abandoned or determined adversely,
then and in every such case the Issuer, Trustee and the
Bondowners shall be restored to their former positions and rights
thereunder respectively; but no such waiver or rescission shall
extend to any subsequent or other default, or impair any right
consequent thereon.
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,ARTICLE XI Is
THE TRUSTEE
Section 1101. Acceiptgncg of T usts. The Trustee hereby
accepts the trusts imposed upon it by this Indenture, and agrees
to perform the trust with the same degree of care and skill as a
prudent man would exercise or use under the same circumstances in
the conduct of his own affairs, but only upon and subject to the
following expressed terms and conditions:
(a) The Trustee may execute any of the trusts or
powers hereof and perform any duties required of it by or through
attorneys, agents, receivers or employees, and shall be entitled
to advice of counsel concerning all matters of trusts hereof and
its duties hereunder, and may in all cases pay 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 attorney, surveyor, engineer or accountant selected by it in
the exercise of reasonable care, or, if selected or retained by
the Issuer prior to the occurrence of a default of which the
Trustee has been notified as provided in sub -section (g) of this
Section, or of which by the sub -section the Trustee is deemed to
have notice, approved by the Trustee in the exercise of such
care. The Trustee shall not be responsible for any loss or
damage resulting from an action or non -action in accordance with
any such opinion or advice.
(b) The Trustee shall not be responsible for any
recital herein, or in the Bonds (except in respect to the
certificate of the Trustee endorsed on such Bonds), or for the
recording or re-recording, filing or re -filing of this Indenture,
or for insuring the property herein conveyed or collecting any
insurance moneys, or for the validity of the execution by the
Issuer of this Indenture or of any supplemental indentures or
instruments of further assurance, or for the sufficiency of the
security for the Bonds issued hereunder or intended to be secured
herein, or for the value of the title of the property here
conveyed or otherwise as to the maintenance of the security
hereof; except that in the event the Trustee enters into
possession of a part or all of the property herein conveyed
pursuant to any provision of this Indenture, it shall use due
diligence in preserving such property; and the Trustee shall not
be bound to ascertain or inquire as to the performance or
observance of any covenants, conditions or agreements on the
Issuer, except as hereinafter set forth; but the Trustee may
require of the Issuer full information and advice as to the
performance of the covenants, conditions and agreements aforesaid
as to the condition of the property herein conveyed.
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(c) The Trustee shall not be accountable for the use
of any Bonds authenticated or delivered hereunder. The Trustee
may become the owner of Bonds with the same rights which it would
have if not Trustee. No merger of title shall occur if at any
time the Trustee owns all of the Bonds.
(d) The Trustee shall be protected in acting upon any
notice, request, consent, certificate, order, affidavit, letter,
telegram or other paper or document believed by it, in the
exercise of reasonable care, to be genuine and correct and to
have been signed or sent by the proper person or persons. Any
action taken by the Trustee pursuant to this Indenture upon the
request or authority or consent of the owner of any Bond secured
hereby, shall be conclusive and binding upon all future owners of.
the same Bond and upon Bonds issued in exchange therefor or in
place thereof.
(e) As to the existence or non-existence of any fact
or as to the sufficiency or validity of any instrument, paper or
proceeding, the Trustee may rely upon a certificate of the Issuer
or the Company as sufficient evidence of the facts therein
contained and prior to the occurrence of a default of which it
has been notified as provided in sub -section (g) of this Section,
or of which by said subsection it is deemed to have notice, and
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, at the
reasonable expense of the Company, in every case secure such
further evidence as it may think necessary or advisable, but
shall in no case be bound to secure the same. The Trustee may
accept a certificate of the Clerk of the Issuer under its seal to
the effect that a resolution or ordinance in the form therein set
forth has been adopted by the Issuer as. conclusive evidence that
such resolution or ordinance has been duly adopted, and is in
full force and effect.
(f) The permissive right of the Trustee to do things
enumerated in this Indenture shall not be construed as a duty of
the Trustee, and the Trustee shall be answerable only for its own
negligence or willful default.
(g) The Trustee shall not be required to take notice
or be deemed to have notice of any default hereunder except
failure by the Issuer to make or cause to be made any of the
payments to the Trustee required to be made by Article IV unless
the Trustee shall be specifically notified in writing of such
default by the Issuer or by the owners of at least ten percent
(10%) in aggregate principal amount of Bonds outstanding
hereunder and all notices or other instruments required by this
Indenture to be delivered to the Trustee must, in order to be
effective, be delivered to the office of the Trustee, and in the
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absence of such notice so delivered, the Trustee may conclusively
assume there is no default except as aforesaid.
(h) The Trustee shall not be personally liable for any
debts contracted or for damages to persons or to personal
property injured or damaged, or for salaries or nonfulfillment of
contracts during any period in which it may be in the possession
of or managing the real and tangible personal property as in this
Indenture provided.
(i) At any and all reasonable times the Trustee, and
its duly authorized agents, attorneys, experts, engineers,
accountants and representatives, shall have the right fully to
inspect all of the. property herein conveyed, including all books,
papers and records of the Issuer pertaining to the Project 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) Notwithstanding anything elsewhere in this
Indenture contained, the Trustee shall have the right, but shall
not be required, to demand, in respect of the authentication of
any Bonds, the withdrawal of any cash, the release of any
property, or any action whatsoever within the purview of this
Indenture, any showings, certificate, opinions, appraisals, or
the information, or corporate action or evidence thereof, in
addition to that by the terms hereof required as a condition of
such action by the Trustee, deemed desirable for the purpose of
establishing the right of the Issuer to the authentication of any
Bonds, the withdrawal of any cash, the release of any property,
or the taking of any other action by the Trustee.
(1) Before taking such action hereunder, the Trustee
may require that it be furnished indemnity (including reasonable
attorneys, fees and expenses) satisfactory to it for the
reimbursement to it 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 the negligence or willful
default of the Trustee, by reason of any action so taken by the
Trustee.
Section 1102. Fes Charges and gxpenses of Trustee. The
Trustee shall be entitled to payment and/or reimbursement for its
reasonable fees for services rendered hereunder and all advances,
counsel fees and other expenses reasonably and necessarily made
or incurred by the Trustee in and about the execution of the
trusts created by this Indenture and in and about the exercise
and performance by the Trustee of the powers and duties of the
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Trustee hereunder, and for all reasonable and necessary costs and
expenses incurred in defending any liability in the premises of
any character whatsoever (unless such liability is adjudicated to
have resulted from the negligence or willful default of the
Trustee). In this regard, it is understood that the Issuer
pledges no funds or revenues other than those provided for in the
Loan Agreement and the Revenues derived from the Mortgaged
Property and payments under the Guaranty to the payment of any
obligation of the Issuer set forth in this Indenture, including
the obligations set forth in this Section, but nothing herein
shall be construed as prohibiting the Issuer from using any other
funds and revenues for the payment of any of its obligations
under this Indenture. Upon default by the Issuer but only upon
default, pursuant to the provisions of this Indenture pertaining
to default, the Trustee shall have a first lien with right of
payment prior to payment on account of principal or interest of a
Bond issued hereunder upon the Trust Estate for the reasonable
and necessary advances, fees, costs and expenses (including
reasonable attorneys, fees and expenses) incurred by the Trustee.
Section 1103. Notice to Bondowners of Default. If a
default occurs of which the Trustee is by Section 1101(g) deemed
to have notice, or is notified by the Issuer or by the owners of
at least 10% in aggregate principal amount of Bonds then
outstanding, the Trustee shall give written notice by mail to the
Underwriter and each owner of Bonds then outstanding.
Section 1104. Internention_by_Txustee. In any judicial
proceeding to which the Issuer is a party and which in the
opinion of the Trustee has a substantial bearing on the interests
of owners of Bonds issued hereunder, the Trustee may intervene on
behalf of the Bondowners and shall do so if requested in writing
by the owners of at least ten percent (10%-) of the aggregate
principal amount of Bonds outstanding hereunder. The rights and
obligations of the Trustee under this Section are subject to the
approval of the court having jurisdiction in the premises.
Section 1105. Successor -Trustee. Any bank or trust company
into which the Trustee may be merged, or with which it 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 bank or trust company resulting from any such sale, merger,
consolidation or transfer to which it is a party, ipso facto,
shall be and become successor trustee hereunder and vested with
all of the title to the whole property or 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; provided, however, that such successor
trustee shall have capital and surplus of at least $20,000,000.
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Section 1106. Resignation by Trustee. The Trustee and any
successor trustee may at any time resigr from the trusts hereby
created by giving thirty (30) days written notice to the Issuer
and the registered owners of the Bonds, and such resignation
shall take effect at the end of such thirty (30) days, or upon
the earlier appointment of a successor trustee by the Bondowners
or by the Issuer. Such notice may be served personally or sent
by registered mail.
Section 1107. Removal 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 Issuer and signed by
the owners of a majority in aggregate principal amount of Bonds
outstanding hereunder.
Section 1108. Appointment of Successor Trustee;:Cgmporarv_
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 the court, a
successor may be appointed by the owners of a majority in
aggregate principal amount of Bonds outstanding hereunder, by an
instrument or concurrent instruments in writing signed by such
owners, or by their attorneys, in fact, duly authorized;
provided, nevertheless, that in case of such vacancy the Issuer
by an instrument executed and signed by its Mayor and attested by
its Clerk under its seal, shall appoint a temporary trustee to
fill such vacancy until a successor trustee shall be appointed by
the Bondowners in the manner above provided; and any such
temporary trustee so appointed by the Issuer shall immediately
and without further act be superseded by the trustee so appointed
by such Bondowners. Every such temporary trustee and every such
successor trustee shall be a trust company or bank in good
standing, having capital and surplus of not less than
$20,000,000.
Section 1109. Successor Trustee. Every successor or
temporary trustee appointed hereunder shall execute, acknowledge
and deliver to its predecessor and also to the Issuer an
instrument in writing accepting such appointment hereunder, and
thereupon such successor or temporary trustee, without any
further act or conveyance, shall become fully vested with all the
estates, properties, rights, powers, trusts, duties and
obligations of its predecessor; but such predecessor shall
nevertheless, on the written request of the Issuer or of its
successor trustee, execute and deliver an instrument transferring
to such successor all the estate, properties, rights, powers and
trusts of such predecessor hereunder; and every predecessor
trustee shall deliver all securities, moneys and any other
property held by it as trustee hereunder to its successor.
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Should any instrument in writing from the Issuer be required by a
successor trustee for more fully and certainly vesting in such
successor the estates, rights, powers and duties hereby vested or
intended to be vested in the predecessor trustee, any and all
such instruments in writing shall, on request, be executed,
acknowledged and delivered by the Issuer. 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, at the expense of
the Issuer, be forthwith filed and/or recorded by the successor
trustee in each recording office where the Indenture shall have
been filed and/or recorded.
Section 1110. Ri ht of Trustee to Pay Taxes and Qther
Charges. In case the Issuer shall fail seasonably to pay or to
cause to be paid any tax, assessment or governmental or other
charge upon any part of the property herein conveyed, to the
extent, if any, that the Issuer may be liable for same, the
Trustee may pay such tax, assessment or governmental charge,
without prejudice, however, to any rights of the Trustee or the
Bondowners hereunder arising in consequence of such failure; and
any amount at any time so paid under this Section, with interest
thereon from the date of payment at the rate of ten percent (lot)
per annum, shall be repaid by the Issuer upon demand, and shall
become so much additional indebtedness secured by this Indenture,
and the same shall be given a preference in payment over any of
the Bonds and shall be paid out of the proceeds of revenues
collected from the property herein conveyed, if not otherwise
caused to be paid by the Issuer, but the Trustee shall not be
under obligations to make any such payment unless it shall have
been requested to do so by the owners of at least ten percent
(lot) of the aggregate principal amount of the Bonds outstanding
hereunder and shall have been provided with adequate funds for
the purpose of such payment.
Section 1111. Trustee Protected in Relying Upon
Resolutions, etc. The resolutions, opinions, certificates and
other instruments provided for in this Indenture may be accepted
and relied upon by the Trustee as conclusive evidence of the
facts and conclusions stated therein and shall be full warrant,
protection and authority to the Trustee for the payment and
withdrawal of cash hereunder.
Section 1112. Trustee Which Has Resigned or Seen Removed
Ceases to be Paying Agent. In the event of a change in the
office of Trustee, if the Trustee is the Paying Agent, the former
Trustee which has resigned or been removed shall cease to be
Paying Agent.
Section 1113. Pavincr A ent's Fees and ChaXcres. There shall
be paid the standard and customary Paying Agent's fees and
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charges of the Paying Agent for handling the payment of the
principal of, premium (if any) and interest on the Bonds, and
funds sufficient to pay the same shall be deposited with the
Paying Agent prior to the dates on which payments are required to
be made on principal and interest.
Section 1114. AAoointment of Co-TrMgt-eq or Separate
Trustee. The Issuer and the Trustee shall have power to appoint
and upon the request of the Trustee the Issuer shall for such
purpose join with the Trustee in the execution of all instruments
necessary or proper to appoint another corporation or one or more
persons approved by the Trustee, either to act as co -trustee or
co -trustees jointly with the Trustee of all or any of the
property subject to the lien hereof, or to act as separate
trustee or trustees of all or any such property, with such powers
as may be provided in the instrument of appointment and to vest
in such corporation or person or persons as such separate trustee
or co -trustee any property, title, right or power deemed
necessary or desirable. In the event that the Issuer shall not
have joined in such appointment within fifteen days after the
receipt by it of a request so to do the Trustee alone shall have
the power to make such appointment. Should any deed, conveyance
or instrument in writing from the Issuer be required by the
separate trustee or co -trustee so appointed for more fully and
certainly vesting in and confirming to him or to it such
properties, rights powers, trusts, duties and obligations, any
and all such deeds, conveyances and instruments in writing shall,
on request, be executed, acknowledged and delivered by the
Issuer. Every such co -trustee and separate trustee shall, to the
extent permitted by law, be appointed subject to the following
provisions and conditions, namely:
(1) The Bonds shall be authenticated and delivered,
and all powers, duties, obligations and rights conferred upon the
Trustee in respect of the custody of all money and securities
pledged or deposited hereunder, shall be exercised solely by the
Trustee; and
(2) The Trustee, at any time by an instrument in
writing, may remove any such separate trustee or co -trustee.
Every instrument, other than this Indenture, appointing any such
co -trustee or separate trustee, shall refer to this Indenture and
the conditions of this Article XI expressed, and upon the
acceptance in writing by such separate trustee or co -trustee, it
shall be vested with the estate or property specified in such
instrument, jointly with the Trustee (except insofar as local law
makes it necessary for any separate trustee to act alone),
subject to all the trusts, conditions and provisions of this
Indenture. Any such separate trustee or co -trustee may at any
time, by an instrument in writing, constitute the Trustee as its
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agent or attorney, to the extent authorized by law, to do all
acts and things and exercise all discretion authorized or
permitted by it, for and on behalf of it and its name. In case
any separate trustee or co -trustee shall die, become incapable of
acting, resign or be removed, all the estates properties, rights,
powers, trusts, duties and obligations of the separate trustee or
co -trustee shall vest in and be exercised by the Trustee until
the appointment of a new trustee or a successor to such separate
trustee or co -trustee.
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ARTICLE XIT
SUPPLEMENTAL INDENTURES AND AMENDMENTS
TO THE LOAN AGREEMENTS
Section 1201. Supplemental Indentures Not Requiring Consent
of Bondowners. The Issuer and the Trustee may, from time to
time, without the consent of or notice to the Bondholders, enter
into such indentures supplemental hereto as shall not be
inconsistent with the terms and provisions, hereof (which
supplemental indenture shall hereafter form a part hereof),
(a) to cure any ambiguity or formal defect or omission in this
Indenture or in any supplemental indenture, or (b) to grant to or
confer or impose upon the Trustee for the benefit of the
Bondowners any additional rights, remedies, powers, authority,
security, liabilities or duties which may lawfully be granted,
conferred, or imposed; (c) to add to the covenants and agreements
of, and limitations and restrictions upon, the Issuer in this
Indenture or to waive other covenants, agreements, limitations
and restrictions to be observed by the Issuer which are not
contrary to or inconsistent with this Indenture as theretofore in
effect; (d) to confirm, as further assurance, any pledge under,
and the subjection to any claim, lien or pledge created or to be
created by, this Indenture, of the Revenues of the Issuer from
the Loan Agreement or of any other moneys, securities or funds;
(e) to comply with the requirements of the Trust Indenture Act of
1939, as from time to time amended; (f) to authorize the issuance
and sale of one or more series of Additional Bonds; or (g) to
modify, alter, amend or supplement this Indenture in any other
respect which is not materially adverse to the Bondholders and
which does not involve a change described in clause (a), (b),
(c), (d) or (e) of Section 1202 hereof and which, in the judgment
of the Trustee, is not to the prejudice of the Trustee.
Section 1202. Supplemental Indentures Requiring Consent of
Bondowners. Subject to the terms and provisions contained in
this Section, and not otherwise, the owners of more than fifty
percent (50%) in aggregate principal amount of the Bonds then
outstanding shall have the right, from time to time, anything
contained in this Indenture to the contrary notwithstanding, to
consent to and approve the execution by the Issuer and the
Trustee of such indenture or indentures supplemental hereto as
shall be deemed necessary and desirable by the Issuer 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;
provided, however, that nothing herein contained shall permit or
be construed as permitting (a) an extension of the maturity of
the principal of or the interest on any Bond issued hereunder, or
(b) a reduction in the principal amount of any Bond or redemption
WPO:(TDICXSON.TAMARAC- SUNBELT) INDENTURE, 5
Slily 15, 1997 4:56pm
12_q-)-/sue
premium or the rate of interest thereon, or (c) the creation of
any lien ranking prior to for on a parity with the lien of this
Indenture on the Trust Estate, except as expressly permitted
herein, or (d) a privilege or priority of any Bond or Bonds over
any other Bond or Bonds or (e) a reduction in the aggregate
principal amount of the Bonds required for consent to such
supplemental indenture. Nothing herein contained, however, shall
be construed as making necessary the approval of Sondowners of
the execution of any supplemental indenture as provided in
Section 1201 of this Article.
If at any time the Issuer or the Company shall request the
Trustee to enter into any supplemental indenture for any of the
Purposes of this Section, the Trustee shall, at the expense of
the requesting party cause notice of the proposed execution of
such supplemental indenture to be mailed by first class mail to
each owner at his address on the Bond registration book
maintained by the Trustee. 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 office of the
Trustee for inspection by Bondowners. The Trustee shall not,
however, be subject to any liability to any Bondowner by reason
of its failure to publish or mail such notice, and any such
failure shall not affect the validity of such supplemental
indenture consented to and approved as provided in this Section.
If the owners of not less than fifty percent (50k) in aggregate
principal amount of the Bonds outstanding 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 to enjoin or restrain the Trustee or the Issuer from executing
the same or from taking any action pursuant to the provisions
thereof. Upon the execution of any such supplemental indenture,
this Indenture shall be and be deemed to be modified and amended
in accordance therewith.
Section 1203. Amendments to the Loan Agreement. The
Trustee may from time to time, and at any time, consent to any
amendment, change or modification of the Loan Agreement for the
purpose of curing any ambiguity or formal defect or omission or
making any other change therein, which in the reasonable judgment
of the Trustee is not to the prejudice of the Trustee or the
holders of the Bonds. The Trustee shall not consent to any other
amendment, change or modification of the Loan Agreement without
the approval or consent of the holders of more than fifty percent
(50%) in aggregate principal amount of the Bonds at the time
outstanding.
Section 1204. P ocedurts for Amendments. If at any time
the Issuer or the Company shall request the Trustee's consent to
WPO: [TOT CKSON.TAMARAC- SUNBELT] INDENTURE.
JUIy 15, 1997 4:55pm 4 6
� S-7-ids
a proposed amendment, change or modification requiring Bondholder
approval under Section 1203, the Trustee, shall, at the expense
of the requesting party, cause notice of such proposed amendment,
change or modification to be mailed in the same manner as
provided by Section 1202 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 in
the principal office of the Trustee for inspection by any
interested Bondholder. The Trustee shall not, however, be
subject to any liability to any bondholder by reason of its
failure to mail such notice, and any such failure shall not
affect the validity of such amendment, change or modification
when consented to by the Trustee in the manner hereinabove
provided.
Section 120=. Rights_ of Company. Anything herein to the
contrary notwithstanding, any Supplemental Indenture which
affects any rights, powers and authority of the Company under the
Security Documents, or requires a revision of the Security
Documents, shall not become effective unless and until the
Company shall have given its written consent.
0
•
WPO:(TDICKSON.TAMARAC- SUNBELT) INDENTURE.
July 15, 1997 4:56pm 47
ARTICLE XIII
MISCELLANEOUS
Section 1301. Consents, etc, of Bondowners. Any request,
direction, objection or other instrument required by this
Indenture to be signed and executed by the Bondowners may be in
any number of concurrent writings of similar tenor and may be
signed or executed by such Bondowners in person or by agent
appointed in writing. Proof of the execution of any such
request, direction, 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 if in
favor of the Trustee with regard to any action taken by it under
such request or other instrument, namely:
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 that the person signing such writing acknowledged
before him the execution thereof, or by any affidavit of any
witness to such execution.
Section 1302. Limitation gf Rights. With the exception of
rights herein expressly conferred, nothing expressed or mentioned
in or to be implied from this Indenture, or the Bonds issued
hereunder, is intended or shall be construed to give to any
person other than the parties hereto, and the owners of the Bonds
secured by this Indenture, any legal or equitable rights, remedy
or claim under or in respect to this Indenture or any covenants,
conditions and provisions hereof being intended to be and being
for the sole exclusive benefit of the parties hereto and the
owners of the Bonds secured as herein provided.
Section 1303. Severability. If any provisions of this
Indenture shall be held or deemed to be or shall, in fact, be
inoperative or unenforceable as applied in any particular case in
any jurisdiction or jurisdictions or in all jurisdictions or in
all cases because it conflicts with any provisions or any
constitution or statute or rule of public policy, or for any
other reason, such circumstances shall not have the effect of
rendering the provision in question inoperative or unenforceable
in any other case or circumstance, or of rendering any other
provision or provisions herein contained invalid, inoperative or
unenforceable to any extent whatever.
The invalidity of any one or more phrases, sentences,
clauses or paragraphs in this Indenture contained shall not
affect the remaining portions of this Indenture or any part
thereof.
WPO:(TDICYSON.TAMARAC- SUNBELT) INDENTURE.
July 15, 1997 4:56pm 4 8
Section 1304. Notice. Notices as required in this
Agreement shall be considered delivered when posted in United
States Mail, postage prepaid and addressed as set forth below (or
at such other address as may have been provided by the party to
all other parties hereto by proper notice):
If intended for the Issuer:
City of Tamarac, Florida
7525 N.W. 88th Ave.
Tamarac, Florida 33321-2401
Attn: City Attorney
If intended for the Trustee:
First Union National Bank
200 S. Biscayne Blvd., 14th Floor
Miami, Florida 33131
Attn: Corporate Trust Department
If intended for the Underwriter:
Greenwich Partners, Inc.
One Pickwick Plaza, Suite 250
Greenwich, CT 06830
Section 1305. Figrida Subs,antive„Law Governs. This
Indenture shall be considered to have been executed in the State
and it is the intention of the parties that the substantive law
of the State govern as to all questions of interpretation,
validity and effect.
Section 1306. Uniform Commercial Code. This Indenture is
also a security agreement under the Uniform Commercial Code of
the State. The Issuer hereby irrevocably appoints the Trustee as
its lawful attorney in fact and agent to execute, on behalf of
the Issuer, one or more financing statements and renewals thereof
with respect to the security interest granted by this Indenture
and, on its behalf to file such statements or renewals thereof
signed by the Trustee alone in any appropriate public office.
Section 1307. Counterparts. This Indenture may be
simultaneously executed in several counterparts, each of which
shall be an original and all of which shall constitute but one
and the same instrument.
WPO:[TDICKSON.TAMARAC- SUNBELT] INDENTURE. 4 July 15, 1997 4:56pm
C�
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0
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IN WITNESS WHEREOF, the Issuer has caused these presents to
be signed in its name and behalf by its Mayor and attested by its
Clerk, and, to further evidence its acceptance of the trust
hereby created, First Union National Bank, has caused these
presents to be signed in its name and behalf by its duly
appointed officer all as of the day and year first above written.
ATTEST:
WPO:(TAICKSON.TAMARAC-SUMELT)INCENTLTRE.
Suly 15, 1997 4:56pm 50
CITY OF TAMARAC, FLORIDA
By:
FIRST UNION NATIONAL BANK
By:
EXHIB 0
IT A
(Form of Bond)
UNITED STATES OF AMERICA
STATE OF FLORIDA
CITY OF TAMARAC, FLORIDA
INDUSTRIAL DEVELOPMENT REVENUE BOND
SERIES 1997
(SUN BELT PRECISION PRODUCTS, INC., PROJECT)
Registered Number Cusip:
Interest Commencement Date:
Interest Rate: Maturity Date:
Registered Owner:
Principal Amount: Dollars
KNOW ALL PERSONS BY THESE PRESENTS:
That the Cityof Tamarac Florida a public p lic body corporate
and politic of the State of Florida (the "Issuer") for value
received, promises to pay to the Registered Owner stated above,
in such coin or currency of the United States of America as at
the time of payment shall be legal tender for the payment of
public and private debts, the Principal Amount (stated above) on
the Maturity Date (stated above), and to pay in like coin or
currency, interest on said Principal Amount from the Interest
Commencement Date (stated above) until paid as follows:
Interest on the unpaid Principal Amount shall be payable
semiannually on 1 and 1 of each year,
beginning on 1, 199, and shall accrue from the
Interest Commencement Date (stated above) at the Interest Rate
(stated above) until the Issuer's obligation with respect to
payment of such Principal Amount shall be discharged. Payment of
interest shall be by check or draft of First Union National Bank,
Miami, Florida, as Trustee and Paying Agent (the "Trustee"), to
the Registered Owner as shown on the bond registration book of
the Issuer maintained by the Trustee on the fifteenth day
preceding the interest payment date (whether or not a business
day). Payment of principal shall be made at the principal office
of the Trustee in Miami, Florida, upon due surrender of this Bond
on the Maturity Date (stated above) if not sooner called for
redemption.
WPO:(TDICKSON.TAMARAC-SUNEELTIINDENTURS. 1 July 15, 1997 4:S6pm
This Bond is one of an authorized issue of bonds of the
Issuer in the Principal Amount (stated above) (the "Bonds") which
are issued for the purpose of providing funds for the making of a
loan to Sun Belt Precision Products, Inc. (the "Company") to
finance a certain industrial enterprise within the State of
Florida (the "Project"). The Bonds are all issued under and are
all equally and ratably secured and entitled to the protection
given by a Trust Indenture (the "Indenture") dated as of
August 1, 1997, duly executed and delivered by the Issuer to the
Trustee. Reference is hereby made to the Indenture and all
indentures supplemental thereto for the provisions, among others,
with respect to the nature and extent of the security, the
issuance of additional series on a parity of security with the
Bonds, the rights, duties and obligations of the Issuer, the
Trustee and the Registered Owners of the Bonds, and the terms
upon which the Bonds are issued and secured, The Bonds are
secured by a mortgage lien on and perfected security interest on
the Project. The Bonds of are secured by a perfected security
interest in the equipment financed with Bond proceeds.
The payment of the principal of and interest on this Bond is
secured by a Guaranty Agreement (the "Guaranty"), executed by
Interplex Industries, Inc. in favor of the Issuer and the
Trustee. Reference is hereby made to the Guaranty for provisions
governing the scope of that Guaranty.
This Bond is issued wit
h the intent that the laws of the
State of Florida will govern its construction.
THESE BONDS ARE ISSUED UNDER THE PROVISIONS OF THE FLORIDA
INDUSTRIAL DEVELOPMENT FINANCE ACT, CHAPTER 159, PART II, FLORIDA
STATUTES, AS AMENDED (THE "ACT',), AND THE ISSUER IS PROHIBITED
FROM PAYING ANY AMOUNTS DUE WITH RESPECT TO THE BONDS EXCEPT FROM
MONEYS RECEIVED BY THE ISSUER PURSUANT TO THE LOAN AGREEMENT, THE
MORTGAGE OR THE GUARANTY. NEITHER THE FAITH AND CREDIT NOR THE
TAXING POWER OF THE ISSUER OR THE STATE OF FLORIDA OR OF ANY
POLITICAL SUBDIVISION THEREOF IS PLEDGED TO THE PAYMENT OF THE
PRINCIPAL OF, PREMIUM, IF ANY, OR INTEREST ON THE BONDS, AND THE
HOLDER OF THIS BOND SHALL HAVE NO RIGHT TO COMPEL ANY EXERCISE OF
THE TAXING POWER OF THE ISSUER OR THE STATE OF FLORIDA OR ANY
POLITICAL SUBDIVISION THEREOF TO ENFORCE SUCH PAYMENT.
This Bond shall not be valid or become obligatory for any
purpose or be entitled to any security or benefit under the
Indenture until the Certificate of Authentication hereon shall
have been signed by the Trustee.
The Issuer hereby covenants that it has been duly organized
in accordance with law; and that all acts, conditions and things
required to be done precedent to and in the issuance of this Bond
WPO:ITDICKSON.TAMARAC- SUNBELT] INDENTURE.
Ju1y 15, 1997 4:56pm
have existed, have happened, and have been performed as required
by law. 0
(Reference is hereby made to further provisions of this Bond
on the reverse side hereof which have the same effect as if set
forth in this place.)
IN WITNESS WHEREOF, the Issuer has caused this Bond to be
executed in its name by its Mayor and City Clerk, thereunto duly
authorized, with the manual or facsimile signature of the Mayor
and the manual or facsimile signature of the City Clerk, and the
corporate seal to be impressed or imprinted, all as of the 1st
day of , 199_.
CITY OF TAMARAC, FLORIDA
ATTEST: By: MAYOR (facsimile)
facsimile
City Clerk
•
WPO:[TDICKSON.TAMARAC-SUNBELT)INDENTURE.
July 15, 1997 4:56pm 3
(Back of Bond)
The Bonds are not general obligations of the Issuer, but are
special obligations payable solely from revenues derived from the
Project and payments under the Guaranty. The Project consists of
certain land, buildings, improvements, equipment and facilities
which have been mortgaged to the Issuer by the Company under the
terms of a Loan Agreement (the "Loan Agreement"), which provides
for the loan and repayment of moneys in such amounts as shall be
sufficient to pay the principal of and interest on the Bonds as
the same become due. Provision has been made in the Loan
Agreement for the loan repayments to be made directly to the
Trustee and deposited in a special account of the Issuer
designated "Bond Fund" (the "Bond Fund"). Certain Project
revenues (including particularly repayments of the loan under the
Loan Agreement) have been duly pledged by the Indenture to the
payment of the principal of and interest on the Bonds. The Bonds
do not constitute an indebtedness of the Issuer within the
meaning of any constitutional or statutory limitation.
The owner of this Bond shall have no right to enforce the
provisions of the Indenture or to institute action to enforce the
covenants therein, or to take any action with respect to any
event of default under the Indenture, or to institute, appear in
and defend any suit or other proceeding with respect thereto,
except as provided in the Indenture. In certain events, on the
conditions, in the manner and with the effect set forth in the
Indenture, the principal of all the Bonds issued under the
Indenture and then outstanding may be declared and may become due
and payable before the stated maturity thereof, together with
accrued interest thereon.
Modifications or alterations of the Indenture, or of any
indenture supplemental thereto, may be made only to the extent
and in the circumstances permitted by the Indenture.
The Bonds shall be subject to redemption prior to maturity
as follows:
(1) On any interest payment date, in whole, at the option
Of the Issuer at the direction of the Company, from the proceeds
of insurance in the event of major damage or destruction of the
Project pursuant to the provisions of the Loan Agreement, or from
legal curtailment of the use and occupancy of all or
substantially all of the Project for any reason other than
condemnation. If called for redemption upon the occurrence of
any of the events described in the preceding sentence, this Bond
shall be redeemed in whole, in the manner provided in this Bond
and the Indenture, at one hundred percent (10OU of the principal
. amount thereof, plus accrued interest to the date of redemption.
WPO:(TDICKSON.TAWAC- SUNBELT] INDMUZZ ,
July 15. 1997 4:56pm 4
(2) On any interest payment date, in whole, but not in
part, from the proceeds of condemnation of all or substan::ially
all of the Project at a redemption price equal to one hundred
percent (100V of the principal amount being redeemed plus
accrued interest to the redemption date.
(3) At any time, in whole, but not in part, within 60 days
following a Determination of Taxability at a redemption price
equal to one hundred three percent (103%) of the principal amount
being redeemed plus accrued interest to the redemption date.
(4) At any time, in whole, but not in part, at the
direction of the Issuer, if the Issuer shall notify the Trustee
in writing that an event of default has occurred under the Loan
Agreement (other than based on a Determination of Taxability) and
that it requests a redemption of the Bonds at a redemption price
equal to one hundred percent (100U of the principal amount being
redeemed plus accrued interest to the redemption date.
(5) From and after 1, , the Bonds (or any portion
thereof in $5,000 multiples) will be subject to redemption prior
to maturity, at the option of the Issuer at the direction of the
Company, in whole or in part, on any interest payment date, at
the prices set forth below, plus accrued interest to the date of
redemption. If less than all the Bonds outstanding are called,
Bonds will be called in inverse order of maturity (and by lot
within a maturity in such manner as the Trustee may determine).
Redemption Price
Red!2Mtion Dates Expressed a_M a psrcentaae
through
through
and
thereafter
102W
101k
100%
Notice of redemption shall be mailed by registered or
certified mail to the registered owner of the Bonds addressed to
such registered owner at his registered address and placed in the
mails not less than thirty (30) days prior to the date fixed for
redemption. Each notice shall specify the numbers and the
maturities of the Bonds being called and the date on which they
shall be presented for payment. After the date specified in such
notice, the Bond or Bonds so called will cease to bear interest
provided funds for their payment have been deposited with the
Trustee, and, except for the purpose of payment, shall no longer
be protected by the Indenture and shall not be deemed to be
outstanding under the provisions of the Indenture.
(END OF FORM]
WPO.CTDICKSON.TAMARAC-$UNBELT)INDENTURE.
July 15, 1997 4;56pm
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0 (Form of Trustees Certificate)
C]
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This Bond is one of the bonds described in and issued under
the provisions of the within mentioned Indenture.
FIRST UNION NATIONAL BANK
Miami, Florida, as Trustee
Date of Registration and
Authentication:
By
(Authorized Signature)
(FORM OF ASSIGNMENT)
FOR VALUE RECEIVED, the undersigned sells, assigns and
transfers unto
(Printed or Typewritten Name and Address of Transferee and social security or
other Identifying Number)
the within Bond and all rights thereunder and hereby appoints
attorney -in -fact to transfer the within Bond on the books kept
for registration thereof, with full power of substitution in the
premises.
Dated:
Signature
Notice: The signature to this assignment must correspond with
the name as it appears on the face of the within Bond in every
particular.
Signature Guaranteed By
(Name of Bank)
By:
Title:
WPO:[TDICKSON.TAMARAC-SLNBELT)INDENTURS.
July 15, 1997 4:56pm 6
-R-97-/5S-
•
LOAN AGREEMENT
BETWEEN
CITY OF TAMARAC, FLORIDA
AND
SUN BELT PRECISION PRODUCTS, INC.,
RELATING TO
CITY OF TAMARAC, FLORIDA
INDUSTRIAL DEVELOPMENT REVENUE BONDS
SERIES 1997
(SUN BELT PRECISION PRODUCTS, INC., PROJECT)
Dated as of August 1, 1997
WPO.ETDICXSON.TAMARAC-SUNDELTILOANAGMT.
July 1S, 1997 4:23pm
EXHIBIT "B"
TEMP RESQ *7948
2-9�_'�s
TABLE OF CONTENTS
Parties . .
. . .
. . . . . . . . . . . . . . . . . . . . .
. . 1
Recitals .
. . .
. . . . . . . . . . . . . . . . . . . . .
. . 1
Definitions
. . .
. . . . . . . . . . . . . . . . . . . . .
. . 1
ARTICLE I
TERMS OF THE LOAN . . . . . . . . . . .
. 4
Section
1.1
Agreement to Make Loan . . . . . .
4
Section
1.2
Issuance of Bonds . . . . . . . . . . .
. 4
Section
1.4
Trust Indenture . . . . . . . . . . . .
. 4
Section
1.5
Prepayment of Note . . . . . . . . . .
. 4
Section
1.6
Payments to be Made . . . . . . . . . .
. 4
Section
1.7
Trustee's Fee . . . . . . . . . . . . .
. 5
Section
1.8
No Defense or Set-off -- Unconditional
Obligation . . . . . . . . . . . . . .
. 5
ARTICLE II
SECURITY . . . . . . . . . . . . . . . . . .
. 6
Section
2.1
Security for the Loan . . . . . . . . .
. 6
Section
2.2
Filing of Security Documents . . . . .
. 6
Section
2.3
Assignment of Note and Security
Documents . . . . . . . . . . . . . . .
. 6
ARTICLE III
REPRESENTATIONS AND WARRANTIES . . . . . . .
. 7
Section
3.1
Representations and Warranties of the
Issuer . . . . . . . . . . .
7
Section
3.2
General Representations and Warranties
of the Company . . . . . . . . . . . .
. 7
ARTICLE IV
THE
PROJECT . . . . . . . . . . . . . . . .
. 12
Section
4.1
Acquiring, Constructing and Equipping
the Project . . . . . . . . . . . . . . .
12
Section
4.2
Requirements for Disbursement . . . . . .
12
Section
4.3
Form of Draw Requests . . . . . . . . . .
13
Section
4.4
Subsequent Actions of the Company. . . .
14
Section
4.5
Review upon Completion . . . . . . . . .
14
Section
4.6
Company Required to Pay in Event Loan
Account Insufficient . . . . . . . . . .
15
Section
4.7
Modification of Plans and
Specifications . . . . . . . . . . . . .
15
,ARTICLE V
COVENANTS AND AGREEMENTS . . . . . . . . . . .
17
Section
5.1
General Covenants of the Company . . . .
17
Section
5.2
Damage to or Destruction of Project . . .
18
Section
5.3
Prepayment Upon Major Damage or
Destruction . . . . . . . . . . . . .
20
Section
5.4
Condemnation of the Project . . . . . . .
21
WPO:[TDICKSON.TAMARAC-SUNHELTjLOANAGMT.
i
July IS, 1997 4:23pm
r.5'7-ice
Section 5.5 Removal or Dispositions of Property . . .
Section 5.6 Compliance with Local Law
Section 5.7 Maintenance of Corporate Existence . . .
ARTICLE VI CONDITIONS OF LENDING . . . . . . . . . . . .
Section 6.1 Conditions Precedent to Making Loan . . .
Section 6.2 Company's Closing Certificate . . . . . .
ARTICLE VII TAX EXEMPTION . . . . . . . . . . . . . . . .
Section 7.1 Maintenance of Tax -Exempt Status of
Bonds . . . . . . . . . . . . . . . . . .
Section 7.2 Determination of Taxability . . . . . . .
ARTICLE VIII EVENTS OF DEFAULT . . . . . . . . . . . . . .
Section 8.1 Events of Default . . . . . . . . . . . .
Section 8.2 Remedies on Default . . . . . . . . . . .
ARTICLE IX PREPAYMENTS FOR REDEMPTION OF BONDS
Section 9.1 Optional Prepayments for Full
Redemption . . . . . . . . . . . . . . .
Section 9.2 Further Option to Prepay . . . . . . . .
Section 9.3 Prepayment Upon Determination of
Taxability . . . . . . • . . ,
Section 9.4 Mandatory Prepayment on Condemnation . .
ARTICLE X RESERVED . . . . . . . . . . . . . . . . . . .
ARTICLE XI MISCELLANEOUS . . . . . . . . . . . . . . . .
Section 11.1 No Waiver of Rights . . . . . , . . . .
Section 11.2 Day for Payment . . . . . . . . . . . . .
Section 11.3 Notices . . . . . . . . . . . . . . . .
Section 11.4 Payment of Expenses . . . . . . . . . . .
Section 11.5 Accounting Terms . . . . . . . . . . . .
Section 11.6 Binding Agreement . . . . . . . . .
Section 11.7 Choice of Law . . . . . . . . . . . . . .
Section 11.8 Agreement to Remain in Effect . . . . . .
Section 11.9 Amendments . . . . . . . . . . . . . . .
Section 11.10 Entire Agreement . . . . . . . . . . . .
ARTICLE XII NOTICE . . . . . . . . . . . . . . . . . . . .
Section 12.1 Addresses for Notice . . . . . . . . . .
Exhibit A Mortgage
Exhibit B Promissory Note
Exhibit C Requisition
WPO:MICICSON. TAMARAC- SUNBELT] LOANAGMT.
July 15, 1997 4:23pm 1 1
21
22
22
24
24
24
25
25
25
26
26
27
28
28
28
28
28
hX*7
411
30
30
30
30
31
31
31
31
31
31
ky,
�JPa
LOAN AGREEMENT 0
THIS LOAN AGREEMENT dated as of August 1, 1997 (the
"Agreement"), by and between the CITY OF TAMARAC, FLORIDA (the
"Issuer") and SUN BELT PRECISION PRODUCTS, INC. (the "Company"),
W I T N E S S E T H:
That the parties hereto, intending to be legally bound
hereby, and for and in consideration of the premises and the
mutual covenants hereinafter contained, do hereby covenant, agree
and bind themselves as follows: provided, that any obligation of
the Issuer created by or arising out of this Agreement shall
never constitute a debt or a pledge of the faith and credit or
the taxing power of the Issuer or any political subdivision or
taxing district of the State of Florida but shall be payable
solely out of the Trust Estate (as defined in the Indenture),
anything herein contained to the contrary by implication or
otherwise notwithstanding:;
NOW, THEREFORE, in consideration of the premises and of the
mutual promises herein set forth, the Issuer and the Company
agree as follows:
DEFINITIONS
The words and terms as used in this Agreement shall have the
meaning given in the Indenture (defined below), and if not
defined therein, shall have the following meanings:
"Act" - Chapter 159, Part II, Florida Statutes, and other
applicable provisions of law.
"Agreement" - This Loan Agreement dated as of August 1,
1997, between the Issuer and the Company.
"Architect" _ or such other architect
acceptable to the Company and the Underwriter.
"Authorized Representative" - With respect to the Company,
the President of the Company or such other person or persons as
the President shall designate in writing to the Issuer and the
Trustee.
"Bonds" - The Industrial Development Revenue Bonds, Series
1997 (Sun Belt Precision Products, Inc., Project) dated as of
August 1, 1997.
"Code" - The Internal Revenue Code of 1986, as amended from
time to time, including, when appropriate, the statutory
WPO:jTDICKSDN.TAM"AC-SUNBELT)LDANAGMT.
July 15, 1997 4:23pm
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predecessor of the Code, and all applicable regulations
thereunder whether proposed, temporary or final, including
regulations issued and proposed pursuant to the statutory
predecessor of the Code, and, in addition, all official rulings
and judicial determinations applicable to the Bonds under the
Code and under the statutory predecessor of the Code and any
successor provisions to the relevant provisions of the Code or
regulations.
"Company" - Sun Belt Precision Products, Inc., a Florida
Corporation.
"Contractor" - or such other
contractor acceptable to the Company and the Underwriter.
"County" - Broward County, Florida.
"Determination of Taxability" - Any determination, decision
or decree made in regard to Section 103 of the Code (or any other
relevant section) by the Commissioner or any District Director of
Internal Revenue, or, if there is an appeal from such
determination by a Commissioner or District Director, when a
final administrative or judicial determination has been made, or
by a final decision of any court of competent jurisdiction, that
the interest payable on the Bonds is includable in the gross
income of the holders of the Bonds for federal income tax
purposes (other than a holder who is a "substantial user" or
"related person" as such are defined in the Code) by virtue of
the occurrence of an Event of Taxability.
"Event of Taxability" - The occurrence of any circumstance
under which the Determination of Taxability shall be found to
have occurred, with the result that interest payable on the Bonds
becomes includable in the gross income of the holders of the
Bonds for federal income tax purposes (other than a holder who is
a "substantial user" or "related person" as such are defined in
the Code).
"Improvements" - Those improvements subject to a first lien
by the Company pursuant to this Loan Agreement.
"Indenture" - The Trust Indenture dated as of August 1,
1997, executed between the Issuer and the Trustee securing the
Bonds.
"Issuer" - The City of Tamarac, Florida, a public body
corporate and politic of the State of Florida created by the Act.
"Loan" - The Loan from the Issuer to the Company which is
evidenced and governed by this Loan Agreement.
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"Mortgage" - The Mortgage (Including Security Agreement,
Assignment of Rents and Leases, and Future Advances) given by the
Company to the Issuer to secure the Loan under this Loan
Agreement, and thereafter securing the repayment of the Bonds,
and appearing of record in the office of the Clerk of the Circuit
Court of the County in Florida in which the Project is located, a
copy of which are attached as Exhibit "A" to this Loan Agreement.
"Mortgaged Property" - All of the properties, whether real
or personal, tangible or intangible, mortgaged and pledged to the
Issuer under the Loan Agreement and the Mortgage, including the
Property, the Improvements and the Personal Property.
"Nontaxable Rate" - The original rate on the Bonds before
the occurrence of an Event of Taxability.
"Note" - The promissory note executed and delivered by the
Company to the Issuer pursuant to the terms of this Loan
Agreement, a copy of which is attached to this Loan Agreement as
Exhibit "B" and.which is secured by the Mortgage.
"Personal Property" - Any personal property obtained with
proceeds of the Loan and securing the Loan by means of a
perfected security interest in the property.
"Prime Rate of Interest" - That rate which shall be
established by the Trustee from time to time as its Prime Rate of
interest.
"Principal Amount" - The principal amount of the Bonds.
"Project" - The improvements, equipment and facilities being
financed out of the proceeds of the Bonds, which financing
includes all other expenses in connection therewith, including,
without limitation, architectural, engineering and legal fees,
construction interest, and the cost of issuing the Bonds.
"Property" - The real property in the State of Florida,
described on Exhibit "A" of the Mortgage which is Exhibit "A" to
this Loan Agreement.
"Security Documents" - Those documents which give the liens
or security instruments set out in Article II of this Loan
Agreement.
"State" - The State of Florida.
"Trustee" - The Trustee for the time being, whether original
or successor, with the original Trustee being First Union
National Bank of Florida, Miami, Florida. The Trustee is also
the paying agent and registrar.
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ARTICLE I
TERMS OF THE LOAN
Section 1.1 Actreement to Make Loan. Subject to the terms
and conditions contained herein, the Issuer agrees to make the
Loan to the Company in the Principal Amount, for the purpose of
providing financing for expenses incurred and to be incurred by
the Company for the Project, which Project is located on real
property situated in the State and more particularly described on
Exhibit "A" to the Mortgage which is attached hereto as
Exhibit "A."
Section 1.2 Issuance of Bonds. In order to obtain funds
for the making of the Loan, the Issuer will issue the Bonds in
the Principal Amount, the proceeds of which will be loaned to the
Company for the purpose of financing the Project, and for other
necessary and related expenses, including a portion of the costs
of issuance of the Bonds (including, without limitation, the cost
of printing the Bonds and the official statement, if any, and
related legal, accounting and other professional expense, and the
obtaining of any necessary or desirable credit enhancement).
Section 1.3 Promissory Note. The Loan shall be evidenced
by the Note in the Principal Amount in substantially the form of
Exhibit "B" annexed hereto. The Note shall be dated the date of
its issuance and shall be payable to the Issuer (as hereinafter
provided) as therein set forth.
Section 1.4 TTx}jst Indenture. The Issuer and the Company
acknowledge that the Indenture has been or will be executed
between the Issuer and the Trustee.
Section 1.5 Prepayment of Note. The Company shall have
the right to prepay the Note, in whole or in part, provided that
such payments shall only be made as and in the same amounts as
the Bonds may be prepaid or redeemed prior to maturity, in
accordance with the terms of the Indenture, which Indenture the
Company acknowledges that it has approved in the form finally
executed and delivered to the Trustee by the Issuer.
Section 1.6 Payments to be Made. All payments due to the
Issuer hereunder and under the Note or under the Security
Documents on account of the Loan or otherwise shall be made to
the Trustee, at its designated office in Miami, Florida, as and
when due. When the Note is paid in full, and when the Bonds are
fully paid and discharged and there are no other obligations
outstanding to or in favor of the Issuer, the Issuer shall cancel
and return the Note to the Company, and cause the lien of the
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Mortgage and Indenture to be released and all security interests
to be terminated. 0
Section 1.7 Trustee's Fee. In addition to the payments
required hereunder and under the Note, the Company will also pay
directly to the Trustee all fees and charges, and other expenses,
properly payable to the Trustee for its services as Trustee and
Paying Agent as provided in the Indenture.
Section 1.8 No Defense or Set-off -- Unconditional
Obligation. The obligations of the Company to make the payments
required in this Article I and to perform and observe the other
agreements on its part contained herein shall be absolute and
unconditional, irrespective of any defense or any right of set-
off, recoupment or counterclaim it might otherwise have against
the Issuer or the Trustee, and the Company shall pay absolutely
during the term of this Agreement the payments to be made on
account of the Loan and all other payments required hereunder
free of any deductions and without abatement, diminution or set-
off; and until such time as the principal of and premium, if any,
and interest on the Bonds shall have been fully paid, or
provision for the payment thereof shall have been made in
accordance with the Indenture, the Company: (i) will not suspend
or discontinue any payments provided for in this Agreement or the
Note; (ii) will perform and observe all of its other agreements
contained in this Agreement; and (iii) will not terminate this
Agreement for any cause, including, without limiting the
generality of the foregoing, failure to complete the Project, the
occurrence of any act or circumstances that may constitute
failure of consideration, destruction or damage to the Project,
commercial frustration of purpose, any change in the tax laws of
the United States of America or the State or any political
subdivision of either or them, or a failure of the Issuer or the
Trustee to perform or observe an agreement, whether express or
implied, or any duty, liability or obligation arising out of or
connected with this Agreement or the Indenture.
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ARTICLE II
SECIIRITY
Section 2.1 acurity_for the Loan. In order to induce
the Issuer to make the Loan, the Company agrees that all of the
obligations of the Company hereunder and under the Note shall be
secured by the following liens or security instruments given
pursuant to the terms of the security documents described below
(the "Security Documents"):
(i) A first lien mortgage given by the Company and creating
a lien on the Mortgaged Property substantially in the form of
Exhibit "A" hereto.
(ii) A guaranty from Interplex Industries, Inc. to the
Trustee and the Issuer as provided in the Guaranty.
Section 2.2 Filing ,of„Security _ Documents. The Company
will cause the Security Documents to be duly filed, refiled,
recorded and rerecorded at its sole cost and expense, prior to
the making of the Loan, or as soon as practicable thereafter, in
all places necessary and cause all other necessary filings or
recordings to be made (including, without limitation, the filing
. of Uniform Commercial Code financing statements) in order to
preserve and protect the liens or security interests of the
Issuer in the property mortgaged or assigned therein and will
perform each and every term, covenant, condition and agreement
contained in the Note and the Security Documents.
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The Company agrees to execute additional documents on
reasonable request of the Issuer or the Trustee.
Section 2.3 Assignment of Note and Security Documents.
The Company acknowledges that the Note and the Security
Documents, and any documents or instruments delivered thereunder,
will be assigned or delivered to the Trustee as security for the
Bonds, and by execution of this Agreement consents thereto.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.1 Representations and Warranties of the Issuer.
The Issuer represents and warrants as follows:
(a) The Issuer is duly organized and existing under
the laws of the State and has full power and authority to enter
into this Agreement.
(b) The making and performance of this Agreement has
been duly authorized by all necessary action of the governing
board of the Issuer, and does not contravene any law, regulation
or decree or any contractual restriction binding on the Issuer.
Section 3.2 General Representations and Warranties of the
Co=anv. The Company represents and warrants as follows:
(a) The Company is duly organized and existing under
the laws of the State of Florida and has full power and authority
to enter into this Agreement.
(b) The making and performance of this Agreement has
been duly authorized by all necessary action of the Board of
Directors or appropriate governing body of the Company, and does
not contravene any law, regulation or decree or any contractual
restriction binding on the Company.
(c) The Company is or will be the owner of the
Mortgaged Property which shall be free and clear of all mortgage,
liens, charges and encumbrances, which constitute a lien or
charge against its property, real or personal, tangible or
intangible, except those described in the Security Documents
(except for such liens as will be waived or discharged at the
time of the making of the Loan).
(d) The making and performance of this Agreement, the
Note, the Security Documents, and each and every other document
required to be delivered under Article II hereof, has received
all necessary governmental approvals, and does not contravene any
law, regulation or decree or any contractual restriction (other
than those which shall be waived or discharged at the time of the
making of the Loan) binding on or affecting the Company.
(e) This Agreement, the Note, the Security Documents
to which the Company is a party and each and every other document
required to be delivered by the Company under Article II hereof,
when duly executed and delivered for value, will be legal and
binding obligations of the Company, enforceable in accordance
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with their respective terms, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting creditors' rights generally.
(f) Except as disclosed in the opinion of Company's
counsel, there are no pending or threatened actions or
proceedings before any court or administrative agency which may
materially adversely affect the financial condition or operations
of the Company.
(g) The financial statements of the Company at
December 31, 1996, correctly and accurately set forth its
financial condition as of such date to the best of the Company's
knowledge, and since such date there have been no material
adverse changes in such condition.
(h) The Company is not in default under any provision
of any lease or rental agreement.
(i) The Company is not in default under the terms of
any instrument or undertaking with respect to its obligations to
repay any borrowed money.
(j) The Company is not aware of any claim, or
purported claim, of any laborer, materialman, contractor or other
person who might assert a lien against the Mortgaged Property by
reason of the construction or other improvement, other than those
shown on the title commitment of the approved title insurance
company, which shall be fully paid and satisfied from the
proceeds of the Loan.
(k) No part of the proceeds of the Loan have been, or
will be used, for construction, renovation, or repair to any
property of the Company other than the Mortgaged Property.
(1) Estimated Project costs have been determined in
accordance with sound engineering and accounting principles, and
the Company estimates that all of the proceeds of the Bonds
(exclusive of accrued interest, if any, paid by the original
purchasers thereof) will be expended to pay or reimburse such
Project costs.
Section 3.3 Tgx Representations and Warranties of the
Company. The Company represents and warrants as follows:
(a) Ninety-five percent (95"s) or more of the net
proceeds (within the meaning of Section 144(a)(1) of the Code and
regulations thereunder) from the sale of the Bonds will be
expended for Project costs which constitute proper costs of land
or property of a character subject to the allowance for
depreciation, or which will be, for federal income tax purposes,
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chargeable to the Project's capital account or would be so
chargeable either with a proper election by Company (for example,
under Section 266 of the Code) or but for a proper election by
Company to deduct such amounts, and which were paid or incurred
by the Company on or after December 28, 1996.
(b) The Company intends to utilize or cause the
Project to be utilized as a manufacturing facility within the
meaning of Section 144(a) of the Code.
(c) No changes shall be made in the Project and no
actions will be taken by the Company which in any way affect the
qualification of the Project for financing under the Act, or
impair the exemption of interest on any of the Bonds from federal
income taxation.
(d) As of the date of delivery of this Agreement,
there are no outstanding obligations of any state, territory or
possession of the United States, or any political subdivision of
the foregoing or of the District of Columbia the proceeds of
which have been or are to be used primarily with respect to
facilities located within the jurisdictional limits of the County
within which the Project is located and which are to be used
primarily by the Company (including any person related to the
Company within the meaning of Section 144(a)(3) of the Code),
except as follows: None.
(e) The representations contained in subsection (d)
above also apply to facilities which are either contiguous to or
integrated with the facilities being financed out of proceeds of
the Bonds within the meaning of Section 144(a) of the Code and
separated from such facilities by a single political border
(state, county or municipal or a common line therefor),
regardless of where located.
(f) Neither the Company nor a "related person" (as
that term is defined in Section 144(a)(3) of the Code) is or is
expected to be the principal user of any facilities financed by
industrial development bonds that were or are to be sold:
(i) at substantially the same time as the
Bonds, and
under a common plan of marketing with
the Bonds, and
at substantially the same rate of
interest as the Bonds.
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(g) The average maturity of the Bonds does not exceed
120%- of the average reasonably expected economic life of the
Project as determined under Section 147(b) of the Code.
(h) As of the date of issuance of the Bonds, the sum
of the (i) outstanding bonds identified in subsection (d) above,
the proceeds of which were to be used with respect to the Project
or other facilities located in the County of the Project or
contiguous to or integrated with the Project or to any such
facility and the principal user of which is or will be the
Company or one or more related persons, (ii) the aggregate amount
of "capital expenditures" (within the meaning of
Section 144(a)(4) of the Code) with regard to the Project or such
other facilities paid or incurred during the period beginning
three years before the date of the issuance of the Bonds (and
financed otherwise than out of the proceeds of the Bonds or the
other outstanding principal amount of bonds identified in (d)
above) and (iii) the aggregate authorized face amount of the
Bonds, is or will be less than $10,000,000.
(i) The Company covenants that no action will be taken
or permitted or caused to be taken or permitted that will cause
the $10,000,000 capital expenditures limit set forth in
Section 144(a)(4) of the Code to be exceeded.
(j) None of the proceeds of the Bonds will be used
(i) as working capital or (ii) to finance inventory or all or any
portion of any residential real property for family units as
described in Section 144(a)(5) of the Code.
(k) The Company will not use any of the funds provided
by the Bonds in such manner as to take or omit to take any action
which would impair the exemption of interest on the Bonds for
federal income taxation.
(1) None of the proceeds of the Bonds will be expended
for a golf course, country club, massage parlor, tennis club,
skating facility, racquet sports facility, hot tub facility,
suntan facility, racetrack facility, airplane, sky box, private
luxury box, gambling facility, any store the principal business
of which is the sale of alcoholic beverages for consumption off
premises, or health club facility. Not more than 25k of the
proceeds of the Bonds will be used to provide a facility of
which, during the term of this Agreement, the primary purpose is
retail food and beverage service, automobile sales or service or
the provision of recreation or entertainment.
(m) Neither the Company nor any related person is the.
"owner" or "principal user" of facilities financed by "private
activity bonds" (all within the meaning of Section 141 of the
Code) collectively in excess of $40,000,000 in outstanding
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principal amount (including the principal amount of the Bonds)
and the Company will not permit any person to own or become a
principal user of the Project who would cause the $40,000,000
limitation imposed by Section 144(a)(10) of the Code to be
exceeded for the three-year period beginning on the date the
Project is first placed in service.
(n) None of the proceeds of the Bonds will be applied
to acquire existing buildings or used equipment or facilities
(equipment or facilities the original use of which did not
commence with the Company) without the written consent of the
Issuer.
(o) Less than twenty-five percent (25k) of the net
proceeds of the Bonds will be used (directly or indirectly) for
the acquisition of land (or an interest therein).
(p) The Project is not a part of another building, a
shopping mall, or a strip of offices, stores or warehouses using
substantial common facilities not owned or used by the Company
and any related person (as defined in Section 144(a)(3) of the
Code).
(q) No more than two percent (2k) of Bond proceeds
will be used to pay issuance costs in accordance with
Section 147(g) of the Code.
All of the above representations and warranties shall
survive the making of this Agreement and the closing of the Loan:
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ARTICLE IV
THE PROJECT
Section 4.1 Ac irin -Constructing and E i in the
Project. The Company shall cause the Project to be acquired,
constructed and equipped with all reasonable dispatch in order to
effectuate the purposes of the Act in accordance with the
proposed Project plans and specifications filed with the Trustee.
The Company shall have the sole responsibility under this
Agreement for the acquiring, constructing and equipping of the
Project and may perform the same itself or through its agents,
ana may maxe or issue sucn
instructions, and in genera
other things as it may in i
or advisable for the acquix
Project and for fulfilling
The Company shall have full
this Agreement to supervise
all aspects of the acquirin
Project, except as set fort
property of the Company and
or interest therein except
that the Improvements to be
Bonds shall be wholly const
in Exhibit "A" to the Mortcr
contracts, oraers, receipts and
1 do or cause to be done all such
is sole discretion consider requisite
ing, constructing and equipping of the
its obligations under this Article IV.
authority and the sole right under
and control, directly or indirectly,
;, constructing and equipping of the
z herein. The Project shall be the
the Issuer shall have no right, title
is created hereby. The Company agrees
financed from the proceeds of the
-ucted on the Real Property described
tae attached hereto as Exhibit "A_
Section 4.2 Recruirements for Disbursement. Prior to the
disbursement of any of the proceeds of the Loan for payment or
reimbursement of Project costs (the undisbursed balance of the
Loan being referred to herein as the "Loan Account"), the Trustee
shall have received the following, unless specifically waived by
the Underwriter or unless permission has been granted in writing
by the Underwriter for substituted documents or performance:
[This list will be shortened as items are delivered prior to
closing or not required by Underwriters.]
(a) a construction contract with
for completion of the Improvements with an enforceable completion
date of no later than , 199 ;
(b) plans and specifications for the Project and an
itemized budget for the Project, certified as correct by the
Company and contractor and establishing a schedule of projected
draws from the Loan Account;
(c) a zoning and improvements letter;
(d) a flood plain letter;
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(e) UCC searches from the appropriate circuit court
clerk and the Florida Secretary of State;
(f) payment and performance bonds naming the Issuer
and the Trustee or their respective successors as dual obligee
and guaranteeing completion of the Improvements upon the terms
provided in Company's contract with the general contractor;
(g) building permits showing zoning consistent with
intended use;
(h) "Builder's Risk -Completed Value" insurance policy
showing the Issuer and the Trustee or its successor as mortgagee
loss payee and evidence of all other insurance required herein;
(i) current survey showing all easements, building
set -back line, and existing improvements certified to the Issuer
and the Trustee by an Florida registered land surveyor;
(j) such other items as the Issuer, the Trustee, the
Underwriter or their respective counsel may reasonably request
for preparation of documents and obtaining title insurance;
(k) a title commitment covering the "gap" period from
the title insurance company responsible for recording the
Mortgage;
(1) evidence that Company holds or may reasonably
expect to timely obtain valid and fully effective permits,
licenses or franchises necessary or appropriate for the operation
of the Project or as contemplated by the parties, including but
not limited to permits from appropriate environmental agencies;
(m) preliminary environmental audit performed by
environmental consultants approved by the Underwriter, with
results satisfactory to the Underwriter, such approval and
satisfaction to be conclusively presumed by the Underwriter's
payment of the purchase price of the Bonds.
Section 4.3 Form of Draw Requests. Draws from the Loan
Account shall be made no more often than every two weeks and
Requisitions, which shall be in the form attached as Exhibit "C"
hereto and accompanied by such certificates and additional
documentation as stated in such Requisition, and which shall be
submitted to the Trustee at least five (5) business days before
the requested draw. Where the Requisition includes amounts to be
paid to the Contractor, such Requisition shall be accompanied by
AIA Forms G702 and G703, executed by the Contractor and the
Architect. Where the Requisition relates to items other than
payments to the Contractor, there shall be included a statement
of the purpose of the advance and/or invoices for the same.
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Draw requests for costs and expenses of issuance of the
Bonds shall be made on a form acceptable to the Trustee.
Section 4.4 Subsequent Actions of ,the „Company.
Subsequent to the closing of the Loan, the Company covenants to
do the following:
(a) construct the Improvements in a workmanlike manner
on the Property and in complete conformity with the plans and
specifications and the construction contract and except to the
extent otherwise permitted by the Mortgage keep the Project free
from all liens for services, labor and materials until all
amounts advanced hereunder, or from the Bond proceeds, or under
any instrument securing this Loan are repaid in full;
(b) diligently and continuously proceed to construct
said improvements in order to complete construction and perform
all of its covenants and promises arising out of this Agreement
or in connected therewith and obtain a certificate of occupancy
or other evidence of local authority's satisfaction with the
Project, all not later than , 199 ;
(c) furnish the Trustee, as often as may be reasonably
requested, with full information on the status of the Project and
permit the Trustee or its agent to inspect all of the Company's
records with respect to the Project;
(d) to pay its the expenses of closing, including fees
and expenses of the Issuer's and the Trustee's counsel for
preparation of this and other documents and review of all
documents on behalf of the Issuer and the Trustee; and services
subsequent to closing in connection with future disbursements of
Loan proceeds and endorsements to the title policy; and
(e) to obtain prior approval of the Trustee for all
change orders as more fully set forth in Section 4.10.
Section 4.5 Review upon Completion. Promptly upon
completion of the Project, and prior to the release of any
retainage, the Company shall provide the Trustee the following:
(a) title insurance update;
(b) a current as -built survey, certified by an
independent registered land surveyor, establishing construction
of the Improvements in accordance with the approved plans and
specifications;
(e) evidence of all building permits, certificates of
occupancy, subdivision ordinance variances, environmental impact
statement, pollution control permits (if any) and such other
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licenses, permits and other evidence to show compliance with all
legal_ requirements and final completion and readiness for
occupancy or operation of the Improvements. Evidence shall be
furnished that the Project complies with all subdivision and
platting requirements affecting the Project and would so comply
if the Project were conveyed as a separate parcel;
(d) a certificate of completion by the Project
architect or contractor to the effect that the Improvements have
been completed in accordance with the approved plans and
specifications; that the Improvements have been directly
connected to abutting public water, sewer, gas and electrical
pipes or connections; and that the structure or structures are
sound; any mechanical plant is in good working order; and the
Improvements, have been satisfactorily maintained;
(e) a cost certificate of the general coilzractor or
Project architect certifying the final cost of the Improvements;
(f) casualty and liability insurance updates;
(g) further opinions of the Company's or other counsel
deemed reasonably necessary by the Trustee to assure the
enforceability of the obligations of the Company and any
guarantors hereof and the validity of the Issuer's and the
Trustee's liens; and
(h) the certificate described in Section 4.8 hereof.
Section 4.6 Company Reauiredtq Pay in Even an Account
Insufficient. In the event the moneys in the Loan Account as
described in Article VI of the Indenture available for payment of
Project costs should not be sufficient to pay the Project costs
in full, the Company agrees to complete the Project and to pay
that portion of the Project costs in excess of the moneys
available therefor in the Loan Account. The Issuer does not make
any warranty, either expressed or implied, that the proceeds of
the Note or the moneys paid into the Loan Account and available
for payment of Project costs will be sufficient to pay all of the
Project costs. The Company agrees that if after exhaustion of
the moneys in the Loan Account the Company should pay any portion
of the Project costs pursuant to the provisions of this Section,
the Company shall not be entitled to any reimbursement therefor
from the Issuer or from the Trustee or from the holders of any of
the Bonds, nor shall the Company be entitled to any diminution of
the amounts payable under this Agreement.
section 4.7 Modification of Plans and Specifications.
The Company may revise the plans and specifications for the
Project (including, without limitation, any changes therein,
additions thereto, substitutions therefor and deletions
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is
therefrom) at any time and from time to time, provided that the
company shall (i) certify that no such change shall render
inaccurate any of the representations with respect thereto
contained in Article III, and (ii) the Project contractor shall
certify that such revisions will not cause the cost of completion
of the Project to exceed the amounts on deposit in the Loan
Account.
Section 4.8 Certification of Completion Date. Promptly
after the date upon which the Project is complete, the Company
shall submit to the Trustee a certificate, executed by an
Authorized Representative, which shall specify the completion
date and shall state that acquisition, construction and equipping
of the Project has been completed and the Project costs have been
paid, except for any Project costs which have been incurred but
are not then due and payable, or the liability for the payment of
which is being contested or disputed by the Company, and for the
payment of which the Trustee is directed to retain specified
amounts of moneys in specified accounts within the Loan Account.
Such certificate may state that it is given without prejudice to
any rights against third parties which exist at the date thereof
or which may subsequently come into being.
Any amount remaining in the Loan Account after payment of
all Project costs shall be transferred to and deposited in the
Bond Redemption Account pursuant to Section 604 of the Indenture.
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ARTICLE V
COVENANTS AND AGREEMENTS
Section 5.1 General. Covenants of the Company. The
Company covenants with and warrants to the Issuer that during the
period of this Agreement and so long as the Loan shall be
outstanding, the Company will:
(a) Furnish to the Trustee, the Underwriter and, upon
written request, holder of at least 15k of the principal amount
of the Bonds (i) on or before the 120th day after the end of its
fiscal year each year, the annual reviewed financial statements
of the Company and the Guarantor complete with balance sheet,
income statement, statement of changes in financial position,
supporting schedules and notes to financial statements as of the
preceding fiscal year, (ii) within 45 days after the end of each
quarter, quarterly financial statements of the Company which may
be prepared by the Company, (iii) within 3 days after the
occurrence of an Event of Default (or of an event which with the
passage of time or the giving of notice, or both, would become an
Event of Default), notice of such occurrence together with the
detailed statement by the Company of the steps being taken by the
Company to cure the effect of such Event, and (iv) such other
information respecting the financial condition and operations of
the Company reasonably requested.
(b) Duly pay and discharge all taxes, assessments and
governmental charges upon it or against its properties prior to
the day on which penalties are attached thereto, unless and to
the extent only that the same shall be contested in good faith
and by appropriate proceedings by the Company (i) the effect of
which is to prevent any impairment of the lien evidenced by the
Mortgage or (ii) upon the posting of security or other action
approved by the Trustee.
(c) Maintain with financially sound and reputable
insurance companies (A) during construction of the Project,
builder's all-risk insurance, as set forth in Section 4.2(h), and
(B) following construction, $1,000,000 public liability
insurance, workers' compensation insurance, and multi -risk
insurance on the Project. The insurance must provide coverage
and be issued by a company satisfactory to the Trustee showing
the Issuer and the Trustee, as their interests appear, named as
mortgagee in the loss payable clause of the multi -risk policy and
named as additional insured in the public liability policy. The
multi -risk insurance shall be in an amount at least equal to the
amount of the Note. The Trustee shall have the right during the
Company's normal business hours from time to time to review the
original policies of such insurance. If the Property is located is
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. in a flood plain such policies shall include coverage for flood
and rising waters, as the Issuer may require.
(d) The Certificate(s) of Insurance evidencing
required insurance coverage shall recite that the coverage being
provided are in force and satisfy Paragraph (c) above and shall
contain the written obligation on the part of the insurance
carrier to notify the Trustee in writing at least thirty (30)
days prior to any cancellation, termination or material amendment
of its policy.
(e) Allow any representative of the Issuer or the
Trustee (including an accountant or consultant or firm of
accountants or firm of consultants selected by such party) to
visit any of its property, to examine its books of record and
account, at such reasonable times and as often as such parties
may reasonably request.
(f) Perform the covenants and obligations contained in
this Agreement, the Note and the Security Documents, or any other
loan documents executed in the future representing additional
debt owed by the Company to the Issuer.
(g) Perform all of the obligations to be performed by
the Company pursuant to the terms of the Indenture or of any
other indenture, agreement, contract or other instrument by which
the Company is bound; provided, however, that the Company shall
not be in violation, of this covenant if it shall be in good faith
contesting any alleged failure of performance in the Indenture or
of any other indenture, agreement, contract or instrument, as
provided in the terms and provisions thereof.
(h) Indemnify, protect, defend and save the Issuer,
the Trustee, and any purchaser of the Bonds harmless from and
against any and all claims, demands, liabilities and costs,
including attorney's fees, arising from damage or injury, actual
or claimed, of whatsoever kind or character, to property or
persons, occurring or allegedly occurring in, on or about the
Mortgaged Property during the life of this Agreement, and upon
notice from the Issuer or Trustee, the Company shall defend such
party in any action or proceeding brought thereon.
(i) Unless debt service has been paid and the Company
is not in default under the terms of this Agreement or the
Mortgage, not declare or pay, or set apart any funds for the
payment of, any dividends on any shares of the Company's capital
stock or apply any of its funds or other assets for the purchase,
redemption or other retirement in respect to any capital stock.
Section 5.2 Damage to or Destruction -of Pro'ect. If
prior to the full payment of the Bonds (unless funds for the
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redemption of all of the Bonds, including accrued interest
thereon, and expenses related thereto shall have been deposited
with the Trustee) the Improvements or the Personal Property is
destroyed (in whole or in part) or is damaged by fire or other
casualty to the extent that the claim for loss resulting from
such destruction or damage is not greater than $25,000, the
Company shall (i) promptly repair, rebuild or restore the
Improvements or the Personal Property (as appropriate) damaged to
substantially the same condition as it existed prior to the event
causing such damage or destruction, with such changes,
alterations and modifications (including the substitution and
addition of other property) as may be desired by the Company and
as will not impair the operating unity and (ii) apply for such
purposes so much as may be necessary of any of the net proceeds
of insurance resulting from claims for such losses, as well as
any additional moneys of the Company necessary therefor. All net
proceeds of insurance resulting from claims for such losses not
in excess of $25,000 may be paid directly to the Company.
If, prior to full payment of the Bonds (or provision for
payment thereof having been made in accordance with the
provisions of the Indenture), the Improvements or the Personal
Property (in whole or in part) are damaged by fire or other
casualty to such extent that the claim for loss resulting from
such destruction or damage is in excess of $25,000, the Company
shall promptly give written notice thereof to the Trustee, and
all net proceeds of insurance resulting from such claims for such
losses shall be paid to and held by the Trustee, whereupon
(i) the Company will proceed promptly to repair, rebuild or
restore the Improvements or the Personal Property (as
appropriate) to substantially the same condition as it existed
prior to the event causing such damage or destruction, with such
changes, alterations and modifications (including the
substitution and addition of other property) as may be determined
by the Company with the consent of the Issuer and as will not
impair the character of the Improvements or the Personal Property
in its use as it had been used prior to such damage or
destruction; and (ii) the Trustee will apply so much as may be
necessary of the net proceeds of such insurance (the "Net
Proceeds" being the gross proceeds of such insurance less any
attorney's fees or other costs or expenses incurred in collecting
the Net Proceeds) to payment of the cost of such repair,
rebuilding or restoration, either on completion thereof or as the
work progresses, as directed by the Company.
Each such direction of the Company shall be accompanied by a
certificate of an architect or engineer (who shall be selected by
the Company and satisfactory to the Trustee) in charge of the
rebuilding, repairing or restoring, dated not more than 30 days
prior to such direction, setting forth in substance (a) that the
sum then directed to be applied either has been paid by the
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• Company or is justly due, to contractors, subcontractors,
materialmen, engineers, architects or other persons who shall
have rendered services or furnished materials or improvements for
the rebuilding, repairing or restoring therein specified; the
names of such persons; a brief description of such services or
materials or improvements and the several amounts so paid or due
to each of such persons; and a statement that none of the cost of
the services or materials or improvements described in such
certificate has been or is being made the basis of any previous
or then pending direction for payment under this Section and that
the sum then directed to be applied does not exceed the value of
the services or materials or improvements described in the
certificate, and (b) that, except for the amount, if any, stated
(pursuant to (a) preceding) in such certificate to be due for
services or materials or improvements, there is not outstanding
any indebtedness known to the persons signing such certificate
which is then due for labor, wages, materials, supplies or
services in connection with the repairing, rebuilding or
restoring which, if unpaid, might become the basis of a vendor's,
mechanics, laborer's or materialmen's lien upon the Property or
the Personal Property or any part thereof. The Trustee may
conclusively rely upon such direction and shall have no liability
or responsibility for payments made pursuant to this paragraph in
reliance thereon. In the event the Net Proceeds are not
sufficient to pay in full the costs of such repair, rebuilding or
restoration, the Company will nonetheless complete the work
thereof and will pay that portion of the costs thereof in excess
of the amount of the Net Proceeds. The Company shall not, by
reason of the payment of such excess costs, be entitled to any
reimbursement from the Issuer or any abatement or diminution of
the amounts payable on the Note.
Any balance of such Net Proceeds, whether held by the
Company or the Trustee, remaining after payment of all the costs
of any such repair, rebuilding or restoration shall be deposited
in the Bond Fund established under the Indenture and used to make
required payments thereunder in an amount sufficient and in a
manner for the Bonds not to be "arbitrage bonds" as defined in
Section 148 of the Code. If the Bonds have been fully paid (or
provisions therefor made in accordance with the provisions of the
Indenture) and no funds are otherwise due and owing to the
Issuer, all Net Proceeds will be paid to the Company, otherwise
they shall be paid to the Issuer to the extent of any amounts
owed to the Issuer.
Section 5.3 Pre ayLnent U on Major Damage or Destruction.
Notwithstanding the foregoing provision of this Article, the
Company shall not be required to repair, restore, replace or
rebuild the Project or any part thereof, if the Company shall
elect to pay in full all of its indebtedness to the Issuer
pursuant to Section 9.1 of this Agreement, such indebtedness
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including, without limitation, an amount sufficient to redeem
prior to maturity on the next possible redemption date all of the
Bonds then outstanding, together with accrued interest to the
redemption date, and all charges, fees and expenses necessarily
incurred and required to be incurred in connection with such
redemption, and all other amounts then owing by the Company to
the Issuer. In that event, the proceeds of all insurance shall
be placed in and become part of the Bond Fund provided for in the
Indenture. If there be any deficiency in the moneys on deposit
in the Bond Fund, after the deposit therein of all insurance
proceeds, to make said required payments by the Company, the
Company shall immediately deposit therein the amount of the
deficiency.
Section 5.4 Condemnation of the Projggt. In the event of
condemnation by a competent authority for any public use or
purpose of all or substantially all of the Mortgaged Property,
the Company shall prepay the Loan in such amount (which may
include the proceeds of such condemnation award) as will provide
for the payment of the Bonds in full, including funds necessary
to pay all principal, interest, Trustee's fees, redemption
premiums, and all other costs of redemption of the Bonds. In the
event the net condemnation award, together with any other amounts
in the hands of the Trustee, shall be in excess of the amount
necessary to pay the total redemption expense of the Bonds, and
if the Company is not in default in any of its other obligations
under this Agreement and no funds are otherwise due and owing to
the Issuer, then such excess shall belong to and be paid to the
Company. otherwise they shall be payable to the Issuer to the
extent any money is owed to the Issuer. If the Company is in
default with reference to any of its other obligations hereunder,
the amount in excess of that necessary to satisfy such default
shall be paid to the Company. In the event of a condemnation of
less than all, or substantially all, of the Mortgaged Property,
the Company will repair or rebuild the Mortgaged Property so that
the remaining part as nearly as possible will be in the condition
existing prior to the taking, to the extent that the same may be
feasible, subject to the right of the Company to make alterations
so as to improve the efficiency of the improvements. Such
condemnation award for a taking of less than substantially all of
the Mortgaged Property shall be payable to the Company upon
providing to the Trustee such reasonable evidence and
documentation in relation to the taking as they may require.
Section 5.5 Removal or Dispositionsof Property_.
(a) Except as set forth in subsection (b) below, from
the date of this Agreement and so long as the Note or the Bonds
shall be outstanding, the Company will not sell or otherwise
transfer the Mortgaged Property, without the prior written
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•
consent of the Trustee which consent shall not be unreasonably
withheld.
(b) Personal property may be disposed of hereunder
upon condition that: (i) such property is replaced with property
performing a like function in relation to the Project, with the
result that the efficiency and utility of the Project are
enhanced by such replacement; and (ii) the Company takes the
necessary action to cause the replacement property to be
subjected to the lien and security interest conferred by the
Mortgage.
Section 5.6 Compliance ,with, Local ,Law.
(a) All construction upon and use of the Mortgaged
Property is and shall be in compliance with all pertinent and
applicable local, county, state and federal statutes and
ordinances including applicable zoning, building code and
environmental protection ordinances.
(b) The Company shall cause the Project to be
constructed of first class materials in a good, substantial and
workmanlike manner in accordance with the plans and
specifications filed with the Trustee. The Company will cause
the Project to be completed free and clear of any claims or liens
for labor or material, and the Company shall cause the Project to
be constructed within the building set -back lines as shown on the
plat of the Property.
Section 5.7 Maintenange of Corporates Existence. The
Company agrees that it will maintain its corporate or
organizational existence and will not dissolve or otherwise
dispose of all or substantially all of its assets and will not
consolidate with or merge into another corporation or entity or
permit one or more other corporations or entities to consolidate
with or merge into it, except the Company may, without violating
the foregoing, consolidate with or merge into another corporation
or entity, or permit one or more other corporations or entities
to consolidate with or merge into it, or transfer all or
substantially all of its assets to another corporation or entity
(and thereafter dissolve or not dissolve as it may elect), and if
the entity surviving such merger or resulting from such
consolidation, or the entity to which all or substantially all of
the assets of the Company are transferred, as the case may be:
(i) shall be a domestic corporation or other recognized business
entity organized under the laws of the United States of America,
the District of Columbia or one of the states of the United
States and qualified to do business in the State of Florida,
(ii) shall assume in writing all of the obligations to the
Company thereunder, and (iii) shall have net tangible assets at
least equal to the net tangible assets of the Company immediately
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9
prior to such consolidation, merger or transfer. As used herein,
the term "net tangible assets" means all net assets of the
corporation or entity (except there shall not be included
goodwill), less all liabilities.
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9 ARTICLE VI
•
CONDITIONS OF LENDING
Section 6.1 Conditions Precedent to Making Loan. The
obligation of the Issuer to make the Loan is subject to the
conditions precedent that the Issuer shall have received on or
before the date of the Loan the following, each dated on or
before the date of the Loan, in form and substance satisfactory
to the Issuer:
(a) The Note and the Guaranty.
(b) A signed copy of a Certificate of Authorized
Representatives of the Company which shall certify the names of
the persons authorized to sign this Agreement, the Guaranty, the
Note and the Security Documents, together with the true
signatures of such persons.
(c) The Mortgage, together with evidence of all
necessary recordings thereof.
(d) A policy of title insurance, or commitment
therefor, acceptable to the Purchaser and dated the date of the
making of the Loan, such acceptance to be conclusively presumed
by the Purchasers payment of the purchase price of the Bonds.
(e) Those items set forth in Section 4.2 hereof.
Section 6.2 C m an 's Closing Certificate. The
obligation of the Issuer to make the Loan is also subject to the
further conditions precedent that on the date of the Loan the
following statements shall be true, and the Issuer shall have
received a certificate signed by the Authorized Representatives
of the Company dated such date, stating that:
(a) The representations and warranties contained in
Section 3.2 and Section 3.3 are true and correct on and as of
such date even though made on and as of an earlier date (except
to the extent that such representations and warranties relate
solely to an earlier date); and
(b) No event has occurred and is continuing, or would
result from the making of the Loan, which constitutes an Event of
Default or would constitute an Event of Default but for the
requirement that notice be given or time elapse or both.
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ARTICLE VII
TAX EXEMPTION
Section 7.1 Maintenance of Tax -Exempt Status of Bonds.
In order to preserve the income tax exemption of the Bonds, the
Issuer has elected, with respect to the Bonds, that the
provisions of Section 144(a)(4) of the Code shall be applied. in
order to effect such election and to continue the same in full
force and effect so long as any of the Bonds shall remain
outstanding and unpaid, the Company agrees to cooperate with the
Issuer in taking such further action and filing or causing to be
filed, such further supplemental instruments, documents,
statements, or reports at such office or offices, as may from
time to time be required by applicable law or regulation in
connection therewith. V
Section 7.2 Determination of Taxability_. If, for any
reason, without regard to whether such circumstances shall be
caused by any act or failure to act of the Issuer or the Company,
there shall occur a "Determination of Taxability," this Loan
shall be due and payable at such time and in such amount
necessary to pay all of the principal of, interest and premium
due on the Bonds in accordance with the terms thereof.
P-j
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0 ARTICLE VIII
EVENTS OF DEFATMT
Section 8.1 Events of Default. If any of the following
events shall occur and be continuing it is hereby defined as and
declared to be and to constitute an "Event of Default:
(a) A payment under the Note shall not be made in the
manner or time required thereunder; or
(b) Any other payment required by this Agreement or
the Security Documents shall not be made in the manner required
thereunder and such failure shall continue for a period of five
days after written notice to the Company; or
(c) Any representation or warranty made in connection
with the execution and delivery of this Agreement, the Note, the
Guaranty, or any of the Security Documents or in any certificate
furnished pursuant hereto or thereto shall prove to be at any
time incorrect; or
(d) The Company shall default in the performance of
any other term, covenant or agreement contained in this
Agreement, the Note, the Guaranty, or any of the Security
Documents or contained in any other loan, mortgage, note or other
obligation of the Company to the Issuer, and such default shall
continue unremedied for 15 days after written notice thereof
shall have been given to the Company by the Issuer or Trustee; or
(e) The Company shall file a voluntary petition in
bankruptcy or fail to lift any execution, garnishment or
attachment in an amount in excess of $25,000 or be adjudged a
bankrupt, or admit in writing its inability to pay or fail to pay
its debts generally as they become due; or
(f) The Guaranty, or any Security Documents shall be
canceled (except by operation of law upon payment in full of the
indebtedness secured thereby), or otherwise cease to be in full
force and effect and enforceable by the Issuer or the Trustee in
accordance with their terms against the Company and all other
persons, or they do not vest in the Issuer a fully perfected
valid lien or security interest, as the case may be; or
(g) The Company shall fail to maintain the insurance
required by the Agreement, the Note, the Mortgage or any other
document executed in connection therewith and such failure shall
continue for a period of fifteen days after written notice to the
Company.
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Section 8.2 Remedies on Default. If an Event of Default
occurs, the Note with all accrued interest applicable to the
Bonds shall, upon declaration to such effect, become and be
immediately due and payable without presentment, demand, protest
or other notice of any kind, all of which are expressly waived by
the company. Any amounts collected pursuant to action taken
under this Section shall be applied in accordance with the
Indenture.
u
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0 ARTICLE IX
•
PREPAYMENTS FOR REDEMPTION OF BONDS
Section 9.1 Optional Prepayments for Full Redem]tion.
The Company shall have the option to prepay installments payable
hereunder for the purpose of redeeming prior to maturity the
Bonds, in whole but not in part, if any of the following shall
have occurred:
(a) The Project shall have been damaged or destroyed
(i) to such extent that it cannot be reasonably restored within a
period of six months to the condition thereof immediately
preceding such damage or destruction, or (ii) to such extent that
the Company is thereby prevented, in the Company's judgment, from
carrying on its normal operation of the Project for a period of
six months, or (iii) to such extent that it would not be
economically feasible, in the Company's judgment, for the Company
to repair the Project.
(b) The legal curtailment of the use and occupancy of
all or substantially all of the Project by the Company for any
reason other than condemnation.
Section 9.2 lF rther Option to Prepay. From and after
1, , the Company shall have the further option to
prepay installments payable hereunder for the purpose of
redeeming Bonds, in whole or in part, at the premiums (if any)
set forth in the Bonds, prior to maturity without such events
having occurred. The Company may, at any time, prepay its
obligations hereunder upon irrevocably depositing funds or
securities with the Trustee sufficient to pay the Bonds when due
in the manner provided in Section 901 of the Indenture.
Section 9.3 Pre a ent U on Determination of Taxability.
Upon the occurrence of a Determination of Taxability, as defined
herein, the Company may prepay all installments due hereunder as
provided in Section 7.2.
Section 9.4 Mandatory -Prepayment on Condemnation. The
Company shall also be obligated, and agrees to prepay the entire
amount payable under Section 1.3 hereof in the case of
condemnation requiring a mandatory prepayment described in
Section 5.4 hereof.
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ARTICLE X
RESERVED
r�
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ARTICLE XI
MISCELLANEOUS
Section 11.1 No Waiver of,Riahts. No failure or delay on
the part of the holder of the Note in exercising any power or
right hereunder or under the Guaranty or any Security Document
shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right or power preclude any other or
further exercise thereof or the exercise of any other right or
power hereunder. No modification or waiver of any provision of
this Agreement, the Note, or any Security Document nor consent or
any departure by the Company therefrom shall in any event be
effective unless the same shall be in writing, and then such
waiver or consent shall be effective only in the specific
instance and for the purpose for which given. No notice to or
demand on the Company in any case shall entitle the Company to
any other or further notice or demand in similar or other
circumstances. The holder of the Note shall in no event be
required to exercise any of its remedies in respect of any
Security Documents before exercising any remedies hereunder or
otherwise to enforce the provisions of this Agreement or the
Note.
Section 11.2 Day for Payment. Whenever any payment to be
made hereunder, or under the Note shall be stated to be due on a
Saturday, Sunday or a day banks are closed under the laws of the
State or the United States of America, such payment shall be made
on the next business day.
Section 11.3 Notices. All notices, certificates or other
communications hereunder shall be sufficiently given and shall be
deemed given when mailed by registered or certified mail, return
receipt requested, postage prepaid addressed as set forth in
Section 12.01 hereof. A duplicate copy of each notice,
certificate or other communication given hereunder by the Issuer,
the Company or the Trustee to any other party shall also be given
to the parties to whom the notice, certificate or other
communication is not primarily addressed. The parties may, by
notice given hereunder, designate any further or different
address to which subsequent notices, certificates or other
communications shall be sent.
Section 11.4 Payment of Expenses. The Company agrees to
pay, or cause to be paid, all costs and expenses in connection
with the preparation, execution, and delivery of this Agreement,
the Note, the Bonds, and the Security Documents, and any and all
fees, taxes or expenses payable in connection with the filing,
refiling, recording and re-recording of any Security Document and
costs and expenses, if any, in connection with the enforcement of
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this Agreement, the Note, and the Security Documents, as well as
any and all stamp and other taxes, and to save the holder of the
Note harmless from any and all liabilities with respect to or
resulting from any delay or omission to pay such taxes, if any,
which may be payable or determined to be payable and enforcement
of this Agreement, the Note and the Security Documents or such
filing, refiling, recording, or re-recording of any Security
Document.
Section 11.5 Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with
generally accepted accounting principles consistently applied.
Section 11.6 Binding Agreement. This Agreement shall be
binding upon and inure to the benefit of the Company, the Issuer,
and the Trustee, their respective successors and assigns, except
that the Company may not assign or transfer its rights hereunder
without the prior written consent of the Trustee and the Issuer.
The term "Trustee" as used herein shall include any successor or
assignee of the Trustee.
Section 11.7 Choice of Law. This Agreement and the Note
shall be deemed to be contracts under the laws of the State and
for all purposes shall be governed by and construed in accordance
with the laws of the State.
Section 11.8 Agreement to_Remain in Effect. This
Agreement shall remain in full force and effect until the Note is
paid in full.
Section 11.9 A endme ts. Except as otherwise provided in
this Agreement or the Indenture, subsequent to the issuance of
Bonds and prior to payment in full of the Bonds (or the
provisions for payment thereof having been made in accordance
with the provisions of the Indenture), this Agreement may not be
effectively amended, changed or modified, altered or terminated
nor any provision waived, without the written consent of the
Trustee.
Section 11.10 Entire Agreement. This Agreement constitutes
the entire agreement, and supersedes all prior agreements and
understandings, both written and oral, between the parties with
respect to the subject matter hereof and may be executed in
several counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same
instrument.
El
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ARTICLE XII
NOTICE
Section 12.1 Addresses for Notice. Notices as required in
this Agreement shall be considered delivered when posted in
United States Mail, postage prepaid and addressed as set forth
below (or at such other address as may have been provided by the
party to all other parties hereto by proper notice):
If intended for the Company:
Sun Belt Precision Products, Inc,
900 S.W. 21st Terrace
Ft. Lauderdale, Florida 33312
Attention: President
If intended for the Issuer:
City of Tamarac, Florida
7525 N.W. 88th Ave
Tamarac, Florida 33321-2401
Attention: City Attorney
If intended for the Trustee:
First Union National Bank of Florida
200 S. Biscayne Blvd., 14th Floor
Miami, Florida 33131
Attention: Corporate Trust Department
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the date first written.
ATTEST:
By:_
Its:
ATTEST:
Its
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SUN BELT PRECISION
PRODUCTS, INC.
By:_
Its:
CITY OF TAMARAC, FLORIDA
By:
Its:
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0 EXHIBIT A
THIS INSTRUMENT PREPARED BY AND,
AFTER RECORDING, TO BE RETURNED TO:
AKERMAN, SENTERFITT & EIDSON, P.A.
P.O. Box 231
Orlando, FL 32802-0231
Attentionz T. Dean Dickson
(407) 843-7860
MORTGAGE
(INCLUDING SECURITY AGREEMENT,
ASSIGNMENT OF RENTS
AND LEASES AND FUTURE ADVANCES)
KNOW ALL PERSONS BY THESE PRESENTS:
THAT THIS MORTGAGE (INCLUDING SECURITY AGREEMENT, ASSIGNMENT
OF RENTS AND LEASES, AND FUTURE ADVANCES) (hereinafter sometimes
referred to as the "Mortgage") made and entered into as of this
lst day of May, 1997, by SUN BELT PRECISION PRODUCTS, INC., a
corporation organized and existing under the laws of the State of
Florida, whose address is 900 S.W. 21st Terrace, Ft. Lauderdale,
Florida 33312 (hereinafter called "Mortgagor"), in favor of CITY
OF TAMAR.AC, FLORIDA with offices at 7525 N.W. 88th Avenue,
Tamarac, Florida 33321-2401, together with its successors and
assigns, including First Union National Bank of Florida, as
trustee, pursuant to the Assignment of Construction Money
Mortgage of even date herewith (hereinafter called "Mortgagee").
WITNESSETH:
THAT FOR AND IN CONSIDERATION OF TEN DOLLARS ($10.00) cash
in hand paid by the Mortgagee to the Mortgagor, and the debt and
undertakings hereinafter mentioned, the said Mortgagor does
hereby mortgage, bargain, grant, sell, convey, deliver, confirm
and warrant unto the said Mortgagee and its successors and
assigns, the real property (said real property together with the
Improvements, herein defined, being herein called the "Mortgaged
Property") situated and being in Broward County, Florida, more
particularly described in Exhibit "A" attached hereto and made a
part hereof as fully and particularly as if set out herein
verbatim, together with:
(1) All the improvements now on or which may be hereafter
. placed on said land during the existence of this lien; and
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(2) All the income, rents, issues and profits arising
therefrom and for the use thereof, including, but not limited to,
insurance proceeds and condemnation awards, and all ledgers,
books of accounts and records relating thereto; and
(3) All machinery, appliances, materials, equipment,
furnishings or other property whatsoever now or hereafter
acquired, installed or to be installed and used or to be used in
and about the building or buildings on said land, including, but
not being limited to, all heating, plumbing, electrical,
lighting, water heater, cooking, refrigeration, incinerating,
ventilating and air-conditioning equipment, storm doors and
windows, floor coverings, awnings, window coverings, smoke
detectors, burglar alarms, fire extinguisher systems and property
of like nature, all of which property and things are hereby
declared to be permanent accessions to the freehold and part of
the realty conveyed herein, even if also described in Exhibit ,B"
referred to hereinafter, the property described in the foregoing
paragraph (1) and this paragraph (3) being sometimes herein
called the "Improvements";
TO HAVE AND TO HOLD the aforedescribed Mortgaged Property,
together with all the hereditaments and appurtenances thereunto
belonging or in anywise appertaining, including all rights of
homestead, unto the said Mortgagee, its successors and assigns
forever; and the said Mortgagor does hereby warrant covenant with
the said Mortgagee, its successors and assigns, that Mortgagor is
lawfully seized in fee of the estate described in Exhibit "A"
attached hereto, that Mortgagor has a good right to sell and
convey the same; that the same is unencumbered except for those
exceptions deemed permissible by Mortgage, if any, and set forth
in an Exhibit hereto (said exhibit, if any, being Exhibit "C");
and that the title and quiet possession thereto Mortgagor shall
and Mortgagors successors shall warrant and forever defend
against the lawful claims of all persons.
BUT THIS IS A MORTGAGE, and is made for the following uses
and purposes, and none other; that is to say, Mortgagor is justly
indebted to Mortgagee hereinafter mentioned, in the principal sum
of Three Million Three Hundred Thousand Dollars ($3,300,000),
evidenced by that certain promissory note (the "Note") of even
date herewith in the total principal amount of Three Million
Three Hundred Thousand Dollars ($3,300,000), bearing interest at
the rate specified therein, and the Mortgagee's Industrial
Development Revenue Bonds, Series 1997 (Sun Belt Precision
Products, Inc., Project) (the "Bond"), said Note being payable in
accordance with the terms of the Note, but in no event later than
the maturity date set forth in the Note, i.e., ,
All of the Note is incorporated herein by reference.
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AS FURTHER SECURITY, Mortgagor hereby pledges, assigns and
grants to Mortgagee a continuing security interest in the
Property (the "Personal Property") described in Exhibit "E"
attached hereto and incorporated herein by reference (the
property described in clause (a) of Exhibit "E" being sometimes
herein called the "Tangible Personal Property").
AND AS FURTHER SECURITY, as to any of the property described
in the preceding paragraph which constitutes or becomes fixtures
under the laws of the State of Florida, or similar statute,
whether now or hereinafter enacted, (whether or not also
described on Exhibit "E"), this also constitutes a fixture filing
perfecting a lien on fixtures by filing in the real estate
records and with the Secretary of State of the State of Florida.
Mortgagor desires to secure and make certain the payment of
the Note, and any and all renewals, modifications and extensions
thereof, in whole or in part and also the payment and performance
of the other Obligations, as hereinafter defined.
NOW, THEREFORE, so long as any part of the Obligations shall
remain unpaid or unperformed, Mortgagor covenants, agrees,
represents and warrants as follows:
ARTICLE I
OBLIGATIONS DEFINED
The following obligations of the Mortgagor are hereinafter
collectively called the "Obligations":
1.1 Note. Payment of the indebtedness (and interest, late
charges, prepayment premiums and liquidated damages, if any,
thereon) evidenced and to be evidenced by the Note, and of any
and all renewals, modifications and extensions thereof, in whole
or in part; and
1.2 Mortgage. Payment of all sums advanced by Mortgagee to
or for the benefit of Mortgagor contemplated hereby and.
Performance of all obligations and covenants herein contained,
including, without limitation, any amounts advanced to protect
the mortgage estate and security interests herein granted and all
attorneys' fees, court costs, and expenses of whatever kind
incident thereto or to the collection of the indebtedness and
obligations hereby secured and/or enforcement of the liens and
security interests herein granted;
1.3 Loan Agreement. Compliance with the covenants, terms
and conditions contained in the Loan Agreement of even date
between Mortgagor and Mortgagee; and
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1.4 Other Indebtedness. Payment of any other sums which
are owed by Mortgagor to Mortgagee (including but not limited to
those acquired by transfer, judgment or endorsement and whether
or not that debt is related in any way to the Note) at any time
hereafter and prior to the release and satisfaction of this
Mortgage. The Note, the Loan Agreement, this Mortgage, any
financing statements, and all documents securing the Obligations
are sometimes referred to herein as "Loan Documents."
ARTICLE IT
COVENANTS AND AGREEMENTS AS TO MORTGAGED PROPERTY
Mortgagor does hereby covenant, warrant and represent to and
agree with Mortgagee as follows:
2.1 Payment and__Performance. Mortgagor shall make all
payments on the indebtedness evidenced by the Note when due and
shall punctually and properly perform all of Mortgagor's other
obligations in accordance with their terms.
2.2 Insurance. Mortgagor shall, at Mortgagor's sole cost
and expense, obtain and maintain insurance upon all insurable
property encumbered hereby against such hazards, in such amounts
and under such form of policies, in accordance with the terms of
the Loan Agreement.
2.3 Taxes and Assessments. Mortgagor will promptly pay
when due all taxes, assessments, levies, dues and charges of
every type or nature assessed against the Mortgaged Property or
the Personal Property, and any claim, lien or encumbrance against
the Mortgaged Property or the Personal Property which may be or
become prior to the lien of this Mortgage as provided in the Loan
Agreement.
2'.4 Taxes on Mortgage. If at any time any law shall be
enacted imposing or authorizing the imposition of any tax upon
the Note, any of the Obligations, or this Mortgage, or upon any
rights, titles, liens, or security interests created hereby, or
any part thereof, Mortgagor shall immediately pay all such taxes;
provided that, if it is unlawful for Mortgagor to pay such taxes,
Mortgagee may pay such taxes and Mortgagor shall reimburse
Mortgagee for such payment in full within ten (10) days after
notice; provided, further, that if it shall be unlawful for
Mortgagor either to pay such taxes or to reimburse Mortgagee
therefor, or if such payment or reimbursement would be usurious,
Mortgagor shall not be required to make such payment or
reimbursement, but at Mortgagee's option, the Obligations shall
thereupon be immediately due and payable.
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2.5 Repair, Waste, Alterations, Etc. Mortgagor shall keep
every part of the Mortgaged Property and the Personal Property in
good operating order, repair and condition and shall not commit
or permit any removal or waste thereof, normal wear and tear
excepted. Mortgagor shall not remove or demolish or materially
alter the design or structural character of any Improvements now
or hereafter erected upon the Mortgaged Property without the
prior written consent of Mortgagee or as permitted by the Loan
Agreement. Mortgagor shall promptly make all necessary repairs,
renewals and replacements to the Mortgaged Property and the
Personal Property.
2.6 Advances by Mortcracree to Protect QQllateral. If the
Mortgagor shall default in paying taxes or assessments,
maintaining insurance or making repairs, the Mortgagee may, at
its discretion, advance and pay such sums as may be proper to
satisfy taxes, maintain insurance and make repairs, and protect
and preserve the Mortgaged Property and Personal Property, and
such amounts so paid shall be treated as part of the expenses of
administering this pledge of collateral, shall be repaid by
Mortgagor on demand with interest at the Default Rate
(hereinafter defined), and shall be secured by the lien hereof.
However, the making of any such payment by Mortgagee shall not be
construed as a waiver of any default of Mortgagor.
2.7 No Mech5lnic's„Liens. Mortgagor shall discharge all
claims for labor performed and material furnished to the
Mortgaged Property, and shall not suffer any lien of mechanics or
materialmen to be filed against any part of the Mortgaged
Property. Mortgagee has not consented and will not consent to
any contract or to any work or to the furnishing of any materials
which might be deemed to create a lien or liens superior to the
lien of this instrument, unless by signed, recorded writing,
which consent it may refuse to give in its sole and absolute
discretion.
2.8 Protection and ,Priori v of _Lien. Mortgagor shall not
do anything or suffer or permit anything to be done whereby the
lien and security interest of this Mortgage could be impaired.
In particular (but not by way of limitation), Mortgagor shall not
consent, directly or indirectly, to the inclusion of any portion
of the Mortgaged Property within any improvement district or
similar organization which has the authority to levy assessments
against the Mortgaged Property which constitute a lien thereon
which is equal or superior to the lien of this Mortgage. Nor
shall Mortgagor do anything or suffer or permit anything to be
done or omit to do anything which could result in foreclosure of
a lien of any kind on any portion of the Mortgaged Property
whether that lien was superior, inferior or equal to that of the
Mortgage. None of the provisions of this Section 2.8 may be
waived except by a signed, recordable writing from Mortgagee.
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2.9 Hazardous Substances. As used herein, "Hazardous
Substances" shall mean and include all hazardous and toxic
substances, wastes or materials, any pollutants or contaminants
(including, without limitation, asbestos, petroleum products,
polychlorinated biphenyls and raw materials which include
hazardous constituents), or any other similar substances, or
materials which are included currently or hereinafter under or
regulated by any local, state or federal law, ordinance, rule or
regulation pertaining to environmental regulation, contamination
or clean-up, including, without limitation, "CERCLA," "RCRA,', or
state lien or state superlien or environmental clean-up statutes
(all such laws, rules and regulations being referred to
collectively as "Environmental Laws"). Mortgagor warrants,
represents and covenants as follows:
(i) Neither the Mortgagor or the Mortgaged
Property nor any other personal or real property owned by
Mortgagor is subject to any private or governmental lien or
judicial or administrative notice or action, relating to
Hazardous Substances or environmental problems, impairments or
liabilities, or the direct or indirect violation of any Environ-
mental Laws.
(ii) No Hazardous Substances are located on or
have been stored, used, processed or disposed of on or released
or discharged from (including ground water contamination) the
Mortgaged Property (other than any chemicals or petroleum
products used in the ordinary course of Mortgagors business and
properly stored, used and disposed of in accordance with all
applicable Environmental Laws) and no above or underground
storage tanks exist on the Mortgaged Property. Mortgagor has not
entered into any contracts or other arrangements for Hazardous
Substances to be disposed or treated. Mortgagor shall not allow
any Hazardous Substances to be stored, located, used, discharged,
possessed, managed, processed or otherwise handled on the
Mortgaged Property (other than any chemicals or petroleum
products used in the ordinary course of Mortgagors business and
properly stored, used, transported and disposed of in accordance
with all applicable Environmental Laws) and shall comply with all
Environmental Laws affecting the Mortgaged Property.
(iii) Mortgagor shall immediately notify Mortgagee
should Mortgagor become aware of (1) any Hazardous Substance or
other environmental problem or liability with respect to the
Mortgagor or the Mortgaged Property, or (2) any lien, action, or
notice of the nature described in subparagraph (i) above.
Mortgagor shall, at Mortgagor's own cost and expense, take all
actions as shall be necessary or advisable for the clean-up of
the Mortgaged Property, including all removal, containment and
remedial actions in accordance with all applicable Environmental
Laws (and in all events in a manner satisfactory to Mortgagee),
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and shall further pay or cause to be paid at no expense to
Mortgagee all clean-up, administrative, and enforcement costs of
any court or applicable government agencies which may be asserted
against the Mortgaged Property or the owner thereof. Mortgagor
shall indemnify Mortgagee against and hold it harmless from all
clean-up, administrative and enforcement costs, damages,
liabilities, losses, claims, expenses (including attorneys' fees
and disbursements) which are incurred by Mortgagee, whether
before or after foreclosure of the lien hereof, with respect to
any violation or claim of violation of any Environmental Law
pertaining to the Mortgaged Property. Mortgagor shall pay such
amounts within ten (10) days after notice from Mortgagee
itemizing the amounts incurred to the date of such notice without
requirement of waiting for the ultimate outcome of any
litigation, claim or other proceeding.
2.10 Survival of Warranties and Representations. All
warranties and representations in this Article Ii and elsewhere
shall be deemed to be continuing and shall remain true and
correct in all material respects until all of the Obligations
have been paid in full and any limitations period expires.
Mortgagor's covenants above shall survive any exercise of any
remedy by Mortgagee hereunder or under any other instrument or
document now or hereafter evidencing or securing the obligations,
including foreclosure of this Mortgage (or deed in lieu thereof),
even if, as a part of such foreclosure or deed in lieu of
foreclosure, the obligations are satisfied in full and/or this
Mortgage shall have been released.
.ARTICLE III
ASSIGNMENT OF RENTS AND LEASES
3.1 Assignment of Rents and Leases. All of the rents,
revenue, deposits, escrow accounts and other benefits derived
from the Mortgaged Property or arising from the use or enjoyment
of any portion thereof or from any existing or future lease or
agreement pertaining thereto and liquidated damages following
default under such leases, and all proceeds payable under any
Policy of insurance covering loss of rents resulting from
untenantability caused by damage to any part of the Mortgaged
Property, together with any and all rights that Mortgagor may
have against any tenant under such leases or any subtenants or
occupants of any part of the Mortgaged property and any award
made hereafter to Mortgagor in any court proceeding involving any
of the tenants or in any bankruptcy, insolvency, or
reorganization proceedings in any state or federal court, and all
payments by tenants in lieu of rent (all hereinafter collectively
called the "Rents") are hereby absolutely and unconditionally
assigned to Mortgagee, to be applied by Mortgagee in payment of
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the Obligations. Mortgagor hereby further assigns to Mortgagee,
as security hereunder, any and all future leases, including
subleases, any and all extensions, renewals, modifications, and
replacements thereof, and all guaranties of tenants' performance
thereunder, upon any part of the Mortgaged Property and
Improvements (the "Leases"). It is understood and agreed by the
parties that this assignment is intended to be and is an absolute
assignment from Mortgagor to Mortgagee, and not merely the
passing of a security interest; provided, however, that prior to
an Event of Default, Mortgagor shall have a license, without
joinder of Mortgagee, to enforce the Leases and to collect the
Rents as they come due and to retain, use and enjoy the same, but
no rents, issues, or profits not due under the terms of any of
the leases or rental or other arrangements shall be collected or
accepted by Grantor without the prior written consent of
Mortgagee. Mortgagor shall, upon request of Mortgagee, execute
confirmatory assignments of any specific leases affecting any
part of the Mortgaged Property and a separate, recordable
assignment of rents and leases, which shall be in addition to and
not in replacement of this assignment.
3.2 Representations and Warranties. Mortgagor covenants
and represents that said Mortgagor has full right and title to
assign said Leases and Rents; that the terms of said Leases have
not been changed from the terms in the copies of said Leases
submitted to the Mortgagee for approval, if any; that no other
assignment of any interest therein have been made; and that there
are no existing defaults of a material nature under the
provisions of said Leases. Mortgagor will not change, cancel,
surrender, or terminate any of said Leases, exercise any option
which might lead to such cancellation, surrender, termination or
change, alter or modify them or the assignment of the lessees'
interest in them, without the prior written consent of the
Mortgagee.
3.3 No Obligation Upon Mortgagee. Mortgagee's acceptance
of the assignment of Leases and Rents provided for herein shall
not obligate Mortgagee to appear in nor defend any proceeding
relating to any of the Leases or to the Mortgaged Property, take
any action hereunder, expend any money, incur any expenses, or
perform any obligation or liability under the Leases, or assume
any obligation for any deposits delivered to Mortgagor by any
tenant. Mortgagee shall not be liable for any injury or damage
to person or property in or about the Mortgaged Property.
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0 ARTICLE IV
SECURITY AGREEMENT
4.1 Se urity Interest. This Mortgage shall be a security
agreement between Mortgagor, as debtor, and Mortgagee, as secured
party, respecting the Personal Property, and Mortgagor grants to
mortgagee a security interest in such Personal Property. In
addition to Mortgagee's other rights hereunder, Mortgagee shall
have all rights of secured parties under the Uniform Commercial
Code as adopted in Florida (hereinafter called the "Code").
Mortgagor shall execute and deliver to Mortgagee all financing
statements that may be required by Mortgagee to establish and
maintain the validity and priority of Mortgagee's security
interest, and Mortgagor shall bear all costs thereof, including
all Code searches reasonably required by Mortgagee.
4.2 Representations and warranties. The Mortgagor
represents and warrants that the Mortgagor owns and, with respect
to any Personal Property hereafter acquired, will own the
Personal Property free and clear of any lien, security interest
or other charge or encumbrance except for the security interest
created by this Mortgage; Mortgagor has the right to encumber the
Personal Property and to grant a security interest therein to
Mortgagee; and Mortgagor will forever warrant and defend the
security interest of Mortgagee against the lawful claims of all
persons.
4.3 No Duty Imposed on Mortgagee. The powers conferred on
Mortgagee hereunder are solely to protect its interest in the
Personal Property and shall not impose any duty upon it to
exercise any such powers. Except for the accounting for monies
actually received by it hereunder, Mortgagee shall have no duty
as to any Personal Property, the preservation or protection of
the same or the taking of any necessary steps to preserve rights
against prior parties or any other rights pertaining to any
Personal Property.
ARTICLE V
EVENTS OF DEFAULT
The occurrence of any one or more of the following events
shall constitute an Event of Default hereunder:
5.1 Failure to Pay obligations. If Mortgagor shall fail to
pay any part of the Obligations, whether principal or interest,
promptly when the same becomes due, or if the Mortgagor shall
fail to pay any sum necessary to satisfy and discharge taxes and
assessments promptly when due, or to maintain insurance or
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repairs, or the necessary expense of protecting the Mortgaged
Property or the Personal Property and executing this Mortgage; or
5.2 Default Under Other Liens. If any of the Mortgaged
Property or the Personal Property be levied upon or attached by
any legal process, or if there shall occur any default under or
with respect to any lien or security interest on the Mortgaged
Property or the Personal Property, or if the holder of any such
lien institutes foreclosure or other proceedings for the
enforcement of its remedies thereunder; or
5.3 Bankruptcy Or Insolvency. If Mortgagor, any permitted
successor or assign, or any guarantor of any of the Obligations,
shall voluntarily become a party to any insolvency, bankruptcy,
composition, receivership or reorganization procedure, shall make
any assignment for the benefit of creditors or shall admit in
writing such person's inability t. pay its or their debts as they
become due; or if any involuntary bankruptcy, insolvency,
composition, receivership or other reorganization proceedings be
filed against Mortgagor, any permitted successor or assign, or
any guarantor of the Obligations, and the same shall not be
dismissed within thirty (30) days after the commencement of any
such involuntary proceedings; or
5.4 Abandonment. If Mortgagor abandons any material
portion of the Mortgaged Property; or
5.5 False�Repz:es�!-ntation. If any statement, representation
or warranty in any instrument or document or Loan Documents
evidencing or securing the Obligations, any financial statement
or any other writing delivered to Mortgagee in connection with
the obligations is false, misleading or erroneous in any material
respect; or
5.6 Mortgagor's Default Under Leases. If Mortgagor shall
default in any of Mortgagor's covenants, obligations and
undertakings under any of the Leases and shall fail to cure said
default within the time, if any, permitted by any of such Leases
for cure thereof; or
5.7 Nonperformance of other„Cgv'enants. If there shall
occur any default in Mortgagor's other covenants, warranties,
agreements, liabilities, obligations and undertakings as
contained in this Mortgage and, except in the case of defaults
under Section 2.9 hereof, the same shall not be cured within
thirty (30) days after notice by Mortgagee to Mortgagor; or if
there shall occur any default beyond any applicable cure or grace
period, in Mortgagor's covenants, warranties, agreements,
liabilities, obligations and undertakings contained in any other
instrument which now or hereafter secures the Obligations.
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Notice as provided for herein shall be deemed properly given
by Mortgagee to Mortgagor if delivered in person, sent by
recognized overnight courier service, or mailed by the Mortgage
certified U. S. Mail, return receipt requested, to Mortgagor at
the address set forth in the first paragraph of this Mortgage.
ARTICLE VI
REMEDIES
If an Event of Default shall occur, Mortgagee may exercise
any one or more of the following remedies:
6.1 Acceleration. Mortgagee may declare the entire
obligations, principal and interest, immediately due and payable
without further notice or demand, the same being hereby expressly
waived; provided, however, no penalty for prepayment provided for
in the Note shall be waived or reduced because the prepayment was
effected by foreclosure or occasioned by acceleration, and
Mortgage shall be entitled to collect no less than the highest
such penalty provided for therein from the proceeds of such
prepayment, before applying the proceeds to interest and
principal.
6.2 Enforcement of„Assignment, of Rents and Leases.
Mortgagee may (a) terminate the license granted to Mortgagor to
collect the Rents (regardless of whether Mortgagee shall have
entered into possession of the Mortgaged Property), collect and
sue for the Rents in Mortgagee's own name, give receipts and
releases therefor, and after deducting all expenses of
collection, including reasonable attorneys' fees, apply the net
proceeds thereto to any Obligations as Mortgagee may elect;
(b) make, modify, enforce, cancel or accept surrender of any
Leases, evict tenants, adjust Rents, maintain, decorate,
refurbish, repair, clean and make space ready for renting, and
otherwise do anything Mortgagee reasonably deems advisable in
connection with the Mortgaged Property; (c) apply the Rents so
collected to the operation and management of the Mortgaged
Property, including the payment of reasonable management,
brokerage and attorneys' fees, or to the Obligations; and
(d) require Mortgagor to transfer and deliver possession of all
security deposits and records thereof to Mortgagee.
6.3 Sale of Personal „Property. Mortgagee shall sell the
Personal Property concurrently with and in conjunction with a
sale of the Mortgaged Property. Mortgagor stipulates and agrees
that a sale of the Personal Property in conjunction with the
Mortgaged Properties constitutes a commercially reasonable manner
of disposing of the Personal Property. Alternatively, Mortgagee
may sell or otherwise dispose of the Personal Property separately
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and apart from the Mortgaged Property in the time and manner
provided by the Code. To the extent that the Code shall require
prior notice of sale or other disposition of the Personal
Property, five (5) days' written notice shall be deemed to be
reasonable notice. Mortgagee also may (a) require the Mortgagor
to, and the Mortgagor hereby agrees that Mortgagor will at
Mortgagor's expense and upon request of the Mortgagee forthwith,
assemble all or part of the Personal Property as directed by
Mortgagee and make it available to Mortgagee at a place to be
designated by Mortgagee which is reasonably convenient to the
parties; and (b) sell the Personal Property or any part thereof
in one or more parcels at public or private sale for cash or
credit or for future delivery, and at such price or prices and
upon such other terms as Mortgagee may deem commercially
reasonable. Mortgagee shall not be obligated to make any sale of
the Personal Property regardless of notice of sale having been
given. Mortgagee may adjourn any public or private sale from
time to time by announcement at the time and place fixed
therefor, and such sale may, without further notice, be made at
the time and place to which it was so adjourned.
6.4 Judicial ard_Other Relief. Mortgagee may proceed by a
suit or suits in equity or at law, whether for the specific
performance of any covenant or agreement herein contained or in
aid of the execution of any power herein granted, or for any
foreclosure hereunder or for the sale of the Mortgaged Property
or the Personal Property under the judgment or decree of any
court or courts of competent jurisdiction. In the event of a
conflict between the expressed powers on default granted to
Mortgage hereunder and the same or similar or additional powers
granted by any state or federal enactment to lenders such as
Mortgagee, the latter shall be controlling and this Mortgage
shall be deemed to have been amended or supplemented accordingly.
6.5 Receiver. Mortgagee may make application to a court of
competent jurisdiction, as a matter of strict right and without
notice to Mortgagor or regard to the adequacy of the Mortgaged
Property for the repayment of the obligations, for appointment of
a receiver of the Mortgaged Property, and Mortgagor does hereby
irrevocably consent to such appointment. Any such receiver shall
have all necessary and proper powers and duties of receivers in
similar cases, including the full power to rent, maintain and
otherwise operate the Mortgaged Property upon such terms as may
be approved by the court, at Mortgagor's sole expense.
6.6 Method of Payment. If any payment is not paid timely,
as contemplated by Section 5.1 hereof, by reason of dishonor of
Mortgagor's check, Mortgagee may at any time thereafter require
any or all future payments hereunder to be made by wire transfer,
or cashier's check, or other certified or guaranteed funds, and
to such office as Mortgagee may direct, all at Mortgagor's sole
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expense. After notice of such requirement (or notice of a
modification thereof), Mortgagee may refuse to accept tender of
payment not complying with such requirement, as originally
imposed or modified.
6.7 Remedies,Cumula.tive, Concurrent and Nonexclusive.
Mortgagee shall have all rights, remedies and recourses granted
in this Mortgage and in any other chattel mortgage, deed of
trust, security agreement, pledge, contract of guaranty,
assignment of leases, or instrument at any time securing the
obligations, or otherwise available to it at law or equity
(including, without limitation, those granted by the code), and
same (a) shall be cumulative, concurrent, and nonexclusive,
(b) may be pursued separately, successively or concurrently
against Mortgagor or others obligated for the Obligations, or any
part thereof or against any one or more of them, or against the
Mortgaged Property or the Personal Property, at the sole
discretion of Mortgagee, and (c) may be exercised as often as
occasion therefor shall arise, it being agreed by Mortgagor that
the exercise of or failure to exercise any of same shall in no
event be construed as a waiver or release thereof or of any other
right, remedy or recourse.
ARTICLE VII
MISCELLANEOUS
7.1 Waiver of Marshalling and Certgin Rights. To the
extent that Mortgagor may lawfully do so, Mortgagor hereby
expressly waives any right pertaining to the marshalling of
assets or marshalling of liens, the equity of redemption, any
statutory or common law right of redemption, homestead, dower,
curtesy, marital share, and all other exemptions, or other matter
which might defeat, reduce or affect the right of Mortgagee to
sell the Mortgaged Property or the Personal Property for the
collection of the Obligations, or the right of Mortgagee to the
payment of the Obligations out of the proceeds of the Rents and
Leases, in preference to every other person and claimant.
7.2 Waiver „of Impairment of Recourse Defenses. Without
affecting the liability of Mortgagor or any other person (except
any person expressly released in writing) for the payment or
performance of any of the Obligations, and without affecting the
rights of Mortgagee with respect to any security not expressly
released in writing, Mortgagee may, at any time, and from time to
time, either before or after the maturity of the Note, and
without notice or consent:
(a) Release any person liable for payment or
performance of all or any part of the obligations;
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July 15, 1997 4:23pm 13
(b) Make any agreement extending the time or otherwise
altering the terms of payment of all or any part of the
Obligations (without limit as to the number of such extensions or
the period or periods thereof), or modifying or waiving any
obligation, or subordinating, modifying or otherwise dealing with
the lien or charge hereof;
(c) Exercise or refrain from exercising any right
Mortgagee might have;
(d) Accept additional security of any kind; and
(e) Release or otherwise deal with any property, real
or personal, securing the Obligations, including all or any part
of the Mortgaged Property herein described.
Furthermore, the failure of the Mortgagee to perfect any
lien granted herein or in any other Loan Document, to take any
action to obtain payment or performance of the Obligations or to
exercise any rights or remedies available hereunder shall not
relieve Mortgagor or any other person from liability for the
payment or performance of the Obligations nor effect a discharge
of the lien, security interest or assignment herein granted; it
being intended that all "impairment of recourse" and "impairment
of collateral" defenses are hereby waived.
7.3 No Waiver. No waiver by the Mortgagee shall be
construed as a waiver of a subsequent similar default or any
other default by the Mortgagor. No delay by Mortgagee in
exercising any right or remedy hereunder, or otherwise afforded
by law, shall operate as a waiver thereof or preclude the
exercise thereof during the continuance of any default hereunder.
No failure of Mortgagee to exercise any option herein given to
declare the maturity of the obligations hereby secured, no
forbearance by Mortgagee after the exercise of such option, and
no withdrawal or abandonment of foreclosure proceedings by the
Mortgagee after the exercise of such option, shall be taken or
construed as a waiver of its right to exercise such option or to
declare such maturity by reason of any past, present, or future
default on the part of the Mortgagor. Acceptance by Mortgagee of
partial payments shall not constitute a waiver of the default by
failure to make full payments.
7.4 Mortaa ee's Consent. Except as otherwise expressly
provided herein, in any instance hereunder where Mortgagee's
approval or consent is required or the exercise of Mortgagee's
judgment is required, the granting or denial of such approval or
consent and the exercise of such judgment shall be within the
sole discretion of Mortgagee, and Mortgagee shall not, for any
reason or to any extent, be required to grant such approval or
consent or exercise such judgment. Mortgagee may consult with
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counsel, and the written advice or opinion of such counsel shall
be full and complete authorization and protection in respect of
any action taken, suffered or omitted by it hereunder in good
faith and in reliance thereon.
7.5 Appointment of Attorne . Mortgagor hereby irrevocably
appoints Mortgagee its attorney -in -fact, coupled with an
interest, with full power and authority in the place and stead of
the Mortgagor and in the name of the Mortgagor or otherwise, from
time to time after the occurrence of an Event of Default, in the
Mortgagee's discretion, to take any action and to execute any
instrument which Mortgagee may deem necessary or advisable to
accomplish the purposes of this Mortgage, including, without
limitation (a) to obtain and adjust insurance required to be
maintained pursuant to the provisions of this Mortgage; (b) to
ask, demand, collect, sue for, recover, compound, receive and
give acquittance and receipts for monies due and to become due in
respect of any of the Mortgaged Property, the Leases or the
Personal Property; (c) to receive, endorse, and collect any
drafts or other instruments, documents, and chattel paper in
connection with clause (a) or (b) above; (d) to appear in any
action concerning any of the Leases; (e) to deal with planning,
zoning and regulatory agencies having jurisdiction over the
Mortgaged Property and to effect compliance with the requirements
of those agencies, including but not limited to plat amendments
or filings convenient or necessary to permit conveyance of the
Mortgaged Property as a separate tract or tracts; and (f) to file
any claims or take any action or institute any proceedings which
Mortgagee may deem necessary or desirable for the collection of
any of the Rents or the Personal Property or any amounts
otherwise due in connection with the Mortgaged Property or the
Personal Property, or otherwise to enforce the rights of
Mortgagee with respect to the Mortgaged Property, the Leases and
Rents and the Personal Property. Mortgagor hereby ratifies and
approves all acts of said attorney; and so long as the attorney
acts in good faith it shall have no liability to Mortgagor for
any act or omission as such attorney.
7.6 Estoppel Certificate. At the request of the Mortgagee,
Mortgagor shall furnish promptly a written statement or
affidavit, in such form as may be required by Mortgagee,
confirming the unpaid balance of the Obligations, the date to
which interest has been paid and that there are no set off to or
defenses against any payment or performance of the Obligations
or, if there are any such offsets or defenses, specifying them.
7.7 Ex enses of Mortgagee. The Mortgagor will upon demand
pay to the Mortgagee the amount of any and all costs and
expenses, including without limitation all fees and disbursements
of the Mortgagee's counsel and of any experts and agents, which
Mortgagee may incur in connection with (a) the preparation and
WPO:[TDICKSON.TAMAPAC-SUNBELTILOANAWr.
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recording of this Mortgage and the financing statements to be
filed to perfect the security interests granted herein, (b) the
administration of this Mortgage, (c) the sale of collection from,
or other realization upon the Mortgaged Property, the Rents and
Leases and the Personal Property; (d) the exercise or enforcement
of any of the rights of Mortgagee hereunder; or (e) the failure
of Mortgagor to perform or observe any of the provisions hereof.
7.8 Indemnification. The Mortgagor agrees to indemnify and
hold the Mortgagee harmless from and against any and all claims,
losses, and liabilities arising out of or resulting from this
Mortgage and the assignment of rents and leases and the grant of
security interests contained herein (including, without
limitation, enforcement of this Mortgage), except claims, losses,
or liabilities resulting solely and directly from the Mortgagee's
gross negligence or willful misconduct.
7.9 Payment in Full. If the Mortgagor shall pay and
perform all of the Obligations promptly when due, and shall
comply with all of the covenants, terms and conditions of the
Note and this Mortgage, and any other instrument which also now
or hereafter secures the obligations secured hereby, then this
conveyance shall become void, the Mortgagee shall release the
lien hereof or reconvey by quitclaim the Mortgaged Property
herein described at expense of the Mortgagor. However, in the
event the Note permits prepayment, Mortgagee may require at least
thirty (30) days written notice of Mortgagor's intention to
prepay the Note before providing pay-off figures, and may require
Mortgagor to submit the proposed release documents to it with
that notice.
7.10 Severability. If any provision of this Mortgage is
held to be illegal, invalid, or unenforceable under present or
future laws effective while this Mortgage is in effect, the
legality, validity and enforceability of the remaining provisions
of this Mortgage shall not be affected thereby, and in lieu of
each such illegal, invalid or unenforceable provision, there
shall be added automatically as part of this Mortgage a provision
that is legal, valid and enforceable and as similar in terms to
such illegal, invalid or unenforceable provision as may be
possible.
7.11 Burden and Benefit. This Mortgage shall be binding on
Mortgagor, its successors and assigns, and shall inure to the
benefit of the Mortgagee and its successors and assigns.
7.12 Applicable Law. This Mortgage shall be governed by and
construed in accordance with the laws of the State of Florida.
7.13 Greater Estate. In the event that Mortgagor is the
owner of a leasehold estate or any other estate less than a fee
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simple with respect to any portion of the Mortgaged Property
and/or Personal Property and, prior to the satisfaction of the
Obligations and the cancellation of this mortgage of record,
Mortgagor obtains a greater estate or interest in such portion of
the Mortgaged Property and/or Personal Property, then, such
greater estate or interest shall automatically and without
further action of any kind on the part of Mortgagor be and become
subject to the lien of this Mortgage.
7.14 Extensions, Etc. Mortgagor and Mortgagee may agree to
extend the time for payment of all or any part of the
Obligations, without limit as to the number of such extensions or
the period or periods thereof, or reduce, rearrange or otherwise
modify the terms of payment thereof, or accept a renewal note or
notes therefor, all without notice to or the consent of any
junior lienholder or any other person having an interest in the
Mortgaged Property and/or Personal Property subordinate to the
lien of this Mortgage, and without the consent of Mortgagor,
regardless of whether Mortgagor has then parted with title to the
Mortgaged Property and/or Personal Property. No such extension,
reduction, modification or renewal shall affect the priority of
this Mortgage or impair the security hereof in any manner
whatsoever. Mortgagor appoints Mortgagee as its attorney in fact
to execute and record any memoranda of such extensions, in
Mortgagee's discretion.
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IN WITNESS WHEREOF, Mortgagor has caused this Mortgage to be
executed by its duly authorized member, on this the day and year
first above written.
SUN BELT PRECISION
PRODUCTS, INC.
WITNESS
By:
Its:
Print Name:
Print Name:
STATE OF FLORIDA
COUNTY OF BROWARD
The foregoing instrument was acknowledged before me this
day of 199_, by as
of
a corporation, on behalf of the corporation.
Name:
Notary Public, State of Florida
Personally Known
Produced Identification
Type of Identification:
(NOTARY SEAL)
� J
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LOCATED IN BROWARD COUNTY, FLORIDA:
[Property description]
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July 15. 1997 4:23pm
EXHIBIT "B"
All fixtures and all personal property of every kind and
description whether now owned or hereafter acquired with the
proceeds of the Obligation, which are located on or associated
with the operation and use of the real estate described in
Exhibit "A" including, but not limited to, (a) all machinery,
appliances, materials, equipment, furnishings, all heating,
plumbing, electrical, lighting, water heater, cooking,
refrigeration, incinerating, ventilating and air-conditioning
equipment, storm doors and windows, floor coverings, awnings,
window coverings, smoke detectors, burglar alarms, fire
extinguisher systems and property of like nature, ledgers and
books of account and records with respect to such property,
together with all accessions, used or intend�vd to be used, now
owned or hereafter acquired, and all improvements, appurtenances,
substituted and replaced equipment and any proceeds, including
insurance proceeds, thereof, (b) those items listed below,
(c) all contract rights, leases, rents, income and profits,
presently existing or subsequently arising with respect to such
real estate and (d) all proceeds, proceeds of hazard insurance,
eminent domain or condemnation awards with respect to such real
property and improvements and the aforementioned personal
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WPO:(TDICKSON.TAMARAC-SUNBELT)LOANA04T.
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EXHIBIT "C"
QIiTN:�
EXHIBIT B I*
PROMISSORY NOTE
CITY OF TAMARAC, FLORIDA
SUN BELT PRECISION PRODUCTS, INC., BORROWER
Dated as of August 1, 1997
11
WPO:(TAICKSON.TAMARAC- SUNBELT) LOANAGMT.
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THIS NOTE MAY BE ASSIGNED TO FIRST UNION
NATIONAL BANK OF FLORIDA, MIAMI, FLORIDA, AS
TRUSTEE UNDER A TRUST INDENTURE (THE
"INDENTURE") DATED AS OF AUGUST 1, 1997,
BETWEEN THE CITY OF TAMARAC$ FLORIDA AND THE
TRUSTEE. THIS NOTE IS (OR WILL BE)
REGISTERED IN THE NAME OF THE TRUSTEE AND IS
THEREAFTER NON -TRANSFERABLE EXCEPT AS
PERMITTED IN THE INDENTURE.
PRQMISSORY NOTE
For Value Received, the undersigned, Sun Belt Precision
Products, Inc. , a corporation organized and existing under the
laws of the State of Florida (the "Company"), promises to pay to
the order of the City of Tamarac, Florida (the "Issuer"), or its
registered assigns, the principal sum of not more than Three
Million Three Hundred Thousand Dollars ($3,300,000) and to pay
interest thereon as specified in this Note. Payments of
principal and interest shall be made in the amounts and on the
dates set forth in Appendix A attached hereto.
This is the Note (the "Note") described in a certain Loan
Agreement between the Issuer and the undersigned dated as of
August 1, 1997 (the "Loan Agreement"). This Note constitutes the
. promise to repay to the Issuer, or its order, funds loaned by the
Issuer to the maker which are obtained by the issuance of the
Issuer's $3,300,000 Industrial Development Revenue Bonds,
Series 1997 (Sun Belt Precision Products, Inc., Project) dated
August 1, 1997 (the "Bonds"). The Bonds are being issued to
finance the Project described in the Loan Agreement. This Note
is subject to the terms and conditions of the Loan Agreement and
the Bonds.
The principal of and interest hereon shall be payable for
the account of the Issuer at the office of First Union National
Bank of Florida, Miami, Florida (the "Trustee").
Under the provisions of the Loan Agreement, the undersigned
are also obligated to pay certain other amounts, premiums, fees,
charges, and expenses, as set forth in Sections 1.6, 1.7, and 7.2
of the Loan Agreement, which amounts shall also constitute the
indebtedness of the undersigned under the provisions of this
Note.
Each installment of principal and interest not paid when due
shall bear interest thereafter at the maximum rate permitted by
law per annum. If total or partial default be made in the
payment of any installment of principal or interest under this
Note, as the same matures, the entire principal sum and accrued
interest shall at once become due and payable without notice at
WPO:tTDICKSON.TAMARAC-SUNBELTjLOANAGMT. 2
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the option of the holder of this Note. Failure to exercise this
option shall not constitute a waiver of right to exercise the
same in the event of any subsequent default.
This Note shall be prepayable only in the circumstances and
upon the events described in the Loan Agreement and in the Trust
Indenture dated as of August 1, 1997, between the Issuer and the
Trustee (the "Indenture").
This Note is the Note so identified and referred to in, and
is entitled to the benefits of, the Loan Agreement, as the same
may be further amended from time to time, which Loan Agreement,
among other things, provides that this Note is secured by a
mortgage in favor of the Issuer and the Trustee on the land,
buildings, improvements and equipment described in Exhibit "A"
attached to the -Mortgage and incorporated by reference herein,
and a security interest in certain personal property.
GUARANTY: This Note is further secured by the Guaranty
Agreement from Interplex Industries, Inc..
The maker hereby waives presentment, demand for payment,
protest and notice of dishonor.
If this obligation, after default, is placed in the hands of
an attorney for collection, the maker will be obligated to pay
the holder hereof an additional sum as attorney's fee.
Anything contained herein to the contrary notwithstanding,
it is the intention of the Issuer and the undersigned that this
Note may be assigned to First Union National Bank of Florida,
Miami, Florida, as Trustee for the benefit of the holders of the
Bonds and any and all rights set out in this note may be enforced
by the Trustee without further notice or demand.
SUN BELT PRECISION PRODUCTS, INC.
By:_
Its.
ATTEST:
BY
Its:
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A EIGNMENT OF NOTE
FOR VALUE RECEIVED the within Note is hereby assigned to
First Union National Bank of Florida, Miami, Florida, Trustee,
pursuant to the provisions of that certain Trust Indenture
between the undersigned and the Trustee, dated as of August 1,
1997.
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CITY OF TAMARAC, FLORIDA
By:
Its:
( 1�S
EXHIBIT "C"
REQUISITION
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REQUISITION AND CERTIFICATE
First Union National Bank of Florida
First Union Financial Center
200 South Biscayne Blvd., 14th Floor
Miami, Florida 33131
Attn: Lakshmi McGrath
Re: $3,300,000 City of Tamarac, Florida, Industrial
Development Revenue Bonds, Series 1997 (Sun Belt
Precision Products, Inc., Project)
Sirs:
199
On behalf of Sun Belt Precision Products, Inc. (the
"Borrower"), I hereby requisition, in accordance with the terms
of the Loan Agreement (the "Loan Agreement"; capitalized terms
used but not defined herein shall have the meanings assigned
thereto in the Loan Agreement) dated August 1, 1997, by and
between the Borrower and the City of Tamarac, Florida (the
"Issuer"), from the funds representing the proceeds of the sale
of the Industrial Development Revenue Bonds, Series 1997 (Sun
Belt Precision Products, Inc., Project) issued by the Issuer, and
dated as of August 1, 1997 (the "Bonds"), which funds are held by
you in the Loan Account in accordance with the Trust Indenture,
dated as of August 1, 1997 (the "Indenture"), between the Issuer
and you, the sum of $ from the Loan Account to
make payment to those payees and in those amounts set forth on
ScheduLe A attached hereto for costs of the Project, or for
reimbursement to the Borrower of the costs paid to those payees
and in those amounts set forth on Schedule A attached hereto.
I hereby certify that (a) the payment(s) by the Borrower in
connection with the Project, is a proper cost of the Project
incurred by the Borrower, and has not been the basis for any
prior requisition which has been paid; (b) neither the Borrower
nor, to the best of the Borrower's knowledge, the Issuer, has
received written notice of any lien, right to lien or attachment
upon, or claim affecting the right of any such payee to receive
payment of, any of the money payable under this requisition to
any of said payees named on Schedule A attached hereto, or if any
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July 15. 1997 4:23pm
notice of any such lien, attachment or claim has been received,
such lien, attachment or claim either has been released or
discharged or will be released or discharged upon payment of this
requisition; (c) no Event of Default (as defined in the Loan
Agreement) or event or default which after notice or lapse of
time or both would constitute such a Default has occurred and not
been waived; and (d) the amount requisitioned hereby is being
expended in a manner consistent in all material respects with the
representations, warranties and covenants of the Borrower set
forth in the Loan Agreement and the Borrower's Tax Certificate.
[The following paragraph is to be completed and
complied with when any requisition and certificate
includes any item for payment of machinery, equipment
and other personal property]
Attached hereto as 'Schedule is a true and correct
listing (including serial numbers, if applicable, or other
appropriate identification) of all items of machinery, equipment
and other personal property for which payment is requested
hereunder together with an executed UCC-1 Financing Statement
which has been filed with the Clerk of the Circuit Court of
Broward County, Florida, perfecting the security interest of the
Trustee in such personal property.
[The following paragraph is to be completed when any
requisition and certificate includes any item for
payment for labor or to contractors, builders or
materialmen.]
I hereby certify that insofar as the amount covered by
the above requisition includes payments to be made for labor or
to contractors, builders or materialmen, including payment for
equipment, materials or supplies, in connection with the Project,
(i) all obligations to make such payments have been properly
incurred, (ii) any such labor was actually performed and any such
equipment, materials or supplies were actually furnished or
installed in or about the Project and are a proper cost of the
Project, (iii) such equipment, materials or supplies either are
not subject to any lien or security interest or, if the same are
so subject, such lien or security interest will be released or
discharged upon payment of this requisition, and (iv) attached
hereto are current contractor's lien waivers and certification,
including contractor's draw request on AIA form G702 or its
equivalent signed by the contractor.
Authorized Borrower Representative
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EXHIBIT "C"
0 GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT, dated as of May 1, 1997, by and
between INTERPLEX INDUSTRIES, INC., a Delaware corporation (the
"Guarantor"), and FIRST UNION NATIONAL BANK, a national banking
association, as Trustee (together with any successor Trustee or
Co -Trustee under the Indenture described below, the "Try stiee"), and
the CITY OF TAMARAC, FLORIDA, a public body corporate and politic,
organized and existing under and by virtue of the laws of the State
of Florida (the "Issuer");
W I T N E S S E T A:
WHEREAS, arrangements have been made pursuant to a Trust
Indenture of even date herewith (the "Indenture") between the
Issuer and the Trustee for the issuance and sale by the Issuer of
its Industrial Development Revenue Bonds, Series 1997 (Sun Belt
Precision Products, Inc., Project), in the original aggregate
principal amount of $3,300,000 and for the possible issuance of
Additional Bonds as provided in the Indenture (collectively, the
"Bonds"); and
WHEREAS, the proceeds of the sale of the Bonds are to be
loaned by the Issuer to Sun Belt Precision Products, Inc., a
Florida corporation (the "Borrower") pursuant to a Loan Agreement
of even date herewith (the "L an Agreement") between the Issuer and
the Borrower, such loan to be used to finance the costs of the
Project (as defined in the Loan Agreement); and
WHEREAS, the Guarantor will materially and directly benefit
from the issuance and sale by the Issuer of the Bonds and the loan
of the proceeds thereof as hereinabove described and, therefore, to
provide an inducement to the Issuer to issue and deliver the Bonds
to Greenwich Partners, LLC (the "Underwriter") for sale to the
purchasers thereof (the "Purchasers"), the Guarantor is willing to
enter into this Guaranty Agreement;
NOW, THEREFORE, in consideration of the premises and other
good and valuable consideration, including the covenants, terms and
conditions hereinafter appearing, the Guarantor does hereby
covenant and agree with the Issuer and the Trustee as follows:
ARTICLE I
The Guaranty
1.1 The Guaranty. The Guarantor hereby unconditionally and
0 irrevocably guarantees to the Issuer and the Trustee for their
benefit and the benefit of the Purchasers and any future owners of
WPO:[TDICXSON.FORMSIGUARANTY-CORPORATE.
July 15, 1997 3:38pm
TEMP RES4 #7948
the Bonds ("Owners") (i) the full and prompt payment by the Issuer
of all obligations under the Loan Agreement, including without
limitation, its obligations to pay interest (including, to the
extent applicable, interest at any default rate), premium, if any,
and principal when and as the same shall become due whether at the
stated maturity thereof, by acceleration or call for prepayment,
and (ii) the payment and performance of all other obligations of
Borrower arising under the Indenture, the Loan Agreement (including
the obligation to make additional payments in the event of a
Determination of Taxability and to pay fees and expenses), the Note
and the Mortgage (both as defined in the Indenture) (together, the
"Bond Documents"), prior to the expiration of any grace period
applicable thereto.
1.2 Guaranty Unconditional. This Guaranty Agreement shall be
a continuing, absolute and unconditional guaranty and shall be
irrevocable and remain in full force and effect until the entire
principal of, premium, if any, and interest on the Bonds, and any
other amount payable under the Bond Documents, shall have been paid
or provided for according to the terms of the Bond Documents. The
obligations of the Guarantor hereunder shall arise absolutely and
unconditionally when the Bonds shall have been issued, sold and
delivered to the Purchasers by the Issuer.
1.3 Operation of Guarant . This is a guaranty of payment and
not of collection, and the Guarantor expressly waives any right to
require that any action be brought against the Borrower or the
Issuer or to require that resort be had to any security, whether
held by or available to the Trustee or the Issuer, or to any other
guaranty. If the Borrower shall default in payment of the
principal of, premium, if any, or interest on or any other amount
payable under the Bond Documents when and as the same shall become
due, whether by acceleration, call for prepayment, or ocherwise, or
if the Borrower shall default in the payment and performance of any
or all other obligations of the Borrower arising under, or any
default or event of default shall otherwise occur pursuant to any
of the Bond Documents, or upon the occurrence of any other Event of
Default (as defined in Section 5.1 hereof) hereunder, the
Guarantor, upon demand by the Trustee or its successors or assigns,
will promptly and fully make such payments and/or render such
performance. The Guarantor will pay all reasonable costs and
expenses, including attorneys' fees (whether or not suit is brought
and whether incurred at trial, upon rehearing, retrial or appeal or
in any bankruptcy proceeding), paid or incurred by the Issuer or
the Trustee or their successors or assigns, under this Guaranty
Agreement, the amount of such attorneys' fees to be without regard
to any statutory presumption. All payments by the Guarantor shall
be made in immediately available 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. Each
default in payment of the principal of, premium, if any, or
WPO:ITDICKSON.FORMSIGUARANTY-CORPORATE. 2
July 15, 1997 3:38pm
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A
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interest on or any other amount payable under the Loan Agreement,
or the occurrence of any other Event of Default hereunder or any of
the Bond Documents, shall give rise to a separate cause of action
hereunder, and separate suits may be brought hereunder as each
cause of action arises. The Issuer or the Trustee or their
successors or assigns, in its sole discretion, shall have the right
to proceed first and directly against the Guarantor and its
successors and assigns.
1.4 OblicTation of the Guarantor Absolute. The obligations of
the Guarantor hereunder shall not be impaired, modified, released
or limited by any occurrence or condition whatsoever, including
without limitation (a) any compromise, settlement, release, waiver,
renewal, extension, indulgence or modification of or change in any
of the obligations and liabilities of the Issuer or the Borrower
contained in the Bonds or in any of the Bond Documents, (b) any
impairment, modification, release or limitation of the liability of
the Issuer, the Borrower or any of their respective estates in
bankruptcy, or any other security for the Bonds or the Bond
Documents, or any remedy for the enforcement thereof, resulting
from the operation of any present or future provision of the
Bankruptcy Code, or other statute or from the decision of any
court, (c) the assertion or exercise by the Issuer, the Trustee,,
the Borrower or any of their respective legal representatives,
successors or assigns, of any rights or remedies under any of the
Bond Documents, including this Guaranty Agreement, or their delay
in or failure to assert or exercise any such rights or remedies,
(d) the assignment or mortgaging or the purported assignment or
mortgaging of any property as security for the Bonds or the Bond
Documents or for any of the Issuer's and/or the Borrower's
obligations under any of the Bond Documents, including all or any
part of the interests of the Issuer in the Bond Documents, (e) the
invalidity or unenforceability of any of the Bond Documents, or
(f) the limitation of the Issuer's liability for the payment of the
principal of, premium, if any, and interest on the Bonds solely to
revenues and receipts derived by it from the Bond Documents.
1.5 Waiver of Notice. The Guarantor unconditionally waives
(a) notice of any of the matters referred to in Section 1.4 hereof
and (b) any demand (except as specified in Section 1.3 hereof),
proof or notice of nonpayment of principal, premium, if any, or
interest on the Bonds or the Note, or other payments of money
required by the Bond Documents, or of default by the Issuer, the
Borrower, the Trustee or any other obligor or their respective
legal representatives, successors or assigns, in performing and
keeping any other covenant, condition or agreement required of them
under the Bond Documents.
1.6 No Right of Set off. No act of commission or omission of
any kind or at any time upon the part of the Issuer, the Borrower,
is the Trustee or any Owner or their respective legal representatives,
WPD:(TDICKSON.FORMS)GUARANTY-CORPORATE. 3
July 15, 1997 3:38pm
17 i 's'
successors or assigns in respect of any matter whatsoever shall in
any way affect or impair the rights of the Trustee or the Issuer to
enforce any right, power, or benefit under this Guaranty Agreement,
and no setoff, recoupment, claim, reduction or diminution of any
obligation or any defense of any kind or nature which the Guarantor
has or may have against the Issuer, the Borrower, the Trustee, any
Owner or any other obligor or any such legal representative,
successor or assign shall be available to or asserted by the
Guarantor in any suit or action brought by the Issuer or the
Trustee, or their respective legal representatives, successors or
assigns, to enforce any right, power or benefit under this Guaranty
Agreement. Nothing in this Guaranty Agreement shall be construed
as a waiver by the Guarantor of any rights or claims that it may
have against the Issuer, the Borrower, the Trustee, any Owner or
any other guarantor separately, it being the intent of this
Guaranty Agreement that the Guarantor shall be unconditionally and
absolutely obligated to perform fully all of its obligations,
agreements and covenants hereunder for the benefit of the Issuer,
the Trustee and the Owners.
1.7 No Right to Contribution or Subrogation. Until payment
in full of the Bonds and satisfaction in full of all of the other
obligations of the Issuer and/or the Borrower under the Bond
Documents, the Guarantor shall not have any rights of contribution
or subrogation against the Borrower or any other guarantor of the
Bonds or such other obligations and the Guarantor may not bring any
suit or cause of action against the Borrower or any other guarantor
of the Bonds or such other obligations based on any contribution or
subrogation rights which the Guarantor may have against the
Borrower or any other guarantor of the Bonds or such other
obligations.
ARTICLE II
Representations by Guarantor
The Guarantor hereby represents and warrants to the Trustee
and the Issuer, which representations and warranties shall be
continuing representations and warranties so long as this Guaranty
Agreement remains in force and effect:
2.1 Incorporation. The Guarantor is a corporation duly
organized, existing and in good standing under the laws of the
State of Delaware, and has the corporate power to own its
properties and to carry on its business as now being conducted, and
is duly qualified as foreign corporation to do business in every
jurisdiction in which the nature of its business makes such
qualification necessary and is in good standing in such
jurisdictions. 0
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July 1S, 1997 3:38pm
2.2 Power and Authority; Binding Effect; etc. The Guarantor
is duly authorized under all applicable provisions of law to
execute, deliver and perform this Guaranty Agreement, and all
corporate action on its part required for the lawful execution,
delivery and performance hereof has been duly taken and this
Guaranty Agreement has been duly executed and delivered by the
Guarantor and constitutes the valid and binding obligation of the
Guarantor, enforceable against the Guarantor in accordance with its
terms, except as such enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or other laws affecting
creditors, rights generally. Neither the execution of this
Guaranty Agreement, nor the fulfillment of or compliance with its
provisions and terms, will (A) conflict with, or result in a breach
of the terms, conditions or provisions of, or constitute a
violation of or default under any applicable law, regulation,
judgment, writ, order or decree to which the Guarantor or any of
its properties are subject, or the Charter or Bylaws of the
Guarantor, or any agreement or instrument to which the Guarantor is
now a party or by which it, or any of its properties, are bound or
affected (other than agreements or instruments for which
appropriate waivers, consents or approvals have been obtained or
made), or (B) create any lien, charge or encumbrance upon any of
the property or assets of the Guarantor pursuant to the terms of
any agreement or instrument to which the Guarantor is a party or by
which it, or any of its properties are bound.
2.3 Title to As Its. The Guarantor rantor has good and marketable
title to, or valid and existing leasehold interests in, its
properties and assets.
2.4 Financial Statements. The financial statement of the
Guarantor, dated I delivered to the
Underwriter is true, correct and complete in all material respects.
There has been no material change in the financial condition of the
Guarantor since the date of such financial statement.
2.5 Contingent Liabilities. The Guarantor has not guaranteed
any obligations of others and is not, to the knowledge of the
Guarantor, contingently liable in any manner, direct or indirect,
except as previously disclosed to the Underwriter.
2.6 Litigation. There are no actions, suits or proceedings
pending or, to the knowledge of the Guarantor, threatened, against
or affecting the Guarantor, at law or in equity, or before or by
any court, arbitrator or governmental or administrative body,
agency or instrumentality which, if determined adversely to the
Guarantor, might materially adversely affect the properties,
business or condition, financial or otherwise, of the Guarantor.
2.7 Taxes. The Guarantor has filed or has obtained
appropriate extensions of time to file all income tax returns
WPO:(TDICKSON.FORMSIGUARANTX-CORPORATE. 5
July 15, 1997 3:38pm
required to be filed by it and all taxes shown thereon have been
paid, and no controversy in respect of additional income taxes,
state, federal or foreign, of the Guarantor is pending, or, to the
knowledge of the Guarantor, threatened. The Federal and state
income taxes of the Guarantor or any corporation merged with the
Guarantor have been examined and reported on or closed by
applicable statutes for all fiscal years to and including the
fiscal year ending September 30, 1993.
2.8 Contract or Restriction Affecting the Guarantor. The
Guarantor is not a party to, or bound by any contract or agreement
or subject to any charter or other corporate restrictions which, in
the opinion of the Guarantor, materially and adversely affects the
business, properties or condition, financial or otherwise, of the
Guarantor.
2.9 Trademarks_ Franchises and Licenses. The Guarantor owns,
_
possesses, or has the right to use all necessary patents, licenses,
franchises, trademarks, trademark rights, trade names, trade name
rights, copyrights, trade secrets, know how and confidential
commercial and proprietary information to conduct its business as
now conducted, without known conflict with any patent, license,
franchise, trademark, trade name, copyright or other proprietary
right of any other Person.
2.10 No Default. The Guarantor is not in default in the .
performance, observance or fulfillment of any of the obligations,
covenants or conditions contained in any agreement or instrument to
which it is a party or by which it may be bound, the effect of
which default would allow any Person to cause such obligation under
the agreement or instrument to become due prior to its stated
maturity.
2.11 Governmen_tal_Authority. The Guarantor has received the
written approval of all Federal, state, local and foreign
governmental authorities, if any, necessary to carry out the terms
of this Guaranty Agreement, and no further governmental consents or
approvals are required in the making or performance of this
Guaranty Agreement.
2.12 No Untrue Statements. Neither this Guaranty Agreement
nor any reports, schedules, certificates, agreements or instruments
heretofore or simultaneously with the execution of this Guaranty
Agreement delivered to the Underwriter or the Trustee by the
Guarantor in connection with the issuance and sale of the Bonds
contains any misrepresentation or untrue statement of fact or omits
to state any material fact necessary to make this Guaranty
Agreement or any such reports, schedules, certificates or
instruments not misleading.
•
WPO:(TDICKSON.FORMSIGUARANTY-CORPORATE.
July 15, 1997 3:38pm 6
2.13 ERISA RegMirements. The Guarantor has not incurred any
material accumulated funding deficiency within the meaning of
ERISA, or incurred any material liability to the Pension Benefit
Guaranty Corporation established under ERISA (or any successor
thereto under ERISA) in connection with any employee pension
benefit plan established or maintained by any of them or by any
Person under common control with any of them (within the meaning of
Section 414(c) of the Internal Revenue Code of 1986, as amended, or
of Section 4001(b) of ERISA), or in which employees of any of them
are entitled to participate. No Reportable Event (as defined in
ERISA) in connection with any such plan has occurred or is
continuing.
ARTICLE III
Affirmative Covenants
Until all the obligations of the Borrower under the Bond
Documents to be performed and paid shall have been performed and
paid in full (or as otherwise set forth herein) , and for so long as
the Bonds or any portion thereof shall be outstanding, unless the
Trustee shall otherwise consent in writing, the Guarantor will:
3.1 Financial Statements. Deliver to the Trustee and
Greenwich Partners, LLC (the "Und rwr'ter") (i) within thirty (30)
days after the end of each fiscal quarter of the Guarantor a profit
and loss statement and balance sheet of the Guarantor, prepared in
accordance with generally accepted accounting principles applied on
a consistent basis and certified by the Chief Financial Officer of
the Guarantor as being true and correct, and (ii) within ninety
(90) days after the end of each fiscal year of the Guarantor a
profit and loss statement and reconciliation of surplus statement
of the Guarantor for such year, and a balance sheet as of the end
of such year, audited without scope limitations by independent
certified public accountants of recognized standing selected by the
Guarantor, together with a copy of the annual management letter
prepared by the Guarantor's independent certified public
accountants, all prepared in accordance with generally accepted
accounting principles applied on a consistent basis.
3.2 Taxes and Liens. Promptly pay, or cause to be paid, all
taxes, assessments or other governmental charges (if any) which may
lawfully be levied or assessed upon the income or profits of the
Guarantor, or upon any property, real, personal or mixed, belonging
to the Guarantor or upon any part thereof, and also any lawful
claims for labor, material and supplies which, if unpaid, might
become a lien or charge against any such property; provided,
however, the Guarantor shall not be required to pay any such tax,
assessment, charge, levy or claim so long as the validity thereof
shall be actively contested in good faith by proper proceedings and
WPO:(TDICXSON.FORMS]GUARANTY-CORPORATE.
July 15, 1997 3:38pm 7
against which reserves, a bond, or other provision for payment
shall have been established; but provided further that any such
tax, assessment, charge, levy or claim shall be paid forthwith upon
the commencement of proceedings to foreclose any lien securing the
same unless a surety bond satisfactory to the Issuer is obtained
and delivered to the Trustee.
3.3 Business and Existence. Do or cause to be done all
things necessary to preserve and to keep in full force and effect
its corporate existence, all material rights and franchises, trade
names, patents, trademarks, licenses, permits, copyrights, trade
secrets and other proprietary information.
3.4 Insurance on Pra erties. Keep its business and
properties insured at all times by responsible insurance companies
and carry such types and amounts of insurance as are customarily
carried by companies operating similar businesses, including
without limitation, fire and extended coverage property insurance
and workers' compensation insurance. Upon execution and delivery
hereof, and thereafter upon request by the Trustee, the Guarantor
shall deliver to the Trustee certificates from insurance companies
evidencing such coverage and such other supporting documentation as
the Trustee shall request.
3.5 Maintain Pra ert . Maintain its properties in good order
and repair, ordinary wear and tear excepted, and, from time to
time, make all needful and proper repairs, renewals, replacements,
additions and improvements thereto.
3.6 Ricrht of Inspection. Permit any Person designated by the
Trustee to visit and inspect any of the properties, corporate books
and financial reports of the Guarantor and to discuss its affairs,
finances and accounts with its principal officers and accountants,
all at such reasonable times and as often as the Trustee may
reasonably request.
3.7 Notice of Default. Immediately give notice to the
Trustee and the Underwriter of the occurrence of any Event of
Default (as defined in Section 5.1 hereof) hereunder, or an event
of which the Guarantor has knowledge which would constitute such an
Event of Default or default but for the requirement that notice be
given or time elapse or both hereunder or under any other
obligation of the Guarantor, spdcifying the nature thereof, the
period of existence thereof and what action the Guarantor proposes
to take with respect thereto.
3.8 Suits or Other Proceedings. Immediately give the Trustee
„
written notice of any litigation, dispute or proceeding involving
a claim for $100,000.00 or more in excess of amounts covered in
full by applicable insurance or any attachment, levy, execution, or
other process being instituted against any assets having a fair is
WPO:(TDICKSON.FORMSIGUARANTY-CORPORATE.
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Ll
market value in excess of $100,000.00 of the Guarantor and, if
requested by the Trustee, bond, establish and maintain reserves, or
otherwise provide for payment therefor in amounts satisfactory to
the Trustee.
3.9 Observe All Laws. Conform to and duly observe all laws,
regulations and other valid requirements of any regulatory
authority with respect to the conduct of its business.
3.10 ERISA. Comply with all requirements of ERISA applicable
to it, except where the same are being contested in good faith by
appropriate proceedings diligently prosecuted, appropriate reserves
therefor are maintained and enforcement thereof has been stayed
pending such contest, and furnish to the Trustee as soon as
possible and in any event within thirty (30) days after the
Guarantor or the duly appointed administrator of a Plan (as defined
in ERISA) knows or has reason to know that any Reportable Event (as
defined in ERISA) with respect to any Plan has occurred, a
statement of the chief financial officer of the Guarantor
describing in reasonable detail such Reportable Event and any
action which the Guarantor proposes to take with respect thereto,
together with a copy of the notice of such Reportable Event given
to the Pension Benefit Guaranty Corporation or a statement that
said notice will be filed with the annual report to the United
States Department of Labor with respect to such Plan if such filing
has been authorized.
3.11 Payment of Obligations. Pay, when due, all its
obligations and liabilities, except where the same (other than
Indebtedness) are being contested in good faith by appropriate
proceedings diligently prosecuted and appropriate reserves for the
accrual of same are maintained and, in the case of judgments,
enforcement thereof has been stayed pending such contest.
ARTICLE IV
Nggative„Covenants
Until all the obligations of the Borrower under the Bond
Documents to be performed and paid shall have been performed and
paid in full, and for so long as the Bonds or any portion thereof
shall be outstanding, unless the Trustee shall otherwise consent in
writing, the Guarantor will not:
4.1 Sale of Assets. The Guarantor covenants that, unless
the Issuer shall otherwise consents in writing, it will not sell,
assign, transfer, convey, grant a lien on or security interest in
or otherwise dispose of all, or substantially all of its assets.
WPO:[TDICKSON.FORMSIGUARAt=-CORPORATE. 9
July 15, 1997 3:38pm
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4.2 Mererer Consolidation Dissolution Etc. The Guarantor
will not, without the Issuer's prior written consent (such consent
being within the sole and absolute discretion of the Issuer),
consolidate with or merge into any other corporation, or permit
another corporation to merge into it (unless the Guarantor is the
surviving corporation), or dissolve or'take or omit to take any
action which would result in its dissolution.
ARTICLE V
Default
5.1 Events of Default. Each of the following shall
constitute an "Event of Default" by the Guarantor under this
Guaranty Agreement, whereupon the Bonds and all indebtedness of the
Issuer under the Bonds and the Issuer's and/or the Borrower's
indebtedness under the Bond Documents will, at the option of the
Trustee (or the Owners, as provided in the Indenture), or its
successors or assigns, immediately become due and payable by the
Guarantor without presentation, demand, protest or notice of any
kind (except as hereinafter expressly provided), all of which are
hereby expressly waived, and the Guarantor will pay the reasonable
attorneys' fees (without regard to any statutory presumption)
incurred by the Trustee, or its successors or assigns, in
connection with such Event of Default or recourse against any
collateral held by the Trustee, or its successors or assigns, as
security for the indebtedness guaranteed by the Guarantor (whether
or not suit is brought and whether incurred at trial, upon
rehearing, retrial or appeal or in any bankruptcy proceeding).
(a) Nonpayment of any principal payment, interest on or
any other amount payable by the Borrower under the Bond Documents,
when due, whether at maturity, by acceleration or otherwise; or
(b) The occurrence of an "Event of Default" or a default
or event of default under any of the Bond Documents; or
(c) If the Guarantor defaults in the payment of
principal when due, whether by acceleration or otherwise, or
interest on any other indebtedness of Guarantor with a principal
amount in excess of $25,000 beyond any period of grace provided
with respect thereto, or in the performance of any other agreement,
term or condition contained in any agreement under which any such
indebtedness is created, if the effect of such default is to cause,
or permit the holder or holders of such indebtedness (or a trustee
for such holder or holders) to cause, such indebtedness to become
due prior to its stated maturity; or
(d) If any representation or warranty made by or on
behalf of the Guarantor herein, or in any writing furnished by or
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July 15, 1997 3:38pm
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on behalf of the Guarantor in connection with the issuance and sale
of the Bonds or pursuant to this Guaranty Agreement or the Bond
Documents, including, but not limited to any report, certificate,
or financial statement so furnished, shall have been false,
misleading or incomplete in any material respect on the date as of
which made; or
(e) If the Guarantor defaults in the performance or
observance of any other agreement, covenant, term or condition
contained herein, and such default shall not have been remedied
within thirty (30) days after written notice thereof shall have
been received by it from the Trustee; or
(f) Filing by the Guarantor of a voluntary petition in
bankruptcy or a voluntary petition or an answer seeking
reorganization, arrangement, readjustment of its debts or for any
other relief under the Bankruptcy Code, or under any other
insolvency act or law, state or Federal, now or hereafter existing,
or any other action of the Guarantor indicating its consent to,
approval of, or acquiescence in any such petition or proceeding;
the application by the Guarantor for, or the appointment by or with
the consent or acquiescence of the Guarantor of, a receiver, a
trustee or a custodian for the Guarantor; the application by the
Guarantor for, or the consent to or acquiescence of the Guarantor
in, an assignment for the benefit of creditors; or the inability of
the Guarantor or the admission by the Guarantor or in writing of
its inability to pay its debts as they mature: or
(g) Filing of an involuntary petition against the
Guarantor in bankruptcy or seeking reorganization, arrangement,
readjustment of its debts or for any other relief under the
Bankruptcy Code, or under any other insolvency act or law, state or
Federal, now or hereafter existing; or the involuntary appointment
of a receiver, a trustee or a custodian of the Guarantor or for all
or a substantial part of its property; the issuance of a warrant of
attachment, execution or similar process against any substantial
part of the property of the Guarantor and the continuance of any of
such events for thirty (30) days undismissed or undischarged; or
(h) If a final judgment, which with other outstanding
final judgments against the Guarantor exceeds an aggregate of
$25,000.00 shall be rendered against the Guarantor and if within
sixty (60) days after entry thereof such judgment shall not have
been discharged or execution thereof stayed pending appeal, or if
within sixty (60) days after the expiration of any such stay such
judgment shall not have been discharged; or
(i) The (i) entry by any Federal, state, territorial,
foreign or other court or governmental department, commission,
board or agency, or any arbitral tribunal of any writ, order,
judgment, mandamus or other decree (whether temporary, permanent,
WPO:[TDICKSON.FORMS)GUARANTY-CORPORATE.
July 15, 1997 3:38pm Z
r g?-/1 sr
final or subject to further appeal or review), requiring by its
terms payment by the Guarantor
of, or (ii) consent or
acknowledgement by the Guarantor to, or its acquiescence in, any
allocation or assessment (whether interim or final.) by any steering
committee, any successor thereof, or any similar body or other
Person requiring by its terms payment by the Guarantor of,
(iii) payment by the Guarantor of, an amount or amounts during any
period of twelve (12) consecutive calendar months exceeding in the
aggregate the sum of $100,000.o0 (in excess of amounts (A) funded
by reserves theretofore established by the Guarantor or (S) the
payment of which is provided by applicable insurance maintained by
the Guarantor) in connection with any current or future actual or
potential liability of the Guarantor under applicable state,
Federal or local environmental laws, statutes, ordinances, rules or
regulations for the generation, transportation, storage, disposal
or emission of Hazardous Materials (including clean-up costs,
administrative and operating expenses, experts and consultants'
fees and expenses and attorneys' fees and expenses);
(j) If the Guarantor seeks to cancel this Guaranty
Agreement for any reason whatsoever;
then at any time thereafter, the Trustee may proceed
hereunder and shall have the right to proceed first directly
against the Guarantors, and the Trustee shall have no obligation to
proceed against or exhaust any other remedy or remedies which it
.
may have and without resorting to any other security, whether held
by or available to the Trustee or the Issuer.
5.2 No Remedy Exclusive. No remedy herein conferred upon or
reserved to the Trustee is intended to be exclusive of any other
available remedy or remedies, but each and every such remedy shall
be cumulative and shall be in addition to every other remedy given
under this Guaranty Agreement or now or hereafter existing at law
or in equity or by statute.
ARTICLE VI
Miscellaneous
6.1 Capitalized Terms. Capitalized terms used in this
Guaranty Agreement shall have the meanings ascribed to such terms
in the Loan Agreement and/or the Indenture, unless otherwise
defined herein or if the context clearly requires otherwise.
6.2 Successors and Assigns. This Guaranty Agreement shall be
binding upon the Guarantor, its legal representatives, successors
and assigns and all rights against the Guarantor arising under this
Guaranty Agreement shall be for the sole benefit of the Issuer and
the Trustee (on behalf of the Owners), their respective legal
WPO:(TDICKSON.FORMS]GUARANTY-CORPORATE.
July 15, 1997 3:38pm 12
representatives, successors and assigns, all of whom shall be
entitled to enforce performance and observance of this Guaranty
Agreement to the same extent as if they were parties hereto. The
Trustee (and the Issuer with respect to collection of its
administrative expenses due under the Loan Agreement) shall be
entitled to bring any suit, action or proceeding against the
Guarantor for the enforcement of any provision of this Guaranty
Agreement in its name, without exhausting any other remedies which
it may have pursuant to the terms of this Guaranty Agreement, the
Bonds or any of the other Bond Documents and without resort to any
other security, whether held by or available to the Issuer or the
Trustee.
6.3 Notices. All notices, requests and demands to or upon
the respective parties hereto shall be deemed to have been given or
made when delivered by hand or mailed first class, certified or
registered mail, postage prepaid, addressed as follows or to such
other address as the parties hereto shall have been notified
pursuant to this Section 6.3:
Guarantor: Interplex Industries, Inc.
1200-12 28th Avenue
Flushing, NY 11354
Attention: Chief Financial Officer
. Issuer: City of Tamarac, Florida
7525 N.W. 88th Ave.
Tamarac, Florida 33321-2401
Attention: City Attorney
Trustee: First Union National Bank
200 South Biscayne Blvd., 14th Floor
Miami, Florida 33131
Attention: Corporate Trust
except in cases where it is expressly herein provided that such
notice, request or demand is not effective until received by the
party to whom it is addressed, in which event said notice, request
or demand shall be effective only upon receipt by the addressee.
6.4 Amendment• Consent of Issuer. This Guaranty Agreement
may be amended or modified only upon an agreement in writing of the
Guarantor, the Trustee and the Issuer. The consent of the Issuer
shall not be required for any amendment hereof or the waiver of any
provision hereof by the Trustee, except to the extent any such
amendment or waiver affects the Issuer by reducing or limiting the
guaranty provided hereunder for the obligations of the Issuer under
the Indenture or the Bonds.
6.5 DiachaKcre.. of the Guar1* antor. Upon payment in full of the
Bonds, and satisfaction in full of all other obligations of the
WPO:(TDZCKSON.PORMS]GUARANTy_CORPORATE.
July 15, 1997 3:38pm 13
Guarantor hereunder, including the obligations of the Guarantor
contained in Article I hereof relating to payments upon a
Determination of Taxability, all liability of the Guarantor
hereunder shall cease and be discharged and, upon request, the
Issuer and/or the Trustee shall execute and deliver to the
Guarantor an appropriate instrument in writing evidencing the
release and discharge of the Guarantor from any and all such
further liability under this Guaranty Agreement; provided, however,
that the Guarantor's liability for payments upon the occurrence of
a Determination of Taxability with respect to the Bonds shall
survive payment of the Bonds. This Guaranty Agreement shall be
retained by the Trustee until the period has elapsed without claim
within which the Internal Revenue Service may claim that interest
payable pursuant to the Bonds is not exempt from federal income
taxes.
6.6 Effect of Delay and Waivers. No delay or omission to
exercise any right or power accruing upon any default, omission or
failure of performance hereunder shall impair any such right or
power or shall be construed to be a waiver thereof, but any such
right and power may be exercised from time to time and as often as
may be deemed expedient. In order to entitle the Trustee to
exercise any remedy now or hereafter existing at law or in equity
or by statute, it shall not be necessary to give any notice, other
than such notice as may be herein expressly required. In the event
any provision contained in this Guaranty Agreement should be .
breached by any party and thereafter waived by the other party so
empowered to act, such waiver shall be limited to the particular
breach hereunder. No waiver, amendment, release or modification of
this Guaranty Agreement shall be established by conduct, custom or
course of dealing, but solely by an instrument in writing duly
executed by the parties thereunto duly authorized by this Guaranty
Agreement.
6.7 Counterparts. This Guaranty Agreement may be executed
simultaneously in several counterparts, each of which shall be
deemed an original, but all of which together shall constitute one
and the same instrument.
6.8 Severabilit . The invalidity or unenforceability of any
one or more phrases, sentences, clauses, Sections or Articles
contained in this Guaranty Agreement shall not affect the validity
or enforceability of the remaining portions of this Guaranty
Agreement, or any part thereof.
6.9 Cost of Collection. The Guarantor shall be liable for
the payment of all fees and expenses, including attorneys, fees
(without regard to any statutory presumption), incurred in
connection with preparation, execution, delivery or enforcement of
this Guaranty Agreement. 0
WPO:[TDICKSON.FORMSIGUARANTY-CORPORATE.
July 15, 1997 3:38pm 14
6.10 Set Off, Upon the occurrence of an Event of Default
hereunder, the Owners, or the Trustee on behalf of the Owners, are
hereby authorized, without notice to the Guarantor, to set off,
appropriate and apply any and all monies, securities and other
properties of the Guarantor hereafter held or received by or in
transit to the Trustee or such Bondholders from or for the
Guarantor, against any indebtedness evidenced by the Bonds held by
such Owners.
6.11 Reinstatement. The Guarantor agrees that this Guaranty
Agreement shall continue to be effective or be reinstated, as the
case may be, at any time payment received by the Trustee or any
Owner under the Bonds, any of the Bond Documents or this Guaranty
Agreement is rescinded or must otherwise be restored upon the
bankruptcy or reorganization of any of the Issuer, the Borrower,
the Guarantor, or otherwise.
6.12 Consent to Jurisdiction• venue. In the event that any
action, suit or other proceeding is brought against the Guarantor
by or on behalf of the Trustee or the Owners whether in the name of
the Trustee, the Owners or the Issuer, to enforce the observance or
performance of any of the provisions of this Guaranty Agreement or
of the Loan Agreement or, to the extent permitted by law, the
Mortgage, including without limitation, the collection of any
amounts owing thereunder, the Guarantor hereby irrevocably, to the
extent permitted by law, (i) consents to the exercise of
jurisdiction over the Guarantor and its property by the United
States District Court, Southern District of Florida, and by the
Florida Circuit Court in and for Broward County, Florida,
(ii) waives any objection it might now or hereafter have or assert
to the venue of any such proceeding in any court described in
clause (i) above, and (iii) constitutes and appoints its President
at the Guarantor's address as agent for service of process upon it
if so elected by the Trustee in connection with any such
proceeding.
6.13 Indemnification. The Guarantor hereby agrees to
indemnify and defend the Issuer, the Trustee and the Owners and
hold them harmless from and against any and all claims, losses,
liabilities or damages in any way growing out of or resulting from
this Guaranty Agreement, including without limitation, the
enforcement of this Guaranty Agreement. The Guarantor hereby
further agrees to indemnify and hold harmless the Issuer, the
Trustee and the Owners from any loss suffered or occasioned by the
failure of the Borrower to satisfy its respective obligations under
any and all of the Bond Documents. The obligations of the
Guarantor under this Section 6.13 shall be independent primary
obligations of the Guarantor hereunder. The agreement to indemnify
contained in this Section 6.13 shall be enforceable notwithstanding
the invalidity or unenforceability of any and all of the Bond
Documents.
WPO:(TDiCKSON.FORMS]GUARAN y-CORPORATE.
July 15, 1997 3:38pm
�( 9 � �'7 5�
6.14 Governing Law. This Guaranty Agreement shall be governed
by and construed in accordance with the laws of the State of
Florida. 0
6.1S WAIVER OF JURY TRIAL. THE GUARANTOR HEREBY KNOWINGLY,
VOLUNTARILY, AND INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON THIS GUARANTY
AGREEMENT OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH THIS
GUARANTY AGREEMENT OR ANY DOCUMENT OR INSTRUMENT CONTEMPLATED TO BE
EXECUTED IN CONNECTION WITH THIS GUARANTY AGREEMENT, INCLUDING
WITHOUT LIMITATION, THE BOND DOCUMENTS, OR ANY COURSE OF CONDUCT,
COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR
ACTIONS OF ANY PARTY WITH RESPECT HERETO OR THERETO. THIS
PROVISION IS A MATERIAL INDUCEMENT FOR THE ISSUER'S ISSUANCE OF THE
BONDS AND LOAN OF THE PROCEEDS THEREOF TO THE BORROWER AND FOR
ISSUER'S AND/OR THE TRUSTEE'S ACCEPTANCE OF AND/OR ENTRY INTO, FOR
THEMSELVES AND FOR THE BENEFIT OF THE OWNERS, ALL DOCDMF.JgTS AND
INSTRUMENTS EXECUTED IN CONNECTION WITH THIS GUARANTY AGREEMENT,
INCLUDING WITHOUT LIMITATION, THE BOND DOCUMENTS FROM, OR WITH,
BORROWER AND/OR THE GUARANTOR.
IN WITNESS WHEREOF, the Guarantor, the Trustee and the Issuer
have caused this Guaranty Agreement to be executed in their
respective corporate names and their respective corporate seals to
be hereunto affixed and attested by their duly authorized officers,
all as of the date first above written. 0
Signed, sealed and delivered INTERPLEX INDUSTRIES, INC.
in the presence of:
By:
Name:
Name:
Attest:
Name:
Name:
As to "Guarantor"
WPO:(TDICKSON.FORMS)GUARANTY-CORPORATE. 1 6
July 15, 1997 3:38pm
(CORPORATE SEAL)
E
•
FIRST UNION NATIONAL BANK, as
Trustee
By:
Name:
Title:
CITY OF TAMAR.AC, FLORIDA
By. -
Attest:
WPG:(TDYCKSON.FORMS] GUARAM-CORPORATE.
July 15, 1997 3:38pm - 17
(SEAL)
t` Ll I-- l 9c--
.'UL. 22 97 (`JE) t5:22 WHITMAI� BREEM ABBOTT 'VORGAN 2C38691951
PAGE. 2
EXMIBIT
CITY' OF TAMARAC, FLURIDA
Industrial Development Revenue Bonds, Series 1997
(Sun Belt Precision Products, Inc. Project)
August _, 1997
City of Tamarac, Florida
7525 N.W. 88th Avenue
Tamarac, FL 33121-2401
Sun Belt Precision Products, Inc.
900 S.W. 21 st Terrace
Fort Lauderdale, FL 33312
Interplex lndustides, Inc.
1200-12 28th Avenue
Flushing, NY 11354
0 Sirs and Madams:
The undersigned, Greenwich Partners, LLC (the "Underwriter" ), offers to enter into the
following agreement (the "Bond Purchase Agreement") with Sun Belt Precision products, Inc, (the
"Company') and Interplex Industries, Inc. (the "Guarantor') (the Company and the Guarantor
collectively r &nvd to as the "Bormwer�'), and the City of Tamarac, Florida (the 'Issuer") with
respect to the purchase and sale of the Issuer's Industrial Development Revenue Bonds, Series
1997 (Sun Belt Precision Products, Inc. project) in the aggregate principal amount of up to
$3,300,000 (the "Bonds') on the terms and subject to the conditions herein set forth.
Terms used but not otherwise defined herein shall have the meanings respectively ascribed
by the hereinafter defined Official Statement;
1 • ftrSh2w Ed - Upon the terms and conditions and upon the basis of the
respective representations, Warrranties and covenants set forth herein, the Underwriter agrees to
purchase from the Issuer, and the Issuer agrees to sell to the Underwriter, all (but not less than
all) of the Bonds in the aggregate principal amount of up to $3,300,000.00.
The Bonds shall be dated the date of delivery and be in the authorized denominations of
$5,000 principal amount and integral multiples of $5,000 in excess thereof (except that Bonds may
be issued and Outstanding in lesser denominations to the extent required or necessitated by the
Depository Trust Company, New York, New York ("DTC") for the redemption of Bonds), have
the maturities and bear interest payable semiannually February1 and August gu I ,commencing
1971 S
r- /
=UL. 22 97 (-r-JE1 :5:23 WHI:MA'V 4REED ASS077 MORGAN 2C3869195.
PACE. 3
February 1, 1998, all as shown on the cover page of the Official Statement dated August _,
1997 (the "Official Statement') and in the Indenture (defined below). The purchase price of the
Bonds shall be the aggregate face amount thereof plus accrued interest, if any, Iess (i) the original
issue discount, if any, and (ii) the Underwriter's discount of 2'% of the aggregate face amount of
the Bonds.
The Bonds will be issued initially in book -entry form only. In connection therewith, the
Issuer, the Trustee and DTC will eater into a letter agreement (the "DTC Agmment").
The Bonds are being issued and sold by the Issuer, and the proceeds of the sale of the
Bonds are being used to finance the acquisition and construction of the Project, defined below,
and to pay the costs of issuance of the Bonds issued pursuant to a Trust Indenture dated as of
August 1, 1997 (the "Indenture') between the Issuer and First Union National Bank, as Trustee
(the "Trustoe").
The Issuer has authorized the Bonds by resolutions duly adapted on February 26, 1997 and
July 23, 1997 (the "Resolution"). The Bonds will be special obligations of the Issuer payable
solely out of the revenues or other receipts, funds or moneys pledged therefor, and from any
amounts odmvise available to the Trustee for the payment thereof under the Indenture. The
proceeds of the sale of the Bonds will be used to finance the acquisition, construction and
equipping of the project, all as described in the Loan Agreement (the " Loan Agreement") dated
as of August. 1, 1997. Payments under the Loan Agreement sufficient to pay the Bonds shall be
applied to amounts due and payable on the Bonds.
The Bonds are secured by a mortgage by the Company in favor of the Issuer dated as of
August 1, 1997 (the "Mortgage"). The Bonds also are to be secured by the Guaranty dated as of
August 1, 1997 (the "Guaranty`) from the Guarantor to the Trustee.
2. Mdng. The Underwriter represents and warrants that it will offer the Bonds only
pursuant to the Official Statement and only in states (including the District of Columbia, and
territories and possessions of the U.S.) where the offer and sale of the Bonds are legal, either as
exempt securities, as exempt transactions or as a result of due registration of the Bonds for sale
in any such state. The Underwriter agrees to offer the Bonds at the initial offering prices or yields
set forth in the Official Statement, but the Underwriter reserves the fight to change such prices
or yields as it may deers necessary or desirable in connection with the offering and sale of the
Bonds and to sell the Hoods to dealer's (including dealers depositing Bonds into investment trusts)
and others at prices lower than the public offering prices.
The Issuer hereby represents that the Preliminary Official Statement, as herein
defined, with such additions and amendments as have hereWfore berm agreed upon between the
Issuer and the Underwriter, is deemed final as of the date hereof, except for the omission of
offering prices, interest rates, selling compensation, aggregate principal amount, principal amount
39715 .2-
•
XL- 22 ' 97 f:'JE; 15:29 WHI-LUON BREED ABBd__ MOAGAN 209969:95'. FACE. 4
per Bond, delivery dates, ratings and other terms of the Bonds depending on such matters. Such
rgmontation is made in reliance upon the Company's and the Guarantor's representations herein
that material relating to the Company and the Guarantor included in the Preliminary Official
Statement is true and correct. The Company will cooperate with the Underwriter to secure the
delivery of an acceptable number copies of the Official Statement with reasonable promptness and
within seven business days. lire Underwriter agrees to file a copy of such Official Statement with
a nationally reoogxuized municipal securities information repository within five (5) days after such
final Official Statements are made available to the Underwriter and to advise the issuer as to the
location and time of such filing. The Underwriter has talmn and will continue to take action to
comply with the Securities and Exchange Commission Municipal Securities Disclosure Rule, 17
C.F.R. 240.15c2-12 and the provisions of this paragraph shall survive the expiration hereof to
the extent necessary for such purpose.
4. thegodthe. The
Company and the Guarantor represent and warrant to the Underwriter and the Issuer that:
(a) Qtc+al5talffm art. The descriptions and statements contained in the Preliminary
Official Statement, dated July _, 1997 (the "Preliminary Official Statement") and the Official
Statement under the headings "Thc Summary% "The Introduction`, "The Company and the
Guarantor", "The Project", "Estimated Use of Proceeds", "Na Litigation", "Appendix A -
Unaud'tcd Financial Statements of the Con�aany", "Appendix B - Audited Consolidated Financial
IS Statements of the Guarantoe, and, to their bet knowledge 'Investment considerations," do not
contain any untrue statement of a material fact or omit to state any material fact required to be
stated or necessary to make such descriptions and statements, in light of the circumstances- under
which they were made, not misleading. The financial statements included in Appendices A and
B to the Official Statement have been prepared in accordance with generally accepted accounting
principles, applied on a consistent basis in all material aspects (except as otherwise disclosed in
the notes to such financial statements) and fairly represent the financial position, results of
operations, retained earnings and statements of cash flows of the Company and the Guarantor at
the respective dates and for the respective periods indicated.
(b) UndiselmedJuatedski . Neither the: Company nor the Guarantor has failed
to disclose to the Underwriter and the Underwriter's Counsel facts that materially and adversely
affect or will materially and adversely affect the operations, affairs, properties, conditions or
prospects (financial or otherwise) of the Company or the Guarantor.
(c) NQ Advem ClAnsm, No material and adverse change has occurred in the financial
condition of the Company or the Guarantor or the results of the Guarantor's operations since the
date of its most recent audited financial statements which are included in the Official Statement,
and all financial statements and the discussion thereof included in the Official Statement pnesarrt
fairly the financial condition of the Company and the Guarantor as of the dates thereof and the
results of their operation for the periods therein described,
E
i� 7 / " / J
1UL. 22 ' 97 c': M 15:24 W'41 %102i SREE'Z ABB077 MORGAN 209869.95:
PAGE. 5
(d) I7ndiadamW I The Company and the Guarantor have no debt (including any
capital leases and guaranties) outstanding except as specifically set forth in the Official Statement
or as shown on its financial statements set forth in Appendix A and Appendix B to the Official
Statement as of the date of said statements and the Company and the Grantor represent that no
unusual or exceptional transactions have occurred between those dates and the date of this
contract. and, as to all such debt, all amounts due and payable thereon, as of the date hereof, are
cun=nt and not in default.
(e) The Company is duly organized and validly existing as a
corporation and is in good standing under the laws of the State of Florida. The Guarantor is duly.
organized and validly existing as a corporation and is in good standing under the laws of the State
of Delaware.
(f) ftwer and ,, litho b. The Company and the Guarantor each have the right,
power and authority to own its properties and assets, to condnc:t its busimss as it is presently
conducted and as it is described in the Official Statement, to execute and deliver the Loan
Agreement, the Mortgage and the Guaranty, hereinafter (the "Financing Documents"), the
Continuing Disclosure Agrwnent and this Bond Purchase Agreement, to perform their respective
obligations thereunder and hereunder and to carry out and consummate all transactions described
therein.
(g) . W At meetings duly called and held by the Board of Directors of
the Company, at which a quorum was present and acting throughout, the Board of Directors duly
adopted in accordance with the law and the Articles of Incorporation $ -
rpo and By -Laws of the
Company resolutions (the "Company Resolution") approving, or authorizing approval of, the
Official Statement, the Company's obligations with respect to the Bonds, the Indenture, the
Mortgage, the Loan Agreement, the Continuing Disclosure Agreement and this Bond Purchase
Agreement and authorizing the execution and delivery and use and distribution thereof, and the
consummadon of the transaction established by the same; and notice of the meetings of the Board
of Directors at which the Company Resolution was adopted was given in accordance with law and
the Articles of Incorporation and By -Laws of the Company,
(ii) At meetings duly called and held by the members of the Board of Directors
of the Guarantor, at which a quorum was present and acting throughout, the Board of Directors
duly adopted in accordance with the law and the Certificate of Incorporation and By -Laws of the
Guarantor resolutions (the "Guarantor Resolution") approving, or authorizing approval of, the
Official Statement, the Guarantor's obligations with respect to the Bonds, the Guaranty, the
Continuing Disclosure Agreement, the Indenture and this Bond purchase Agreement and
authorizing the execution and delivery and use and distribution thereof, and the consummation of
the transaction established by the same; and notice of the meetings of the Guarantor at which the
Guarantor Resolution was adopted was given in accordance with law and the Certificate of
Incorporation and By-laws of the Guarantor.
•
39715 -4-
y 7 - / 9
MA2�
JUL.
22 ' 97 (TJEN, t 5 ; 25 wT. ld$REED ABBOTT MORGAN 2038691 95'_ ?AGE. 6
(h) ND Modil3alijm. No proceeding or authority for the execution and delivery of
the Official Statement or the Financing Documents, has been amended, repealed, rescinded, or
revoked.
(t) Ueoutoon 2gid DWIvery.. Each Of the Company and the Guarantor have duly
authorized the execution and delivery of, and the performance of its obligations under the
Financing Documents, approved the distribution of the Official Statement, and upon the Closing,
each of them will deliver or cause to be delivered all opinions, certificates, letters and other
documents required to be delivered hercim.
0) No Litigation, Faccept.if, and to the extent, specifically set forth in the Official
Statement, no litigation, action, suit or administrative proceeding of any nature is pending or
threatened against the Company or the Guarantor:
(1) affecting directly or indirectly the validity of the Financing Documents, the
Bonds, the Indenture, the Continuing Disclosure Agreement, this Bond purchase
Agreement, or the Cot 4any Resolution or the Guarantor Resolution;
00 restraining, enjoining, or in any 'other manner affecting the execution or
delivery of the Financing Documents, the Bonds, the Indenture, the Continuing Disclosure
Agreement, this Bond Purchase Agreement, or the adoption of the Company Resolution
or the Guarantor Resolution;
(iii) affecting, g, in any way, the right or authority of each of the Company and the
Guarantor to carry out the terms and provisions of the Financing Documents, the Bonds,
the Indenture, the Continuing Disclosure Agreement, this Bond Purchase Agreement, the
Company Resolution or the Guarantor Resolution, and the covenants and agreements
therein and herein;
(iv) affecting the corporate existence of the Company, or the titles of the officers
Or seeking to remove such officers or members of its Board of Directors or any of them
from their respective offices;
(v) affecting the corporate existence of the Guarantor or the titles of the officers
or seeking to remove such officers or members of its Board of Directors or any of them
from their respective offices; or
(vii) wherein an unfavorable decision, ruling or finding would materially adversely
affect the operations, affairs, properties, conditions or prospects (financial or otherwise)
of the Company or the Guarantor,
(k) . No event has occurred and is continuing
that constitutes, or that with notice or lapse of time or both would constitute, an Event of Default
tinder the Indenture; or the Financing Documents.
39715 .J-
JUL. 22 ' 97 (TI.E) 15'26 ` whi:-:MkV BREED AB307T MORGAN 203869195/
PAGE. 7
(1) . 01 The Company is rift in default and has not
been in default, with respect to: any provision of its Articles of Incorporation or By -Laws; the
payment of principal of or interest on any security or other obligation issued or guaranteed by the
Company; or any other covenant of a material obligation of the Company, including any
indenture, mortgage, lien, agreemen, contract, deed, lease, loan agreement, note, order,
judgment, decree or other instrument or restriction of any kind or character to which it is a panty
or by which it is bound, or to which it or any of its assets is subject.
0i) The Guarantor is not in default, and has not been in default, with respect
to any provisions of its Certificate of Incorporation or Sy -Laws; the payment of principal of or
interest on any security or other obligation issued or guaranteed by the Guarantor, or any other
covenant of a material obligation of the Guarantor,' including any indenture, mortgage, lien,
agreement, contract, deed, lose, loan agreement, note, order, judgment, decree or other
instrument or restriction of any kind or character to which it is a party or by which it is bound,
or to which it or any of its assets is sut-jcct.
(m) No Violation of Law or f..ontr=, Authorization, execution and delivery of each
Of the Financing Documents and any other agreement or instrument to which the Company or the
Guarantor is a party and which is to be used or contemplated for use in the consummation of the
transactions contemplated by the Official Statement, compliance with the terms and conditions
thereof and consummation of the transactions therein and in the Official Statement contemplated,
do not and will not (i) violate any laws or any regulation, order, injunction or decree of any court,
governmental body, agency or other instrumentality applicable to the Company or the Guarantor,
or (ii) result in a conflict with or a breach of any of the terms and conditions of, or constitute a
default under, or result in the creation or imposition of any mortgage, lien, charge or
encumbrance of any nature whatsoever upon any of the properties or assets of the Company or
the Guarantor pursuant to the terms of their respective organizational documents or any indenture,
mortgage, loan, line of credit, now, lease, or other agreement or other instmment to which either
the Company or the Guarantor is a party or by which the Company or the Guarantor or any of
their properties is bound; and no approval of, notice to, registration or filing with or other action
by any governmental authority or agency is required in connection with the execution or
performance of any of such documents by the Company or the Guarantor, except such as have
been obtained or accomplished.
(n) HOZardOW MaWdallq. The Company has caused to be carried out a Phase I
environmental audit of the Project covering periods prior to , 1997, copies of which
have been delivered to Underwriter's Counsel (the "Phase I Audit ), and, except as described in
the Official Statement such investigation has disclosed no Hazardous Materials (hereinafter
defined) in violation of any Environmental Laws (hereinaf'iGr defined} or possible violations of any
Environmental Laws with respect to the Project. The Company warrants and represents (1) with
respect to the period prior to , 1997 based upon the Phase I Audit and (2) with
respect to the period subsequent thereto based upon the best of its knowledge after due inquiry
and investigation, including the investigation described above, (1) that there have been no releases
of Hazardous Materials either at, upon, under or within the Project, and no Hazardous Materials
39715 -6-
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JUL. 22 ' 97 (TGE) 15:27 WH!MAN SP.EZZ ASSOT: MORGAN 203869195'.
PAGE. 8
have migrated onto the Project; (2) that there is no and has not previously been any above or
underground storage tanks on the Project; (3) no Hazardous Materials have been located on or
stored on the Project except in approved containers in accordance with applicable laws and no
Hazardous Materials are or will be located, or stored, or have been or will be processed or
disposed of on, or released or discharged from (including ground water contamination) the
Project, except as permitted by Law. The Company has received no notice from any occupant
of the Project, any governmental agency or other person with respect to any release of Hazardous
Materials. Neither the Company nor, to the best of the Company's knowledge, any current or
prior owner of the Project (i) has received notice of any private or governmental lien or judicial
or administrative notice, order or action relating to Hazardous Materials or environmental
contaminants, impairmen s or liabilities with respect to the project or (ii) is in, or with any
applicable notice or lapse of time, or failure to take certain curative or remedial actions, will be
in, either direct or indirect violation of any Environmental Laws.
For purposes of this subparagraph, "Environmental Laws" shall mean any federal, state
and local laws, rules and regulations and orders of any court or other governmental authority
having jurisdiction ("laws") pertaining to environmental regulations, contamination, clean-up or
disclosures, including, without limitation, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, 42 U.S.C. Section 9601 CLAM. ("CERCLA" ); The
Federal Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 cLSM. ("RCIUlf);
The Oil Pollution Act of 1990, 42 U.S.C. Section 2701 q. ("OpA ), The Community
Planning and Right to Know Act, 42 U.S. C. Section l 101 dzM. ("Title III'), The Clean Water
Act, 33 U.S.C. Section 1321 d.0Q, ("t~WA"), The Clean Air Act, 42 U.S.C. Section 74p1 et
sM. ("CAA"), Superfund Amendments and Reauthorization Act of 19S6, Public Law No: 99=499
(signed into law October 17, 1986) ("S ARA"); Toxic Substances Control Act, 15 U.S. C. Section
2601 seq. ("TSCA"); The Hazardous Materials Transportation Act, 49 U.S.C. Section 1801
CL=.; any and all other federal, State of Florida, county, or local superlien or environmental
protection, cleanup or disclosure laws; and "Hazardous Materials" shall mean and include, brit
shall not be limited to, any oil, petroleum product and any hazardous or toxic wastes .or
substances, any substances which because of their quantitative concentration, chemical,
radioactive, flammable, explosive, infectious or other characteristics, constitute or may reasonably
be expected to constitute or contribute to a danger or hazard to public health, safety or welfare or
to the environment, including, without limitation, any asbestos (whether or not friable) and any
asbestos -containing materials, lead paint, waste oils, solvents and chlorinated oils, polychlorinated
biphenyls (PCB's), toxic metals, etchants, pickling and plating wastes, explosives, reactive metals
and compounds, pesticides, herbicides, radon gas, urea formaldehyde foam insulation and
chemical, biological and radioactive wastes, or any other similar materials which are included
under or regulated by any Envirorunental Laws.
(o) LU Rfift=- Except as described in the OfliCial Statement, the Company and. the
Guarantor have each filed all federal, foreign, State of Florida and State of Delaware tax returns
and all other tax returns that, as of the date hereof, are required to be filed unless the deadline
therefor has been extended in accordance with the provisions of applicable law (whether
information returns or not), and has paid all taxes due, if any, as of the date hereof pursuant to
such returns or pursuant to any assessment received by the Company or the Guarantor.
Mrs -7-
22 Y7 MUZ) 1 5 ! 28 �i9HiTMA1� BREA Assn:'- MORGAti 2038691 95:
?AGE. 9
(p) Awmak of Imnsagdonand ftiect. The Company and the Guarantor have
obtained and theme are currently in force and effect, all consents, permits (except certain buikitug
permits which are the subject of pending applications), licenses, accreditations, certificates and
ether approvals (governmental or otherwise) that: 0) would constitute a condition precedent to,
or the absence of which would materially adversely affect, the performance by the Company and
the Guarantor of their obligations under the Financing Documents, the Tax Certificate, and any
other agreement or instrument to which they are a party and which is to be used or contemplated
for use in the cunsumnution of the transactions contemplated by the Official Statement; or (ii) are
necessary for the acquisition, construction, renovation, equipping or operation of the project;
other than, in either case (i) or Q, any special permits or other approvals which are normally
obtained prior to or during the course of construction, which cannot be obtained at this time and
which, in the reasonable judgment of the Company and the Guarantor upon consultation with legal
counsel, architects, or others, as necessary, will be obtainable at the proper and customary time
without material impediment.
(q) Lars. Except (x) as specifically set forth in the Official Statement, (y) purchase
money security interests with respect to the acquisition of equipment not being financed or
refinanced from the proceeds of the Bonds, or (x) as set forth by the Schedule of Security Interests
appended to this Bond Purchase Agreement, if any, the Company and the Guarantor have not
created or suffered to exist any:
(i) pledge of funds, investments or other property;
(u) security interest in any property of whatever nature, including in particular but
without limitation gross revenues, accounts receivable and proceeds; or
(iii) mortgage of any real property, land or building, leasehold interest or other
right or intcrrst pertaining thereto.
(r) a . The Company has good and marketable fee simple title to the
Project free of all encumbrances except for encumbrances and exceptions identified in the Title
Insurance Commitments issued by as agent for
Title Guarantee Company under Title Number dated , I997 and
Permitted Encumbrances, provided same do not materially interfere with the intended use of the
Project.
(s) . 'Tile Borrower deems the
Preliminary Official Statement, dated July ,, 1997, final for purposes of Rule 15c2-12 of the
Securities and Exchange Commission.
(t) • The Company and the Guarantor will undertake, pursuant
to the Loan Agreement and a Continuing Disclosure Agreement, to provide certain annual
financial information and notices of the occurrence of certain events, if material. A description
iC - 9"7 - i
JE;L. 22 ' 97 (Ta) 15:28 WH:,rMAh BREED ABBOT MORGAN 2058b919�: =AGE. _0
of this undertaking is set forth in the Preliminary Official Statement and will be set forth in the
Final Official Statement.
The Issuer hereby represents and warrants that:
(a) It is authorized under Chapter 159, part II, Florida Statutes, and other
applicable provisions of law to issue the Bonds in accordance with the Act and to enter into the
transaction contemplated herein,
(b) The Issuer has complied with the provisions of the Act and has full power
and authority pursuant to the Act to consummate all transactions contemplated by the Bonds, the
Resolution, the Indenture, the DTC Agreement and the Financing Documents, and to issue, sell
and deliver the Bonds to the Underwriter as provided herein.
(c) By resolution duly adopted by the Issuer and still in full force and effect,
the Issuer has authorized the execution, delivery and due performance of the Bonds, the Indenture,
the DTC Agreement, and the Financing Documents, and the taking of any and all action as may
be requited on the part of the Issuer to carry out, give effect to and consummate the transactions
contemplated by this Bond Purchase Agreement, and all approvals necessary in connection with
the foregoing have been received.
(d) W'hcn delivered to and paid for by the Underwriter in accordance with the
terms of this Bond Purchase Agreement, the Bonds will have been duly authorized, executed,
authenticated, issued and delivered and will constitute valid and binding special obligations of the
Issuer payable solely from revenues or other receipts, fiends or moneys pledged therefor under the
Indenture and from any amounts otherwise available therefor under the Indenture, and will be
entitled to the benefit of the Indenture.
(e) The execution and delivery of the Bonds, the indenture, the DTC Agreement
and the Financing Documents, and compliance with the provisions thereof, will not conflict with
or constitute on the part of the Issuer a violation of, breach of or default under any statute,
indenture, mortgage, deed of trust, note agreement or other agreement or instYument to which the
Issuer is a party or by which the Issuer is bound, or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Issuer or any of its activities or
properties, and all consents, approvals, authorizations and orders of governmental or regulatory
authorities which are required for the consummation by the Issuer of the transactions contemplated
thereby have been obtained,
(0 Subiect to the provisions of the Loan Agreement and the Indenture, the
Issuer will apply the prnc Beds from the sale of the Bonds to the purposes specified in the
Indenture and the Financing Documents.
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(g) To the bast knowledge of the Issuer, there is no action, suit, proceeding or
investigation at law or in equity before or by any court, public board or body pending or
threatened against or affecting the Issuer, or to the best knowledge of the Issuer, any basis
therefor, wherein an unfavorable decision, ruling or finding would adversely affect the
transactions contemplated hereby and by the Indenture, or which, in any way, would adversely
affect the validity of the Bonds, the Resolution, the Indenture, the DTC Agreement, the
Financing Documents, or any agresrmcnt or instrument to which the Issuer is a party and which
is used or contemplated for use in consummation of the transactions contemplated hereby and by
the Indenture or the exemption from taxation as set forth therein.
(h) Any certificate signed by any Authorized Issuer Representative under the
Resolution or this Bond Purchase Agreement and delivered to the Underwriter or to the Trustee
shall be deemed a representatk m and warranty by the Issuer to the Underwriter as to the statements
made therein.
(i) The information with respect to the Issuer in the Official Statement, dated
1997, is correct and complete, except that none of the representations and
warranties herein apply to statements in or omissions from the Official Statement made in reliance
on or in conformity with information furnished to the Issuer by the Company or the Guarantor,
or to information under the headings "The Project", ",Investment Considerations, "Independent
Auditors", "Tax Matters% "Legal Matters", and "Underwriting", or to anything contained in the
appendices to the Official Statement or otherwise with respect to the Company, the Guarantor or
the Trustee. The Issuer has authorized the use of the Official Statement in both its preliminary
and final forms and delivered duly executed copies thereof in final form to the Underwriter.
It is specifically understood and agreed that the Issuer makes no representation as to the
financial position or business condition of the Company or the Guarantor or any other person and
does not, with respect to the Offacial Statc=nt or otherwise, except to the extent the Issuer deems
the Preliminary Official Statement to be find as provided in Section 4 hereof, represent or warrant
as to any of the statements, materials (financial or otherwise), mpresentations or certifications
furnished or to be made and furnished by the Company or the Guarantor or any other person in
connection with the sale of the Bonds, or as to the correctness, completeness or accuracy of any
of such statements, materials, representations or certificates. Except as set forth in the first
sentence of paragraph (i) above, the Issuer makes no representation as to the corn octness,
completeness or accuracy of the Official Statement and the Preliminary Official Statement, (such
Preliminary Official Statemet including all appendices thereto and all material incorporated by
reference therein, is hereinafter called the "Preliminary Official Statement").
0) The Issuer has not been in default at any time after December 31, 1975 as
to principal and interest on any obligation issued or guaranteed by it except as fully and fairly
disclosed in the Official Statement as required by Section 517.051 of the Florida Statutes, Rule
313-400.003 of the Florida Administrative Code and the Florida Department of Banking and
Finance.
•
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6• . At 10:00 a.m, prevailing local time
41 of the Issuer, on or before , 1997, or at such other time or later date as shall
have been mutually agreed upon by the Company, the Guarantor, the Issuer and the Underwriter,
the Trustee will deliver, or cause to be delivered, to the Underwriter the Bonds, in definitive
form, duly executed by the Issuer and authemicated by the Trustee, together with the other
documents hereinafter mentioned. and, subject to the oarnditions contained herein, the Underwriter
will accept such delivery and pay the purchase price of the Bonds by wire transfer to the Trustee
for the account of the Issuer of immediately available federal funds.
Delivery of the Bonds shall be made through the offices of the DTC. Payment for the
Bonds shall be made at the O fiocs of the Trustee, or at such other location as may be agreed upon
by the Trustee and the parties hereto. Such payment and the related delivery is herein called the
"Closing." The Bonds will be delivered as a fully registered bond, bearing proper CUSIP
numbers and will be registered in the name of Cade & Co., as nominee of DTC, After execution
by the Borrower, authentication by the Trustee and completion of checking and packaging, the
Bond shall be held in safe custody by DTC. Upon Closing, the Trustee shall authorize the release
of the Bonds to DTC.
7` . The obligations of the Underwriter
hereunder to accept delivery of and pay for the Bonds shall be subject to (i) the performance by
the Company, the Guarantor and the Issuer of their respective obligations to be performed
10 hereunder, (iij the accuracy in all material respects, as of the date hereof and upon Closing, of the
representations and warranties of the Company, the Guarantor and the Issuer herein, and of the
Company and the Guarantor in the Financing Documents and the Indenture, and (iii) the
conditions set forth in this section, below.
L.]
(a) Upon Closing, () the Official Statement, the Indenture, the Continuing Disclosure
Agreement, the Financing Documents and this Bond Purchase Agreement shall have been executed
and delivered in the forms approved by the Underwriter and shall be in full force and effect and
shall not have been amended, modified or supplemented except as may have been agreed to in
writing by doe Underwriter, (u) the proceeds of the sale of the Bonds shall be applied as described
in the Official Statement, and (ill) the Company and the Guarantor shall have duly adopted and
there shall be in full force and effect such resolutions as, in the judgment of Akerman, Senterfitt
& Eidson, F.A., as bond counsel ("Bond Counsel") and Whitman Breed Abbott & Morgan I.L.P.
as Underwriter's counsel ("Underwriter's Counsel"), shall be pessary in connection with the
transactions contemplated hereby;
(b) Upon Closing, the Underwriter shall have received executed copies of each of the
following documents;
i971,
(i) the approving opinions of Bond Counsel, dated the date of the Closing, relating
to, among other things, the validity of the Bonds in substantially the form set forth as
Appendix C to the Official Statement;
JUL. 22 97 .T'.'c) 15:5. WHITMAN BaZEO AB8077 M09kGAN 203869195: ?AGE. :9
!njs
(ii) supplemental opinions of Bond Counsel, dated the date of the Closing,
addressed to the Company, the Guarantor, the Trustee, and the Underwriter in
substantially the form of Exhibit B hereto; and a "reliance latter" of Bond Counsel, dated
the date of the Closing, addressed to the Underwriter and the Trustee in substantially the
form of Exhibit C hereto;
NO an opinion, dared the date of Closing, of Nabors, Gitlin & Nickerson, P.A.,
counsel to the Tnistee, addressed to the Underwriter and Bond Counsel, in substantially
the form of Exhibit D hereto;
(iv) an Th'i0n, dated the date of the Closing, of Underwriter's Counsel, addresser
to the Underwriter, in substantially the form of Exhibit E hereto;
(v) opinions, dated the date of Closing, of Cuddy & Feder & Worby, Counsel to
the Borrower, adds -seed to the Company, the Guarantor, the Trustee, the Underwriter,
and Bond Counsel, in substantially the form of Exhibit F hereto;
(vi) a cerdficate, executed by a duly authorized officer of the Issuer, dated the date
of Closing, to the effect that to the best knowledge and belief of such officer (A) the
representations and warranties of the Issuer contained in the Bond Purchase Agreement are
true and corrzct upon Closing; (B) the information regarding the Issuer contained in the
Official Statement does not include any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under whey they were made, not misleading; and (C) the
Issuer has satisfied all the conditions on its part to be performed or satisfied at or prior to
the Closing;
(vii) a cute, dated the die of Closing, signed by an authorized offjrer of the
Trustee, to the effect that (A) the Trustee is a [rational banking association, duly organized
and validly existing under the laws of the United States of America, (B) the Trustee has
the power to take all action required of it under the Y.rrdenture, (C) the officer who
exmaed the Indenture or meted the Bonds on behalf of the Trustee was at the time
of said execution, and upon Closing is, the duly elected, qualified, and acting incumbent
of the office set forth by his or her signature, and the signature appearing after his or her
name is a true and correct specimen of his or her genuine signature, (D) the Trustee is
authorized to act as trustee and accept the deities in connection with the Indenture, and in
so acting is not in violation of any provision of its Charier or By -Laws, any law,
regulation, or court or admimstrntive order applicable to it or any agreement or other
instrument to which it is a party or by which it may be bound, and (E) attached as an
exhibit to such certifilcate i5 a true, complete, and confect copy of the By -Laws of the
Trustee and/or Resolution of the Board of Directors of the Trustee and/or any other
applicable document which evidences the Trustee's powers, its right to enter into the
indenture, and the Issuer of the officers referred to above to act on behalf of the Trustee,
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JUL. 22 ' 97 (-,::E) :7:;2 W417MAN BREED ABB07T MOAGAN 203869I95: -MACE, :4
and that said By -Laws and or Resolutions and/or other applicable documents were in effect
on the date or dates said officers acted and remain in full force and effect upon Closing;
(viii) certificates dated the date of Closing and signed by the president of the
Company and the President of the Guarantor to the effect that (A) each of the
roc n=M3 Cations and warranties set forth herein and in any of the Bond Docttments to which
the Company or the Guarantor is a party is true and correct upon Closing (as if given or
made upon Closing}; (B) attached thereto as exhibits are true, correct and complete copies
Of the Articles of Incorporation of the Company; the Certificate of Good Standing (dated
within the past 30 days) with respect to the Company; and the By -Laws of the Company
and the Certificate of Incorporation and By -Laws and a Certificate of Good Standing
(dated within the past 30 days) with respect to the Guarantor (for each of the Company and
the Guarantor, respectively the IoTganizational Documents`); the Organizational
Documerrts were in full force and effect on the date that the Company Resolution and the
Guarantor Resolution were adopted and are in full force and effect on the date of Closing;
and no amendments to the Organizational Documents as set forth in said exhibits have been
adopted or flied; (C) the resolutions appended thereto as an exhibit is a true, correct and
complete copy of the resolutions described by paragraph 4(g) of the Bond Purchase
Agreement (the " Resolutions") duly at a meeting or meetings duly called and held
at which a quorum was present and acting throughout; the Resolutions have not been
modified, amended or minded and are in full force and effect on the Closing Date; and
the Resolutions constitute the only resolutions or official actions of the Board of Directors
Of the Company or the Guarantor with respect to the matters described by paragraph 4(g)
of the Bond Purchase Agreement, except for those resolutions or official actions
superseded by the Resolutions or otherwise no longer in any force or effect; (D) the
R tatives named therein am upon Closing the duly elected and qualified incumbent
Of the offree set opposite said person's name authorized by the Resolutions to execute and
deliver each of the Financing Documents and the signature appearing at the right of said
pt:rsan's respective name is the genuine signature of said offix:er; and (B) addressing such
additional matters as reasonably may be required by Bond Counsel and Underwriter's
Counsel;
(ix) executed counterparts of the Indenture, the DTC Agreement, the Financing
Documents and a specimen of the Bonds;
W a policy or policies of title insurance or commitments shall have been
delivered to the Trustee, in form satisfactory to the Underwriter, insuring the Trustee's
interest in the Project constituting real property which are to be financed by application
Of It portion of the proceeds of the Bonds;
(A) consent and comfort letters from M.R. Weiser & Co. L -p;
(xii) such other certificates, agreements, opinions, letters, and other documents,
including but not limited to affidavits and certificates in respect of signatures and
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JUL. 22 ' 97 (T,:E) 15:32 WE: -.VAX BREED ABBO;'T MORGAA 2.^3869195: PAGE. ;5
cerffkates relating to receipt of Bonds and purchase price, as may reasonably be required
by Bond Counsel or the Underwriter.
All such opinions, certificates, letters, agreements and documents will be in compliance with the
provisions hereof only if they are reasonably satisfactory in form and substance to the
Underwriter. the Company and the Guarantor will fumish the Underwriter with such conformed
copies or photocopies of such opinions, cortifiicams, letters, agreements and documents as the
Underwriter may reasonably request.
7. TerminAtion. The Underwriter shall have the right to cancel its obligations to
purchase the Bonds if (i) between the date hereof and the Closing, legislation shall be enacted or
recommended to the Congress for passage by the President of the United States, or favorably
reported for passage to either House of the Congress of the United States by any committee of
such House or announced by the Chairman of any such committee to which such legislation has
been referred for consideration, a joint announcement of the Chairman of the Ways and Means
Committee and the Finance Committee and the Secretary of the Treasury shall have been made,
a decision by a court of the United Stags or the United States Tax Court shall be rendered, or a
ruling, regulation or statement by or on behalf of the Treasury Department of the United States,
the Internal Revenue Service or other govermnental agency shag be made or proposed to be made
with respect to the federal taxation upon avenues or other income of the general character to be
derived by the Issuer under the Loan Agreement or by any similar body, or upon interest on
Obligations of the general character of the Bonds, or other action or events shall have transpired
which may have the purpose or effect, directly or indirectly, of changing the federal or State tax
consequences of any of the transactions contemplated in connection herewith and, in the
reasonable opinion of the Underwriter, materially and adversely affects the market price of the
Bonds, or (ii) there shall exist any event which in the Underwriter's reasonable judgment either
(A) makes untrue or incorrect in any material respect any statement or information contained in
the Official Statement or (B) is not reflected in the Official Statement but should be reflected
therein in light of the circumstances in which they were made in order to make the statements and
information contained therein not misleading in any material respect, or (in) there shall have
occurred any outbreak of hostilities or any national or international calamity or crisis or a financial
crisis or a default with respect to the debt obligations of, or the institution of proceedings under
the federal or the state bankruptcy laws by or against the State of Florida or any municipality,
subdivision, agency or instrumentality thereof, the effect of which on the financial markets of the
United States being such as, in the reasonable judgment of the Underwriter, would make it
impracticable for the Underwriter to market the Bonds or to enforce contracts for the sale of the
Bonds, or (iv) there shall be in force a general suspension of trading on the New York Stock
Exchange, or (v) a general banking moratorium shall have been declared by either federal, State
of New York or New York City authorities, or (vi) there shall have occurred since the date of
this Bond Purchase Agreement any material adverse change in the affairs of the Company or the
Guarantor, except for changes which the Official Statement discloses have occurnod or may occur,
or (vii) legislation shall be enacted or any action shall be taken by the Securities and Exchange
Commission which, in the opinion of Underwriter's Counsel, has the effect of requiring the
contemplated distribution of the Bonds to be registered under the Securities Act of 1933, as
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JUL. 22 ' 97 (-,JE) 15:93 WK:TMAN 3R EM AB OTT MORGAn
2038691951
?ACE. 16
amended, or the Indenture to be qualified under the Trust Indenture Act of 1939, as amended, or
(viii) a stop order, ruling, regulation or official statement by or on behalf of the Securities and
Exchange Commission shall be issued or made to the effect that the issuance, offering or sale of
the Bonds, or of obligations of the general character of the Bonds as contemplated hereby, is in
violation of any provision of the Securities Act of 1933, as amended, the Securities Exchange Act
of 1934, as amended, or the Trust Indenture Act of 1939, as amended, or (ix) any state "Blue
Sky' or securities commission shall have withheld registration, exemption or clearance necessary
for the offering authorized herein, and in the reasonable judgment of the Underwriter the market
for the Bonds is materially affected thereby, or (x) the Now York Stock Exchange or other
national securities exchange, the National Association of Securities Dealers, Inc., or any
governmerrtal authority or agency imposes, as to the Bonds or obligations of the general character
of the Bonds, any new restrictions or transactions in securities materially affecting the free market
for securities (including the imposition of any limitations on interest rates) or the extension of
credit by, or the change to the net capital requirements of, underwriters established by any such
exchange, the Securities and Exchange Commission, any other federal or state agency or the
Congress of the United States of America, or by Executive order, or (xi) the failure of the
Company to deliver to the Underwriter copies of the Official Statement in the manner specified
in Paragraph 3 of this Bond Purchase Agreement, where, in the reasonable opinion of the
Underwriter, such failure afhxts the Underwriter's marketing and sale of the Bonds or subjects
the Underwriter to possible compliance infractions under applicable delivery requirements of the
Securities and Exchange Commission.
If the Company or the Guarantor shall be unable to satisfy any of the conditions to the
obligations of the Underwriter contained in this Bond Purchase Agreement and such condition is
not waived by the Underwriter, or if the obligations of the Underwriter to purchase and accept
delivery of the Bonds shall be terminated or canceled for any reason permitted by this Bond
Purchase Agremeitt, this Bond Purchase Agreement shall terminate and neither the Underwriter,
nor the Company or the Guarantor shall be under further obligation hereunder, except as provided
by the next succeeding paragraph.
In the event this Bond Purchase Agreement is terminated for any reason without delivery
of the Bonds, the Underwriter, the Company and the Guarantor each will pay their own respective
expenses, without recourse against the other party hereto, in no event, however, will the
Underwriter be responsible for the payment of the expenses of the Issuer.
(a) ne Company and the Guarantor covenant and agree with the Underwriter as
follows:
(i) Before revising, amending or supplementing the Official Statement, the
Company shall furnish a dopy of the revised Official Statement or such amendment or
supplement to the Underwriter. No such revised Official Statement or such amendment
or supplement to the official Statement will contain information substantially different
axis - l S-
JUL. 22 - 97 (T;E) 15:5G� WHI,MAI�7 EEJ ABBO 7 MORGAN 203869195. PAGE. :7
r
from that contained in the next preceding Official Statement on the date it was issued,
unless such information is satisfactory in form and substance to the Underwriter.
00 The Company shall cooperate with the Underwriter and with Underwriter's
Counsel in any endeavor to qualify the offer and sale of the Bonds as an exempt
transaction under the securities or Blue Sky laws of such jurisdictions of the United States
as the Underwriter may request; provided, however, that the Company shall not be
required with respect to such qualification or any offer or sale of the Bonds to qualify or
regi= as a foreign corporation. The Company and the Guarantor consent to the use of
the Official Statement by the Underwriter in obtaining such qualifications.
(fill) The Company and the Guarantor shall ensure that the sections relating to the
Company, the Guararnor and the Project in the Official Statement, at all times between the
date of this Bond Purchase Agreement and the date 90 days from the end of the
underwriting period (as defined by thv. Rule) do not contain any untrue statement of a
material fact and do not omit to state any material fact necessary to make the statements
made therein, in light of the circumstances under which they are made, not misleading.
The obligation of the Company and the Guarantor to provide information during such
period shall be limited to providing such information that is (1) in the actual knowledge
of officials of the Company and the Guarantor executing this Bond purchase Agreement
or (2) in the actual knowledge of officials of the Company and the Guarantor required to
provide such. information as may be required by the Rule.
(iv) If between the date of this Bond Furrchase Agreement and the date 90 days
from the end of the underwriting period any event shall occur that might or would cause
the Official Statement, as then supplemented or amended, to contain any untrue statement
of a material fact or to omit to state a material fact necessary to make the statements
thetein, in the light of the circtunstanc es under which they were made, not misleading, the
Company and the Guarantor shall promptly notify the Underwriter thereof; and if, in the
reasonable opation of the Underwriter, such event requires the preparation and publication
of a suppletrrent or amendment to the Official Statement, the Company shall at its expense
supplement or amend the Official Statement in a form and in a manner approved by the
Underwriter and the Company (which approval shall not be unreasonably withheld).
(v) The Company and the Guarantor shall notify the Underwriter should it default
on the payment of principal of or interest on any security or other obligation issued or
guaranteed by the Borrower at any time prior to the Closing. The Company and the
Guarantor acknowledge that the foregoing covenant and related representation in Paragraph
4(1) hereof will be relied upon by the Underwriter and their counsel in determining
whether the Bonds are exempt from registration under the Blue Sky laws of certain states.
(b) The Company and the Guarantor will undertake, pursuant to the Loan Agreement
and the Continuing Disclosure Agreement, to provide certain annual financial information and
notices of the occurrence of certain events, if material. A description of this undertaking is set
39715 -16-
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JUL. 22 97 (T::E) 1 7 : 5 � ,WH.TMANN BREED ASS077 MORGAN 2C9869195: ?ROE. : g
forth in the Preliminary Official Statement and will also be set forth in the Final Official
Statement.
10. - . All representations, warranties and agreements of
the Company and the Guarantor hereunder and under the Indenture, the Continuing Disclosure
Agreement or the Financing Documetrts shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of the Underwriter and shall survive the
delivery of the Bonds and any termination of this Bond Purchase Agreement by the Underwriter
pursuant to the terms hereof.
11 • . If the Bonds are sold to the Underwriter by the Issuer, the
Company shall pay from the proceeds of the sale of the Bonds, or from other funds available to
the Company, any reasonable expenses incident to the performance by the Underwriter of its
obligations hereunder, including but not limited to.- (i) the cost of the pteparation of the bond
documents; (ii) the cost of the preparation, printing and distribution of the Preliminary Official
5tatemem and the Official Statement in such numbers as the Underwriter deems reasonable; (iii)
the cost of the preparation and printing of the Bonds; (iv) the fees and disbursement of its counsel,
the Trustee and its counsel, if any, Bond Counsel, and Underwriter's Counsel, (v) all advertising
expenses in connection with the offering of the Bonds; (vi) the disbursements for fling fees in
connection with the registration, qualification or exemption of the Bonds under the Blue Sky laws
of any jurisdiction in which the Underwriter proposes to offer or sell the Bonds; (vii) the fees of
the Underwriter, and (viii) all other reasonable customary expenses incarrnd by the Borrower or
the Underwriter in connection with the offering and distribution of the Bonds. Such fees and
expenses shall be paid by the Company upon Closing.
12• . The Company and the Guarantor jointly and severally shall
indemnify and hold harmless the Issuer and the Underwriter and each of their members, officers
and directors, and each person, if any, who controls the Underwriter within the meaning of
Section 15 of the Securities Act of 1933, as amended, and within the meaning of Section 30 (a)
of the Securities Exchange Act of 1934, as amended, from any and all losses, claims, damages
and liabilities (including legal and other expenses of defending any actions) that they or any of
them may incur or have asserted against any of them as a result of any breach (or alleged breach)
by the Company or the Guarantor of any of their respective representations or warranties or
covenants set forth in this Bond Purchase Aft. If any litigation is commence or threatened
against any of the parties entitled to indetnon hereunder in respect of which indemnity may
be sought against the Company or the Guarantor, such indemnified party shall promptly notify the
Company or the Guarantor i.n writing, but failure to so notify shall not relieve the Company and
the Guarantor from any liability that it may have whether on account of this indemnity or
otherwise. The Company or the Guarantor shall promptly assume the investigation, preparation,
and defense of all such litigation or action, including the employment of counsel reasonably
acceptable to the indemad d parties, the payment of fees and expenses and the right to negotiate
and consent to settlement. Any indemnified party shall have the right to make its own
investigation or employ separate counsel, but the fees and expenses of such investigation or
J" 15 -17-
JUL. 22 ' 97 (Tuz) i s : 35 Rri: y.A_ti $REzb As sbVT -UO ROAN 2036691 95: ?AGE.: g
counsel shall be at the expanse of such indemnified party unless such investigation or the
employment of such counsel has been specificAy authorized by the Company or the Guarantor.
13. nation. Any notice or other communication to be given under this Bond Purchase
Agreement may be given by delivering the same in writing, if to the Company or the Guarantor
at their address set forth above with copies to Cuddy & Feder & Worby, 90 Maple Avenue, White
Plains, New York 10601, Attention: Joseph P. Carlucci, Es1, and any notice or other
communication to be given to the Underwriter under this Bond purchase Agreement may be given
by delivering the same in writing to Greenwich Partners, LLC, One Pickwick Plaza, Suite 250,
Greenwich, Connecticut 06830 with copies to Whitman, Breed Abbott & Morgan LLP, 100 Field
Point Road, Greenwich, Connecticut 06830, Attention: Kevin A. Walsh, Esq. and If to the
Issuer to: City of Tamarac, Florida, 7525 N.W. 88th Avenue, Tamarac, Florida 33321-2401,
Attention: City Manager.
14. Pam. This Bond Purchase Agreement is made solely for the benefit of the
Company, the Guarantor, the Issuer and the Underwriter (including their successors) and no other
person shall acquire or have any right hereunder or incur any obligation hereunder or by virtue
hereof.
15. Govajp. This Bond Purchase Agreement shall be governed by and
construed in accordance with the laws of the State of Florida.
16. Amendments. Any amendments to this Bond Purchase Agreement must be in
writing executed by the Company, the Guarantor, the issuer and the Underwriter. 0
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JUL. 22 ' 97 (T;:E) 1 7 : 3b WHITMAX `3RE D�ABBO T MORGAN 2038691 95:
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17. fifflaW. This Bond Purchase AgrKrne nt may be executed in several couutcrpmU,
each of which shall be regarded as one and the same instrument. The paragraph headings of this
Bond Purchase Agreement are for convenience of reference only and shalt not affect its
interpretation.
SUN BELT PRWISION
PROTIUM, INC.
By:
Bernard S. Koppel
President
0 CITY OF TAMARAC FLORIDA
By:
Very tivly yours,
GREENWICH PARTNERS, LLC
By:
Robert & Christie
Executive Vice President
IN] RPLEX INDUSTRIES, INC.
By:
President
0 [Signature Page to Bond Purchase Agreement)
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Exhibit A:
Exhibit B:
Exhibit C:
Exhibit D:
Exhibit E:
Exhibit F:
sv715
Terms of the Bonds
Form of Supplwncntal Opinion of Bond Counsel
Form of Reliance Letter of Bond Counsel
Form of Opinion of Trustee's Counsel
Form of Opinion of Underwriter's Counsel
Form of Opinions of Borrower's Counsel
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JCL. 22 ' 97 ('UE) 15.37 WHI-MAN BREED ABBOT MORGAN 203869195: PAGE. 22
Exhibit A
CMS OF,BANDS
City of Tamarac, Florida Industrial Development Revenue Bonds, Series 1997 (Sun Belt
Precision Products, Inc. Project)
Amount and QWgnatip : $3,300,000 Lndustrial Development Revenue Bonds, Series 1997 (Sun
Belt Precision Products, Inc. Project) (the "Bonds'.
% Bonds due August 1, 20
% Bonds due August 1, 20— ,—
Interest on the Bonds will be payable on February 1 and August l of each year
commencing February 1, 1998.
EWU of ' Principal or redemption price, if any, is payable at the corporate trust off ce
Of First Union National Bank, 200 South Biscayne Boulevard, 14th floor, Miami. Florida 33131.
Interest is payable by check or draft mailed to the registered owners. Alternatively, payment shall
be made as otherwise agreed in writing by the Bondowner and the Trustee, and at the written
request to the Trustee of any owner of at least $500,000 of the Bonds, such payment may be made
by wire transfer or other reasonable method to an account or ph= designated by such Bondowner.
The Bonds when issued will be registered in the frame of Cede & Co., as nominee of The
Depository Trust Company, New York, New York ("DTC"). DTC will act as Securities
Depository for the Bonds. Individual purchases must be made in book -entry form only, and
purchase-rs will not receive certificates representing their interest in the Bonds.
Issuable in fully registered form in denominations of $5,000.
Redemption Prices and T= : As provided in the Indenture.
NO Bating: The Bonds will be non -ratted.
Sir rifx: The Bonds will be secured by the Mortgaged Property and the Guaranty.
Tex E liW: Bonds are to be exempt from Federal and State of Florida and local income
taxes.
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Exhibit B
to the Bond Purchase Agreement
[FORM OF SUPPLEMENTAL OPINION OF BOND COUNSEL]
August 1997
City of Tamarac, Florida
7525 N.W. 88th Avenue
Tamarac, FL 33321-2401
First L)nion National Bank
First Union Financial Center
200 South Biscayne Boulevard
Miami, FL 33131
Sun Belt Precision Products, Inc.
900 S.W. 21 st Terrace ,
Fort Lauderdale, FL 33312 is
Interplex industries, lnc.
1200-12 28th Avenue
Flushing, NY 11354
Greenwich Partners, LLC
One Pickwick Plaza
Suite 250
Greenwich, CT 06930
S3,380,000
CITY OF TAMARAC, FLORIDA
Industrial Development Revenue Bonds, Series 1997
(San Belt Precision Products, Inc. Project)
Ladies and Gentlemen-
.� ,s.
JUL. 22 ' 97 (T::E) 15 : 98 Wfi1 MA\' SRE'�5 ABB07T MORGAN 203869195:
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This supplemental opinion is rendered at your request in connection with the issuance by the
City of Tamarac, Florida (thc "Issuer") of its $3,300,000 industrial Development Revenue Bonds,
Series 1997 (Sun Belt Precision Products, Inc. Project), dazed August _, 1997 (the "Bonds"). The
Bonds are issued under and pursuant to a Trust Indenture dated as of August 1, 1997 (the
"Indenture") between the Issuer and First Union National Bank, as trustee (the "Trustee). We have
delivered to you a copy of our approving legal opinion as Bond Counsel in connection with the Bonds
(the "Approving Opinion"), in rendering this opinion, we have examined and relied upon the matters
contained, referred to and identified, and to the same extent stated, in the Approving Opinion. We
also have examined (i) the Preliminary Official Statement., dated July _,1997 relating to the Bonds
(the "Preliminary Official Statement"); (ii) the Official Statement, dated August _, 1997, relating
to the Bonds (the "Final OfEcial Statement," which together with the Preliminary Official Statement
shall be herein referred to as the "Official Statement") and (iii) the Securities Act of 1933, as amended
(the "1933 Act"), the Trust Indenture Act of 1939, as amended (the 111939 Act"), and the rules and
regulations and interpretations under those acts. All terms used in this supplemental opinion and not
defined herein shall have the meaning as assigned in the Approving Opinion.
Based on such examination, we are of the opinion that, under existing law:
(1) The Bond Purchase Agreement dated August , 1997, between Cneenwich Partners,
1-LC, Sun Belt Precision Products, Inc.(the "Company,), Interplex Industries, Inc. and the Issuer has
been duly authorized, executed and delivered by the issuer and, assuming the due authorization,
execution and delivery by the other parties thereto constitutes a valid and legally binding obligation
of the Issuer, enforceable against the issuer in accordance with its terms, except as the enforceability
thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws
affecting the rights of creditors generally.
(2) In connection with the offering and sale of the Bonds, the Bonds constitute exempted
securities within the meaning of the 1933 Act and are not required to be registered under the 1933
Act and the Indenture is not required to be qualified under the 1939 Act.
(3) The statements in the Official Statement pertaining to the Bonds, the Indenture, and the
Financing Documents under the captions "The Issuer," "The Bonds," "Tax Matters," "Legal
Matters," "No Litigation" and "Continuing Disclosure" insofar as they pertain to the Issuer and in
the summaries of the provisions of the Financing Documents insofar as they describe the provisions
of the Financing Documents, are accurate statements or summaries of the matters therein set forth
and taidy present the information purported to be shown therein.
This letter is furnished by us solely for your benefit in connection with the original issuance
and delivery of the Bonds and may not, without express written consent, be relied upon by any other
person.
Very truly yours,
r7v? _z_
�UL. 22 ' 97 17UZ) 15;9a wHITY-A ERE'= .,,aiOTT'MORGAA 2038691951
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Exhibit C
to the Bond Purchase Agreement
[FORM OF RELIANCE LETTER OF COUNSEL]
August 1997
Greenwich Partners, LLC
One Pickwick Plaza
Suite 250
Greenwich, CT 06830
53,300,000
CITY OF TAMARAC, FLORYDA
Industrial development Revenue Bonds, Series 1997
(Sun Belt Precision Products, Inc. Project)
Ladies and Gentlemen:
You may rely upon our approving ing legal opinion dated the date hereof, relating to the above -
captioned Bonds, as if such opinion were addressed to you. We do not hereby render any further .
opinion relating to the above -referenced Bonds, nor do we hereby update, amend, modify,
supplement or otherwise change any opinions expressed in the aforesaid legal opinion. No other
party, other than an addressee hereof or thereof; is entitled to rely upon or refer to such legal opinion
for any purpose whatsoever.
Very truly yours,
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Exhibit D
to the Bond Purchase Agreement
FFORM OF OPINION OF TRUSTEE'S COUNSEL)
August_, 1997
Greenwich Partners, LLC
One Pickwick Plaza
Suite 250
Greenwich, CT 06830
City of Tamarac, Florida
7525 N.W. 88th Avenue
Tamarac, FL 33321-2401
Akern=, Senterfitt & Eidson, P.A.
255 S. Orange Avenue
P.O. Box 231
Orlando, FL 32802-0231
Whitman Breed Abbott & Morgan LLP
100 Field Point Road
Greenwich, CT 06930
S3,300,000
CITY OF TAMARAC, FLORIDA
IndustrW Development Revenue Bonds, Series 1997
(San Belt Precision Produeft, Inc. project)
Ladies and Gentlemen:
We have acted as spcounsel to First Union National Bank (the "Trustee") in connection with
iecial
its appointment as Trustee under a Trust Indenture dated as of August I, 1997 (the "Indenture"),
between the Trustee and City of Tamarac, Florida (the "Issuer"), relating to the issuance by the Issuer
of the above -captioned bonds (the "Bonds").
In connection therewith, we have examined originals or copies, certified or otherwise identified
to our satisfaction, of
0) the Articles of Association and By -Laws of the Trustee;
(u) the Indenture;
. (Hi) the Bonds; and
low
:CL. 22 - 97 -JE) 15:99 9:TV.AN SRS_:5 AiS67T MORGAN 2030691951 MACE. 27
(iv) the Continuing Disclosure Agreement.
We have also examined originals or copies, certified or otherwise identified to our satisfaction, of
such other records, materials, documents, certificates and correspondence, and we have considered
such matters of law, as we have deemed necessary to enable us to render this opinion.
In our examination of such materials, we have assumed the genuineness of all signatures, the
authenticity of all items submitted to us as originals and the conformity with the originals of all items
submitted to us as copies. In making our examination of documents executed by entities other than
the Trustee, we have assumed that each such other entity had the power to enter into and perform
all its obligations thereunder, and also have assumed the due authorization by all requisite action and
due execution of such documents by each such entity.
Based on the foregoing and subject to the limitations set forth in this letter, we are of the
opinion that:
I. The Trustee is a national banking association, duly organized and validly existing
under the laws of the United States of America, fully qualified to do business and to exercise trust
powers in the State of Florida, and has full corporate right, power and authority, and has taken all
necessary corporate action, to execute the Indenture and to accept the trust contemplated by the
Indenture and to perform all duties and obligations on its part to be performed and to take all actions
required or permitted on its part to be taken under and pursuant to the Indenture.
2, The Trustee has duly authorized the acceptance of the trusts contemplated by the
Indenture and the duties and obligations contemplated by the Indenture and the Continuing Disclosure
Agreement and has taken all corporate action necessary to assume the duties and obligations of the
Trustee and Dissemination Agent thereunder.
3. The Trustee has duly authorized the execution and delivery of the Indenture and the
Continuing Disclosure Agreement which constitute the valid, legal, and binding obligations of the
Trustee enforceable against the Trustee in accordance with their terms, except as such enforceability
may be limited by (i) bankruptcy, insolvency, or similar laws relating to or affecting creditors' rights
generally and court decisions with respect thereto or (i) the availability of any equitable remedies.
4. The performance or the consummation of the transactions on the part of the Trustee
contemplated in the Indenture and the Continuing Disclosure Agreement and the compliance by the
Trustee with the terms, conditions, and provisions of such documents do not contrav-nc any
provisions of applicable banking law or regulations, the Trustee's Articles of Association or By-laws,
or, to the best of our knowledge after due investigation, any order, decree, writ or injunction
applicable to the Trustee.
S. To the best of our knowledge after due investigation, no litigation is pending or
threatened in any way contesting or affecting the existence of powers (including trust powers) of the
Trustee necessary for the Trustee's performance of its duties and obligations under the indenture and
the Continuing Disclosure Agreement.
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6. The individuals executing and attesting the Indenture , the Continuing Disclosure
Agreement and authenticating the Bonds on behalf of the Trustee are duty authorized to execute and
attest the Indenture, the Continuing Disclosure Agreement and to authenticate the Bonds on behalf
of the Trustee.
7. All material authorizations and approvals of any governmental authority- having
jurisdiction required with respect to the performance on the part of the Trustee of its duties and
obligations under the Indenture and the Continuing Disclosure Agreement have been obtained and
are in full force and effect as of this date, provided, however, that no opinion is rendered as to actions
of the issuer in its capacity as issuer of the Bonds.
10707
Very truly yours,
:4L. 22 ' 97 ;YJi) t5 4: HITMAN �BR_E� ABB'Q*'VORGAN 2038691951
PAGE. 29
Exhibit E
to the Bond Purchase Agreement
[FORM OF OPMON OF UNDERWRITER'S COUNSEL]
August _, 1997
Greenwich Partners, LLC
One Pickwick Plaza
Suite 250
Greenwich, CT 06830
$3,300,000
CITY OF TAMARAC, FLORIDA
Industrial Development Revenue Bonds, Series 1997
(Sun Belt Precision Products, Inc. Project)
Ladies and Gentlemen:
We have acted as counsel to Greenwich Partners, LLC (the "Underwriter") in connection with
the purchase by the Underwriter on this date from the City of Tamarac, Florida (the "Issuer") of its
Industrial Development Revenue Bonds, Series 1997 (Sun Belt precision Products, Inc. Project) (the
"Bonds") pursuant to the Bond Purchase Agreement, dated August — 1997 (the "Bond Purchase
Agreement") bdwecn the Underwriter, Sun Belt Precision Products, Inc. (the "Company"), Interplex
Industries, Inc. (the "Guarantor") and the Issuer_ Unless otherwise expressly provided herein,
capitalized terms used but not defined herein have the respective meanings ascribed to them by the
Bond Purchase Agreement.
As counsel to the Underwriter, we have examined the Bond Purchase Agreement, the
Indenture, the Financing Documents, the Preliminary Official Statement dated July __, 1997 and the
Vnial Official Statement dated August __, 1997 (the '"Official Statement") relating to the Bonds, and
opinions of counsel and certificates delivered to satisfy conditions of the Bond Purchase Agreement.
We have also examined and relied on originals or copies certified or otherwise identified to our
satisfaction of such other documents, instruments or corporate records, and have made such
investigation of law, as we have considered necessary or appropriate for the purpose of this opinion.
In making the aforesaid examinations, we have assumed the authenticity of all original documents and
the conformity to original documents of all conformed copies and photocopies of documents, the
genuineness of all signatures and the due authorization, execution and delivery of all documents and
the authority to do so of all persons executing such documents. As to various questions of fact
material to our opinions expressed herein, we have relied upon representations of the Issuer, the
Company and the Guarantor.
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JUL. 22 - 97 (T;:E) 1 5 : 4: WH:7MA)v 3REED A8$o. MQRGwIv 2038697 95: PAGE. 30
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In accordance with our understanding with you, we rendered legal advice and assistance to
you in the course of your investigation and negotiations pertaining to, and your participation in the
preparation of, the Official Statement and the issuance and sale of the Bonds. The purpose of our
retainer was (a) to assist in your investigation relating to and in the preparation of the official
Statement, and (b) to assist in the preparation and negotiation of the Bond Purchase Agreement and
to examine the documents delivered to the Underwriter in satisfaction of the conditions thereof and
otherwise consult with you as to the satisfaction of these conditions.
Rendering assistance in these matters involved, among other things, examinations, inquiries
and discussions concerning various legal and related subjects, and review of and reports on certain
documents and proceedings. We also participated in conferences and telephone conferences with
officers and agents of the Issuer, Bond Counsel, counsel to the Trustee, and officers and employees
and agents of and counsel to the Company and the Guarantor, during which conferences and
telephone conferences the contents of the Official Statement, or portions thereof, and related matters
were discussed and reviewed.
The limitations inherent in the independent verification offactua) matters and the character
of determinations involved in the preparation of the official Statement are such, however, that we
have necessarily assumed the accuracy, completeness and fairness of and take no responsibility for
any of the statements made in the Official Statement.
In the course of the performance of the services referred to above, subject to the limitations
expressed in the preceding paragraph, nothing has come to our attemion which, considered in the
light of our understanding of applicable law and the experience we have gained through our practice
thereunder, would lead us to believe that, as of the date of the Closing, the Official Statement (except
for the financial and statistical data included therein including, but not limited to, Appendices A and
B thereto, as to which no opinion is expressed,) contains any untrue statement of a material fact or
omits to state any material fact necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading, It is to be understood that we have not undertaken to
determine or verify independently the accuracy, completeness or fairness of the financial or statistical
information, statements or forecasts contained in the Official Statement and Appendices thereto.
We are of the opinion, based upon the foregoing, that no registration under the Securities Act
of 1933, as amended, and no qualification of the Jndenture under the Trust Indenture Act of 1939,
w amended, is required in connection with the offer and sale of the Bonds.
To the extent that the opinions rendered herein are dependent on the validity of the Bonds we
are relying on the approving opinion of Bond Counsel, of even date herewith.
This opinion is furnished by us as counsel for the Underwriter and is solely for the benefit of
the Underwriter and may not be relied upon by any other parties.
Very truly yours,
-Wang .2-
JUL. 22 ' 97 (TUE) 15:42 WH:TMAh B3Erm Ar.:�JJ T M A AN 2038691;5.
PAGE. 9 +,
Exhibit F
to the Bond purchase Agreement
[FORM OF OPINION OF THE SUN BELT'S AND E4TERPLEX'S COUNSEL]
August 1997
Greenwich Partners, LLC
One Pickwick Plaza
Suite 250
Greenwich, CT 06930
City of Tamarac, Florida
7525 N.W. 88th Avenue
Tamarac, FL 33321-2401
First Union National Bank
First Union Financial Center
200 South Biscayne Boulevard
Miami, FI, 33131
Akerman, Senterfitt & Eidson, P.A.
255 S. Orange Avenue
P.O. Box 231
Orlando, FL 32802-0231
Whitman Breed Abbott & Morgan LLP
100 Field Point Road
Cn-eenwich, CT 06830
S3,300,000
CITY OF TAMARAC, FLORMA
Industrial Development Revenue Bonds, Series 1997
(Sun Belt Precision Products, Inc. Project)
Ladies and Gentlemen;
As its special counsel, we have represented Sun Bch Precision Products, Inc., a Florida
corporation (the "Company") and I.nterplex Industries, 1nc., a Delaware corporation (the
"Guarantor") in connection with the issuance of the above -captioned Bonds. This opinion is rendered
in fulfillment of the requirement of Section 7(b)(v) of the Bond purchase Agreement dated August
-, 1997 (the "Bond Purchase Agreement") among the Company, the Guarantor, the City of
:17L. 22 - 97 (7UE) 15:42 WHi TMAN BREED A�BO �ORGAi► 20SS691951 ?AGE. 32
Tamarac, Florida (the "Issuer") and Greenwich Partners, LLC. Capitalized terms used but not
defined herein shall have the meanings respectively ascribed to them by the Bond Purchase
Agreement.
We have reviewed executed counterparts of the indenture, the Financing Documents, the
Continuing Disclosure Agreement, the Company Resolution, the Guarantor Resolution and the
Preliminary Official Statement dated July ^, 1997, and the Official Statement, dated August _, 1997
pertaining to the Bonds and certificates delivered to satisfy conditions of the Bond Purchase
Agreement. In addition, we have examined the originals or copies, certified or otherwise identified
to our satisfaction, of such records of the Company and the Guarantor, certificates of officers and
representatives of the Company and the Guarantor, certificates of public officials, and such other
documents, and we have made such investiptions of laws and fact, as we have deemed necessary or
advisable as a basis for the opinions expressed below.
As to opinions concerning factual matters relating to the Company and the Guarantor, we
render such opinions based solely on information provided to us by the officers of the Company and
the Guarantor and have made no independent investigations of such factual matters and
representations of the Company and the Guarantor set forth in the Company Documents and the
Guarantor Documents. In out examinations, we have assumed the genuineness of all signatures
(other than the Company and the Guarantor), the authenticity of all documents submitted to us as
originals, the conformity to the originals of all documents submitted to us as certified, photostatic or
conformed copies, and the authenticity of the originals of all such latter documents. We have
assumed the accuracy ofthe factual matters contained in the Company Documents and the Guarantor
Documents and have not attempted to verify independently such representations VW advice; however,
nothing has come to our attention which would cause us to question the accuracy of such
representations and advice.
than Based upon the foregoing and subject to the matters set forth below, we are of the opinion
1. The Company's duly organized and validly existing as a corporation incorporated and
in mood standing under the laws of the State of Florida. The Guarantor is duly organized and validly
existing as a corporation in good standing under the laws Of the State of Delaware.
Z. Each of the Company and the Guarantor has the right, power and authority to own
its properties and assets, to conduct its business as it is presently conducted and as it is described in
the Official Statement•, to enter into the financing Documents to which it is a party, the Continuing
Disclosure Agreement, and the Bond Purchase Agreement, to perform its obligations thereunder and
to carry out and consummate all transactions described therein.
3. The Company Resolution has been duly adopted by the Board of Directors of the
Company. The Guarantor Resolution has been duly adopted by the Board of Directors of the
Guarantor.
4. Each of the Company and the Guarantor has duly authorized the execution and
delivery of, and the performance of its obligations under, the Financing Documents, the Bond
3V707 .Z_
JUL. 22 ' 97 f-uE) 15:44 WH:TMAN BREED AB 80T MORGAIti 2038691951 -AGB. 33
Purchase Agreement, the Continuing Disclosure Agreement, the Official Statement and the Tax
Certificate.
S. Each of the Company and the 'Cguarantor has duly executed and delivered the
Financing documents to which it is a party, the Tax Certificate, the Continuing Disclosure Agreement
and the Bond Purchase Agreement, and such agreements constitute the legal, valid and binding
obligations of the Company and the Guarantor enfarc:eable in accordance with their respective terms.
6. To the best of our knowledge, after due and diligent inquiry the ownership and
operation of the Property as contemplated by the Loan Agreement will be in compliance with all
applicable zoning ordinances, orders, permits, licenses, approvals, rules and regulations of all
governmental bodies having jurisdiction over the Property.
7. To the best of our knowledge, relying solely on the Title Commitment and the Survey,
the Company has good and marketable title to the Property except as set forth in the Title
Commitment or as shown on the Survey, no partof the Property is in the possession of any third
party claiming a lien thereon or is subject to possessory lien asserted by any third party.
8_ Authorization, execution and delivery of each of the Financing Documents, the Tax
Certificate, the Continuing Disclosure Agreement and the Bond Purchase Agreement, compliance
with the terms and conditions thereof and consummation of the trw=ctions therein and in the Official
Statement contemplated do not and will not (i) violate any laws or any regulation, order, injunction
or decree of any court, governmental body, agency or other instrumentality applicable to the
Company or the Guarantor, or (H) result in a conflict with or a breach of any of the terms and
conditions of, or constitute a default under, or result in the creation or imposition ofany mortgage,
lien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the
Company or the Guarantor pursuant to the terms of, the Company's Articles of Incorporation and
By -Laws, the Guarantor's Certificate of Incorporation and By -Laws or any indenture, mortgage,
loan, line of credit, note, leaw, or other agreement or other instrument known to us to which the
Company or the Guarantor is a party or by which the Company or the Guarantor or any of their
properties is bound; and no approval of, notice to, registration or flung with or other action by any
governmental authority or agency is required in connection with the execution or performance of any
of such documents by the Company or the Guarantor, except such as have been obtained or
accomplished,
% To our knowledge after due inquiry, except if, and to the extent, specifically set forth
in the Official Statement, no litigation or administrative proceeding of any nature is pending or
threatened against the Company or the Guarantor:
(i) affecting directly or indirectly the validity of the Financing Documents, the Bond
Purchase Agreement, the Tax Certificate, the Continuing Disclosure Agreement, the
Company Resolution or the Guarantor Resolution;
(ii) restraining, enjoining, or in any other manner affecting the execution or delivery
ofthe Financing Documents, the Continuing Disclosure Agreement, the Tax Certificate or the
19707 -3-
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JUL.22 '97 (7JE) 15:46 WH:TMAN BREED ABBOTT MORGAN 209669i951 PAGE. 94
Bond Purchase Agreement, or the adoption of the Company Resolution or the Guarantor
.� Resolution;
(iii) affecting the provision made for the payment of, or the granting of security for,
the principal ofand irrtarest on the Bonds or any other payments required to be made pursuant
to the Indenture;
(iv) affecting, in any way, the right or authority of the Company or the Guarantor to
carry out the terms and provisions of the Financing Documents, the Continuing Disclosure
Agreement, the Tax Certificate, the Bond Purchase Agreement, the Company Resolution or
the Guarantor Resolution and the covenants and agreements therein;
(v) affecting the corporate existence of the Company, or the titles of the officers or
other members of its Board of Directors or any of them to their respective offices;
(vi) affecting the existence of the Guarantor, or the titles of the officers or other
members of its Board of Directors or any of them to their respective offices; or
(vii) wherein an unfavorable decision, ruling or finding would materially adversely
affect the Project or the operations, affairs, properties, conditions or prospects (financial or
otherwise) of the Company or the Guarantor.
10. All permits, consents, certificates, approvals, licenses or other authorizations necessary
for the conduct of the Company's or the Guarantor's business substantially as it currently is
conducted, the acquisition, construction, renovation, furnishing, equipping or intended use of the
Project (other than certain building permits which have been applied for and any of such
authorizations normally obtained during the course of, or Mowing construction, as to which no
warranty or representations is made as to the ultimate success of obtaining such permits and
authorizations, however, no impediment to the issuance thereof is known as of the date hereof), and
the execution, delivery, and performance by the Company and the Guarantor of the Financing
Documents, the Tax Certificate, the Continuing Disclosure Agreement and the Band Purchase
Agreement, have been obtained.
We have rendered legal advice and assistance to the Company and the Guarantor in
connection with the preparation of the Official Statement. Rendering such legal advice and assistance
invoked, among other things, discussions and inquiries concerning various legal and related subjects
and reviews of certain records, documents and proceedings_ We have also corresponded with, held
telephone conversations with, and participated in conferences and meetings with, various officers,
employees and representatives of the Company and the Guarantor, the Issuer, the Trustee, M.R.
Weiser & Co. LLP and the Underwriter, and their respective counsel. In the course of such
conversations, meetings and conferences, the contents of portions of the Official Statement and
related matters were discussed and revised. Without having undertaken to determine independently
the accuracy, completeness or fairness of the statements contained in the Official Statement (other
than such information as is referred to in the next succeeding sentence), nothing has come to our
attention that would lead us to believe that the Official Statement (except for financial and statistical
data included therein, as to which no view is expressed) contains any untrue statement of a material
3Y707 .4_
JUL. 22 ' 97 (TUE) 15 ; 48 2REEn ABBOTT MORGAN 2090691951
PAGE. 35
fact or omits to state any material fact required to be stated therein or necessary to snake the
statements therein, in light of the circumstances under which they were made, not misleading. The
statements in the Official Statement under the heading "The Company and The Guarantor", "The
Project", 'Legal Matters" and "No Litigation" as it pertains to the Company or the Guarantor, fairly
and accurately summarize the laws intended to be thereby described or are accurate statements or
surnmarits of the matters therein set forth and fairly present the information purported to be shown
therein.
(a) In rendering such opinions, we have assumed the authenticity of all original
documents and the conformity to original documents of all conformed copies and photocopies of
documents_ Without limiting such opinions as they relate to the Company or the Guarantor, we have
further assumed that documents we have reviewed in connection with this opinion that have been
executed by parties other than the Company or the Guarantor have been duly authorized, executed
and delivered by the other parties thereto.
(b) These opinions are specifically limited to matters of the currently existing laws
of the State of Florida, the corporate law of the State of Delaware and federal laws of the United
States of America.
These: opinions are limited to the extent that the performance and enforceability of any
agreement by or against any party may be subject to (i) applicable bankruptcy, insolvency or other
laws relating to or affecting the enforcement of creditors' rights generally, (ii) the availability of the
remedy of specific performance or of injunctive relief or of any other equitable remedy, (iii) the
application by a court of the general principles of equity, and (iv) as to the enforceability against the
Company or the Guarantor of the indemnification provisions of the Bond Purchase Agreement,
principles of public policy,
Very truly yours,
197M .S.
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EXHIBIT "E"
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In the opinion of Bond Counsel to tho Lover, under otist3ag stgung, "Wj&don4 Wministrative
Grterpretatione and court decisions, assum s compliance with the tax
the Scads is eModuded 4om gross incaaoa for purposes ot�denl descxibed� �anst on
of the Internal Revenue Code of 1986, as arnerded (the "CW**). Under t� W P=JM � mom l03(t)
tUWW bs 2 e � item to be included in calculating �rnapye � �a�� 0° the Bonds is
five mininmmn tax which may be imposed with respect to hviduals and ivaogme W Noose of
Is y � PAW �' such Bon No opinion
earpressed as to the ercclusian of on as Bond for
person who, vAtWn with the the of Section 147(a) of the during which such Barad h is h c by s
Bonds ca� (b) a elated � � (a) t "substartdal user" a[ the So'Stla
person. In the opinion ofBond Counsel, the Bonds and the braw
thereon are a OMPt $am taltion under the Ian of the State of Florida as N aate�d and co�yed an the date hsrea4 except as to estate taxes and texas IMPOIed by Cbqxw 220, Florida Statutaa, as
Income or prods on debt obligations owned by -corporations. For exceptions and other an tntanest,
we "'Tax Matters" herein
S3,Z00,000
CITY OF TAMARAC, FWRIDA
IndustrW Development Revenue Bonds, Series 1997
(Sunbelt Precision Products, Inc. Project)
U000400 Term Bonds due August 1,1
81,Z00,000 TUM Bonds due Aagutt 11
Dated: August _,_ 0 1997
The Bonds due August 1, Z and the Bonds due August 1, Z (cu0 y the'sg�,.) no �ci
obligations of tfe MY G`� Florida (the "Lauer•'), payable solely out of the Mnnuta or other rroeipts,
fiords or moneys of the Twee pledged therefor or otherwise avat'lable to First Unition National Bank of Florida, as trustee (tbe "Tru W) fqr the Payment dw0OC induding those derived under a Loan Agreement (the "Loan
A$reerr 9W 'I between the issuer and Sunbelt preaslon Products, Inc. (the "Ca
Project under a Trust Indenture dated as of '�� w to �e
«Indenture"). Payment of principal oiti redemption price if a� interest on the Bonds is Inuer and the securedT�� (the
martgaga on the project between the Company and the Issuer (the "Mortgage', a debt service reserve >�
under the lndamure'v4 It
fi mo ofthe 7hwee {the Qguaranty ubY In�terplex Industries, Inc. (the "Cluarentor") pup ,ar t to a guaranty in
7be Bonds wM be issueble as My regiatavd bonds in the denomination of S5,000 and integral muttiPIC$
thereof The Bands initially will be registered in the name of Cede & Co.. as nominee of The D
ory Trust
Company, New York, New York (" DTC"), which will act as securities depository for the Bonds aPumhasers
of the Bonds will not receive physical delivery of bond certificates, accept in the events as described herein.
PAYment Of
redom don interest (each February 1 and Auugust 1, commencing February 1, 1998) on and principal and
P price ofBonds will be made by the Trustee, to Cede sit CO., to be subsequently disbursed to the
beneficial owwn "as further described herein. See'MM BONDS -BOOK ENTRY SYSTEM" herein.
The Bonds are subject to optional and mandatory redemption prior to maturity under the
conditions described herein.
69E�
TEMP RESO #7948
Qa3va HVM IF-V. b t :: 1 t3(1_) L6 . 5 : '-rr
The Sonde an bob* isiam to 0) &a*, a percd of land in the City of Tu=r rthe cost of Florida and to llrnd
ResewAooa the �� (the 1"*a'% M Amd a Debt 9w*o
(9Q pay costs of ieaunce of the Bonds.
Rapgment ofamounte equal to principal, redemption price if ley, and iatant on the Be
an absolute, uncoaditlonal obliption of the Company and the Guarantor pormant to the Loan
ASreement and the Guarsaty. See "Appendices A and B* and'Zavestment Consideration* berein.
THE BONDS ARE ISSUED UNDER THE PROVISIONS OF TIM FLO]RMA INDUSTRIAL
DEVELOPMENT PDUNCE ACC CHAPTER 159. PART Il, FLORIDA STATUTES AS AMMED. THE
". rI AND THE ISSUER IS, PROHIBITED FROM PAYING ANY AMOUNTS DUE WrM RSSPBCT
TO TEE BONDS EXCEPT FROM MONEYS RBCEIVBD BY THE ISSUER PEMSUANT To THE LOAN
THE MORTGAGE OR THE GUARANTY. NE17111ER THE pAITH AND CR=rr NOR
77M TAXING POWER OF TIE ISSUER OR THE STATE OF FLORIDA OR OF ANy POLITICAL
SUBDWWON TI RBOF IS PLEDGED TO -THE PAYMENT OF THE PRINCIPAL OF, PREIVIIUM, IF
ANY, OR INTEREST ON TIM BONDS, AND THE HOLDERS OF THE BONDS SHALL HAVE NO
RICHiT TO COMPEL. ANY EMWW OF TIE TAXING} POWER OF THE ISSUER OR THE STATE OF
FLORIDA OR ANY POLITICAL SUBDMSION THEREOF TO ENFORCE SUCH PAyMEIN'T.
The Bonds are ofibred who; as and if issued by the Iawer and accepted by Greenwich Putners, LLC
(the "Underwrite ). subject to prior sate, witllduawai or modification of the offer without
to the, apprwai of legality by Akermak Seata tt & Eidson, P.A.. re os, and Subject
legal maturs will be passed upon for the Company sad the Guarent 0.� Band Counsel. Certain
�Worby,-Whitt Plaias.•New York..and ibr the Underwriter its by �urlsei, Abbott
Feder A
LLp, Qreemvich, Cganechcut. I! u by counsel, Whitmaa.Breed Abbott dt Morgan
expected that book entry delivery of the Bonds upon paynwnt them in
Now York, New York, will be made on or about August --, 1997.
Greenwich Partners,• LLC
NO& AV" `,1997
3M
3ard =5 _.fi3A a C3nff HVY- HA 5* 1: fH:J.) L6 . 51 7,
..y
F CONNECTION WITH THIS OFFBRII�T(}, TIC UNDERWRITE MAY OV13R_AyLOT OR
BFFECT'TR.�NSACTIONS WHICH STABII.IZ1,; OR MAINTAIN T�
TER BONDS AT A LEVEL ABOVE THAT WHICH haaW O'?T�Ryylgg PREVAIL of
s OPEN MARKET. SUCH STABM ZINQ IF COItiA�Nt MAY
THE
ANY TI&M. B8 DISCONMUED AT
t
i
nnalae o broker, dealer, salesman or other person has been sutiwdzedto to
t
eri►s� other than those contained is this Official �� any boa witch
' d a offirin made hereby w4 lfStm ornw* such tion or
M
upon as havW9 beAuthorized by the issuer, the Co otu must
es not be relied
nwor
Neither the delivery of thia OffieW Statarn & nor any sa,lehaeuWer shU for the Unda'writer.
that there his bw no change in the a8kirs of the Issuer, the ��umetanrA�
Ommum, Since the date Karoo£ or the
The mft=adost d herein bu been obtained &one the Lm w
(with raapxt to the Issuer), the Company, the Quat�antor and other sourtxs
reliable, but is not aranteed as to aaw that am batik to gube
racy or oomplater�ess, and is not to be construed u a
mention ofthe U0&rwdtar. An quotations ftm.suaunadas and a glanations ofprovigons of
law and doffs hq�n do not purport to be complete, and reference is made to F 1m and
document for Rill and complete stAtem�ts of their provisions. This OfficialmStatement does not
conethuta an oar or soliatadoo in MY j icp� in which such oft or solicitation is not
"Wr'24 or in which the Pa mak[M 5wh oJ%r or soliatation is not qualified to do so or to any
parson to whom it is unlawlW to make such oR'ar or solicitation. icitation.
E
UPON ISSUANCE, THE BONDS WILL NOT BE RE(IISTMW UNDER TM
SECURITIES ACT OF 1933, AS AM$NDBD, IN RELIANCE UPON TIM Emeno S
OTI
CONTAINED
SElJRI'ITEIN SUCH ACT. THE BONDS W'M NOT 13E LISTED ON ANY STOCK OR
CS 13=4ANCH AND TMUR TBE UNITS STATES SECLIRIM
EXC�NGE CM&0SION NOR ANY On -MR FEDERAL, STATE OR QO AIL
TAL
ENTITY OR AGENCY Wff-L HAVE PASSED UPON TfM ACCURACY OR ADEQUACY
HEREOF.
sm
t
H�vd :561 699 6
Calve tiYYY_:FiX. 9 1 : t t ;3f :! L6 . 5 t ..!.
TABLE OF CONTENTS
SUMMARY.......................................................
INTRODUCTION ............. . ......... . .... . ......................
MES'TM NT CONSIDERATIONS .............. . ... . ................ .
TITS ISSUER ...................... . ........... .
THE CONPANY AND THE GUARANToR .......................... .. .
THE PRG}ECT ............ . ...................... .. .
E.STMATED US OF PROCMIDS .. .... , .......... .
THE BONDS ................................
.......................
TAXMATTERS ........................... .
UNDERWRITING..................................................
LEGAL MALT w.................................................
NO LTTIQATTON.................................... ...
W(PERTS ............... .
CONTI NUI G DISCLOSURE ......................... .... .
DISCLOSURE REQUIRED BY FLORIDA BLUE SKY LAW .................
ADDITIONAL INFORN4ATION ........ ..... .
aM
APpen& A Unaudited Fnaaaial Statements of the Compsny
Appendix B Audited Consolidated FinandW Statements of
the Guarantor and Subsidiaria
Appendix C Form ofApprovinS Opinion ofBond Counsel
Appendix D Summary of Certain Documents
b�
077
I 698 E.
C—Me xyw.L:P.M L I c t t "ar-!" L6 . :I "1C.'
d 1 C; / / -�
SUMMARY
The foaowhg material is qua ged in is entirely by the detaited inibrmttion grid finane
statements ccntWnW in this Ofddal Statement and the Appendices hereto, which must be read to
a
evaluate an investment in the Beads.
YN'I'BRWACCRUAL: Semi -Annual fh m the Date of Delivery,
NO RAMNG: Non -rated.
LSSUZR.- The isaer of the Scads is the City of Tmumc, Florida (the -Issuer").
The Lauer by duty approved upon taken on
1997, has agreed to issue Its Industrial Develop Revenue Bonds,
Series 1997 (Sun Belt PrecWo a Produce I= project) (the "Bonds„).
See'Vm ISSUER"
BONDS: The Bonds are being issued by the Issuer under and
Indenture dated as of Au purauaat to the
nd
between the Lover and F� Union Nadonv Bank of � as
Trustee (the `Trustee"). The Bonds are swved, payable, mature,
bear and are abject to optional and mandatory redwVdon as
described herein and as set forth in the Indenture. See "T BONDS.„
DTC BOOK -ENTRY A' oftbe Bonds will hitiallY be m6ftined under a �book-entry
ONLY: under wbwh The Depo�ry Trwt system
will act as securities depository. ' New York NNew York,
COMPANY: Sunbelt Precision Products, Inc., a Florida corporation formed in
1979, mDACt"m predsion WrMowb ibr the electronic, electrical
and automcdve industries.
GUARANTOR: Imerplex Industries, Inc., it Delaware corporation, is engaged in the
manufacture of a diversified range of ele&oric products sold to OEM
manufacturers throughout North America, Europe and the Far Last.
PROJECT: The Issuer, will use the proceeds of the Bonds to finance the
acquisition of real property in the City of Tar NTA Florida, the
congnrctiOn of an approximately 40,000 square foot maws
&Wity thereon, the acquisition of erluipment for use at such fbcility,
Amding a Debt S&Mce Reserve A=mt under the Indenture and
paying costs of Imance.
xm
9 39Vd Irr6go SOZ
CIZEB tiYPC_:F M L. t : t t lzr.L) :.6 . 5t
ISSUER'S Tie Issuer is prohibited from paying any amounts due with respect to
ODUGA710NI the Bads except fiont moneys mmved by the hmw puraumt to the
the
Mo:tgage or the Guaranty. Neither the with
wd
Power of Issuer or the State ofFlorida
or of VWPoHdW wbdiv elm dweofis pledged to the payment ofthe
p CKC prembaft, ifany, or interest on the Bonds, And the holden
of the Bonds AW have no rigtrt to Compel any mcmmiss of the taxing
POW of the Issuer or the State offt ida or any political subdivision
ttersof to enfbree such payment.
SOURCE OF RMNMs Substantially &U of the Company's revenue is derived from the
m4nu&cturer and sale of precision coazponents for the electro *
electrical and automotivie industries.
SECURITY: The Bonds are Special obligations of the Issuer payable tom the
revmm of the Issuer fiom the Loan Agreement, the Mortgage and
the Guaranty. The Payment obligation of the Company is a general
obligmtion of the Company. Payment of principal, redemption
Premium and interest on the Bonds is guaranteed by the Guarantor
pursuant to the Guaranty.
The Hoods will be Secured by a Ant mortgyle ilea on the Project and
a Debt Service Reserve Fund 0
T'he Bonds am being issued under and as secured by the indenture to
be delivered by the Issuer to the Trustee, Payments under the Loan
Arsemat are to be made directly to the Trwtee in such amounts as
will pay, when due, the principal of and the premium, if any, and
interest on the Bonds.
BONDHOLDER'S The Bonds involve a substantial degree of risk. These risks include,
RISKS: without limitation, (i) g=W9 business risks; (il) risks of ikaure to
complete the oonstruction of the Facility on time and within budget;
(1) risks that the amnnpdm on which the Company's budget for the
Project is based will not materiaiirA (iv) risks of Adverse changes to
federal and state law and regulations; (v) risk that a We of the project
upon a default will produce limfFcient proceeds to pay the Bonds;
(vi) osin legal risks Pertaining to bankruptcy and security interests;
(vii) risks of early redemption; and (viii) bond market and bond
tmusfer risks. See "Investment Considerations."
rM
-5- •
1961 699 6CL
C33xe NYK ::F.Y. 9 t : t t 13r.-I a6 . E t If,
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0
OFFICIAL STATEMMMT
S 200,000
CITY OF TAMARAC, FLORDA
Indub1 al Devdopment Revenue Bonds, Sena 1997
(900tt Precision Products. Inc. project)
� A $2,000,000 Term Bonds due August 1, 20
�% 51.200,000 Tam Bonds due August 19 20
EMODucnox
The purpose of this Ofcial Stetea►ent is to set ibrth certarW information in connection with
the issuance by the City of Tamarac, Florida (the "Issued of AOOO,OOO Industrial Development
Revenue Bonds, Series 1997 (Sunbelt precision Products, Inc. project) due August 1, 20 and
$I=,0001ndustrlal Development Revenue Bonds, Seder 1997 (Sunbelt precision produces Inc.
Project) due August 1, 20 (collectively the "Bonds'). The Bonds are authorized to be issued
ptna v& to 139, Pat ff' Florida Statutes cad other applicable provisions of law (the "AW),
cad a res Mon of the Issuer adopted 1997 (the "Reaohution-).
The Bonds are bring issued undw and are secured by a Trust Indenture dated as of August
1, 1997 (the "indenture") $om the Issuer to First Union National Bank ofFlorida, as trustee (the
"Trustee'l. The Bonds will be issuable as fully registered bonds in denominations of $5,000 and
iistegrxl Multiples dtereof (un apt to the cadent required cad necdsatated by DTC for the redemption
& Bonds) and u** wdl be re0twed in the name of Cede & Co. as nominee for DTC. Priodpd
and 1ztt payments will be made by the Trustee to Cede &Co. to be subsequently disbursed to the
bend eW owners oftbe Bogs as set f w& herein. One or more series of Additional Bonds may ftom
time to time be issued trader the Indsatm on a pauity with the Bonds for purposes more a,uy
descn1W berein.
The Bonds are being issued to 0) nnance or refinance a project in the City of Tamarac,
Florida, consisting ofthe acquisition of a parcel ofproparty of approximately 3.5 acres of land Iocated
at in the City of Tamara.; Florida coast
feet (the -Facility) and the purchase and ianstaliadon of raachi d equipment
(the
'Equi square
at the Facility, (ii) fiend a debt service reserve account and � � equipmern (the "Equipper )
and the ui mart t C � pay casts of issuance. The Facility
Eq P (together, the "Project' are to be used by the Company in its business of
firing preasion oomponerrts for the electronic, electrical and automotive industries.
To assure the exclusion of irnterest on the Bonds eOm gross income for purposes of federal
income taxation, the Company, the Guavantor and the Trustee win gaiter into a Tex Regulsaory
xwd
:56: 690 ccz
433VE Mvw1::IM 6 [ :.. :ZZ.:.1 46 . 5 t
Agreement or Agreements dated the date of delivery of the Bonds (the "Tax Regulatory
The Isuer wits land the prc ace s ftm the sale of the Bonds to the Company pursuant to the
Loan Agraernent dated as of August 1, 1997 (tbe "Loan Agreanertt")1awm the issuer aid
the' Company. 'The Company is obligated under the Low Agreement, as is evidenced by the Note
dated the date of issuance of the Bonds (the "Note"), to make monthly loan payments in amoum
RACIerat to pay the prrndpal of and Interest on the Bonds as the some become due, and to pay certain
Additional Payan M Nreinarftr described). The Company has Sim the Issuer a taortgage on the
Project to the Issuer to secure payaxwts due under the Loan Agreement anal the Bonds (the
"Mortgage"). rbe Issuer will pledge and assign t0 the Trustee the Issuer's rights under the Loan
Agreement and in the Note (except fbr right/ of the Issuer to indemnification and the payment of
certain fowl the Mortgage and all amounts in the %nds held by the Trustee under the Indenture,
iachaft all investment earnings tbKoom
To secure Mirth the payment of the Company's obligations under the Loan Agreement ad
the Note' the C3uara w will enter into a guaramty dated as of August 1, 1997 whereby the Guarantor
gua ru tr es to the Trustee and Bondholders the dull and prompt prynunt of principal, premium and
interest on the Bonds when due (the "vuatanty").
Repayment of amount@ egwi to the principal or redemption price, if any. of and
interest on -the Bonds is an absolute, uaeondidoaai obligation of the Company and the
Guarantor pursuant to the Lan Agreement, the Note and the Guaranty. See "Appendix A." .
"Appendix B" and "Investment Considerations" herein.
The Bonds are special obligations of the Issuer, payable solely bom any revenues, raxi %
Ands or morays pledged theref and hm any amounts otherwise available under the Indenture for
the payment tharw& including those derived under the Loan Agreement, the Mortgage and the
Owm=y and those on deposit in all funds and Accounts held under the Indenture, all of which are
pledged and assigned to the Trustee equally and ratably fur the benefit of the Bondholders. Neither
the faith and credit nor the taxing power of the Issuer, the State of Florida (the "State") nor any
trntu�dpaSity dneroof is pledged to the payment of the principal of or the pra dum, if any, or interest
on the Bonds and the holders of the Bonds shall have no power to compel any exercise of the taxing
power of the Issuer State or any municipality thereof to enforce such payment.
Summary descriptions of the Bonds, the Loan Agreement, the Note, the Guaranty and the
I ndaztum am iw:luded in Appendix D of this Ofujai Statement; The Loam Agreement and the Note,
the Guaranty, the Tax Regulatory Agro mesa and any other documents and agreements executed by
the Cry and the OLwv for in connection th wewith arc referred to in this official Statement as
the "Financing Documents." information regarding the Company and the Guarantor is included in
Appendices A and B hereto.
All words and terms used but not defined in this OfHaial Statement shall have the meaning$
sac 1W to such words and tertn� respectivrly, in the Indenture,
ner. .Z.
6 aavd t561 699 ;0Z Claim %-vr-L:FY- 0�: t: (3r._; c6.
r-9�-/�s-
•
•
•
Tile suzu nary descriptions of the dOmmeats contained berein are qualified in their entirety
by reference to such documents. Rai'erown herein to the Sonde are qualified in their entirety by
reference to the bbrm dmv d' included in the Indenture and the Ird;ormation with reap= thereto
ioch�d in the X&Maid doau mus, copies of which rutty be Obtained gvm the Company ad, du*
the 8 Pam+ at the P'W'pal office Of the Underwriter. All such to b descriptions
entirety by r�nce are Au
quWMW in their enti-dy
bankruptcy laws and tnwa relating to or affecting �y
the enfo, aaerrts of creditors' fights.
INVESTII ENT CONSID$RATnONS
Purchase
of the Bonds involves certain risiu. Prospccuve purchasers of theaw Bd: shoWd
gfv�e careful consideration to the natters re$r j to in the fbnowing summary, This summaryshould
not be considered eod=stive but, rather, kdbrmational only.
A. Special Limked Obligations. The Bonds are special limited obligations payable by
the Issuer solely flom the xxcm deem bed in this Official Statement, including particulerly the Loan
Agreement, the Note, the Guaranty and the Indenture:.
B. Failure to Perfbrm. No representations or Assurances. can be � that the
Company will not deibult in � its Obligations, under the Loan Agreement or that the
Guarantor will sot defwk in performing its obagatiowr under the ()uaraaty.
C. Ai4rket Caneeutmdoa. Colson$ m900r potential business risks such as market
corxentration," dgmndaaee upon suppliom dependence on key per:aa* etc.]
73
. No Credit EnhancemCuL The Bonds are being ofi'ered solely on the basis of the
Snandai strength Of the Company and the Guarantor. No letter of credit or other fbrm of credit
eafiAnoaxtacrt will ma" paymunt: of the Bonds. Purchase of the Bonds should be based solely upon
the financial common of the Company and the Guarantor, which is subject to change.
E. No Rating No application has boar made for a rating on the Bonds from any rating
F. Additional Debt. The Company MAY issue Additional Bonds on a parity with the
Bonds for the purpose of making improvements to the Facility or acquiring equipment for use at the
Project. The Company may incur other debt without restriction under the Loan Agreement and the
Indenture.
0. Amendments to Documents. Ce nsin amendments to the Indenture the Loan
Agreement, and the Guaranty may be made with the consent of the owners of not less than fifty
percent (S8'/°) ofthe gggregite principal amount ofthe Bonds then outstmdirg. Such amendmants
mIght adversely A tact the security of the owners of the Bonds,
.3-
IL Ta:nbWty►. Fdhn to comply with certain legal � „may Cause interest on
the Bonds to become subject to federal income taxation, either Stoma the date of the occurrence of
certain events or retraactiw to the date of isatatsoe of the Bonds. Upon a Determination of
Taxability, the Bonds are subject to mandstory taxability redemption at a pramh m,
1. Acceleration. The Bonds mry be sooderated Arad declared to be lmmedlitdy due and
payable upon the oc==ce of an Event of Ddhuk under the Indenture (see "Trust Indamme in
Appendix D hereto) and the Bonds as subject to mandatory redemption upon a Determination of
T'axsbdlity, major damage or destruction of the Project or the condemnation of all or substantially All
of the Project. It is possible that the Company and the Guarantor may not have suffiicient Cush to
meet the required redemption and, $udw, It is possible that the Company And the Guarantor may not
be able to refinance their obl4pdom in sufficiept time to nuke the required payer with the
consequence that the Bonds would go into deikuh. See "TIC: BONDS" herein.
J. Reatale Value of the Collateral Upon .Defsialt. Upon a de$ult in payment of the
Bonds. the Truetos would be entitled to exwadse its ranedies wader the indenture and the Financing
Documents and to sell the Facility. the Equipment, and any other assets of the Company held as
secwity for the Bonds, It is possible that the proceeds of a We of theas assets would not be in an
onount sufficient to pay the rwnab ttg pduc:ipatl balance, premium if any, and accrued interest on the
Bonds.
K. No -Assurances. Neither the Issuer nor the Underwriter makes any representations
or assuranoe'conoernitW (1) fture BavUn n nt"! policies or lgoslation affecting or administrative
actions regarding the Issuer, the Company or the Durantor or Action that may be taken by the
Company or the Guarantor in response thereto, or (H) the availability of, or the ability of the
Company or the Guammor to obtain sotu m of rev vm Roan which to satisfy their obliptions under
the Loan Agreement, the Guaranty or the Bonds.
XM
vy :1: _ 1-4 i
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•
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TBE COMPANY
ftW [Dbmnsion to Dome ftom the Company Tgjrft corporate structure, history and
bu*mu in SOMW]
THE CIIARANMR
[GMeW ft ussion to aurae ftm the Queradw reS ding its corporate structure, history end
business]
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The Bonds vi balm issued to (1) &a = or refinance a prgaM in the City of Tamarac,
Florida, cow of the a=didan ofa parcel of property ofapprmdacstely 3.5 acres of land located
at in the City of Tarmvcr Florida consistiq of approximately 40,000 square
fint (the TaaftO and the p cbm a and ration of machinery and equipcumt (the ! Equiprnevf)
at the Facility, (il) fund a debt savioe reserve account and (iii) pay cons of lsmanoo The Fway
and .the Equipawnt (together, the `?rojoct") are to be used by the Company in its buaineaa of
manufiscturing precision components for the electronic, electrical and automotive industries.
E IL MATED USE OF PRQCMMS
The proceeds of the Bonds will ffnanoe the cost of the Project.
The C=q=W grid the G=xdor expect to apply the proceeds from the sale of the Bonds as
follows:
kii:�
Acquisition of FUMY S
Realty. Fadlity R,ehabilitadon and
Construction Costs
Acquisition of EgaipmeM 1,200,000
Costs ofissuam
principal amount of the Borsch $3,200,000
�6-
•
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Grwend
THE BONDS
The Bonds viM be dated the date of delivery and will bear interest as described on the cover
page of this Official Statement. interest will be payable on February 1 and August 1 of each year.
commencing February 1, 1998. Interest shall be computed on the basis of a 360-day year of twelve
30-day months.
Pursuant to the Indenture, the Trustee will serve as the Paying Agent with respect to the
ff -
Book Entry paten
The Depository Trust Company ("DTC"). New York, New York, will act as securities
depository fbr the Bondi. The Bonds will be issued as #tartly -registered securities registered in the
name of Cede tit Co. (DTC's partnership nominee), one tally -registered Bond certificate will be
issued for each maturity of the Bonds In their respective aggregate prindpal amount, and will be
deposited with DTC. The ftov * daoussiom wfil not apply to Bonds if issued in physical form due
to the discaatiauanca of the Book -Entry System. See "Disci of Bookaitry System"
herein
DTC is a limited -purpose trust company organized under the New York Banking Law, a
"banking oaf" within the meaning of the New York Banking Law, a member of the Federal
Reserve System, a "clearing corporation" within the meaning of the Now York Uniform Commercial
Coda and a "clearing ege:tey" re&ered pursuant to the provisions of Section 17A of the Securities
Siachamge Act of 1934. DTC holds seaurWes that its Wdcipnrts ("Participants') deposit with DTC.
DTC also iiceilitates the senkmant among Participacts ofsoauities transactions, such as transfers and
pledges, in deposited smwltiw through elwVonhc cannputam ' book -envy changes in Participants►
accounts, thereby elbuinating the need fbr physical movement of secwities cettriicates. Direct
Participants include securities broken and deelem beaks, trust eompaties, clearing corporations, and
certain other ergs ations. DTC is owned by a number of its Direct Participants and by the Now
York Stock Exchange. Inc.. the American Stock Exchange, Inc., and the National Association of
Securities Dealers, Inc. Access to the DTC system is also available to others such as securities
brokers and dealers, banks, and trust companies that clear thorough or maintain a custodial relationship
with a Direct Participant either directly or indirectly ("Indirect Participants"). The Rules applicable
to DTC and its Participants are on file with Securities and Exchange Commission.
Purchases of Bonds under the DTC system must be made by or through Direct Participants,
which will receive a credit for the Bonds on DTC's records. The ownership interest of each actual
purchaser of each Bond CBeneficial Owner") is in turn to be recorded on the Direct and indirect
Participants' records. Beneficial Owners will not receive written confirmation from DTC of their
purchase, but BeneficW Owners are expected to receive written confirmations providing details of
the transaction, as wed as periodic statanats of their holdings, from the Direct or Indirect Participant
MW -7.
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through which the Beneficial Oww entered into the trr ashen Trarusiirrs of ownership inteseats
In the Bonds are to be AocompUW by erttrim made on the books of Participants acting on behalf
of Bemdcial Owners. Beneficial owners will not motive certificates represuatittg their ownership
irrtaes1s in Bonds exoept in the eves that use of the book -entry system fbr the Bonds is discontinued.
To flu W= n+Mquat ems, ail Bomb deposited by Par iciparrrs with DTC are registered
in the name ofDTC's pmuenWp nominee, Cede & Co. The deposit of Bonds with DTC and their
rgg istrstion in the name of Cede & Co. efiict no change in beneficial ownership. DTC has no
midge of thr sic W Bertsficial Owam of the Bonds. DTC's nerds reflect only the identity of
the Duerr pwdcip=U to whose accounts such Bonds are crafted, which may or may not be the
Benticxsl owners. The par&ipzo wM remain msporalle fbr keeping account of their holdings on
behalf of their customer.
Conveyance of notices and other eo==nicadions by DTC to Direct Participants, by Direct
Participws to Indirect Participants, and by Direct Participants and indirect Participants to Beneficial
Ownw will be governed by arranger an Ong theta, subject to any statutory or regulatory
mquk m &j as may be in elfbct from time to time.
goon notion shall be sent to Cede & Co. If leas t1m.AU of the Securities within An
issue are being redeemed, DTC's putice is to determine by lot the amount of the interest of each
Direct participLm in such issue to be redeemed.
Neither DTC nor Cede & Co. will canser; or vote with respect to the Bonds. Under its usual
proceim DTC mails an O=ibus Proxy to the issuer u soon as posslle after the record date. The
Omnibus Proxy assigns Cede & Co.'s conseming or voting rights to thole Direct Participants to
whose accounts the Bonds are credited on the record date (identified in a listing attached to the
Omnibus Proxy).
Pdncipai and interest payments on the Bonds will be made to DTC. DTC's practice is to
ore& Direct pw6 pwal aoco = on the payable date in accordance with their respective holdings
shown on DTC's records unless DTC has reason to believe that it will not receive payment on the
payable date. Payments by Participants to Beneficial Owners will be goveanod by standing
ir* ucdom cad customary pmd;ceau, as is the case with securities held for the accounts of customer
in bearer form or registered in "street name" and will be the responsibility of such Participant and not
ofDTC, the Trustees or the Issuer, subject to any statutory or regulatory requirements as may be in
effect from ti= to time. Payment of the principal and interest to DTC is the responsibility of the
Issuer or the Trustee, disbursaneatt Of such payments to Direct Participants shall be the responsibility
of DTC, and disbursement of such payments to the Beneficial Owners shall be the responsibility of
Direct Participants and Indirect Participants.
Transfers of ownership interests
in the Bonds will be accaasplishod by book entry made by DTC and the Participants who act on behalf
of the bene&W owners. For every transfw and exchange of the Bonds, the beneficial owner may be
charged a sum sufficient to pay any tax, fee or other govermruental charge required to be paid with
•
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S: 39Yd t561 699 'nOZ C334E8 �iVKI Iii1r1 6Z= 1 ; :3fr. 46
respect thereto. Should DTC discoraivue its services, Bonds may be delivered to Wadholders in
physical form
THE INFORMATION INCLUDED UNDER THIS CAPTION, HAS BEEN PROVIDED
BY DTC. NO REPRESENTATION IS MADE BY THE ISSUER, THE COMPANY, THE
( UAR,ANTOR OR THE UNDERWRITER AS TO THE ACCURACY OR ADEQUACY OF TH8
WORMATION PROVIDED BY DTC OR AS TO TH33 ABSENCE OF MATERIAL ADVERSE
CHANCES IN SUCH INFORMATION SUBSEQUENT TO THS DATE HEREOF.
DTC may camatinue providing its services as securities depositary with respect to the Bonds
at any time by giving reasonable notice the Issuer or the True. Under such circumstances, in the
even that a successor securities depository is not obtained, security certificates are required to be
painted and delivered.
The Imw may decide to discontinue use of the system of book -entry tr m fe rrs through DTC
(or a successor-seauities depository). In that event, security certificates will be printed and
delivered.
The information in this secdon concerning DTC and DTC's book -entry system has been
obtained f m soon= that the tw r believes to be reliable, but the Issuer takes no responsibility for
the accuracy thereof.
THE ISSUER AND THE TRUSTEE WILL NOT HAVE ANY RESPONSIBILITY OR
OBLIGATION TO PARTICIPANTS, INDIRECT PARTICIPANTS OR ANY BENEFICIAL
OWNER WITH RESPECT TO (I).7718 ACCURACY OF ANY RECORDS MAIN'TARM BY
DTC, ANY PARTICIPANT OR ANY ROME= PARTICBANT; (II) THE PAYMENT BY DTC
OR ANY PARTICIPANT OR IIw1DiRECT PARTICIPANT OR ANY AMOUNT WITH RESPECT
TO THE PRIIdCIPAL OF, OR PRF.NWK IF ANY, OR INTEREST ON THE BONDS; (M) THE
TII4MY 1MCISE BY DTC, ANY PARTICIPANT OR ANY INDIRECT PARTICIPANT OF
ANY DIRECTION OF A BENEFICIAL OWNER WITH RESPECT TO ANY TENDER OR
ELECTION NOT TO TENDER BONDS; (IV) ANY NOTICE WHICH IS PERMITTED OR
REQUnUM TO BE GIVEN TO BONDHOLDERS UNDER THE INDENTURE; ern THE
SELWrIONBY DTC OR ANY DIRECT OR INDIRECT PARTICIPANT OF ANY PERSON TO
RECEIVE PAYMENT IN THE EVENT OF A PARTIAL REDEMP' ON OF THE BONDS; OR
(VI) ANY CONSENT GIVEN OR OTHER ACTION TAKEN BY DTC AS BONDHOLDER.
The Bonds ere issuable in fully registered form in denominations of $5,000 or in any integral
multiple of S5,000 in excess thereof The Bonds are subject to prior redemption as hereinafter stated_
Interest on the Bonds will be payable by check mailed to the registered owner thereog or, at the
option of any owner of Bonds in the aggregate principal amount of not less than $500.000, by wire
transfer to the account designated by such owner with the Trustee. The Trustee is appointed as the
Paying Agent pursuant to the Indenture. The Indenture provides that any Trustee may resign or be
removed at sM time by the written direction of the owners of a majority of the aggregate principal
amount of the Bonds then outsttandin% and that upon any such resignation or removal the owners of
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a M40y ofdro aggreg w prfadpal amount of the Bonds they outstanding may appoint a successor
to fl11 the vacancy.
Sources of psryment and Serttrlty
The Bonds will be payable as to principal, premunn, if any, and interest solely out of the
rnoeipts, Rwds err moneys pledgederC sad 8vm anY amamts otherwise available under
the Indenture for the payment thereof, including amounts derived under the Loan Agreement, the
Note, the MortgagR and the Cuunuty, moneys =nbutable to Bond Proceeds, the Income ftorn
temporary Wmtrn t and, under cutsin draunstaam proceeds tom, insunum and condemeation
.�, an ofwbich are pledged and assigned to the Trustee ibr the benefit ofBondholden,
Payment of the Bonds will be made solely by the Company purvuant to the Loan
Agreement and the Note or by the Guamntor pursuant to the Guaranty. The Company has
the absolute and unconditional obligation under the Loan Agreement and the Note to make
payments equal to the amounts payable as principal, premium, if any, and Interest on the
Bonds.
THE BONDS ARE ISSUED UNDER THE PROVISIONS OF THE FLORIDA
INDUSTRIAL DEVELOMM FINANCE ACT, CHAPM 159, PART It; FLORIDA
STATUTES, AS AMMED (TIM "ACT" AND TEM ISSUER IS PROHIBITED FROM
PAYING ANY AMOUNTS DUE WITH RESPECT TO THE BONDS EXCEPT FROM MONEYS
REC BY THE ISSUER PURSUANT TO TIC LOAN AGREEMENT, THE MORTGAGE
OR THE GUARANTY, NEITHER THE }~AMi AND CREDIT NOR THE TAXING POWER OF
THE ISSUER OR THE STATE OF FWRIDA OR OF ANY POLITICAL SUBDIVISION
THEREOF IS PLEDGED TO THE PAYMENT OF THE PRINCIPAL OF, PREMIUM, IF ANY,
OR INi'ERLST ON THE BONDS, AND THE HOLDERS OF THE BONDS SHALL HAVE NO
RIMU TO COMPEL ANY EXERCISE OF THE TAX NG POWER OF THE ISSUER OR THE
STATE OF FLORIDA OR ANY POLITICAL SUBDMSION THEREOF TO ENFORCE SUCH
PAYMENT.
Truster
The Trustee is First Urgoo National Bank of Florida, The principal office of the Trustee and
Paying Agent under the Indenture is located at - , Mami, Florida
Redemption of Bonds
The Bonds are subject to redemption prior to maturity on or
after August 1, 2007 as a whole on any date or in part on any Bond Payment Date, at the option of
the Issuer (which option shall be exercised upon the direction of the Company) and, when redeemed
during any period sat forth in the following table, at the Redemption Price (expressed as percentages
39534 .ter
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of principal mount) set opposite pxk period in the table, plus accrued interest to the redemption
date:
August 1, 2008 to July 31, 2009 101%
August 1, 2009 and thereafter 100%
Q=Wgg. The Bondi are subject to mandatory redemption prior to maturity at a
R.edempdoA price Equa1 to 100ye of the principal amount thereof to the extent that money* remain
In the Loan Account unexpended on the Completion Date.
Jam. The Honda are subject to redemption prior to maturity at a Redemption
Price equal to 100%•of the principal amount thereof in the avert that the Project shall have beep
dun* or destroyed 0) to such extent fiat It cannot be reasonably restored within a period of six
months to the condition thwedimtmediately preceding such damage or destruction, or (ii) to such
extent that the Company is thereby prevented in the Company's judgment, fom carrying on its
normal operation of the Project for it pe dod of six months, or ('ii) to such extent that it would not be
economically, featsible, in the Company's judgment,1br the Company to repair, the Project. The
Bonds are also subject to n&n#on at a Redemption Price of 1 W19 of the principal amount thereof
in tha avant of the logah oxWmmt of the use and occupancy of all or substantially all of the Project
by the Company for any reason other than oondevanstion.
lMdMM&d= The Bonds are also subject to redemption prior to maturity at a
Redemption price equal to 10o% of the principal amount thereof in the event of condemnation' of all
or sub stantially all of the, Prof act.
. The Bonds are subject to mandatory redemption at
a Redemption Price equal to the principal amount thereof, plus accrued interest to the redemption
date, on February 1 of the following years in accordance with the sinking fund provisions of the
Indenture, in the respective amounts set forth opposite the years specified in the following table:
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Sinking Fund Distafiment Schedule 0
Bends due Bonds due
Y , 20 ,.. 22.�.�
1998
19"
2000
2001
2002
2003
2004
2008
2006"
2007
2008
2009
2010
2011
2012
01 2014
2015
2016
2017
" Final maturity
, 11" Bonds arc alto subject to mandatory redemption,
at a redernpdon price equal to the Red=Vtioa Prier of 103% of the principal amount thereof to be
redeemed, within thirty (30) days iEniiO*ing a De ainadon of Taxability with respect to the Bonds.
A "Determination of Taxanb3lity" mean any determination, decision or decree made in regard to
Section 103 of the Code (or any other rdwvant section) by the Commissioner or any District Director
of internal Revenue, ai; if there is an appeal from such determination by a Commissioner or District
Director, when a End administrative or judicial determination has been made, or by a final decision
of any court of competed jurWCtien, that the Iuerest payable on the Bonds is includable in the groat
income of the holders of the Bonds for federal income tax purposes (other than a bolder who is a
"substandal use or "related person" as such are defined in the Code) by virtue of the occurrence of
an Event of Taxability.
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Upon arty redaslpd= of Bonds there also shall be due ad payablk oonaurently with the
payment of the RW=ptioa prM interest aocrued on the Bonds to the date of redemption and ail
other arnounts then due under the Financing Documents.
Any Additiond Bonds shall be subject to redemption prior to m= ty at such times and
privet, in the met>srer and upon such terms and conditions, not bx sistatt with the Ind=ture, as shall
be spu fled in the Supplemental Indenture authorizing such Bonds.
13e Trustee shall give the Bondholders notice of
of Bonds by oe tied mail. not leas than 30 days nor more theses 60 days prior to the date
fW far rWmV6M and published notice of the call redemption need not be given. Simultaneously
with notice to owners, notice of much redemption also shall be sent by registered or cetlfied mad to
at least two of the Information Sa-Aces and 8mmides Depositories that dissaminata securities
redemption notiee+s. If less than an of a particular Bond shall be called fbr redemption, the particular
Bomd (or $5,00o unit: theraaf'to be medeerned) shall be selected by lot by the Trustee in such manner
as it damns proper. All Bonds called for redemOon wM cesse to bear interest on the specified
redemption date, provided Lnds sufficient fbr the redemption of such Bonds in accordance with the
Indenture are on deposit with the Trustee. On presentation and surrender of Bonds called for
redemption at the place or places of payment, such Bonds shell be paid and redeemed. Any such
no ioe shall be fictive as to each Bond to be redeemed when mailed to she registered owner thereof;
and any fljttre to receive any such notice by any such registered owner shall not affect the validity
of any proceedings fbr the redamption of Bonds for which such notice was given.
Additional Bonds
So long as the Finsndng Documents am in effect and the Company is not in deftuh
tl emoder, the imMW may issue Additional Bonda on a parity with the Bonds, but only for the
purposes and upon the tw= and conditions stated in the Loan Agreement and the Indenture.
Additional Bonds shall bs issued only for the purpose of making improvements to the Mortgaged
Property or acquiring equsipmemt for use at the Prajed.
No Additions) Bonds than be issued unless (1) the terms of such Additional Bonds, the
purchase price to be paid the: efiu and the manner in which the proceeds therefrom are to be disbursed
shell have been approved in writing by the Cow4my, the Guuuttor and the Issuer, (2) the Company,
the Guuantor and the Issuer shall have entered into a supplement to the Financing Documents as
described in the Indentum and (3) the Issuer and the Trustee shall have entered Into a Supplemental
Indenture 'authorizing the issuance of such Additional Bonds, and the Issuer shall have othertirise
complied with the provisions of the Indenture and the Act with respect to the issuance of such
Additional Bonds.
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TAX MAT E RS 0
The Internal Revenue Code of IM, a emended (the "Coda") establishes certain
requirp P -- which must be met stand subsequent to the 6 ma m and delivery of the Bonds in order
that nrterest on the Bonds be anti remain rscluded fiom gross inoome for purposes of federal Income
taxmtion pureumt to Section 103(a) of the Code. The Issuer has covenanted in the Indenture and in
the Tax Regulatory Agreern M and the Company has covenanted in the Tax Regulatory Agreement
to comply with snuh requiremaats. Non-compliance with such requirements may cause interest on
the Bonds to beooDae subj" to &ddoll IrAx a taxation retroactive to their date of issue, Irrespective
of the date on which such non-compliance is ' ascertained. Compliance with certain of the
requioreanents may neoesdtate that persons not within the control of the Issuer, the Company or the
Ck antor take or raftain firom taking coin actions.
Iu the opinion of AkwnMn, SerterStt & Eidson, P.A., Bond Counnsel, under existing stetutes,
irr apretstions and court decisions interest on the Bonds is excluded from
gross bu=e of the recipients thereof for purposes of federal income taxation pursuant to Section
103(11) ofthe Codes Under the Coda however, such interest on the Bonds is treated as a preference
item to be i Wuded in calculating altern sthv minimum taxable income for purposes of the alternative
miW== tax which may be imposed with respect to individuals and corporations. No opinion is
exproased by Bond Counsel as to the eoodual��owithin the meaning of Section m gross Income t ]�47 sy ofthe Coda
ond during
the period that suchBond is bdd by a person S( )
is a substantd user of f wilides for whiob the proceeds of the Bonds were used or a related person.
In addition, under the Code, we rote that interest on the Bonds is to be taken into account in the
computation of certain taxes that may be imposed with respect to corporations, including without
limitation the envirorrmmtal tsx and the foreign Brach profits tax
In the opinion dBorrd Counsel, the Bonds and the interest thereon are exempt fivm taxation
undo the lawa of the State ofFlorida as enacted and construed on the date hereof except as to estate
taxes and taxes imposed,by chapter =, Flarnda Statutes, as amended, on interest, income or profits
on debt obhgatiorns owned by corporations.
In rendering the above-descnbed opinions. Bond Counsel will assume the accuracy of the
&ctuai oert &&dons and continuing compliance by the Issuer, the Company and the Guarantor with
the coves, representations, warranties, provisions and procedures set forth in the Indenture and
the Tax Regulatory Agreement. If the Issuer, the Company or the Guarantor should Sul to comply
with such covenants, representations, warranties, provisions and procedures or if such Factual
certifications should be determined to be inaccurate or incomplete, interest on the Bonds could
became includable in gross income for purposes of federal income taxation retroactive to the date
of original issue of the Bonds, regardless of the date on which the event causing such Includebility
occurs.
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Band Coureei has not undertaken to detwmim (cc to irdbrm any pawn) whether any actions
taken (or not taken) or eveats ooaarring (or not oc=n is>,g) after the date of issuance of the Bonds
may affect the tax tutus of infant on the Bonds.
Certain requirements and procedures contained in or referred to in the Indenture, the
Resohabm the Tax Regulatory Asmetnesst, the Tax Certificates and other relevant documents may
be ctaueed and certain actions may be taken or omkW under the circumstances and subject to the
teams cad cord d m set firth is such dowments, upon the advice or with the approving opinion of
nationaihy, recognixad bond counsel. Bond Counseh expenses no opinion as to any Bond or the
interest thereon if any such Omge occurs or action is taken or omitted without such advice or
approval or upon the advice or approval of Bond Counsel other them thennmlves.
Bond Counsel has not wA td= to advise in the fixture whether any events after the date of
issusnoe afthe Bonds may of w the tax status of interest on the Bonds. No assurance can be given
that Rztu v legislation, if enacted Into law, or amordmenta to the Code will not contain provisions that
could directly or indirectly reduce the benefit of the ow1usion of the interest on the Bonds from gross
income for purposes of federal income tnntion.
Although interest on the Bonds is amiuded form gross income for purposes of federal income
taxation, receipt or aoerual of such interest may otherwise affm the tax liability of the bondhdder.
Ownership of tax-exempt obligations may result in collateral federal income tax consequenoes to
certain taxpayers inebaditng, without iianitadon, financial institutions, property and casualty innuanoe
ovrnpett 6 certain foreign corporations doing business to the United States, certain S corporations
with excess passive income, individual recipients of Social Security or Railroad Retirement benefits,
tsxpayas who may be deterred to have incauced or continued indebtedness to purchase or carry taax-
etenapt obligsd=6 and for taxable years beginning after 1995, for persons who would otherwise be
entitled to the eared income tax era&
Prospective purchasers of the Bonds should consult their tax advisors as to the applicability
of any collate W tax consequences ofthe ownership of a Bond including, but not limitod to alternative
minimum tax and earvh onmental tax liability. See "Appendix C - Form of Approving Opinion of
Bond CounseV
The obligations ofC3reertwich Partners, LLC, as underwriter (the "Underwriter•') are subject
to certain terms and conditions net firth in a Bond Purchase Agreement between the Issuer, the
UmWwriter, the Company and the Guarantor, including the approval of certain legal matters by Bond
Cocueel, the existence of no material adverse change (not in the ordinary course of business) in the
condition of the Company and the Guarantor from that set forth in this Official Statement and the
Appendices hereto and certain ether conditions.
a0M -1s-
The Company will pry the Undewriw a The of percent L%) of the aggregate
pdrfc1; i arWWA of the Bonds.
The Company and the Guarantor have agreed to indemnify the Underwriter and the Issuer
against certain liabilities, including liabilities under the faderW securities laws. Tne Underwriter may
offer aril sell the Bonds to certain dealers (including dealers depositing the Bonds into investment
meats) and others at pried lower than the offering price stated on the cover page hereof. After the
initial public of ing, the public offering price of the Bonds may be changed torn time to time by the
Underwriter.
LEGAL MATTERS
Legal matters incident to the authorization and issuaw�; of the Bonds are subject to the
appraving opinion ctfAkernwt, Senterfitt & Eidson, P.A., Orlando, Florids, Bond Counsel. Copies
of such opinion will be avaUble at the time of the delivery of the Bonds. Certain legal matters will
be passed upon for the Company and the Guarantor by Cuddy & Feder & Worby, White Plains, New
York, and for the Underwriter by Whitman Breed Abbott & Morgan LLP, Greenwich, Conaecticut.
NO LMGATTON
The issuer. As of the date hereof there is no controversy or litigation of any nature now
Pending or, to the knowledge of the Issuers, threatened against the Issuer restraining or e>joinino the
isarence, sale, execution or delivery of the Bonds, or in lay way oontesting or effecting the validity
of the Bonds or any proceedings of the Issuer taken with respect to the issuance or sale thereof.
The Company and the Guarantor. As of the date hee=4 there is no litigation pending or,
to the best knowledge of the Company and the Guww=, threatened against or affecting the
Company or the Guarantor wherein an unf`vorable decision would materially and adversely &Met
the Company's or the Guarantor's ability to meet their obligations under the Fuancing Doaunents
to which that' are a party.
F-W.1 T-4 tl*l
The intarAl financial datements of the Company as of May 31, 1995. May 31, 1996 and May
31, 1997 aid for each of the yew then ended, included in Appendix A to this Official Statement,
have not been audited and have bees prepared by the Company's management and were provided to
the Guaraives outside auditors to be included in preparing Its consolidated financial statements for
ouch years.
The consolidated fmaneial statements of the Guarantor u of May 31, 1994, May 31, 1995
and May 31, 1996 and for ewh of the years then ended, included in Appendix B to this Official
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8tatnead, have been sudhed by M.R. Weiser dt Co. LLP, independent certified public accountants,
as stated in their report appearing therein. Such Snancial statanents haw been I=Wdsd herein In
reliance upon such report given upon the a Murky of said lkm as experts in accounting nerd suditirrg.
CONTM[J G DYSCM3M
The law has dedwmbmd that no $nandai or operating data =morning the Issuer is material
to any decision to purchase, hold or sen the Bonds and the Issuer will not provide any such
k6rmartion. The Company and the Guarantor have undertaken all resporusrblities for any contimaing
disclosure to Bondholden as described below, and the Issuer shall have no liability to the
Bondholders of the Bonds or any other person with respect to such disclosures,
The Company and the Guernotw' have covenanted for the bare8t of Bondholders to provide
certain. Anancial inAmnstion and operating data relating to them by not later than ninety (90) days
after the end of their fiscal years (presently May 31) commencing with the I fiscal year (the
"Annual Report"), and to provide nodces of the occur: =e of certain enumerated events, ifmaterial.
The Annual Report will be filed by the Company and the Gwtrantor or the Trustee on behalf of the
Company and the Guaranor with the State Repository, if any. The notices of material event: will
be Sled by the Trustee on behalf of the Company snd the Guarantor with the Municipal Securities
Rulemaking Board or with the National -Repositories, and with any State Repository as may be
designated in the State of Florida as a state repository for purposes of compliance with SEC Rule
134-12(b)(5). Annual Reports and nodoes of material events may be obtained $om the Trustee,
First Union National Bank of Florida, Corporate Trust Administration,
(___) TW specific nature of the kdbrrnation to be
contained inthe Annual Report or the nod= of material events Is summarized in Appendix D gender
the caption "Ccntim* Disclosure Agreement". These covenants have been made in order to assist
the Underwriter in complying with SEC Rule l5al2(bx5).
DISCLOSME REQMRED BY FLORMA BLUE SKY LAW
Section 517.051(1), Florida Statutes, as amended, by Chapter 87-3I6, Laws of Florida,
provides that no, person may directly or indirectly offeror sa11 securities of the Issuer except by an
offering c:irculsr oontaining flrll and fair dis lostn with respect to the Bonds or other debt obligations
that it has issued or guuwfted that are or have been in default a, to payment of principal or interest
at any time after December 31, 1975 as provided by rule of the Florida Department of Banking and
Finance (the "Department"), Pursuant to Rule 3PA00.003, Florida Administrative Code, the
Department has required disclosure of the amounts and types of defaults, any legal proceedings
result'rrrg from such defaults, whether a trustee or receiver has been appointed over the assets of the
Issuer, and certain additional financial information, unless the Issuer believes in good (kith that such
information would not be considered material by a reL onable Investor.
M" -17-
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The Issuer is not and has not siaae December 31, 1975 bean in dAult as to principal or
ineererc on any of its bonds or other debt Obligations, a tcept with respect to certain bonds issued on
behalf of developers of projects unrelated to the Project. The Lover believes in good ihith that
additional disclosure concerning such bonds would not be considered material by a reasonable
investor in the Bonds because such deftAed bonds were payable solely $om the revenues of the
respective projects with such bonds. The Issuer aged solely as a conduit issuer with respect
to such dr&uked bond and was in no way obligated to make payments on such bonds "t that it
Modyad paymenu heralbr Horn the related developer. A000rd&Wy, the defaults with respect to such
other bonds in no way affect the Bonds or the :county tbereft
ADDITIONAL INFORMATION
The references hers i and in the appendices hereto to the Financing Documents and other
documents are brief outlines of certain provisions thereof Such outlines do not purport to be
complete, and reference is made to such documents, laws and contracts, copies of which are on file
with the Trustee; for fill and complete statements of their provisions.
Any meats in this Official Statement imoh* matters of Opinion, estimates, tbreeasts,
projections or the lilac, whether or not expressly so stated, are intended as such and not as
representations of l', a.
U i
By:
SUNBELT PRECISION PRODUCTS, INC.
By:
INTE"LEX INDUSTRIES, INC.
By:
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5 y 30vd
:S6: 699 6ct
CISVE ti` nz.:F-14