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Home My WebLink AboutCity of Tamarac Resolution R-2000-056Temp. Reso. #8929 March 8, 2000 Page i CITY OF TAMARAC, FLORIDA RESOLUTION NO. R-2000- 5�6 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF TAMARAC, FLORIDA, PROVIDING FORTHE ISSUANCE BY THE CITY OF TAMARAC OF ITS INDUSTRIAL DEVELOPMENT REVENUE BONDS (FAZIO HOLDINGS, LP PROJECT), SERIES 2000, IN AN AMOUNT NOT TO EXCEED $7,000,000, 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 PRIVATE PLACEMENT MEMORANDUM AND PLACEMENT LETTER AGREEMENT 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 I I of the Florida Statutes, as amended and other applicable provisions of law (the "Act"). Temp. Reso. #8929 March 8, 2000 Page 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 23, 2000, approved the execution of a Memorandum of Agreement with the Fazio Holdings, LP, a Florida limited partnership (the "Borrower") whereby the City agreed, subject to certain conditions and approvals, to issue its Industrial Development Revenue Bonds (Fazio Holdings, LP Project), Series 2000 in an amount of up to $7,000,000 (the "Bonds") and to loan the proceeds of such bonds to the Borrower to pay the cost of constructing a manufacturing facility (as more fully described in such resolution, the "Project") within the jurisdictional limits of the City. 11 Temp. Reso. #8929 March 8, 2000 Page 3 C. The principal of and interest on the Bonds and all payments required under the documents relating thereto shall be payable solely from amounts payable by the Borrower to the City 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 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 such Bonds shall not constitute a lien upon any property owned by or situated within the territorial limits of the City except the Project. D. 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 23, 2000, at which it received and considered comments, if any, from the citizens of the City. Following such public hearing, the Bonds were approved by the City Commission of the City as required by Section 147(f) of the Internal Revenue Code of 1986, as amended. 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. Subject to receipt of written confirmation received by the Division of Bond Finance and so long as such confirmation Temp. Reso. #8929 March 8, 2000 Page 4 has not expired, obligations of the City to be known as "Industrial Development Revenue Bonds (Fazio Holdings, LP Project), Series 2000" are hereby authorized to be issued in an aggregate principal amount of not exceeding Seven Million Dollars ($7,000,000), 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), and will be secured, as provided in the Trust Indenture (the "Indenture") between the City and First Union National Bank, as trustee (the "Trustee"). 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 or Vice 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 or Vice Mayor to execute, and the City Clerk or assistant or deputy City Clerk to attest under the seal of the City, and the City Attorney or assistant or deputy City Attorney to approve as to form: 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 the Trustee duly Temp. Reso. #8929 March 8, 2000 Page 5 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 or Vice 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 or Vice Mayor to execute, and the City Clerk or assistant or deputy City Clerk to attest under the seal of the City, and the City Attorney or assistant or deputy City Attorney to approve as to form, 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 PLACEMENT LETTER AGREEMENT. The Placement Letter 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 or Vice Mayor, such approval to be presumed by his execution thereof, is hereby approved by Temp. Reso. #8929 March 8, 2000 Page 6 the City, and the City hereby authorizes and directs the Mayor or Vice Mayor to execute, and the City Clerk or assistant or deputy City Clerk to attest under the seal of the City, and the City Attorney or assistant or deputy City Attorney to approve as to form: the Placement Letter Agreement and to deliver to the Borrower and the Placement Agent (hereinafter defined) the Placement Letter 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 8. PRIVATE PLACEMENT MEMORANDUM. The distribution of a Private Placement Memorandum (the "Offering Memorandum") in connection with the placement of the Bonds is hereby acknowledged. The sections of the Offering Memorandum relating to the City which shall be subject to such changes, modifications, insertions or omissions as may be approved by the Mayor, Vice Mayor, City Clerk or City Attorney, including incorporation of the provisions recommended by the City's Bond Counsel, to comply with applicable securities laws and the sections of the Offering Memorandum relating to the City are hereby approved and adopted by the City. The Offering Memorandum 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 Offering Memorandum, in substantially the form on file with the City Clerk as Exhibit "D", is Temp. Reso. #8929 March 8, 2000 Page 7 the sole material acknowledged by the City for use in connection with the initial placement of the Bonds, except that copies of the documents referenced above may be provided upon request. The City is acting as a conduit issuer of the Bonds and, therefore, the Borrower is responsible for the content of the Offering Memorandum as to compliance with federal securities laws. 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 bearing a variable rate of interest 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, 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. ELECTION UNDER SECTION 144(A)(4) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. The City does hereby elect to have the provisions of Section 144(a)(4) of the Internal Revenue Code of 1986, as amended, Temp. Reso. #8929 March 8, 2000 Page 8 increasing the small issue limitation from $1,000,000 to $10,000,000, apply to the Bonds and the City Clerk is hereby authorized and directed to evidence such election by filing a copy of this Resolution in the official records of the City. Section 11. PLACEMENT OF BONDS; DISCLOSURE STATEMENT. The placement of the Bonds is hereby approved, as provided in the Placement Agreement, with the Placement Agent placing the Bonds with one or more accredited investors. The City will be provided all applicable disclosure information required by Section 218.385, Florida Statutes, as amended, prior to delivery of the Bonds to the Placement Agent. Section 12. TRUSTEE. First Union National Bank, a national banking association having trust powers, is hereby designated Trustee for the Bonds. Section 13. 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 or Vice Mayor, City Clerk, City Attorney, and Bryant, Miller and Olive, 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 deliver any and all instruments, opinions, documents or contracts on behalf of the City which are necessary to Temp. Reso. #8929 March 8, 2000 Page 9 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 14. NO PERSONAL LIABILITY. No covenant, stipulation, obligation or agreement herein contained or contained in the Loan Agreement, Indenture, Placement Letter Agreement, the Offering Memorandum 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 or her 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 15. 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 Placement Agent, the holders 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 are intended to be for the sole and exclusive benefit Temp. Reso. #8929 March 8, 2000 Page 10 of the City, the Placement Agent, the Borrower, the Trustee and the holders from time to time of the Bonds. Section 16. 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 Bonds 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 17. GENERAL AUTHORITY. The members of the City 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 18. 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, thought 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 Temp. Reso. #8929 March 8, 2000 Page 11 separable from the remaining covenants, agreements or provisions and shall in no way affect the validity of any of the provisions hereof. Section 19. 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. Section 20. EFFECTIVE DATE. This resolution shall become effective upon adoption. vk PASSED, ADOPTED AND APPROVED this day of March, 2000. /Jpt SCHREIBER YOR ATTEST: CAROL GO , CMC/AAE FIEWRI) OF COMMISSION CITY CLERK DIST 1: COMM. PORI I HEREBY CERTIFY that I DIST2: __V/M MISHKIN have approved this DIST S: COMM. SULT OpTION,s t� forrp. r� DIST 4: 7CQMM- RQBI M RELL S. KRi CITY ATTORNEY • EXHIBIT "A" INDENTURE • • Temp. Reso. #8929 March 8, 2000 Page 13 • CITY OF TAMARAC, FLORIDA "Issuer" to FIRST UNION NATIONAL BANK "Trustee" • TRUST INDENTURE Dated as of APRIL 1, 2000 Securing [$7,000,000] CITY OF TAMARAC, FLORIDA INDUSTRIAL DEVELOPMENT REVENUE BONDS (FAZIO HOLDINGS, LP PROJECT), SERIES 2000 • 1-1 • C7 TABLE OF CONTENTS Page ARTICLE I DEFINITIONS Section 101. Definitions......................................................... 4 Section 102. Rules of Construction ................................................ 13 ARTICLE I1 THE BONDS Section 201. Amount, Terms, and Issuance of Bonds ................................. 14 Section 202. Denominations, Maturity, Dates and Interest Rates of the Bonds ............. 14 Section 203. Conversion of Interest Rate Determination Method ....................... 17 Section 204. Optional Tender Provisions of the Bonds ................................ 19 Section 205. Registered Bonds Required, Bond Registrar and Bond Register ............... 20 Section 206. Transfer and Exchange ............................................... 21 Section 207. Book -Entry System ................................................. 21 Section 208. Execution......................................................... 23 Section 209. Authentication..................................................... 23 Section 210. Payment of Principal and Interest; Interest Rights Preserved ................. 23 Section 211. Persons Deemed Owners ............................................. 24 Section 212. Mutilated, Destroyed, Lost, Stolen or Undelivered Bonds ................... 24 Section 213. Temporary Bonds ................................................... 25 Section 214. Cancellation of Surrendered Bonds ..................................... 25 Section 215. Conditions of Initial Issuance .......................................... 25 ARTICLE III PURCHASE AND REMARKETING OF TENDERED BONDS Section 301. Remarketings of Tendered Bonds ...................................... 27 Section 302. Purchase of Bonds Delivered to 'fender Agent ........................ I ... 28 Section 303. Delivery of Purchased Bonds .......................................... 29 Section 304. Delivery of Proceeds of Sale of Remarketed Bonds ........................ 29 Section 305. No Remarketing After Certain Events .................................. 29 • • 11 ARTICLE IV INITIAL PROCEEDS, REVENUES AND APPLICATION THEREOF Section 401. Initial Proceeds to Be Paid Over to Trustee .............................. 30 Section 402. Revenues to be Paid Over to Trustee ................................... 31 Section 403. The Bond Fund .................................................... 31 Section 404. Initial Proceeds and Revenues to Be Held for All Registered Owners; Certain Exceptions .................................................. 33 Section 405. Rebate Fund ....................................................... 33 ARTICLE V DEPOSITARIES OF MONEYS, SECURITY FOR DEPOSITS AND INVESTMENT OF FUNDS Section 501. Security for Deposits ................................................ 34 Section 502. Investment of Moneys ............................................... 34 Section 503. The Credit Facility .................................................. 35 ARTICLE VI REDEMPTION OR PURCHASE OF BONDS Section 601. Redemption or Purchase Dates and Prices ............................... 37 Section 602. Company Direction of Optional Redemptions ............................ 38 Section 603. Selection of Bonds to be Called for Redemption .......................... 38 Section 604. Notice of Redemption or Purchase ..................................... 38 Section 605. Bonds Redeemed or Purchased in Part .................................. 39 ARTICLE VII PARTICULAR COVENANTS AND PROVISIONS Section 701. Covenant to Pay Bonds .............................................. 40 Section 702. Limited Obligations of the Issuer ...................................... 40 Section 703. Covenants to Perform Obligations Under this Indenture .................... 40 Section 704. Covenant to Perform Obligations Under the Loan Agreement ............... 40 Section 705. Trustee May Enforce the Issuer's Rights Under the Loan Agreement .......... 41 Section 706. Covenant Against Arbitrage ........................................... 41 Section 707. Inspection of the Bond Register ......................... I ............. 41 Section 708. Priority of Pledge and Security Interest .................................. 41 • ARTICLE VIII DEFAULT AND REMEDIES Section 801. Defaults........................................................... 42 Section 802. Acceleration and Annulment "Thereof ................................... 42 Section 803. Trustee Exercising Rights ............................................. 43 Section 804, Legal Proceedings by Trustee .......................................... 43 Section 805. Discontinuance of Proceedings by Trustee ............................... 44 Section 806. Credit Facility Issuer or Registered Owners 1fay Direct Proceedings .......... 44 Section 807. Limitations on Actions by Registered Owners ............................ 44 Section 808. Trustee May Enforce Rights Without Possession of Bonds .................. 45 Section 809. Remedies Not Exclusive .............................................. 45 Section 810. Delays and Omissions Not to Impair Rights .............................. 45 Section 811. Application of Moneys in Event of Default .............................. 45 Section 812. Trustee and Registered Owners Entitled to All Remedies Under Law .......... 45 Section 813. 'Trustee May File Claim in Bankruptcy ................................... 46 Section 814. Receiver ............................................. I. - ......... 46 ARTICLE IX CONCERNING THE TRUSTEE Section 901. Acceptance of Trusts ................................................ 47 Section 902. Reserved.......................................................... 48 Section 903. Trustee to Give Notice ............................................... 48 Section 904, Trustee Entitled to Indemnity ......................................... 48 Section 905. Trustee Not Responsible for Insurance, Taxes, Execution of Indenture, Acts of the Issuer or Application of Moneys Applied in Accordance with this Indenture...................................................... 49 Section 906. Compensation...................................................... 50 Section 907. Trustee to Preserve Records .......................................... 50 Section 908. Trustee May be Registered Owner ...................................... 50 Section 909, Trustee Not Responsible for Recitals ................................... 50 Section 910. No Responsibility for Recording or Filing ................................ 50 Section 911. Certain Rights of the "Trustee .......................................... 50 Section 912. Qualification of the "Trustee ........................................... 51 Section 913. Resignation and Removal of Trustee .................................... 52 Section 914. Successor Trustee ................................................... 53 Section 915. Co -Trustee ............... .......... I ....... I .... ... ............... 53 Section 916. Notice to Moody's or S&P ............................................ 54 • ill 0 ARTICLE X EXECUTION OF INSTRUMENTS BY REGISTERI. D OWNERS AND PROOF OF OWNERSHIP OF BONDS Section 1001. Execution of Instruments by Registered Owners and Proof of Ownership ofBonds.......................................................... 55 Section 1002. Preservation of Information ........................................... 55 ARTICLE XI THE REMARKETING AGENT; THE TENDER AGENT; THE PLACEMENT AGENT Section 1101. The Remarketing Agent .............................................. 56 Section 1102. The Tender Agent .................................................. 57 Section 1103. The Placement Agent ................................................ 58 Section 1104. Notices........................................................... 58 ARTICLE XII AMENDMENTS AND SUPPLEMENTS Section 1201. Amendments and Supplements Without Registered Owners' Consent ......... 59 Section 1202. Amendments With Registered Owners' and Credit Facility Issuer's Consent .... 59 Section 1203, Supplemental Indentures Affecting Rights of Credit Facility Issuer ............ 60 Section 1204. Amendment of the Loan Agreement .................................... 60 Section 1205. Amendment of the Loan Agreement Requiring the Consent of the Credit Facility Issuer ...................................................... 61 Section 1206. Amendment of Credit Facility ......................................... 61 Section 1207, Trustee Authorized to Join in Amendments and Supplements; Reliance onCounsel........................................................ 61 ARTICLE XIII DEFEASANCE; OTHER PAYMENTS Section 1301. Defeasance........................................................ 62 Section 1302. Deposit of Funds for Payment of Bonds ................................ 63 Section 1303. Effect of Purchase of Bonds .......................................... 63 ARTICLE XIV '.MISCELLANEOUS PROVISIONS 0 Section 1401. Covenants of Issuer to Bind its Successors ............................... 64 IV C7 Section 1402. Notices........................................................... 64 Section 1403. Trustee as Paying Agent .............................................. 65 Section 1404. Rights Under Indenture .............................................. 65 Section 1405. Form of Certificates and Opinions ..................................... 65 Section 1406. Severability........................................................ 65 Section 1407. State Law Governs .................................................. 65 Section 1408. Payments Due on Days Other Than Business Days .................... I ... 65 Section 1409. Execution in Counterparts ........................ I . I ................. 66 Section 1410. Covenants of Issuer Not Covenants of Officials Individually ................. 66 EXHIBIT A Requisition and Certificate ........................................... A-1 EXHIBIT B Form of Notice of Conversion to New Interest Rate Determination Method .. B-1 EXHIBIT C Form of Bond ..................................................... C-1 EXHIBIT D Description of Project .............................................. D-1 v 0 TRUST INDENTURE THIS TRUST INDENTURE, dated as of April 1, 2000 (the "Indenture"), is made and entered into by and between CITY OF TAN ARAC, FLORIDA, a municipal corporation created and existing under and by virtue of the laws of the State of Florida (the "Issuer") and FIRST UNION NATIONAL BANK, a national banking association, having an office in Atlanta, Georgia (in such capacity, together with its successors in trust, the "Trustee); WITNESM H: WHEREAS, the Issuer is authorized and empowered pursuant to the provisions of Chapter 159, Part II, Florida Statutes, as amended, and other applicable provisions of law ("Act") to issue its bonds for such purposes as are provided in the Act; and WHEREAS, in furtherance of the public purpose for which the Issuer created, the Issuer proposes the issue [$7,000,000] in aggregate principal amount of its Industrial Development Revenue Bonds (Fazio Holdings, LP Project), Series 2000 (the "Bonds") pursuant to this Indenture to finance in whole or in part, costs of the acquisition, construction, installation and equipping of a facility to be used for the manufacturing of car wash equipment facilities to be located in Tamarac, Florida as more fully described on Exhibit D attached hereto (the "Project") and [a portion of] the costs of issuance of the Bonds, and to lend the proceeds of the sale to Fazio Holdings, LP, a Florida limited partnership ("Company"); and WHEREAS, the Issuer and the Company will enter into a Loan Agreement, dated as of April 1, 2000 (the "Loan Agreement"), pursuant to which the Company will agree to make a payment sufficient to pay the principal and purchase price of, and redemption premium (if any) and interest on, the Bonds as the same become due and payable and to pay administrative expenses in connection with the Bonds; 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 [$7,000,000] as hereinafter provided; and WHEREAS, the Company and First Union National Bank, a national banking association (the "Bank") have entered into a Letter of Credit and Security Agreement, dated as of April 1, 2000 (the "Reimbursement Agreement"), pursuant to which the Bank has agreed to issue its irrevocable direct pay Letter of Credit, dated the date of delivery of the Bonds (the "Letter of Credit"), in favor of the Trustee, for the account of the Company obligating the Bank to pay the Trustee upon draws made by the Trustee in accordance with the terms thereof, and pursuant to which the Company has agreed to reimburse the Bank for all amounts drawn by the Trustee under the Letter of Credit, together with interest on all such amounts and to pay the Bank certain fees and expenses for issuing the Letter of Credit; and WHEREAS, as security for the payment of the Bonds, the Issuer has agreed to assign and pledge to the Trustee, all right, title and interest of the Issuer (a) the Loan agreement (except certain rights reserved by the Issuer under the terms of this Indenture), (b) all moneys and securities at any time on deposit in transit to or credited to any account or fund created hereunder, including without limitation, the Project Fund and the Bond Fund, by excluding the Rebate Fund, and (c) Revenues (as hereinafter defined); and WHEREAS, all things necessary to make the Bonds, when authenticated by the Trustee and issued and delivered as provided in this Indenture, the legal, valid, binding and enforceable limited obligations of the Issuer, according to the input thereof, and to create a valid assignment and pledge of the Trust Estate to the payment of the principal of, and redemption premium (if any) and the interest on, the Bonds and a valid assignment of certain of the rights, title and interest of the Issuer in the Loan Agreement, have been done and performed, in execution, issuance and delivery of the Bonds, subject to the terms hereof, have been in all respects authorized; and WHEREAS, the Trustee has accepted the trusts created by this Indenture and in evidence thereof has joined in the execution hereof; and WHEREAS, the Issuer has determined that the Bonds to be issued hereunder shall be substantially in the form attached as Exhibit C to this Indenture, with such variations, omissions and insertions as are required or permitted by this Indenture; and NOW, THEREFORE, in consideration of the premises, of the acceptance by the Trustee of the trusts hereby created, and of the purchase and acceptance of the Bonds by the Registered Owners, and also for and in consideration of the sum of One Dollar paid to the Issuer by the Trustee at or before the execution and delivery of this Indenture, the receipt of which is hereby acknowledged, and for the purpose of fixing and declaring the terms and conditions upon which the Bonds are to be issued, delivered, secured and accepted by the Registered Owners and any and all other persons who shall from time to time be or become Registered Owners thereof, and in order to secure the payment of the Bonds at any time issued and outstanding hereunder and the interest thereon according to their tenor, purport and effect, and in order to secure the performance and observance of all the covenants, agreements and conditions therein and herein contained; THE ISSUER DOES HEREBY PLEDGE AND ASSIGN, and grant a security interest unto the Trustee and its successors and assigns for the benefit of the Registered Owners of the Bonds all right, title and interest of the Issuer presently owned or hereafter acquired in and to the following (collectively the "Trust Estate"): (a) The Loan Agreement (as the same may from time to time be supplemented or amended), provided, however, the Issuer shall retain rights for indemnification, payment of costs and expenses, notices, access and information contained in Sections 6.5, 7.1, 7.3, 7.8, 7.9, 7.10, 8.1, 9.5, and 12.5; (b) All money and securities at any time on deposit in, in transit to or credited to any account or fund created hereunder, including without limitation the Project Fund and the Bond Fund, but excluding the Rebate Fund; and 0 (c) Revenues (as hereinafter defined); and it is so mutually agreed and covenanted by and between the parties hereto for the equal and proportionate benefit and security of the Registered Owners without preference, priority or distinction as to lien or otherwise, except as hereinafter provided, of any one Bond over any other Bond, by reason of priority in the issue, sale or negotiation thereof or otherwise, for the benefit of the Registered Owners and as security for the fulfillment of the obligations of the Issuer hereunder; TO IIAVE AND TO HOLD the same forever, subject, however, to the exceptions, reservations and matters therein and herein recited but IN TRUST, nevertheless, for the benefit and security of the Registered Owners from time to time of the Bonds delivered hereunder and issued by the Issuer and outstanding; PROVIDED, HOWEVER, that if, after the right, title and interest of the Trustee in and to the Trust Estate pledged and assigned to it under this Indenture shall have ceased, terminated and become void in accordance with Article XIII hereof, the principal of and interest on the Bonds and any other obligations arising hereunder shall have been paid to the Registered Owners or shall have been paid by the Issuer pursuant to Article XIII hereof, then, this Indenture and all covenants, agreements and other obligations of the Issuer hereunder shall cease, terminate and be void, and thereupon, the Trustee shall cancel and discharge this Indenture and execute and deliver to the Issuer such instruments in writing as shall be required to evidence the discharge hereof; otherwise, this Indenture shall be and remain in full force and effect; and THIS INDENTURE FURTHER WITNESSETH, and it is expressly declared, that the Bonds issued and secured hereunder are to be issued and delivered and the Trust Estate herein pledged and 18 assigned 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 has agreed and covenants, and does hereby agree and covenant, with the Trustee and with the Registered Owners of said Bonds, as follows, that is to say: [Remainder of Page Intentionally Left Blank] 3 �J ARTICLE I DEFINITIONS Section 101. Definitions. The following words and terms as used in this Indenture shall have the following meanings unless some other meaning is plainly intended: "Act" means Chapter 159, Part II, Florida Statutes, as amended, and other applicable provisions of law. "Affiliate" means, with respect to any Person, any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such Person. For the purpose of this definition, "Control' when used with respect to a Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise, and the terms "controlling" and "controlled" have meanings correlative to the foregoing. "Alternate Credit Facility" means an irrevocable direct pay letter of credit or similar credit enhancement or support facility issued by a national or state chartered banking institution for the benefit of the Trustee, the terms of which Alternate Credit Facility shall in all respects material to the Registered Owners be the same (except for the term set forth in such Alternate Credit Facility) as the Letter of Credit as set forth in Section 503 hereof. "Alternate Rate" means the Tax -Exempt Rate for a period equal to the applicable Variable Rate Period. "Alternate Semiannual Rate" means the Tax -Exempt Rate for a period equal to six (6) months. "Available Moneys" means (a) with respect to any payment date occurring during any period that the Bonds are entitled to the benefit of a Credit Facility, (i) any moneys, if in the written opinion of Counsel experienced in bankruptcy law matters (which opinion shall be delivered to the Trustee at or prior to the time of the deposit of such moneys with the Trustee), the deposit and use of such moneys will not constitute an avoidable preferential payment pursuant to Section 547 of the Bankruptcy Code, recoverable from Holders of the Bonds pursuant to Section 550 of the Bankruptcy Code in the event of an Event of Bankruptcy, and (ii) moneys on deposit with the Trustee representing proceeds from the remarketing by the Remarketing Agent of Bonds to persons other than the Company or any Affiliate as described in Article III hereof, which, in each case, were at all times since their deposit with the Trustee held in a separate and segregated account or accounts or sub -account or sub -accounts in which no moneys were at any time held and (iii) moneys drawn under a Credit Facility which in each case were at all times since their deposit with the Trustee held in a separate and segregated account or accounts or sub -account or sub -accounts in which no moneys (other than those drawn under a Credit Facility) were at any time held and (b) with respect to any payment date not occurring during a period that the Bonds are entitled to the benefit of a Credit Facility, any moneys furnished to the "Trustee and the proceeds from the investment thereof. The Trustee may presume that no Gwent of Bankruptcy has occurred unless notified in writing to the contrary by the Company, the 4 Credit Facility Issuer or the Registered Owners of not less than 25% in aggregate principal amount of Bonds Outstanding. "Bank" means First Union National Bank, as the issuer of the Letter of Credit. "Bank Account" means the account of that name established in the Bond Purchase Fund pursuant to Section 302 hereof. "Bankruptcy Code" means Title 11 of the United States Code, as amended, and any successor statute or statutes having substantially the same function. "Beneficial Owner" shall have the meaning set forth in Section 207 hereof "Bond" or "Bonds" means any bond or bonds authenticated and delivered under this Indenture. "Bond Counsel" means an attorney or firm of attorneys of nationally recognized standing in matters pertaining to the tax-exempt nature of interest on obligations issued by the states and their political subdivisions, duly admitted to practice law before the highest court of any state of the United States of America. "Bond Documents" means collectively the Indenture, the Loan Agreement, the Bonds, the Placement Agreement, the Remarketing Agreement, the Private Placement Memorandum, the Letter of Credit, the Reimbursement Agreement and any other documents relating to the issuance of the Bonds or to the Letter of Credit. "Bond Fund" means the trust fund so designated which is established pursuant to Section 403(a) hereof. "Bond Purchase Fund" means the trust fund so designated which is established pursuant to Section 302 hereof. "Bond Register" means the Bond Register as designated in Section 205 hereof. "Bond Registrar" means the Bond Registrar as designated in Section 205 hereof. "Business Day" means any day on which the offices of the Credit Facility Issuer at which drawings on the Credit Facility are made (if such a Credit Facility is in effect), the Trustee, the Paying Agent, the Tender Agent, the Bond Registrar and the Remarketing Agent are each open for business (which is not a Saturday or Sunday) and on which the New York Stock Exchange is not closed. "Calculation Period" means (a) with respect to the Bonds bearing interest at a Weekly Rate, the period from and including the day following the end of the Initial Rate Period to and including the next Wednesday, the period from and including the Conversion Date on which the Interest Rate Determination Method is changed to the Weekly Rate to and including the next Wednesday and, in . each case, each succeeding period from and including each Thursday to and including the following Wednesday, (b) with respect to the Bonds bearing interest at a Monthly Rate, the period from and including the Conversion Date on which the Interest Rate Determination Method is changed to the Monthly Rate to and including the last day of the calendar month in which such Conversion Date occurred and each succeeding period from and including the first day of each calendar month to and including the last day of such calendar month, and (c) with respect to Bonds bearing interest at a Semiannual Rate, the period from and including the Conversion Date on which the Interest Rate Determination Method is changed to and including the last day of the calendar month in which such Conversion Date occurred and each succeeding six-month period from and including the first day of the next calendar month to and including the last day of the calendar month which is six months thereafter. "Cede & Co." means Cede & Co., the nominee of DTC or any successor nominee of DTC with respect to the Bonds. "Code" means the Internal Revenue Code of 1986, as amended. Reference herein to any specific provision of the Code shall be deemed to include a reference to any successor provision to such provision and to any Regulations issued or proposed under or with respect to such provision. "Company' means Fazio Holdings, LP, a Florida limited partnership, and its successors or assigns. "Conversion Date" means any Interest Payment Date by the Issuer in accordance with Section 203 hereof as the effective date of conversion of the interest rate on the Bonds from any Variable Rate to another Variable Rate or to the Fixed Rate. "Cost of the Project" means the definition ascribed to such term in the Loan Agreement. "Counsel" means an attorney or firm of attorneys acceptable to the Trustee and may, but need not, be counsel to the Credit Facility Issuer or the Company. "Credit Facility" means the Letter of Credit or, upon delivery of any Alternate Credit Facility delivered to the Trustee pursuant to Article V hereof and acceptance thereof, such Alternate Credit Facility. "Credit Facility Issuer" means the Bank while the Letter of Credit secures the Bonds or, upon delivery of any Alternate Credit Facility to the Trustee and acceptance of such Alternate Credit Facility by the Trustee pursuant to Article V hereof, the institution issuing such Alternate Credit Facility. "DTC" means The Depository Trust Company, a limited purpose company organized under the laws of the State of New York, and its successors and assigns. "DTC Participant" or "DTC Participants" means securities brokers and dealers, banks, trust companies and clearing corporations that have access to the DTC system. "Defaulted Interest" has the meaning provided in Section 210 hereof. 11 • "Determination Date" means (a) the Business Day nett preceding the first day of each Calculation Period during which the Bonds bear interest at a Weekly Rate, (b) the last Business Day of the calendar month next preceding each Calculation Period during which the Bonds bear interest at a Monthly Rate, (c) the Business Day next preceding the first day of each Calculation Period during which the Bonds will bear interest at a Semiannual Rate and (d) a date that is not more than twenty (20) days nor less than two (2) days prior to any Fixed Rate Conversion Date. "Determination of Taxability" means the definition ascribed to such term in the Loan Agreement. "Event of Bankruptcy" means a petition by or against the Company or any Affiliate of the Company under the Bankruptcy Code or under any similar law relating to bankruptcy, insolvency, reorganization, winding -up or composition or adjustment of debts (other than proceedings instituted by the Company or any Affiliate of the Company against third parties) unless such petition shall have been dismissed and such dismissal shall be final and not subject to appeal. "Event of Default" means any of the events specified in Section 801 hereof to be an Event of Default. "Fixed Rate" means the fixed rate of interest established pursuant to Section 202(e) hereof. "Fixed Rate Conversion Date" means the day on which the Interest Rate Determination Method is converted to a Fixed Rate. "Fixed Rate Period" means the period during which the Fixed Rate is in effect. "Fixed Rate Redemption Period" means the period beginning on the fourth anniversary of the Fixed Rate Conversion Date and ending on the earlier of (i) the Maturity Date and (ii) the date on which principal, accrued interest and redemption premium, if any, on the Bonds have been paid in full. "Government Obligations" means (i) direct obligations of the United States of America, (ii) obligations unconditionally guaranteed by the United States of America, and (iii) securities or receipts evidencing ownership interests in obligations or specified portions (such as principal or interest) of obligations described in clause (i) or (ii) above the full and timely payment of which securities, receipts or obligations is unconditionally guaranteed by the United States of America. "Indenture" means this Trust Indenture as amended or supplemented in accordance with the provisions of Article XII hereof at the time in question. "Initial Interest Rate" means the initial rate of interest on the Bonds established by the Placement Agent on the date of initial authentication and delivery of the Bonds. "Initial Rate Period" means the period from and including the date of initial authentication and delivery of the Bonds to and including VA "Interest Payment Date" means (i) with respect to any Variable Rate Period, the first Business Day of each January, April, July and October commencing the first Business Day of July, 2000, and any date specified as a Conversion Date in accordance with Section 203 hereof and (ii) with respect to any Fixed Rate Period, the first Business Day of April or October following the Fixed Rate Conversion Date. "Interest Rate Determination Method" means any of the methods of determining the interest rate on the Bonds described in Sections 202(d) and 202(e) hereof. "Issuer" means the City of Tamarac, Florida, a municipal corporation duly created and existing under and by virtue of the laws of the State of Florida. "Investment Obligations" means: (a) Government Obligations maturing within one year from the date of acquisition thereof; (b) obligations of any state or political subdivision of the United States or any agency or instrumentality thereof if (i) such obligations are secured by cash, Government Obligations or a combination thereof (A) which have been deposited into a segregated escrow account for and irrevocably pledged to the payment, when due, of the principal or redemption price of and interest on such obligations and (B) which are sufficient, without reinvestment, to provide for the payment, when due, of the principal or redemption price of and interest on such obligations; or (ii) such obligations are insured as to timely payment of principal or redemption price and interest by an insurance company or commercial bank with capital, surplus and undivided profits in excess of $10,000,000 and are rated by Moody's or by S&P in the highest rating category assigned by such rating service to obligations of the same type; (c) bonds, debentures, notes or other evidences of indebtedness issued by any of the following agencies or such other like governmental or government sponsored agencies which may be hereafter created: Bank for Cooperatives; Federal Intermediate Credit Banks; Federal Financing Bank; Federal Horne Loan Bank System; Export -Import Bank of the United States; Farmers Home Administration; Small Business Administration; Inter -American Development Bank; International Bank for Reconstruction and Development; Federal Land Banks; Government National Mortgage Association; or Tennessee Valley Authority; (d) direct and general obligations of any state of the United States, to the payment of the principal of and interest on which the full faith and credit of such state is pledged, if at the time of their purchase such obligations are rated in any of the two highest rating categories by S&P and Moody's; (e) negotiable and non-negotiable certificates of deposit which are issued by banks, trust companies or savings and loan associations maturing within one year from the date of acquisition thereof, provided that the aggregate principal amount of all such certificates issued to or for the benefit of the Company or any Affiliate of the Company by any such institution shall not at any time exceed 10% of the combined capital and surplus of such institution; (0 repurchase agreements for Government Obligations which (i) are entered into with banks, trust companies or dealers in government bonds which report to, trade with and are recognized as primary dealers by a Federal Reserve Bank, and (ii) such Government Obligations shall have a fair market value on the date of the repurchase agreement equal to at least 100% of the amount of the related repurchase obligations, and (iii) such Government Obligations are transferred to the Trustee or a third party agent of the Trustee by physical delivery or by an entry made on the records of the issuer of such Government Obligations; (g) obligations of any state or political subdivision thereof or any agency or instrumentality of such a state or political subdivision, the payment of principal or redemption price of and interest on which is secured by an unconditional, irrevocable letter of credit issued by a bank, trust company, savings and loan association or other financial institution, provided that at the time of its purchase both such obligation and the long term unsecured, uncollateralized debt of such financial institutions are rated in either of the two highest rating categories by S&P and Moody's; (h) shares of an open-end, diversified investment company which is registered under the Investment Company Act of 1940, as amended, and which (i) invests its assets exclusively in Government Obligations having a final maturity date of less than one year from their date of purchase or invests its assets in repurchase agreements described in (f above; (ii) seeks to maintain a constant net asset value per share; and (iii) has aggregate net assets of not less than $10,000,000 on the date of purchase of such shares; provided that, at the time of purchase, such shares are rated in either of the two highest rating categories by S&P and Moody's; (i) Commercial paper rated P-1 by Moody's, or A-1 by S&P, or F-1 by Fitch IBCA, Inc.; and (j) any other investment authorized by the applicable law of the State and approved in writing by the Credit Facility Issuer. "Letter of Credit" means the irrevocable direct pay letter of credit, dated the date of issuance of the Bonds, in the amount of up to $ issued by the Bank, including any extensions or amendments thereof. "Loan Agreement" means the Loan Agreement of even date herewith between the Issuer and the Company and any amendments or supplements thereof permitted by this Indenture. "Majority Registered Owners" means the Registered Owners of more than 50% of the aggregate principal amount of the Bonds Outstanding. "Maturity Date" means April 1, 2016. "Monthly Rate" means the interest rate on the Bonds established in accordance with Section 202(d)(2). 9 . Rate. "Monthly Rate Period" means any period during which the Bonds bear interest at a Monthly "Moody's" means Moody's Investors Service, a Delaware corporation, its successors and assigns, and, if such corporation shall be dissolved or liquidated or shall no longer perform the functions of a securities rating agency, "Moody's" shall be deemed to refer to any other nationally recognized securities rating agency designated by the Remarketing Agent, with the consent of the Company and the Credit Facility Issuer. "Optional Tender Date" means (i) during any Weekly Rate Period, any Business Day and (ii) during any Monthly Rate Period or any Semiannual Rate Period, the first Business Day of each Calculation Period. "Optional Tender Notice" means a notice from the Registered Owner (or Beneficial Owner during any time when the Bonds are held under a book -entry system) of a Bond to the Tender Agent in the form attached to the Bond as Exhibit A. "Outstanding," in connection with Bonds means, as of the time in question, all Bonds authenticated and delivered under this Indenture, except: (a) Bonds theretofore canceled or required to be canceled under Section 214 hereof; • (b) Bonds which are deemed to have been paid in accordance with Article XIII hereof; and 11 (c) Bonds in substitution for which other Bonds have been authenticated and delivered pursuant to Article II hereof. In determining whether the owners of a requisite aggregate principal amount of Bonds Outstanding have concurred in any request, demand, authorization, direction, notice, consent or waiver under the provisions hereof, Bonds which are held by or on behalf of the Company (unless all of the Outstanding Bonds are then owned by the Company) or an Affiliate of the Company shall be disregarded for the purpose of any such determination; provided that the Trustee can assume that no Bonds are owned by an Affiliate of the Company unless the Trustee has received written notice from the Company as to the identity of such Affiliate. "Paying Agent" means the Paying Agent as designated under Section 1403 hereof. "Payment Date" has the meaning provided in Section 402(d) hereof. "Placement Agent" means First Union Securities, Inc. or any other person designated by the Issuer with the consent of the Company and the Credit Facility Issuer meeting the requirements of Section 1103 hereof. 10 "Placement Agreement" means the Placement Letter Agreement of even date herewith, among the Company, the Issuer and the Placement Agent. "Preliminary Fixed Rate" means the rate of interest per annum determined by the Placement Agent at least 25 days prior to the Fixed Rate Conversion Date to be that rate which, in the sole judgment of the Placement Agent based on market conditions prevailing on the date such rate is determined, is the minimum fitted annual rate of interest necessary to enable the Placement Agent to arrange for the sale of all of the Bonds in the secondary market at a price equal to the principal amount thereof, for which the Placement Agent would be so required to arrange for the sale on the Fixed Rate Conversion Date pursuant to Section 202(e) hereof. "Private Placement Memorandum" or "Placement Memorandum" means the Private Placement Memorandum dated the date of issuance of the Bonds, pertaining to the offering of the Bonds. "Project" means the project financed with the proceeds of the Bonds and as described in Exhibit D attached hereto and made a part hereof. "Proposed Rate" means, with respect to any Monthly Rate or Semiannual Rate, the rate of interest, determined on the applicable Proposed Rate Determination Date, that the Remarketing Agent, taking into account market conditions prevailing on the Proposed Rate Determination Date, anticipates to be the minimum rate of interest per annum necessary, in the judgment of the Remarketing Agent, to enable the Remarketing Agent to arrange for the sale of all of the Bonds on the Determination Date in the secondary market at a price equal to the principal amount thereof (plus accrued interest to the date of settlement). "Proposed Rate Determination Date" means each date that is six (6) days prior to each Determination Date with respect to a Monthly Rate Period (or if such day is not a Business Day, the next preceding Business Day) or (b) twenty (20) days prior to each Determination Date with respect to a Semiannual Rate Period (or if such day is not a Business Day, the next preceding Business Day). "Registered Owner" or "Registered Owners" means (a) in the event that the book -entry system of evidence of transfers of ownership in the Bonds is employed pursuant to Section 207, Cede & Co., or the nominee of any other custodian selected by the Trustee to provide for a book -entry system and (b) in all other cases, the person or persons in whose names any Bond or Bonds are registered on the books and records of the Bond Registrar pursuant to Section 205 of this Indenture. "Regular Record Date" means (a) in respect of any Interest Payment Date during the Variable Rate Period, the close of business on the Business Day immediately preceding each such Interest Payment Date, and (b) in respect of any Interest Payment Date during the Fixed Rate Period, the first day (whether or not a Business Day) of the calendar month next preceding each such Interest Payment Date. "Reimbursement .Agreement" means the Letter of Credit and Security Agreement of even date herewith between the Company and the Bank, as the same may be amended from time to time and Filed with the Trustee, and any agreement of the Company with a Credit Facility Issuer setting forth isthe obligations of the Company to such Credit Facility Issuer arising out of any payments under a 11 • Credit Facility and which provides that it shall be deemed to be a Reimbursement Agreement for the purpose of this Indenture. "Remarketing Account" means the account of that name established in the Bond Purchase Fund pursuant to Section 302 hereof. "Remarketing Agent" means First Union Securities, Inc., and its successors as provided in Section 1101 hereof. "Remarketing Agreement" means any Remarketing Agreement between the Company and a Remarketing Agent, as amended, restated, modified or supplemented from time to time. "Revenues" mean (a) all amounts payable to the Trustee with respect to the principal or redemption price of, or interest on the Bonds (1) by the Company under the Loan Agreement, (ii) by the Credit Facility Issuer under a Credit Facility, and (iii) by transfer from the Project Fund and (b) investment income with respect to any moneys held by the Trustee in the Bond Fund. "S&P" means Standard & Poor's Ratings Group, a division of McGraw-Hill, Inc., its successors and assigns, and, if such corporation shall be dissolved or liquidated or shall no longer perform the functions of a securities rating agency, "S&P" shall be deemed to refer to any other nationally recognized securities rating agency designated by the Remarketing Agent, with the consent of the Company and the Credit Facility Issuer. "Semiannual Rate" means the interest rate on the Bonds established in accordance with Section 202(d)(3). "Semiannual Rate Period" means any period during which the Bonds bear interest at a Semiannual Rate. "Special Record Date" means for purpose of payment of Defaulted Interest on the Bonds, the date fixed by the Trustee pursuant to Section 210 hereof. "State" means the State of Florida. "Tax -Exempt Rate" means, for any period, an interest rate per annum (based on a 360-day year) determined by the Remarketing Agent to be the rate that is ninety percent (90%) of the yield for United States 'Treasury Bills maturing approximately thirty (30) days after the Determination Date for such Calculation Period as published in The Wall Strg!,-t Journal (or such equivalent financial publication selected by the Remarketing Agent) on such Determination Date (or the next preceding Business Day on which The Wall StrceeJournal is published if not published on the Determination Date). "Tender Agent" means First Union National Bank and its successors as provided in Section 1102 hereof. 12 • "Tendered Bonds" means those Bonds delivered or deemed delivered by the Registered Owners For purchase pursuant to an Optional Tender Notice or on any Conversion Date. "Trustee" means First Union National Bank and its successors in the trust hereunder. "Undelivered Bonds" means (1) any Bond for which an Optional "Tender Notice has been given pursuant to Section 204 hereof and which has not been delivered to the Tender Agent on the date specified for purchase and (ii) any Bond which has not been delivered to the Trustee for redemption or purchase when called for redemption or purchase on any optional or mandatory redemption or purchase date or a Conversion Date; provided that in either case the Trustee has on hand and available on such date funds sufficient to purchase or redeem said Bond. "Variable Rate" means a Weekly Rate, Monthly Rate or Semiannual Rate. "Variable Rate Period" means that period during which the Bonds bear interest at a Variable Rate. "Weekly Rate" means the interest rate on the Bonds established in accordance with Section 202(d)(1). "Weekly Rate Period" means any period during which the Bonds bear interest at a Weekly Rate. Section 102. Rules of Construction. (a) 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 indicate, the words "Bond", "Registered Owners", and "person" shall include the plural as well as the singular number; the word "person" shall include any individual, corporation, partnership, limited liability company, joint venture, association, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof. (b) Words importing the redemption or calling for redemption of the Bonds shall not be deemed to refer to or connote payment of Bonds at their stated maturity. (c) The Table of Contents, captions and headings in this Indenture are for convenience only and in no way limit the scope or intent of any provision or section of this Indenture. (d) All references herein to particular articles or sections are references to articles or sections of this Indenture unless some other reference is indicated. (e) All references herein to time shall be prevailing Eastern time. 13 . ARTICLE II THE BONDS Section 201. Amount, Terms, and Issuance of Bonds. The Bonds shall be limited to [$7,000,000] in aggregate principal amount and shall contain substantially the terms recited in the form of Bond attached hereto as Exhibit C and as set forth in this Indenture. No Bonds may be issued under this Indenture except in accordance with this Article II. The Bonds may bear such endorsement or legend satisfactory to the Trustee as may be required to conform to usage or law with respect thereto, including the imposition of CUSIP or other identifying numbers. Upon satisfaction of the conditions set forth in Section 215 hereof, the Issuer shall issue the Bonds, and the Trustee shall, at the Issuer's request, authenticate the Bonds and deliver them as specified in the request. Section 202. Denominations, Maturity, Dates and Interest Rates of the Bonds. (a) Denominations, Maturity, Dates. The Bonds shall be designated City of Tamarac, Florida Industrial Development Revenue Bonds (Fazio Holdings, LP Pro)ect), Series 2000. The Bonds shall be issuable as fully registered Bonds in the denomination of $100,000 or any integral multiple of $5,000 in excess thereof, provided that if less than $100,000 principal amount of Bonds is outstanding only one Bond shall be issued in such smaller denomination. Except when only one Bond remains outstanding, no amount of Bonds may be tendered, retained or redeemed under the terms of the Indenture which would result in the ownership of Bonds in denominations other than approved hereunder. All Bonds shall bear the date of their authentication, shall bear interest from the most recent date to which interest has been paid or duly provided for or, if authenticated on an Interest Payment Date, from that date, or if no interest has been paid or duly provided for, from the original date of authentication, and shall mature, subject to prior redemption as provided in Article VI hereof, on the Maturity Date. The Bonds shall be numbered from "1" consecutively upwards prefixed by the letter "R". (b) Interest Rates, The Bonds shall bear interest at the applicable rate provided below. On each Interest Payment Date, interest accrued through the day immediately preceding such Interest Payment Date shall be payable. While the Bonds bear interest at any Variable Rate, interest shall be computed on the basis of a 365 or 366 day year, as applicable, for the number of days actually elapsed. After the Fixed Rate Conversion Date, interest on the Bonds shall be computed on the basis of a 360- day year of 12 equal months of 30 days each. (c) Initial Interest Rate. For the Initial Rate Period, the Bonds shall bear interest at the Initial Interest Rate. (d) Variable Rate. Following the Initial Rate Period and until any Conversion Date, the Bonds shall bear interest at the Weekly Rate. During the Variable Rate Period, the Remarketing Agent shall lnve telephonic or written notice on the Determination Date to the Trustee and the Company of the Variable Rate to be in effect for the next succeeding Calculation Period. The determination of any Variable Rate by the Remarketing Agent shall be conclusive and binding upon the Registered Owners, 14 the Beneficial Owners, the Company, the Trustee, the Issuer, the "fender Agent, the Remarketing Agent and the Credit Facility Issuer. Notwithstanding anything herein to the contrary, each Interest Rate Determination Method in effect from time to time shall continue in effect until the date on which such Interest Rate Determination Method is changed as described in Section 203. (1) Weekly Rate. During any Weekly Rate Period the Bonds will bear interest at the Weekly Rate. During any Weekly Rate Period, the Remarketing Agent will determine the Weekly Rate for the applicable Calculation Period on the applicable Determination Date. Each Weekly Rate shall be the rate of interest per annum determined by the Remarketing Agent on and as of each applicable Determination Date as the minimum rate of interest per annum necessary, in the judgment of the Remarketing Agent taking into account market conditions prevailing on the Determination Date, to enable the Remarketing Agent to arrange for the sale of all of the Bonds on the first day of the applicable Calculation Period in the secondary market at a price equal to the principal amount thereof (plus accrued interest to the date of settlement). If the Remarketing Agent fails to certify such rate, or if for any reason the Weekly Rate is held to be invalid or unenforceable by a court of competent jurisdiction for any period, the Weekly Rate for such Calculation Period shall be the Alternate Rate. Notwithstanding anything else contained herein, the Weekly Rate shall not in any event exceed the lesser of (i) 15% per annum or (ii) the maximum rate permitted by law. (2) Monthly Rate. During any Monthly Rate Period the Bonds will bear interest at the Monthly Rate. During any Monthly Rate Period, the Remarketing Agent will determine the Proposed Rate for the applicable Calculation Period on the Proposed Rate Determination Date. Thereafter, the Remarketing Agent will determine a Monthly Rate on the applicable Determination Date; provided, however, that such rate shall not be less than the Proposed Rate determined by the Remarketing Agent on the preceding Proposed Rate Determination Date. Each Monthly Rate shall be the rate of interest per annum determined by the Remarketing Agent on and as of each applicable Determination Date as the minimum rate of interest per annum necessary, in the judgment of the Remarketing Agent taking into account market conditions prevailing on the Determination Date and subject to the foregoing proviso concerning the Proposed Rate, to enable the Remarketing Agent to arrange for the sale of all of the Bonds on the first day of the applicable Calculation Period in the secondary market at a price equal to the principal amount thereof (plus accrued interest to the date of settlement). If the Remarketing Agent fails to certify such rate or if, for any reason, the Monthly Rate is held to be invalid or unenforceable by a court of competent jurisdiction for any Calculation Period, the Monthly Rate for such Calculation Period shall be the Alternate Rate. In connection with any change in the Interest Rate Determination Method to a Monthly Rate pursuant to Section 203, the Proposed Rate shall be determined as provided above on the applicable Proposed Rate Determination Date and the initial Monthly Rate shall be determined as provided above on the applicable Determination Date. Notwithstanding anything else contained herein, the Monthly Rate shall not in any event exceed the lesser of (i) 15% per annum or (ii) the maximum rate permitted by law. (3) Semiannual Rate. During any Semiannual Rate Period the Bonds will bear interest at the Semiannual Rate. During any Semiannual Rate Period, the Remarketing Agent • will determine the proposed Rate for the next Calculation Period on the Proposed Rate 15 Determination Date. Thereafter, the Remarketing Agent will determine a Semiannual Rate for the next Calculation Period on the applicable Determination Date; provided, however, that such Semiannual Rate shall not be less than the Proposed Rate determined by the Remarketing Agent on the preceding Proposed Rate Determination Date. Each Semiannual Rate shall be the rate of interest per annum determined by the Remarketing Agent on and as of each applicable Determination Date as the minimum rate of interest per annum necessary, in the judgment of the Remarketing Agent taking into account market conditions prevailing on the Determination Date and subject to the foregoing proviso concerning the Proposed Rate, to enable the Remarketing Agent to arrange for the sale of all of the Bonds on the first day of the applicable Calculation Period in the secondary market at a price equal to the principal amount thereof (plus accrued interest to the date of settlement). If the Remarketing Agent fails to certify such rate or if, for any reason, the Semiannual Rate is held to be invalid or unenforceable by a court of competent jurisdiction for any Calculation Period, the Semiannual Rate for such Calculation Period shall be the Alternate Semiannual Rate. In connection with any change in the Interest Rate Determination Method to a Semiannual Rate pursuant to Section 203, the Proposed Rate shall be determined as provided above on the applicable Proposed Rate Determination Date and the initial Semiannual Rate shall be determined as provided above on the applicable Calculation Date. Notwithstanding anything else contained herein, the Semiannual Rate shall not in any event exceed the lesser of (i) 15% per annum or (ii) the maximum rate permitted by law. (e) Fixed Rate. During the Fixed Rate Period, the Bonds shall bear interest at the Fixed Rate. 0 (1) On the Fixed Rate Conversion Date the Fixed Rate shall be established as • follows: (A) if the Placement Agent shall have arranged for the sale of any or all Tendered Bonds at a price equal to the principal amount thereof, the Fixed Rate shall be equal to the interest rate or rates at which such Bonds were sold by the Placement Agent, provided that all Tendered Bonds shall be sold at par and at a rate greater than or equal to the Preliminary Fixed Rate; or (B) if the Placement Agent shall have arranged for the sale of none of the Tendered Bonds, the Fixed Rate shall be equal to the Preliminary Fixed Rate. (2) If, for any reason, the Fixed Rate is held to be invalid or unenforceable by a court of competent jurisdiction, the Fixed Rate will be 8% per annum. Notwithstanding anything to the contrary contained herein or in the Indenture, the Fixed Rate shall in no event be a rate of interest in excess of the maximum rate permitted by law. (3) On or before the Fixed Rate Conversion Date, all Bonds shall be presented to the Trustee for stamping or otherwise noting thereon of the legend: 16 "The interest rate on this Bond has been fixed at per annum in accordance with the provisions of this Bond and Section 202(e) of the Indenture." Section 203. Conversion of Interest Rate Determination Method. (a) Conversion Notice. The Interest Rate Determination Method may be changed, at the direction of the Company, from any Variable Rate to any other Interest Rate Determination Method on any Conversion Date, in whole but not in part, upon delivery of written notice of such change (a "Conversion Notice") by the Company to the Issuer, the Remarketing Agent, the Trustee, the Credit Facility Issuer and the Tender Agent. The Conversion Notice must be delivered (i) not less than 15 days prior to the proposed Conversion Date if the Interest Rate Determination Method is converted to a Weekly Rate or Monthly Rate or (ii) not less than 35 nor more than 60 days prior to the proposed Conversion Date if the Interest Rate Determination Method is converted to a Semiannual Rate or Fixed Rate. Notwithstanding anything in this Indenture to the contrary, conversion to Fixed Rate is conditioned upon (i) receipt by the Issuer of evidence that the Bonds will be rated Aa3 or higher by Moody's or A+ or higher by S&P following conversion, and (ii) compliance with the disclosure requirements of the federal securities laws. Each Conversion Notice shall state (i) that the Company elects to change the Interest Rate Determination Method to a new Interest Rate Determination Method, (ii) the proposed Conversion Date, (Ili) the Interest Rate Determination Method to be in effect from and after such Conversion Date, (iv) whether a Credit Facility is to be in effect from and after such Conversion Date, and, if so, 40 the terms of such Credit Facility, and (v) if a Fixed Rate is to be in effect from and after such Conversion Date, designation of a Placement Agent together with a copy of the agreement between the Placement Agent and the Company concerning the placement of the Bonds at the Fixed Rate. The Placement Agent or Remarketing Agent, as applicable, shall promptly notify the Trustee, the Issuer and the Company of the determination of the Preliminary Fixed Rate or Proposed Rate, as applicable, by telephone, telecopier, telex, telegram or other telecommunication device and upon request shall confirm such notice in writing. Upon receipt of notice of the Proposed Rate or the Preliminary Fixed Rate (or the Conversion Notice, if the new Interest Rate Determination Method is the Weekly Rate), the Trustee shall, as soon as practicable (but in no event more than two Business Days thereafter), send by first class mail, in the name of the Issuer, a notice to the Registered Owners of the Bonds, which notice shall be in the form attached hereto as Exhibit B. If the Company elects to convert the Interest Rate Determination Method to any new Interest Rate Determination Method, all Bonds shall be deemed to have been tendered by the Registered Owners thereof on the Conversion Date. Registered Owners of Bonds which are deemed tendered shall not be entitled to any payment (including any interest to accrue subsequent to the Conversion Date) other than the purchase price for such Bonds which shall be equal to the unpaid principal amount of such Bonds, and any such Bonds shall cease to accrue interest and shall no longer be entitled to the benefits of this Indenture, except for the purpose of payment of the purchase price therefor and interest payable on the Conversion Date. Payment of the purchase price of any such Bonds shall be made only upon the presentment and surrender of such Bonds to the Tender Agent. Upon request, the Trustee shall provide the Tender Agent with the address set forth on the Bond Register for such 17 0 Registered Owner. In the case of any Bond deemed tendered, the Issuer shall cause to be executed, and the Trustee shall authenticate and deliver to the new Registered Owner as provided in Section 301 hereof, a new Bond of like date and tenor in lieu of and in substitution for such Bond deemed to be tendered. Notwithstanding the foregoing provisions of this paragraph, if the Bonds are being held pursuant to a book -entry system as provided in Section 207 hereof, Beneficial Owners, not Registered Owners, shall be deemed to have tendered their interests in the Bonds on the Conversion Date. (b) Opinions With Respect to Conversions. Each Conversion Notice given to the Remarketing Agent and the Trustee shall be accompanied by an Opinion of Bond Counsel to the effect that the change in the Interest Rate Determination Method will not cause the interest on the Bonds to be included in the gross income of the owner thereof for federal income tax purposes and that such change is permitted under the Indenture. The Company shall deliver to the Remarketing Agent and the Trustee by 10:00 a.m., on each Conversion Date under this Section a supplemental Opinion of Bond Counsel to the effect that the change in the Interest Rate Determination Method is permitted under this Indenture and, under the laws existing on such Conversion Date, the change will not cause the interest on the Bonds to be included in the gross income of the owners thereof for federal income tax purposes. (c) Conversion Date. The Conversion Date must be an Interest Payment Date. (d) Failure or Revocation of Conversion. If (i) the Company fails to deliver to the Trustee and the Remarketing Agent on the Conversion Date any supplemental opinion of Bond Counsel required in subsection (b), or (ii) an Event of Default shall have occurred and be continuing hereunder, the Interest Rate Determuiation Method for the Bonds shall not be changed on the Conversion Date and the Trustee shall immediately notify by telephone, confirmed in writing, the Credit Facility Issuer, if any, the Remarketing Agent, the Company and the Tender Agent that the Interest Rate Determination Method for the Bonds shall not be changed on the Conversion Date. Notwithstanding any other provision in this Indenture to the contrary, no conversion of the Interest Rate Determination Method to the Fixed Rate shall occur if the Company, not later than 10:00 a.m., on the Business Day immediately preceding the applicable Determination Date, directs the Remarketing Agent not to change the Interest Rate Determination Method to the Fixed Rate by written notice, with a copy to the Trustee, the Tender Agent, the Remarketing Agent and the Credit Facility Issuer, if any. If a proposed conversion of the Interest Rate Determination Method is canceled pursuant to the provisions of the two preceding paragraphs, all Bonds shall nevertheless be deemed to have been tendered for purchase on the Conversion Date and shall be purchased on the Conversion Date. The Bonds shall continue to bear interest in accordance with the Interest Rate Determination Method in effect prior to the Conversion Date; provided, however, that (i) the rate of interest that the Bonds will bear shall be determined on the Conversion Date and (ii) if the Interest Rate Determination Method in effect prior to the Conversion Date is an Interest Rate Determination Method that requires the Remarketing Agent to set a Proposed Rate, for purposes of this Section 203(d), the provisions of this Indenture requiring the setting of such Proposed Rate shall not be applicable. 100 (e) Failure to Maul Certain Notices. Failure of the Trustee to mail the notice described in Section 203(a), or any defect therein, shall not affect the validity of any interest rate or change in the Interest Rate Determination Method on any of the Bonds or the requirement that the Bonds shall be tendered pursuant to Section 203 or extend the period for tendering any of the Bonds for purchase, and the Trustee shall not be liable to any Registered Owner or Beneficial Owner by reason of its failure to mail such notice or any defect therein. (� Credit Facility Upon Conversion to Semiannual or Fixed Rate. If a Credit Facility is to be in effect immediately following the conversion to a Semiannual Rate or Fixed Rate, such Credit Facility must provide for drawings with respect to the interest component thereunder to pay 210 days' interest on the Bonds at an assumed rate of 15%, plus any premium payable pursuant to Section 601(a) (2). (g) Compliance with S.E.C. Rule 15c2-12. Notwithstanding any provision in this Indenture to the contrary, no conversion to a Fixed Rate shall be permitted unless the Trustee, the Issuer and the Remarketing Agent shall have received, at least two (2) Business Days prior to the proposed Conversion Date, a copy of a continuing disclosure agreement imposing obligations upon the Company, the Trustee or any other responsible parry to comply with the requirements of S.E.C. Rule 15c2-12, as it may be amended or supplemented from time to time, with respect to the Bonds, together with such disclosure documents as the Remarketing Agent shall require in order to comply with such Rule, if the Rule will be applicable upon such conversion. Section 204. Optional Tender Provisions of the Bonds. (a) While the Bonds bear interest at a Variable Rate, any Bond or portion thereof in an authorized denomination (other than a Bond registered in the name of the Company) shall be purchased on the demand of the Registered Owner thereof, on any Optional Tender Date at a purchase price equal to 100% of the principal amount thereof plus accrued interest to the purchase date, if the Registered Owner of such Bond delivers to the Tender Agent at its address filed with the Trustee an Optional 'Tender Notice (i) at least seven (7) days prior to the purchase date specified in such Optional Tender Notice during any Weekly Rate Period or Monthly Rate Period or (ii) at least twenty (20) days prior to the purchase date specified in such Optional Tender Notice during any Semiannual Rate Period. (b) Any Optional Tender Notice delivered pursuant to the preceding paragraph shall automatically constitute: (i) an irrevocable offer to sell such Bond on the Optional Tender Date at a price equal to 100% of the principal amount of such Bond plus accrued interest to such Optional Tender Date; and (ii) an irrevocable authorization and instruction to the Bond Registrar to effect transfer of such Bond to the purchaser thereof on the Optional Tender Date. No purchase of Bonds pursuant to the provisions of this Section 204 shall be deemed a redemption thereof. (c) Any Registered Owner who delivers an Optional Tender Notice pursuant to this Section 204 shall deliver such Bond to the Tender Agent, at its address filed with the Trustee, not less than five days prior to the Optional Tender Date specified in the aforesaid Optional Tender Notice. All Bonds delivered to the Tender Agent pursuant to this Section 204 must be duly endorsed for transfer in blank in form satisfactory to the Trustee. 19 • (d) If a Registered Owner who gives the Optional Tender Notice shall fail to deliver the Bond or Bonds identified in the Optional Tender Notice to the Tender Agent at or prior to 10:00 a.m. on the Optional Tender Date, such Undelivered Bond shall be purchased and shall cease to accrue interest on such Optional Tender Date and the Registered Owner thereof shall thereafter be entitled only to payment of the purchase price therefor and to no other benefits of this Indenture, and the Company, to the extent permitted by law, shall execute and the Trustee shall authenticate and deliver a substitute Bond or Bonds in lieu of the Undelivered Bond and the Bond Registrar shall register such Bond in the name of the purchaser or purchasers thereof pursuant to Section 206 hereof. The Tender Agent shall notify the Trustee and the Bond Registrar of any Undelivered Bonds. The Trustee shall (i) notify the Remarketing Agent of such Undelivered Bonds and (ii) place a stop transfer against such Undelivered Bonds until the Undelivered Bonds are properly delivered to the Tender Agent. Upon notice of such delivery, the Bond Registrar shall make any necessary adjustment to the Bond Register. (e) Notwithstanding anything to the contrary contained herein, the rights of the Registered Owners to tender Bonds pursuant to this Section 204 shall cease immediately and without further notice from and including the date payment of the Bonds is accelerated following an Event of Default pursuant to Article VIII hereof. ( If the Bonds are being held pursuant to a book -entry system as provided in Section 207 hereof, then an Optional Tender Notice may be delivered by a Beneficial Owner. Such Optional Tender Notice must be delivered as required under Section 204(a) and must state that the Beneficial Owner will cause its beneficial interest or portion thereof in an authorized denomination to be tendered, the amount of such interest to be tendered, the Optional Tender Date on which such interest is to be tendered and the identity of the DTC Participant through which the Beneficial Owner maintains its interest. Upon delivery of such notice, such Beneficial Owner must arrange to have its beneficial ownership interest in the Bonds being tendered transferred to the Tender Agent at or prior to 10:00 a.m. on the Optional Tender Date but need not otherwise comply with the provisions of Section 204(c). Section 205. Registered Bonds Required, Bond Registrar and Bond Register. All Bonds shall be issued in fully registered form. The Bonds shall be registered upon original issuance and upon subsequent transfer or exchange as provided in this Indenture. The Issuer hereby appoints the Trustee to act as "Bond Registrar." Upon appointment of a successor Trustee pursuant to Section 914 and acceptance of such appointment, such successor Trustee shall also assume the duties of Bond Registrar. The Bond Registrar shall act as registrar and transfer agent for the Bonds. There shall be kept at an office of the Bond Registrar a register (the "Bond Register") in which, subject to such reasonable regulations as the Issuer or the Bond Registrar may prescribe, there shall be provisions for the registration of the Bonds and for the registration or transfers of the Bonds. The Issuer shall cause the Bond Registrar to designate, by a written notification to the Issuer, a specific office location (which may be changed from time to time, upon similar notification) at which the Bond Register is kept. In the absence of a specific designation by the Bond Registrar, the principal corporate trust office of the Trustee in Atlanta, Georgia shall be deemed the office at which the Bond Register is kept. 20 . Section 206. Transfer and Exchange. Subject to the provisions of Section 207 below, the following provisions shall be applicable to all transfers and exchanges of Bonds. Upon surrender for transfer of any Bond, the Issuer shall execute and the Trustee shall authenticate and deliver in the name of the transferee or transferees, one or more new fully registered Bonds of authorized denomination in the aggregate principal amount which the Registered Owner is entitled to receive; provided that if monies for the purchase of such Bond have been provided pursuant to a draw under the Credit Facility, such Bond shall not be transferable to anyone other than the Company or its assignee or pledgee. Except for transfers in connection with the purchase of Bonds pursuant to Section 204 and the remarketing thereof pursuant to Article III, which shall be effected at the office of the Tender Agent, Bonds shall be surrendered for transfer at the principal corporate trust office of the Trustee in Atlanta, Georgia. Also, the Issuer shall execute and the Trustee shall authenticate and deliver Bonds in lieu of Undelivered Bonds. All Bonds presented for transfer, exchange, redemption or payment (if so required by the Issuer, the Bond Registrar or the Trustee), shall be accompanied by a written instrument or instruments of transfer or authorization for exchange, in form satisfactory to the Bond Registrar, which may include a signature guarantee, duly executed by the Registered Owner or by his attorney duly authorized in writing. No service charge shall be made to a Registered Owner for any exchange or transfer of Bonds, but the Issuer or the Bond Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto. Except in connection with the purchase of Bonds pursuant to Section 204 hereof and the remarketing thereof pursuant to Article III, neither the Issuer, the Trustee nor the Bond Registrar shall be required to issue, transfer or exchange any Bond selected for redemption in whole or in part or to issue, transfer or exchange any of the Bonds during the period of five days preceding the date a notice of redemption is sent. New Bonds delivered upon transfer or exchange shall be valid obligations of the Issuer, evidencing the same debt as the Bonds surrendered, shall be secured by this Indenture and shall be entitled to all of the security and benefits hereof to the same extent as the Bonds surrendered. Section 207. Book -Entry System. The Issuer may make appropriate arrangements for the Bonds (or any portion thereon to be issued or held by means of a book -entry system administered by DTC with no physical distribution of Bonds made to the public (other than those Bonds, if any, not held under such book -entry system). References in this Section 207 to a Bond or the Bonds shall be construed to mean the Bond or the Bonds that are held under the book -entry system. In such event, one Bond of each maturity shall be issued to DTC and held under the FAST system or such other system as permitted by DTC. A book -entry system shall be employed, evidencing ownership of the Bonds in Authorized Denominations, with transfers of beneficial ownership effected on the records of DTC and the DTC Participants pursuant to rules and procedures established by DTC. Each DTC Participant shall be credited in the records of DTC with the amount of such DTC Participant's interest in the Bonds. Beneficial ownership interests in the Bonds may be purchased by or through DTC Participants. The holders of these beneficial ownership interests are hereinafter 21 referred to as the `Beneficial Owners." The Beneficial Owners shall not receive Bonds representing their beneficial ownership interests. The ownership interests of each Beneficial Owner shall be recorded through the records of the DTC Participant from which such Beneficial Owner purchased its Bonds. Transfers of Ownership interests in the Bonds shall be accomplished by book entries made by DTC and, in turn, by DTC Participants acting on behalf of Beneficial Owners. SO LONG AS CEDE & CO., AS NOMINEE FOR DTC, IS TIIE REGISTERED OWNER OF THE BONDS, THE TRUSTEE SHALL TREAT CEDE & CO. AS THE ONLY HOLDER OF TIC BONDS FOR ALL PURPOSES UNDER TI3IS INDENTURE, INCLUDING RECEIPT OF ALL PRINCIPAL OF, PREMIUM, IF ANY, AND INTEREST ON THE BONDS, RECEIPT OF NOTICES, VOTING AND REQUESTING OR DIRECTING THE TRUSTEE TO TAKE OR NOT TO TAKE, OR CONSENTING TO, CERTAIN ACTIONS UNDER TI4IS INDENTURE. Payments of principal, interest, premium, if any, and purchase price with respect to the Bonds, so long as DTC is the only Registered Owner of the Bonds, shall be paid by the Trustee directly to DTC or its nominee, Cede & Co. as provided in the Blanket Letter of Representations dated August 22, 1997 from the Issuer to DTC (the "Letter of Representations") with respect to the Bonds. DTC shall remit such payments to DTC Participants, and such payments thereafter shall be paid by DTC Participants to the Beneficial Owners. Neither the Issuer nor the Trustee shall be responsible or liable for payment by DTC to DTC Participants, for sending transaction statements or for maintaining, supervising or reviewing records maintained by DTC or DTC Participants. In the event that (1) DTC determines not to continue to act as securities depository for the Bonds or (2) the Issuer determines that the continuation of the book -entry system of evidence and transfer of ownership of the Bonds would adversely affect the Issuer's interests or the interests of the Beneficial Owners of the Bonds, the Issuer shall discontinue the book -entry system with DTC with respect to the Bonds. If the Issuer fails to identify another qualified securities depository to replace DTC, the Trustee shall authenticate and deliver replacement Bonds in the form of fully registered Bonds to each Beneficial Owner upon the receipt of instructions from the Issuer. THE ISSUER, THE REMARKETING AGENT, TIIE TENDER AGENT AND THE TRUSTEE SHALL NOT HAVE ANY RESPONSIBILITY OR OBLIGATIONS TO DTC OR ANY DTC PARTICIPANT OR ANY BENEFICIAL OWNER WITH RESPECT TO (i) THE BONDS; (ii) THE ACCURACY OF ANY RECORDS MAINTAINED BY DTC OR ANY DTC PARTICIPANT; (Ili) THE PAYMENT BY DTC OR ANY DTC PARTICIPANT OF ANY AMOUNT DUE TO ANY BENEFICIAL OWNER IN RESPECT OF THE PRINCIPAL OF, PREMIUM, IF ANY, AND INTEREST ON THE BONDS; (iv) THE DELIVERY OR TIMELINESS OF DELIVERY BY DTC OR ANY DTC PARTICIPANT OF ANY NOTICE DUE TO ANY BENEFICIAL OWNER THAT IS REQUIRED OR PERMITTED UNDER THE TERMS OF THIS INDENTURE TO BE GIVEN TO BENEFICIAL OWNERS; (v) THE SELECTION OF BENEFICIAL OWNERS TO RECEIVE PAYMENTS IN THE EVENT OF ANY PARTIAL REDEMPTION OF THE BONDS; OR (vi) ANY CONSENT GIVEN OR OTHER ACTION TAKEN BY DTC, OR ITS NOMINTEE, CEDE & CO., AS REGISTERED OWNER. In the event that a book -entry system of evidence and transfer of ownership of the Bonds is discontinued pursuant to the provisions of this Section, the Bonds shall be delivered solely as fully 22 registered Bonds without coupons in the authorized denominations, shall be lettered "R" and numbered separately from 1 upward, and shall be payable, executed, authenticated, registered, exchanged and canceled pursuant to the provisions hereof. The Trustee shall not be limited to utilizing a book -entry system maintained by DTC but may enter into a custody agreement with any bank or trust company serving as custodian (which may be the Trustee serving in the capacity of custodian) to provide for a book -entry or similar method for the registration and registration of transfer of all or a portion of the Bonds. SO LONG AS A BOOK -ENTRY SYSTEM OF EVIDENCE OF TRANSFER OF OWNERSHIP OF ALL THE BONDS IS MAINTAINED IN ACCORDANCE HEREWITH, THE PROVISIONS OF THIS INDENTURE RELATING TO THE DELIVERY OF PHYSICAL BOND CERTIFICATES WITH RESPECT TO THE BONDS SHALL BE DEEMED INAPPLICABLE OR BE OTHERWISE SO CONSTRUED AS TO GIVE FULL EFFECT TO SUCH BOOK -ENTRY SYSTEM. Section 208. Execution. The Bonds shall be executed by the manual or facsimile signature of the Mayor or Vice Mayor of the Issuer, and the seal of the Issuer shall be affixed, imprinted, lithographed or reproduced thereon and shall be attested by the manual or facsimile signature of the City Clerk or assistant or deputy City Clerk of the Issuer. The form of the Bonds shall be approved by the City Attorney or Assistant City Attorney. Bonds executed as above provided may be issued and shall, upon request of the Issuer, be authenticated by the Trustee, notwithstanding that any officer signing such Bonds or whose facsimile signature appears thereon shall have ceased to hold office at the time of issuance or authentication or shall not have held office at the date of the Bond. Section 209. Authentication. No Bond shall be valid for any purpose until the Trustee's Certificate of Authentication thereon shall have been duly executed as provided in this Indenture, and such authentication shall be conclusive proof that such Bond has been duly authenticated and delivered under this Indenture and that the Registered Owner thereof is entitled to the benefit of the trust hereby created, subject to the provisions of Section 203, Section 204(d) and Article XIII hereof. Section 210. Payment of Principal and Interest; Interest Rights Preserved. The principal and redemption price of any Bond shall be payable, upon surrender of such Bond, at the principal corporate trust office of the Trustee. Interest on each Interest Payment Date shall be payable by check, mailed on the Interest Payment Date to the address of the person entitled thereto on the Regular Record Date or, if applicable, the Special Record Date, as such address shall appear in the Bond Register. Interest shall also be payable by wire transfer to any Registered Owner of Bonds in the principal amount of $500,000 or more at the written request of the Registered Owner received by the Trustee at least five days prior to the Regular Record Date or Special Record Date. If the Interest Payment Date is not a Business Day, interest shall be mailed or sent by wire transfer on the next succeeding Business Day as if made on the Interest Payment Date. Interest on any Bond which is payable, but is not punctually paid or provided for, on any Interest Payment Date ("Defaulted Interest") shall forthwith cease to be payable to the Registered 23 Owner of such Bonds on the relevant Regular Record Date solely by virtue of such Registered Owner having been such Registered Owner on the Regular Record Date, and such Defaulted Interest shall be paid, pursuant to Section 811 hereof, to the person in whose name the Bond is registered at the close of business on a Special Record Date to be fixed by the Trustee, such date to be not more than 15 nor less than 10 days prior to the date of proposed payment. The Trustee shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be mailed, first class postage prepaid, to each Registered Owner, at its address as it appears in the Bond Register, not less than 10 days prior to such Special Record Date. Subject to the foregoing provisions of this Section 210, each Bond delivered under this Indenture upon transfer of or exchange for or in lieu of any other Bond shall carry the rights to interest accrued and unpaid, and to accrue, on such other Bond. Section 211. Persons Deemed Owners. The Issuer, the Trustee and the Bond Registrar may deem and treat the person in whose name any Bond is registered as the absolute owner thereof (whether or not such Bond shall be overdue and notwithstanding any notation of ownership or other writing thereon made by anyone other than the Trustee or the Bond Registrar) for the purpose of receiving payment of or on account of the principal of (and premium, if any, on), and (subject to Section 210) interest on such Bond, and for all other purposes, and neither the Issuer, the Trustee nor the Bond Registrar shall be affected by any notice to the contrary. All such payments so made to any such Registered Owner, or upon his order, shall be valid and, to the extent of the sum or sums so paid, effectual to satisfy and discharge the liability for moneys payable upon any such Bond. isSection 212. Mutilated, Destroyed, Lost, Stolen or Undelivered Bonds. If any Bond shall become mutilated, the Issuer shall execute, and the Trustee shall thereupon authenticate and deliver, a new Bond of like tenor and denomination in exchange and substitution for the Bond so mutilated, but only upon surrender to the Trustee of such mutilated Bond for cancellation, and the Issuer and the Trustee may require reasonable indemnity therefor. If any Bond shall be reported lost, stolen or destroyed, evidence as to the loss, theft or destruction thereof shall be submitted to the Issuer and the Trustee; and if such evidence shall be satisfactory to both and indemnity satisfactory to both shall be given, the Issuer shall execute, and thereupon the Trustee shall authenticate and deliver, a new Bond of like tenor and denomination. The cost of providing any substitute Bond under the provisions of this Section shall be borne by the Registered Owners for whose benefit such substitute Bond is provided. If any such mutilated, lost, stolen or destroyed Bond shall have matured or be about to mature, the Issuer may, with the consent of the Trustee, pay to the Registered Owner the principal amount of such Bond upon the maturity thereof and the compliance with the aforesaid conditions by such Registered Owner, without the issuance of a substitute Bond therefor. • The Issuer shall execute and the Trustee shall authenticate and deliver a substitute Bond in lieu of each Undelivered Bond. Every substitute Bond issued pursuant to this Section 212 shall constitute an additional contractual obligation of the Issuer, whether or not the Bond alleged to have been destroyed, lost or stolen shall be at any time enforceable by anyone, and shall be entitled to all of the benefits of this Indenture equally and proportionately with any and all other Bonds duly issued hereunder. 24 • All Bonds shall be held and owned upon the express condition that the foregoing provisions are, to the extent permitted by law, exclusive with respect to the replacement or payment of mutilated, destroyed, lost, stolen or undelivered Bonds and shall preclude any and all other rights or remedies. Section 213. Temporary Bonds. Pending preparation of definitive Bonds, or by agreement with the purchasers of all Bonds, the Issuer may issue, and, upon request, the Trustee shall authenticate, in lieu of definitive Bonds one or more temporary printed or typewritten Bonds of substantially the tenor recited above in any denomination authorized under Section 202. Upon request of the Issuer, the Trustee shall authenticate definitive Bonds in exchange for and upon surrender of an equal principal amount of temporary Bonds. Until so exchanged, temporary Bonds shall have the same rights, remedies and security hereunder as definitive Bonds. Section 214. Cancellation of Surrendered Bonds. Bonds surrendered for payment, redemption, transfer or exchange and Bonds surrendered to the Trustee by the Issuer for cancellation shall be canceled by the Trustee and disposed of in accordance with the Trustee's document retention policies. Bonds purchased pursuant to Section 204 shall not be surrendered Bonds and, unless otherwise specifically provided in this Indenture, shall be Outstanding Bonds. Section 215. Conditions of Initial Issuance. Prior to or simultaneously with the initial authentication and delivery of the Bonds by the Trustee, the Trustee shall have received notice from the Bank that the conditions for the issuance of the Letter of Credit as set forth in the Reimbursement Agreement have been satisfied and there shall be filed with the Trustee the following. a A copy, terrified b the City Clerk of the Issuer, of the resolutions of the Issuer O PY Y tY authorizing the issuance of the Bonds. (b) The original executed Letter of Credit. (c) Executed counterparts of the Loan Agreement, the Reimbursement Agreement, the Remarketing Agreement, the Placement Agreement and this Indenture. (d) An opinion of Counsel to the Company to the effect that the issuance of the Bonds and the execution and delivery of this Indenture, the Reimbursement Agreement, the Placement Agreement, and the Remarketing Agreement have been duly and validly authorized by the Company, that this Indenture, the Reimbursement Agreement, the Placement Agreement, and the Remarketing Agreement have been duly executed and delivered by the Company, and that the Bonds, this Indenture, the Reimbursement Agreement, the Placement Agreement, and the Remarketing Agreement, assuming due authorization, execution and delivery thereof by the other parties thereto, if any, and due registration and filing under federal and state securities laws or due exemption from any such requirements, are valid, binding and enforceable against the Company in accordance with their terms, subject to the qualification that enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting enforcement of creditors' rights generally and limitations imposed by general principles of equity upon specific enforcement, injunctive relief or other equitable remedies. 25 0 (e) An opinion of counsel to the Issuer, to the effect that the execution and delivery of the Loan Agreement and this Indenture have been duly authorized by the Issuer, that the Loan Agreement and this Indenture are in substantially the forms so authorized and have been duly executed by the Issuer and that, assuming proper authorization and execution of this Indenture by the Trustee and of the Loan Agreement by the Company, the Loan Agreement and this Indenture are the valid and binding agreements of the Issuer enforceable in accordance with their respective terms, subject to the qualification that enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting enforcement of creditors' rights generally and by the exercise of judicial discretion in accordance with general equitable principles. (0 An opinion of Bond Counsel to the effect that the Bonds, when issued are valid and binding (subject to the same qualifications as described in Section 215(e) above) and that the interest on the Bonds is not included in gross income for the owners thereof for federal income tax purposes among other things. (g) An opinion of counsel to the Credit Facility Issuer to the effect that the Credit Facility is a legal, valid and binding obligation of the Credit Facility Issuer among other things. (h) A written request and authorization of the Issuer addressed to the Trustee directing the Trustee to authenticate and deliver the Bonds. (i) Such other documents as the Trustee may reasonably require. When the documents mentioned in clauses (a) through (i) of this Section shall have been filed with the Trustee and when the Bonds shall have been executed as required by this Indenture, the Trustee shall authenticate the Bonds and deliver them to or upon the order of the purchaser(s) named in the resolution or resolutions mentioned in clause (a) of this Section but only upon payment to the Trustee for the account for the Issuer of the purchase price of the Bonds. The Trustee shall be entitled to rely conclusively upon such resolution or resolutions, or documents approved thereby, as to the name of the purchasers and the amount of such purchase price. [Remainder of Page Intentionally Left Blank] P20 0 ARTICLE III • PURCHASE AND REMARKETING OF TENDERED BONDS Section 301. Rernarketings of Tendered Bonds. (a) Not later than the close of business on the date the Tender Agent receives an Optional Tender Notice, the Tender Agent shall notify the Remarketing Agent and the Company by telephone, telex or telecopier, confirmed in writing to the Company and to the Remarketing Agent if requested, specifying the Optional Tender Date and the aggregate principal amount of Bonds to be purchased on the Optional Tender Date pursuant to such Optional Tender Notice. (b) Not later than the close of business on the 10th day prior to a Conversion Date, the Trustee shall notify the Placement Agent or the Remarketing Agent, as applicable, and the Company by telephone, telex or telecopier, confirmed in writing to the Company and to the Placement Agent or Remarketing Agent if requested, specifying the aggregate principal amount of Bonds deemed tendered for mandatory purchase on such Conversion Date. (c) Except as provided in paragraph (d) below and Section 305, upon receipt by the Remarketing Agent of notice from the Tender Agent pursuant to Section 301(a) or (b) hereof and by the Placement Agent of notice from the Trustee pursuant to Section 301(b) hereof, the Remarketing Agent or the Placement Agent, as the case may be, shall use its best efforts to arrange for the sale, at par plus accrued interest, if any, of such Bonds for settlement on the Optional Tender Date or Conversion Date, as applicable. At or before 4:00 p.m. on the Business Day preceding the Optional Tender Date or Conversion Date, the Remarketing Agent or the Placement Agent, as applicable, shall give notice by telephone, telecopier or telex, promptly confirmed in writing if requested, to the Trustee and the Tender Agent specifying the principal amount of such Bonds, if any, to be placed by it and to the Trustee the names, addresses and social security numbers or other tax identification numbers of the proposed purchasers thereof. (d) Notwithstanding the provisions of paragraph (c) above, any Bond purchased pursuant to the terms of this Indenture after the date notice of redemption or conversion is given shall not be remarketed except to a buyer who agrees at the time of such purchase to tender such Bond for redemption or purchase on the redemption or purchase date. (e) During any Variable Rate Period, the Remarketing Agent shall continue to use its best efforts to arrange for the sale, at par plus accrued interest, if any, of any Bonds purchased with moneys advanced under the Credit Facility pursuant to Section 302(a)(2) hereof; provided that Bonds purchased with moneys advanced under the Credit Facility shall not be resold unless the Credit Facility has been reinstated by the amount drawn thereunder to pay the purchase price for such Bonds or will be concurrently reinstated by such amount from the proceeds of such sale upon delivery to the Credit Facility Issuer of the proceeds of such sale and any reinstatement certificate required to be delivered by the Trustee to such Credit Facility Issuer. 27 0 Section 302. Purchase of Bonds Delivered to Tender Agent. (a) There is hereby established with the Tender Agent a Bond Purchase Fund out of which the purchase price for Bonds tendered for purchase on an Optional Tender Date or a Conversion Date shall be paid. There are hereby established in the Bond Purchase Fund two separate and segregated accounts, to be designated the "Remarketing Account" and the "Bank Account." Funds received from purchasers of Tendered Bonds (other than the Company, any Affiliate of the Company, the Issuer or the Credit Facility Issuer) shall be deposited by the Remarketing Agent or the Placement Agent, as the case may be, in the Remarketing Account. At or prior to 9:00 a.m. on each Optional Tender Date or any Conversion Date, the Remarketing Agent or the Placement Agent, as the case may be, shall deliver to the Tender Agent for deposit in the Remarketing Account of the Bond Purchase Fund immediately available funds, payable to the order of the Tender Agent, in an amount equal to the purchase price of the Bonds to be delivered to the Tender Agent that have been remarketed by the Remarketing Agent or placed by the Placement Agent as specified in the notice delivered pursuant to Section 301(c) hereof and shall verify that such Bonds were not remarketed to the Company, any Affiliate of the Company or the Credit Facility Issuer. Funds, if any, drawn by the Trustee under the Credit Facility pursuant to Section 302(b) below in an amount equal to the aggregate purchase price of Bonds tendered for purchase less the amount available in the Remarketing Account shall, at the direction of the Trustee, be delivered by the Credit Facility Issuer to the Tender Agent for deposit in the Bank Account of the Bond Purchase Fund. On each Optional Tender Date and on any Conversion Date, the Tender Agent shall effect the purchase, but only from the funds listed below, from the Registered Owners of such Bonds as are tendered or deemed tendered at a purchase price equal to the principal amount thereof, plus accrued interest, if any, to the date of purchase and such payment shall be made in immediately available funds. Funds for the payment of such purchase price shall be derived from the following sources in the order of priority indicated: (1) proceeds of the remarketing of such Bonds pursuant to Section 301(c) hereof which constitute Available Moneys; (2) moneys furnished by the Trustee to the Tender Agent representing proceeds of a drawing by the Trustee under the Credit Facility; and (3) any other moneys available for such purposes. All amounts held in the Remarketing Account and the Bank Account of the Bond Purchase Fund shall be held uninvested until realized for the purposes provided herein. (b) The Tender Agent shall advise the Trustee by telex or telecopier and shall advise the Credit Facility Issuer by telephone, in each case no later than 9:30 a.m., on each Optional Tender Date or Conversion Date, as the case may be, of the amount of any drawing under the Credit Facility necessary to make full and timely payments hereunder. The Trustee shall promptly (and in no event later than 12:00 p.m.) take all action necessary to draw on the Credit Facility the specified amount. All amounts received from a drawing under the Credit Facility shall be held by the Tender Agent in the Bank Account pending application of such moneys as provided in this Article III. The Trustee shall provide to the Tender Agent the funds referred to in Section 302(a) (2) prior to the time the Tender Agent is required to apply such funds to effect the purchase of Bonds and shall notify the Tender 28 Agent promptly after receipt of notice from the Credit Facility Issuer reinstating the Credit Facility. The Remarketing Agent shall deliver funds from the sale of Bonds held by the Credit Facility Issuer as pledgee of the Company pursuant to Section 301(e) to the Tender Agent for deposit in the Remarketing Account, which funds shall be promptly paid by the Tender Agent on behalf of the Company to the Credit Facility Issuer as reimbursement under the Reimbursement Agreement. The "Tender Agent shall notify the Trustee of any such reimbursement and the Trustee shall promptly deliver to the Credit Facility Issuer any reinstatement certificate required by the Credit Facility. Section 303. Delivery of Purchased Bonds. (a) Bonds purchased shall be delivered as follows: (1) Bonds placed by the Remarketing Agent or the Placement Agent pursuant to Section 301(c) hereof shall be delivered by the Tender Agent thereof to the Remarketing Agent or the Placement Agent, as the case may be, on behalf of the purchasers thereof. (2) Bonds purchased with moneys described in Section 302(a)(2) shall be delivered to the Credit Facility Issuer as pledgee of the Company pursuant to the terms of the Reimbursement Agreement or to the Credit Facility Issuer's designee. (b) Except as otherwise set forth herein, Bonds delivered as provided in this Section 303 shall be registered by the Bond Registrar in the manner directed by the recipient thereof. (c) In the event that any Bond to be delivered to the Tender Agent is not delivered by the Registered Owner thereof on or prior to the Optional Tender Date or the Conversion Date, as the case may be, and there has been irrevocably deposited with the Tender Agent an amount sufficient to pay the purchase price thereof, which amount may be held by the Tender Agent in a non -interest bearing account, the Issuer shall execute and the Trustee or the Authenticating Agent shall authenticate and deliver a substitute Bond in lieu of the Undelivered Bond and the Bond Registrar shall register such Bond in the name of the purchaser thereof. (d) Notwithstanding the foregoing, Bonds purchased with funds identified in Section 302(a)(2) hereof shall be held by the Credit Facility Issuer or the Tender Agent and shall not be delivered to subsequent purchasers thereof or any other person until the Trustee has notified the Tender Agent that the Credit Facility has been reinstated to the extent of the purchase price of such Bonds. Section 304. Delivery of Proceeds of Sale of Remarketed Bonds. The proceeds of the placement by the Remarketing Agent of any Bonds delivered to the Tender Agent on any Optional Tender Date or by the Placement Agent or Remarketing Agent of Bonds tendered or deemed tendered on the Conversion Date shall be paid fir , to the tendering Registered Owners of such Bonds; second, to the Credit Facility Issuer, to the extent of any amounts drawn under the Credit Facility in connection with the payment of the purchase price for such Bonds and not reimbursed to the Credit Facility Issuer as of the time of sale of such Bonds; and tEni, to the Company. Section 305. No Remarketing After Certain Events. Anything in this Indenture to the contrary notwithstanding, there shall be no remarketing of Bonds pursuant to this Article III after the . principal of the Bonds shall have been accelerated pursuant to Section 802 hereof. 29 0 ARTICLE IV INITIAL PROCEEDS, REVENUES AND APPLICATION THEREOF Section 401. Initial Proceeds to Be Paid Over to Trustee. (a) The Issuer shall cause the initial proceeds of the sale of the Bonds to be paid directly to the Trustee. The Trustee shall establish a special fund to be designated City of Tamarac, Florida - Fazio Holdings, LP (the "Project Fund"). Any moneys received by the Trustee or the Issuer under this Indenture from any source for payment of the Cost of the Project, including all proceeds of the sale of the Bonds and insurance and condemnation proceeds as provided in the Loan Agreement, shall be deposited to the credit of the Project Fund. The moneys in the Project Fund shall be held by the Trustee in trust and, subject to the provisions of this Indenture, shall be applied to the payment of the Cost of the Project and, pending such application, shall be and are hereby made subject to a lien and charge in favor of the owners of the Bonds issued and outstanding under this Indenture and for the further security of such owners until paid out or transferred as herein provided. (b) Pavrymentsfrom the RLQject Fund. Payment of the Cost of the Project shall be made from the Project Fund. All payments from the Project Fund shall be subject to the provisions and restrictions set forth in this Section, and the Issuer covenants that it will not cause to be paid from the Project Fund any sums except in accordance with such provisions and restrictions. Such payments shall be made by the Trustee upon receipt of an appropriately completed requisition and certificate signed by a representative of the Company (substantially in the form of the Requisition and Certificate attached hereto as Exhibit A and hereby deemed incorporated herein) stating to whom the payment described is to be made and the purpose, in reasonable detail, for which the obligation to make such payment was incurred and including, if such requisition and certificate comprises an item for payment for labor or to contractors, buildings or materialmen, a paragraph in the form of the last paragraph of the attached form of requisition and certificate. The Trustee is authorized and directed to apply the money in the Project Fund in accordance herewith but only upon receipt of the requisition required by this Section, duly executed by the person and in the manner provided for herein. (c) Trustee May Rey on Reau_ � isitions. All requisitions in the form provided by this Section and all other statements, orders, certifications and approvals received by the Trustee, as required by this Section as conditions of payment from the Project Fund, may be conclusively relied upon by the Trustee, and shall be retained by the 'Trustee as provided in this Section subject at all reasonable times to examination by the Company, the Issuer, any Bondholder and the agents and representatives thereof. (d) Com—pletion Date. The establishment of the Completion Date and the disposition of moneys then held for the credit of the Project Fund shall be in accordance with Sections 4.3 and 4.4 of the Loan Agreement, respectively. (e) `I"ma&r to the Bond Fund. In the event that the Company should elect or be required to prepay the loan payments pursuant to Section 10.1, Section 10.2 or Section 10.3 of the Loan M11 • Agreement or that the Trustee shall declare the Bonds to be due and payable pursuant to Section 802 hereof, the Trustee shall, without further authorization, forthwith transfer any balance remaining in the Project Fund to the Bond Fund. (� Irustee's Records. The Trustee shall maintain adequate records for a period of at least three (3) years after the Completion Date pertaining to all disbursements from the Project Fund. After the Completion Date, the Trustee shall deliver to the Issuer and the Company a final accounting. (g) Dispo2ition of Balance in Project Fund. When the Project shall have been completed and the Trustee shall have received a certificate of the Company representative stating the Completion Date and what items of the Cost of the Project, if any, have not been paid, and for the payment of which money should be reserved, any funds remaining after the Trustee has reserved funds for unpaid items shall be deposited in the Bond Fund and applied by the Trustee at the written direction of the Company as soon as thereafter as practicable (i) to the purchase of Bonds at such price and upon such terms and conditions as the Company may direct or to the reimbursement of the Credit Facility Issuer for draws under the Credit Facility to purchase Bonds, or (ii) to the redemption of the Bonds, on the first redemption date occurring after the Completion Date at the applicable optional or mandatory redemption price (if any) or to reimburse the Credit Facility Issuer for draws under the Credit Facility to redeem Bonds, or (iii) provided that the Trustee shall have received an opinion of Bond Counsel that such deposit shall not cause interest on the Bonds to be includable in gross income for federal income tax purposes under Section 103 of the Code, such amounts may be transferred to the Bond Fund (as hereinafter created) for payment of maturing principal of or interest on any of the Bonds or to reimburse the Credit Facility issuer for draws under the Credit Facility for such payment. Section 402. Revenues to be Paid Over to Trustee. The Issuer has caused the Revenues to be paid directly to the Trustee. If, notwithstanding these arrangements, the Issuer receives any payments under the Loan Agreement or on account of a Credit Facility with respect to the principal or redemption price of or interest on the Bonds, the Issuer shall immediately pay over the same to the Trustee to be held as Revenues. Section 403. The Bond Fund. (a) There is hereby established with the Trustee a special fund to be designated City of Tamarac, Florida Industrial Development Revenue Bonds (Fazio Holdings, LP Project) Bond Fund" (the "Bond Fund"), the moneys in which (1) in accordance with Section 403(c), the Trustee shall apply to pay (i) the principal or redemption price of Bonds as they mature or become due, upon surrender thereof, and (ii) the interest on the Bonds as it becomes payable or (2) the Trustee shall hold and invest at the direction of the Company, and shall distribute in accordance with the terms hereof. There are hereby established with the Trustee within the Bond Fund two separate and segregated accounts, to be designated the "Loan Repayments Account" and the "Credit Facility Account." (b) There shall be deposited into the accounts of the Bond Fund from time to time the following: (1) into the Loan Repayments Account, (i) all payments of principal of, redemption 40 price of or interest on the Bonds under the terms of the Loan Agreement, and (ii) all other 31 • moneys received by the Trustee under and pursuant to the provisions of this Indenture, when accompanied by written directions from the person depositing such moneys that such moneys are to be paid into such account of the Bond Fund. All amounts deposited in the Loan Repayments Account shall be segregated and held, with the earnings thereon, separate and apart from other funds in the Bond Fund until such amounts become Available Moneys. At such time as funds deposited in the Loan Repayments Account become Available Moneys, they may be commingled with other Available Moneys in the Loan Repayments Account; and (2) into the Credit Facility Account, all moneys drawn by the Trustee under the Credit Facility to pay the principal or redemption price of (excluding any premium) and interest on the Bonds. (c) Except as provided in Section 811 hereof, moneys in the Bond Fund shall be used solely for the payment of the principal or redemption price of and interest on the Bonds from the following sources but only in the following order of priority: (1) moneys drawn under the Credit Facility and held in the Credit Facility Account, provided that in no event shall moneys held in the Credit Facility Account be used to pay any amounts due on Bonds which are held by or for the account of the Company, including without limitation, Bonds pledged to the Credit Facility Issuer, or to pay any portion of the redemption premiums required pursuant to Section 601(a) (2) unless such Credit Facility provides for payment of such premiums; (2) moneys held in the Loan Repayments Account to the extent such amounts qualify as Available Moneys (except with respect to moneys paid on Bonds that are held by or for the Company, including without limitation, Bonds pledged to the Credit Facility Issuer, which moneys need not qualify as Available Moneys); and (3) any other moneys furnished to the Trustee for deposit in the Bond Fund. (d) On the Business Day preceding each date on which principal or redemption price of or interest on the Bonds is due and payable (each, a "Payment Date"), the Trustee shall notify the Company and the Credit Facility Issuer in writing of the amounts of principal and redemption price and interest on the Bonds due on such Payment Date. Not later than 9:30 a.m. on each Payment Date, the Trustee shall present a draft or drafts under the Credit Facility in the amounts due and payable on the Bonds. Such funds shall be wired by the Credit Facility Issuer to be deposited in the Credit Facility Account and payments due under the Bonds shall be made by the Trustee in accordance with Section 210 and Section 403(c) hereof. Following such payment to the Registered Owners, the Trustee shall, on behalf of the Company, promptly pay moneys on deposit in the Loan Repayments Account in an amount equal to the amount of such drawing or drawings to the Credit Facility Issuer as reimbursement to the Credit Facility Issuer under the terms of the Reimbursement Agreement; provided, however, the Issuer may, at its option, reimburse the Credit Facility Issuer directly pursuant to the terms of the Reimbursement Agreement. So long as a Credit Facility is in effect and has not been wrongfully dishonored, and no amounts are owed by the Company to the Credit Facility Issuer under the Reimbursement Agreement, any amounts remaining in the Repayments Account on the W, • Business Day next following an Interest Payment Date shall be paid to the Company upon request with the consent of the Credit Facility Issuer. (e) Except as provided in the following sentence, the Bond Fund shall be depleted at least once each year, except for a reasonable carryover amount (not to exceed the greater of one year's earnings on the Bond Fund or one -twelfth (1/12th) of annual debt service). Any money deposited in the Bond Fund shall be spent within a thirteen (13) month period beginning on the date of deposit, and any amount received from investment of money held in the Bond Fund shall be spent within a one (1) year period beginning on the date of receipt. Any amounts remaining in the Bond Fund after payment in full of the principal or redemption price of (if any) and interest on the Bonds (or provisions for payment thereof} shall be paid to the Company at the written request of the Company therefor or as otherwise required by law; provided, that if any payments have been received by the Trustee from the Credit Facility in connection with such payment of the Bonds, any remaining amounts shall be paid to the Credit Facility Issuer to the extent of such payments. Section 404. Initial Proceeds and Revenues to Be Held for .All Registered Owners; Certain Exceptions. The initial proceeds of the sale of the Bonds and the other moneys held in the Bond Fund shall, until applied as provided in this Indenture, be held by the Trustee in trust for the benefit of the Registered Owners of all Outstanding Bonds, except that any moneys representing the principal or redemption price of any Bonds, and interest on any Bonds previously matured or called for redemption in accordance with Article VI of this Indenture, shall be held for the benefit of the Registered Owners of such Bonds only. Section 405. Rebate Fund. In the event that the Company provides for the deposit of amounts from time to time for rebate in the United States pursuant to the Loan Agreement, the Trustee is hereby authorized to create a special fund to be designated as the "Rebate Fund". The Rebate Fund shall be held separate and apart from all other funds under this Indenture and shall not be subject to the lien and pledge granted hereunder for the benefit of the owners of the Bonds. The Trustee shall remit money deposited in the Rebate Fund to the United States or otherwise directed in writing by the Company. All moneys deposited in the Rebate Fund shall be held and vested at the sole discretion of the Company. In making investments hereunder, or in selling or in disposing of investments as required hereby, the Trustee shall have no duty or responsibility to independently verify compliance with Section 148 of the Code and the Regulations, and the Trustee and the Issuer shall be fully protected in relying solely upon the written directions of the Company as aforesaid. Under no circumstances whatsoever shall the Trustee be liable to the Issuer, the Company or any owner of the Bonds or any loss of tax-exempt status of the Bonds, or any claims, demands, damages, liabilities, lawsuits, loss or expenses resulting therefrom or in any way connected therewith, so long as the Trustee acts only in accordance with the written directions of the Company as provided hereunder. Neither the Trustee nor the Issuer shall be responsible for any losses in the investment of money in the Rebate Fund made at the direction of the Company. [Remainder of Page Intentionally Left Blank] 33 0 ARTICLE V is DEPOSITARIES OF MONEYS, SECURITY FOR DEPOSITS AND INVESTMENT OF FUNDS Section 501. Security for Deposits. All moneys deposited with the Trustee under the provisions of this Indenture shall be held in trust and applied only in accordance with the provisions of this Indenture and shall not be subject to lien (other than the lien created hereby) or attachment by any creditor of the Trustee, the Issuer or the Company. Section 502. Investment of Moneys. At the request and the direction of the Company (confirmed in writing), moneys held for the credit of the Bond Fund and the Project Fund (including any amount therein) shall be invested and reinvested by the Trustee in Investment Obligations which shall mature not later than the respective dates when the moneys held for the credit of the Bond Fund will be required for the purposes intended, provided that moneys held in the Credit Facility Account of the Bond Fund shall be invested and reinvested by the Trustee only in Government Obligations which shall mature not later than the date on which such moneys will be required to be paid. The Trustee shall be entitled to rely on instructions from the Company. In making investments hereunder, or in selling or disposing of investments as required hereby, the Trustee shall have no duty or responsibility to independently verify compliance with Sections 148(d) and 148(i) of the Code and the regulations promulgated thereunder and the Trustee shall be fully protected and rely solely upon the written directions of the Company. Under no circumstances whatsoever shall the Trustee be liable to the Issuer, the Company or any owner of the Bonds or any loss of tax-exempt status of the Bonds, or any claims, demands, damages, liabilities, loss, costs or expenses resulting therefrom or in any way connected therewith, so long as the Trustee acts only in accordance with the written directions of the Company. Obligations so purchased as an investment of moneys in any Fund shall be deemed at all times to be a part of such Fund, and the interest accruing thereon and any profit realized from such investment shall be credited to such Fund, and any loss resulting from such investment shall be charged to such Fund. The Trustee shall sell at market price or present for redemption any obligation so purchased whenever it shall be necessary so to do in order to provide cash to meet any payment or transfer from any such Fund or account. The Trustee shall not be liable or responsible for any loss resulting from any such investment or the sale of any such investment made pursuant to the terms of this Section. For the purpose of the Trustee's determination of the amount on deposit to the credit of any such fund or account, obligations in which moneys in such fund or account have been invested shall be valued at the lower of cost or market. The Trustee may make any and all investments permitted by this Section through its own bond or investment department, unless otherwise directed in writing by the Company, and absent written direction from the Company the Trustee shall invest in Investment Obligations. 34 0 Section 503. The Credit Facility. (a) Initial Letter of Credit. The Letter of Credit shall be a direct pay letter of credit and shall provide for direct payments to or upon the order of the Trustee as hereinafter set forth and shall be the irrevocable obligation of the Bank to pay to or upon the order of the Trustee, upon request and in accordance with the terms thereof, an amount of up to 5 of which (a) $ shall support the payment of principal on the Bonds when due and that portion of the purchase price corresponding to principal of "Tendered Bonds not remarketed on any Optional Tender Date or sold on any Conversion Date, and (b) $ shall support the payment of up to 120 days' interest at an assumed rate of 15% per annum on the Bonds when due and that portion of the purchase price corresponding to interest on Tendered Bonds not remarketed on any Optional Tender Date or sold on any Conversion Date. The Letter of Credit shall terminate automatically on the earliest of (i) the date on which a drawing under the Letter of Credit has been honored upon the maturity or acceleration of the Bonds or redemption of all the Bonds, (ii) the second day after the date that the Credit Facility Issuer receives a certificate stating that the Bonds have been converted to a Fixed Rate, (iii) the date on which the Bank receives notice from the Trustee that an Alternate Credit Facility is substituted for the Letter of Credit and is in effect, (iv) the date on which the Bank receives notice from the Trustee that there are no longer any Bonds Outstanding, and (v) the expiration date stated in the Letter of Credit as it may be extended pursuant to the terms thereof. The Bank's obligation under the Letter of Credit may be reduced to the extent of any drawing thereunder, subject to reinstatement as provided therein. The Letter of Credit shall provide that, with respect to a drawing by the Trustee solely to pay interest on the Bonds on any Interest Payment Date, if the Trustee shall not have received from the Bank within ten days from the date of such drawing a notice by telecopier, by telex or in writing that the Bank has not been reimbursed, the Trustee's right to draw under the Letter of Credit with respect to the payment of interest shall be reinstated on or before the 11th calendar day following such drawing in an amount equal to such drawing. With respect to any other drawing by the Trustee, the amount available under the Letter of Credit for payment of the principal, purchase price or redemption price of the Bonds and interest on the Bonds shall be reinstated in an amount equal to any such drawing but only to the extent that the Bank is reimbursed in accordance with the terms of the Reimbursement Agreement for the amounts so drawn. The Letter of Credit shall provide that if, in accordance with the terms of the Indenture, the Bonds shall become or be declared immediately due and payable pursuant to any provision of the Indenture, the Trustee shall be entitled to draw on the Letter of Credit to the extent that the amounts are available thereunder to pay the aggregate principal amount of the Bonds then Outstanding plus an amount of interest not to exceed 120 days. (b) Expiration. Unless all of the conditions of Section 503(c) have been met at least 35 days before the Interest Payment bate next preceding the expiration date of a Credit Facility, the Trustee shall call the Bonds for redemption in accordance with Section 601(c). If at any time there shall cease to be any Bonds Outstanding hereunder, the Trustee shall promptly surrender the then current Credit Facility to the Credit Facility Issuer for cancellation. The Trustee shall comply with the procedures set • forth in the Credit Facility relating to the termination thereof. 35 • (c) Alternate Credit Facilities. While the Bonds bear interest at the Variable Rate, the Company may, at its option, provide for the delivery to the Trustee of an Alternate Credit Facility. At least 25 days prior to the date of delivery of an Alternate Credit Facility to the Trustee, the Company shall furnish to the "Trustee (i) an opinion of Counsel stating that the delivery of such Alternate Credit Facility to the 'Trustee is authorized under this Indenture and complies with the terms hereof and that such Alternate Credit Facility is enforceable against the Credit Facility Issuer thereof in accordance with its terms, and (ii) if the Bonds are rated by Moody's and/or S&P, written evidence from Moody's, if the Bonds are rated by Moody's, and from S&P, if the Bonds are rated by S&P, in each case to the effect that such rating agency has reviewed the proposed Alternate Credit Facility and that the substitution of the proposed -alternate Credit Facility for the then current Credit Facility will not, by itself, result in (A) a permanent withdrawal of its rating of the Bonds or (B) a rating of the Bonds lower than P-1 by Moody's or A-1 by S&P, or if the Bonds are not rated by Moody's and/or S&P, written evidence that the commercial paper of the bank or institution issuing the proposed Alternate Credit Facility is rated P-1 or higher by Moody's or A-1 or higher by S&P. The Trustee shall then accept such Alternate Credit Facility and surrender the previously held Credit Facility to the previous Credit Facility Issuer for cancellation promptly on or before the 15th day after the Alternate Credit Facility becomes effective, but not later than the 15th day following the last Interest Payment Date covered by the Credit Facility to be canceled. (d) Notices of Substitution or Replacement of Credit Facility. (1) The Trustee shall, at least 20 days prior to the proposed replacement of a Credit Facility with an Alternate Credit Facility, give notice thereof by first class mail to Registered Owners of the Bonds, which notice shall include the identity of the issuer thereof and the rating, if any, to be assigned to the Bonds by Moody's or S&P following the effective date of such Alternate Credit Facility or, if the Bonds are not rated by Moody's and/or S&P, written evidence that the commercial paper of the bank or institution issuing the proposed Alternate Credit Facility is rated P-1 or higher by Moody's or A-1 or higher by S&P. (2) The Trustee shall promptly give notice of any replacement of the Credit Facility to the Issuer, the Tender Agent and the Remarketing Agent.. [Remainder of Page Intentionally Left Blank] 36 0 ARTICLE VI REDEMPTION OR PURCHASE OF BONDS Section 601. Redemption or Purchase Dates and Prices. The Bonds shall be subject to redemption, and, in certain instances, to purchase, prior to maturity in the amounts, at the times and in the manner provided in this Article VI. Payments of the redemption price or the purchase price of any Bond shall be made only upon the surrender to the Trustee or the Tender Agent as required hereunder of any Bond so redeemed or purchased. (a) Optional Redemption. (1) Optional Redemption During Variable Rate Period. While the Bonds bear interest at a Variable Rate, the Bonds shall be subject to redemption on any Interest Payment Date, at the option of the Company, but only upon 45 days prior written direction of the Company delivered to the Trustee and the Issuer, with the prior written consent of the Credit Facility Issuer (which may not be unreasonably withheld), in whole or in part, at a redemption price equal to 100% of the principal amount thereof, without premium, plus accrued interest on the redemption date. (2) Optional Redemption With Premium During Fixed Rate Period. While the Bonds bear interest at the Fixed Rate, the Bonds shall be subject to redemption, at the option and upon the written direction of the Company delivered to the Trustee and the Issuer at least 45 days prior to the date set for redemption, in whole or in part, on any Interest Payment Date occurring on or after the dates set forth below, at the redemption prices (expressed as percentages of the principal amount to be redeemed) set forth below plus accrued interest to the redemption date as follows: Commencement of Fixed Rate Redemption Period Four years from the Fixed Rate Conversion Date (b) Extraordinary Mandatory Redemption. 103%, declining by 1 /2% on each succeeding anniversary of the first day of the Fixed Rate Redemption Period until reaching 100% and thereafter at 100% (1) The Bonds shall be subject to mandatory redemption in whole during any Variable Rate Period at 100% of the principal amount thereof, without premium, plus accrued interest, if any, thereon to the date of redemption, on the Interest Payment Date occurring closest to but not less than 15 days prior to the date of expiration of the then current Credit Facility, unless an Alternate Credit Facility has been provided in accordance with Article V hereof. 9YA (2) The Bonds shall be subject to mandatory redemption in whole on any date at a redemption price equal to 100% of the principal amount thereof, without premium, plus accrued interest to the redemption date which shall not be more than one hundred eighty (180) days following the receipt by the Trustee of a written notice of a Determination of Taxability. (3) The Bonds shall be subject to mandatory redemption in whole or in part from excess moneys in the Project Fund or from -moneys drawn under the Credit Facility for which the Credit Facility Issuer has been reimbursed from such excess moneys in accordance with the provisions of Section 4.4 of the Loan Agreement, which redemption date shall be no more than 60 days following the date of transfer of moneys to the Bond Fund from the Project Fund. (c) Mandatory Purchase on Conversion Date. As provided in Section 203(a), the Bonds shall be subject to mandatory purchase at 100% of the principal amount thereof, without premium, plus accrued interest, if any, thereon to the date of purchase, on any Conversion Date. Section 602. Company Direction of Optional Redemptions. So long as a Credit Facility is then held by the Trustee, the Trustee shall only call Bonds for optional redemption if it has Available Moneys in the Loan Repayments Account of the Bond Fund or has been notified by the Credit Facility Issuer that the Trustee will receive moneys pursuant to the Credit Facility, in the aggregate, sufficient to pay the redemption price of the Bonds to be called for redemption, plus accrued interest thereon. No optional redemptions shall be effected at the option of the Company during the Variable Rate Period under this Article VI without the prior written consent of the Credit Facility Issuer, which consent shall not be unreasonably withheld. Section 603. Selection of Bonds to be Called for Redemption. Except as otherwise provided herein or in the Bonds, if less than all the Bonds are to be redeemed, the particular Bonds to be called for redemption shall be selected by the Trustee in the following order of priority: first, bonds pledged to the Credit Facility Issuer pursuant to the Reimbursement Agreement, second, Bonds owned by the Company and lLir, Bonds selected by lot from among the Registered Owners of less than $1,000,000 in aggregate principal amount; provided that if there are no such Registered Owners, or if after selection from among such Registered Owners such selection has resulted in redemption of less than a sufficient amount of Bonds or in Bonds outstanding in unauthorized denominations, then the remaining amount of Bonds to be redeemed shall be selected from among the Registered Owners of $1,000,000 or more in aggregate principal amount of Bonds. In no event shall the Trustee select Bonds for redemption if such redemption will result in any Registered Owner owning Bonds in principal amounts other than in authorized denominations under Section 202(a) hereof. If a redemption cannot be effected to result in such authorized denominations, the Trustee shall select Bonds for redemption by lot and the denomination of the remaining Bonds outstanding shall be deemed authorized under Section 202(a) hereof. Section 604. Notice of Redemption or Purchase. (a) When required to redeem or purchase Bonds under any provision of this Article VI, or when directed to do so by the Issuer or the Company, the Trustee shall cause notice of the redemption or purchase to be given not more than 60 days and not less than 30 days prior to the W redemption or purchase date by mailing a copy of all notices of redemption or purchase by first class mail, postage prepaid, to all Registered Owners of Bonds to be redeemed or purchased at their addresses shown on the Bond Register. Failure to mail any such notice or any defect in the mailing thereof in respect of any Bond shall not affect the validity of the redemption or purchase of any other Bond. Notices of redemptions or purchases shall also be mailed to the Remarketing Agent and the Credit Facility Issuer, if any. Any such notice shall be given in the name of the Issuer, shall identify the Bonds to be redeemed or purchased (and, in the case of partial redemption or purchase of any Bonds, the respective principal amounts thereof to be redeemed or purchased), shall specify the redemption or purchase date, and shall state that on the redemption or purchase date the redemption or purchase price of the Bonds called for redemption will be payable at the principal corporate trust office of the Trustee, or in the case of mandatory purchases pursuant to Section 601(d) at the office of the Tender Agent and that from that date interest will cease to accrue. The Trustee may use "CUSIP" numbers in notices of redemption or purchase as a convenience to Registered Owners, provided that any such notice shall state that no representation is made as to the correctness of such numbers either as printed on the Bonds or as contained in any notice of redemption or purchase and that reliance may be placed only on the identification numbers containing the prefix established under the Indenture. (b) With respect to any notice of redemption of Bonds in accordance with Section 601(c), such notice shall also specify the date of the expiration of the term of the Credit Facility. (c) If at the time of mailing of notice of any optional redemption, there shall not have been deposited with the Trustee moneys sufficient to redeem all the Bonds called for redemption, such notice may state that it is conditional on the deposit of Available Moneys with the Trustee not later than the redemption date, and such notice shall be of no effect unless such moneys are so deposited. (d) Upon redemption of less than all of the Bonds, the Trustee shall furnish to the Credit Facility Issuer a notice in the form specified by the Credit Facility Issuer to reduce the coverage provided by the Credit Facility and upon redemption of all of the Bonds, the Trustee will surrender the Credit Facility to the Credit Facility Issuer for cancellation. (e) Purchases under Section 601(c) hereof shall be in accordance with Section 203. Section 605. Bonds Redeemed or Purchased in Part. Any Bond which is to be redeemed or purchased only in part shall be surrendered at a place stated in the notice provided for in Section 604 (with due endorsement by, or a written instrument of transfer in form satisfactory to the Trustee duly executed by, the Registered Owner thereof or his attorney duly authorized in writing) and the Issuer shall execute and the Trustee shall authenticate and deliver to the Registered Owner of such Bond without service charge, a new Bond or Bonds, of any authorized denomination as requested by such Registered Owner in aggregate principal amount equal to and in exchange for the unredeemed and unpurchased portion of the principal of the Bond so surrendered. 39 0 ARTICLE VII PARTICULAR COVENANTS AND PROVISIONS Section 701. Covenant to Pay Bonds. The Issuer covenants that it will promptly pay the principal of and interest on and other amounts payable under the Bonds at the places, on the dates and in the manner provided herein and in the Bonds -according to the true intent and meaning thereof. Such principal and interest and other amounts are payable solely from payments made by the Company under the Loan Agreement and other Revenues. Section 702. Limited Obligations of the Issuer. TIIE ISSUER SHALL NOT IN ANY EVENT BE LIABLE FOR TIIE PAYMENT OF T IE PRINCIPAL OF OR INTEREST ON THE BONDS, OR FOR THE PERFORMANCE OF ANY PLEDGE, MORTGAGE, OBLIGATION OR AGREEMENT OF ANY KIND WHATSOEVER WHICH MAY BE UNDERTAKEN BY THE ISSUER, AND NEITHER THE BONDS NOR ANY OF THE AGREEMENTS OR OBLIGATIONS OF THE ISSUER SHALL BE CONSTRUED TO CONSTITUTE AN INDEBTEDNESS OF THE ISSUER WITHIN THE MEANING OF ANY CONSTITUTIONAL OR STATUTORY PROVISION WHATSOEVER, THE BONDS AND THE INTEREST THEREON SHALL NEVER CONSTITUTE AN INDEBTEDNESS OR A CHARGE AGAINST THE GENERAL CREDIT OF THE ISSUER WITHIN THE MEANING OF ANY CONSTITUTIONAL PROVISION OR STATUTORY LIMITATION AND SHALL NEVER CONSTITUTE NOR GIVE RISE TO ANY PECUNIARY LIABILITY OF THE ISSUER, BUT SHALL BE LIMITED OBLIGATIONS OF THE ISSUER PAYABLE SOLELY FROM THE REVENUES AND OTHER FUNDS PLEDGED THEREFOR AND SHALL NOT BE PAYABLE FROM ANY OTHER ASSETS OR FUNDS OF THE ISSUER, AND NEITHER THE FAITH AND CREDIT NOR THE TAXING POWER OF THE STATE OR ANY POLITICAL SUBDIVISION OR ANY AGENCY THEREOF IS PLEDGED TO THE PAYMENT OF THE PRINCIPAL OF OR THE INTEREST ON THE BONDS. Section 703. Covenants to Perform Obligations Under this Indenture. The Issuer covenants that it will faithfully perform at all times any and all covenants, undertakings, stipulations and provisions contained in this Indenture, in the Bonds executed and delivered hereunder and in all proceedings of the Issuer pertaining thereto and will faithfully observe and perform at all times any and all covenants, undertakings, stipulations and provisions of the Loan Agreement on its part to be observed or performed. 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 enter into this Indenture, to pledge the payments under the Loan Agreement and other Revenues in the manner and to the extent herein set forth, and to assign its interest in the Loan Agreement to the Trustee; and that all action on its part for the issuance of the Bonds issued hereunder 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 the valid and binding obligations of the Issuer according to the tenor and import thereof. Section 704. Covenant to Perform Obligations Under the Loan Agreement. Subject to the provisions of Section 704 of this Article, the Issuer covenants and agrees that it will not suffer, . permit or take any action or do anything or fail to take any action or fail to do anything which may 40 result in the termination or cancellation of the Loan Agreement so long as any Bond is Outstanding; 0 that it will punctually fulfill its obligations and will require the Company to perform punctually its duties and obligations under the Loan Agreement; that it will not execute or agree to any change, amendment or modification of or supplement to the Loan Agreement or this Indenture except by a supplement or an amendment duly executed by the Issuer and the Company with the approval of the Trustee and upon the further terms and conditions set forth in Article VII of this Indenture; that it will not agree to any abatement, reduction, abrogation, waiver, diminution or other modification in any manner or to any extent whatsoever of the obligation of the Company to pay the loan payments and to meet its other obligations as provided in the Loan Agreement; and that it will promptly notify the Trustee in writing of any actual or alleged Event of Default under the Loan Agreement, whether by the Company or the Issuer, and will further notify the Trustee at least thirty (30) days before the proposed date of effectiveness of any proposed termination or cancellation of the Loan Agreement. Section 705. Trustee May Enforce the Issuer's Rights Under the Loan Agreement. The Loan Agreement, a duly executed counterpart of which has been filed with the Trustee, sets forth the covenants and obligations of the Issuer and the Company, including a provision in Section 12.9 thereof that subsequent to the issuance of the Bonds and prior to Payment of the Bonds (as defined in the Loan Agreement) the Loan Agreement may not be effectively amended, changed, modified, altered or terminated except as provided in Article VII of this Indenture, and reference is hereby made to the Loan Agreement for a detailed statement of said covenants and obligations of the Company under the Loan Agreement, and the Issuer agrees that the Trustee, subject to the provisions of the Loan Agreement and this Indenture reserving certain rights to the Issuer and respecting actions by the Trustee in its name or in the name of the Issuer, may enforce all rights of the Issuer and all obligations of the Company under and pursuant to the Loan Agreement for and on behalf of the Bondholders whether or not the Issuer is in default hereunder. Section 706. Covenant Against Arbitrage. The Issuer covenants and agrees that it will not make or authorize any use, and directs the Trustee not to make or permit any use, of the proceeds of the Bonds which would cause any Bond to be an "arbitrage bond" within the meaning of Section 148 of the Code and the applicable regulations promulgated from time to time thereunder, and further covenants that it will observe and not violate the requirements of Section 148 of the Code and any such applicable regulations to the extent necessary so that the interest on the Bonds will not cease to be excluded from the gross income of the recipients thereof for federal income tax purposes by reason of such use of proceeds; provided that neither the Issuer nor the Trustee shall be liable for any investment of moneys under this Indenture made at the direction of the Company. Section 707. Inspection of the Bond Register. At reasonable times and upon reasonable regulations established by the Bond Registrar, the Bond Register may be inspected and copied by and at the expense of the Company. Section 708. Priority of Pledge and Security Interest. The pledge herein made of the Trust Estate and the security interest created herein with respect thereto constitutes a first and prior pledge of, and a security interest in, the Trust Estate. Said pledge and security interest shall at no time be impaired directly or indirectly by the Issuer or the Trustee, and the Trust Estate shall not otherwise be pledged and, except as provided, herein and in the Loan Agreement, no persons shall have any rights • with respect thereto. 41 9 ARTICLE VIII DEFAULT AND REMEDIES Section 801. Defaults. Each of the following events is hereby declared an "Event of Default". (a) Payment of interest on any of the Bonds shall not be made when the same shall become due; or (b) Payment of the principal or redemption price of any of the Bonds shall not be made when the same shall become due, whether at maturity or upon call for redemption or otherwise; or (c) The occurrence of an "Event of Default" or "event of default" under the Loan Agreement which is not waived or cured; or (d) The Trustee receives written notice from the Credit Facility Issuer that an "Event of Default" under the Reimbursement Agreement has occurred and has not been waived or cured; or (e) The Trustee receives, on or before the close of business on the tenth day following a drawing under a Credit Facility to pay interest on the Bonds, notice by telecopier, by telex or in writing from the Credit Facility Issuer that the Credit Facility has not been reinstated for the amount so drawn; or ( Payment of the purchase price of any Bond tendered pursuant to Section 204 is not made when payment is due; or (g) The Issuer shall default in the due and punctual performance of any of the covenants, conditions, agreements and provisions contained in the Bonds or in this Indenture on the part of the Issuer to be performed other than as referred to in the preceding paragraphs of this Section; provided, however, that such default under subsections (c) or (g) shall not constitute an Event of Default until written notice specifying such default and requiring the same to be remedied shall have been given to the Company and the Issuer by the Trustee, which may give notice in the Trustee's discretion and shall give such notice at the written direction of the Registered Owners of not less than 25% in aggregate principal amount of Bonds then Outstanding, and the Issuer and the Company shall have had 30 days after receipt of such notice to correct said default and shall not have corrected said default within the applicable period. Section 802. Acceleration and Annulment Thereof. Subject to the requirement that the Credit. Facility Issuer's consent to any acceleration must be obtained in the case of an Event of Default described in subsections (c) or (g) of Section 801 hereof, upon the occurrence of an Event of Default, the Trustee may, and upon (i) the written request of the Registered Owners of not less than 25% in aggregate principal amount of Bonds then Outstanding, (ii) the written request of the Credit Facility Issuer, or (Ili) the occurrence of an Event of Default described in Section (a), (b), (d), (e) or (0 of Section 801 hereof, the Trustee shall, by written notice to the Issuer, declare the entire unpaid principal of and interest on the Bonds due and payable; and upon such declaration, the said principal, together 42 • with interest accrued thereon, shall become payable immediately at the place of payment provided therein, anything in this Indenture or in the Bonds to the contrary notwithstanding. Upon the occurrence of any acceleration hereunder, the Trustee shall, to the extent it has not already done so, immediately draw upon the Credit Facility to the extent permitted by the terms thereof, and payment shall be made to Registered Owners as soon as practicable. Interest on the Bonds shall cease to accrue upon receipt by the Trustee of funds drawn under the Credit Facility. Immediately after any acceleration because of the occurrence of an Event of Default under Sections 801(a), (b), (d), (e), (f or (g), the Trustee shall notify in writing the Issuer, the Company and the Credit Facility Issuer of the occurrence of such acceleration. Within five days of the occurrence of any acceleration hereunder, the Trustee shall notify by first class mail, postage prepaid, the Registered Owners of all Bonds then Outstanding of the occurrence of such acceleration. If, after the principal of the Bonds has become due and payable, all arrears of interest upon the Bonds are paid by the Company, and the Company also performs all other things in respect to which it may have been in default under the Loan Agreement and pays the reasonable charges of the Trustee and the Registered Owners, including reasonable attorneys' fees, then, and in every such case, the Credit Facility Issuer or the Majority Registered Owners, by written notice to the Issuer and the Trustee, may annul such acceleration and its consequences, and such annulment shall be binding upon the Trustee and upon all Registered Owners of Bonds, issued hereunder; provided, however, that the Trustee shall not annul any acceleration without the consent of the Credit Facility Issuer unless such acceleration has resulted from the failure of the Credit Facility Issuer to honor a proper draw for payment under the Credit Facility. Notwithstanding the foregoing, the Trustee shall not annul any acceleration which has resulted from an Event of Default which has resulted in a drawing under the Credit Facility unless the Trustee has received written notice that the Credit Facility has been reinstated in accordance with its terms to an amount equal to the principal amount of the Bonds then Outstanding plus 120 days' interest accrued thereon (210 days' interest if the Bonds then bear interest at the Fixed Rate) at an annual rate of 15% per annum. The 'Trustee shall forward a copy of any notice from Registered Owners received by it pursuant to this paragraph to the Company. Immediately upon such annulment, the Trustee shall cancel, by notice to the Company, any demand for payment of the Bonds made by the Trustee pursuant to this Section 802. Section 803. Trustee Exercising Rights. If any Event of Default occurs and is continuing, the Trustee, before or after the principal of the Bonds becomes immediately due and payable, may enforce each and every right granted to it under the Loan Agreement and any supplements or amendments thereto. In exercising the rights given the Trustee under this Article VIII, the Trustee shall take such action as, in the judgment of the Trustee applying the standards described in Article IX hereof, would best serve the interests of the Registered Owners. It is the intention of the parties hereto that the Trustee shall not be required to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of its rights or powers. Section 804. Legal Proceedings by Trustee. If any Event of Default has occurred and is continuing, the Trustee in its discretion may, and upon the written request of the Credit Facility Issuer 43 • or the Registered Owners of not less than 25% in aggregate principal amount of all Bonds then Outstanding and receipt of indemnity to its satisfaction shall, in its own name: (a) By mandamus, or other suit, action or proceeding at law or in equity, enforce all rights of the Registered Owners hereunder; (b) Bring suit upon the Bonds and th-e Credit Facility (but only to the extent the Credit Facility Issuer shall have wrongfully dishonored drawings made in strict conformity with the terms thereon; and (c) By action or suit in equity enjoin any acts or things which may be unlawful or in violation of the rights of the Registered Owners. Section 805. Discontinuance of Proceedings by Trustee. If any proceeding commenced by the Trustee on account of any default is discontinued or is determined adversely to the Trustee, then the Company, the Credit Facility Issuer, the Trustee and the Registered Owners shall be restored to their former positions and rights hereunder as though no proceedings had been commenced. Section 806. Credit Facility Issuer or Registered Owners May Direct Proceedings. Anything to the contrary in this Indenture notwithstanding, either the Credit Facility Issuer, if a Credit Facility is in effect, or the Majority Registered Owners, if a Credit Facility is not in effect, shall have the right, after furnishing indemnity satisfactory to the Trustee, to direct the method and place of conducting all remedial proceedings by the Trustee hereunder, provided that such direction shall not be in conflict with any rule of law or with this Indenture or unduly prejudice the rights of minority Registered Owners. Section 807. Limitations on Actions by Registered Owners. No Registered Owner shall have any right to bring suit on the Credit Facility. No Registered Owner shall have any right to pursue any other remedy hereunder unless: (a) the Trustee shall have been given written notice of an Event of Default; (b) the Registered Owners of not less than 25% in aggregate principal amount of all Bonds then Outstanding shall have requested the Trustee, in writing, to exercise the powers hereinabove granted or to pursue such remedy in its or their name or names; (c) the Trustee shall have been offered indemnity satisfactory to it against costs, expenses and liabilities, except that no offer of indemnification shall be required for a declaration of acceleration under Section 802 or for a drawing under the Credit Facility; and (d) the Trustee shall have failed to comply with such request within a reasonable time. Notwithstanding the foregoing provisions of this Section 807 or any other provision of this Indenture, the obligation of the Issuer shall be absolute and unconditional to pay hereunder the principal or redemption price of, and interest on, the Bonds to the respective Registered Owners 44 thereof on the respective due dates thereof, and nothing herein shall affect or impair the right of action, which is absolute and unconditional, of such Registered Owners to enforce such payment. Section 808. Trustee May Enforce Rights Without Possession of Bonds. All rights under this Indenture and the Bonds may be enforced by the Trustee without the possession of any Bonds or the production thereof at the trial or other proceedings relative thereto, and any proceeding instituted by the Trustee shall be brought in its name for the ratable benefit of the Registered Owners of the Bonds. Section 809. Remedies Not Exclusive. No remedy herein conferred is intended to be exclusive of any other remedy or remedies, and each remedy is in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute. Section 810. Delays and Omissions Not to Impair Rights. No delays or omission in respect of exercising any right or power accruing upon any default shall impair such right or power or be a waiver of such default, and every remedy given by this Article VIII may be exercised from time to time and as often as may be deemed expedient. Section 811. Application of Moneys in Event of Default. Any moneys received by the Trustee under this Article VIII shall be applied in the following order; provided that any moneys received by the Trustee from a drawing under the Credit Facility shall be applied to the extent permitted by the terms thereof only as provided in clause (b) below with respect to the principal of, and interest accrued on, Bonds other than Bonds held by or for the Company: (a) To the payment of the reasonable costs of the Trustee, including counsel fees, any disbursements of the Trustee with interest thereon at the Trustee's prime rate per annum and its reasonable compensation; and (b) To the payment of principal or redemption price (as the case may be) and interest on the Bonds, and in case such moneys shall be insufficient to pay the same in full, then to the payment of principal or redemption price and interest ratably, without preference or priority of one over another or of any installment of interest over any other installment of interest. The surplus, if any, shall be paid to the Company, or the person lawfully entitled to receive the same as a court of competent jurisdiction may direct; provided that, if the Trustee has received payments under the Credit Facility following the Event of Default, the surplus shall be paid to the Credit Facility Issuer to the extent of such payments. Section 812. Trustee and Registered Owners Entitled to All Remedies Under Law. It is the purpose of this Article VIII to provide such remedies to the Trustee and the Registered Owners as may be lawfully granted, but should any remedy herein granted be held unlawful, the Trustee and the Registered Owners shall nevertheless be entitled to every remedy provided by law. It is further intended that, insofar as lawfully possible, the provisions of this Article shall apply to and be binding upon any trustee or receiver appointed under applicable law. 1V • Section 813. Trustee May File Claim in Bankruptcy. In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other similar judicial proceeding relative to the Issuer, the Company or any other obligor upon the Bonds or to property of the Issuer, the Company, or such other obligor or the creditors of any of them, the Trustee (irrespective of whether the principal of the Bonds shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the Company for the payment on the Bonds of an amount equal to overdue principal or interest or additional interest) shall be entitled and empowered, by intervention in such proceeding or otherwise: (a) to file and prove a claim for the whole amount of principal and interest owing and unpaid in respect of the Bonds and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and of the Registered Owners allowed in such judicial proceeding; and (b) to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same; and any receiver, assignee, trustee, liquidator or sequestrator (or other similar official) in any such judicial proceeding is hereby authorized by the Registered Owners to make such payments to the Trustee, and in the event that the Trustee shall consent to the making of such payments directly to the Registered Owners, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 811 hereof. Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept, or adopt on behalf of the Registered Owners, any plan of reorganization, arrangement, adjustment or composition affecting the Bonds or the rights of any Registered Owner thereof, or to authorize the Trustee to vote in respect of the claim of the Registered Owners in any such proceeding. All moneys received by the Trustee pursuant to any right given or action taken under this Indenture shall, after payment of the costs and expenses of the proceedings resulting in the collection of such moneys and the fees and expenses of the Trustee, be deposited in the Bond Fund and applied to the payment of the principal of, redemption premium, if any, and interest then due and unpaid on the Bonds in accordance with the provisions of this Indenture. Section 814. 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 Registered Owners under this Indenture, the Trustee shall be entitled, as a matter of right, to the appointment of a receiver or receivers of the amounts payable under the Loan Agreement and assigned to the Trustee under this Indenture pending such proceedings, with such powers as the court making such appointment shall confer, whether or not any such amounts payable shall be deemed sufficient ultimately to satisfy the Bonds. 46 0 ARTICLE IX • CONCERNING THE TRUSTEE Section 901. Acceptance of Trusts. The Trustee hereby represents and warrants to the Issuer (for the benefit of the Registered Owners as well as the Company) that it is a national banking association and that it is duly authorized under such laws and the laws of the State to accept and execute trusts of the character herein set out. The Trustee accepts and agrees to execute the trusts imposed upon it by this Indenture, but only upon the terms and conditions set forth in this Article and subject to the provisions of this Indenture including the following express terms and conditions, to all of which the parties hereto and the Registered Owners agree, except: (a) prior to the occurrence and continuance of an Event of Default, the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and (b) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon directions of the Company and upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform on their face to requirements of this Indenture but need not verify the accuracy of the contents thereof. In case an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs. No provision of this Indenture shall be construed to relieve the Trustee from liability for its own grossly negligent action, its own grossly negligent failure to act, or its own willful misconduct, except that: (1) this subsection shall not be construed to limit the effect of the preceding provisions of this Section 901; (2) the Trustee shall not be liable for any error of judgment made in good faith by a responsible officer or officers of the Trustee unless it shall be proved that the Trustee was grossly negligent in ascertaining the pertinent facts; and (3) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Majority Registered Owners relating to the time, method and place of conducting any proceeding for any remedy available 47 • to the Trustee, or exercising any trust or power conferred upon the Trustee under this Indenture. Whether or not therein expressly so provided, every provision of this Indenture that in any way relates to the Trustee, including without limitation Sections 903 and 904 hereof, shall be subject to the provisions of this Section 901. The Trustee also accepts, and agrees to do and perform the duties and obligations imposed upon it but only upon the terms and conditions set forth in this Indenture. Section 902. Reserved. Section 903. Trustee to Give Notice. (a) If any default or Event of Default occurs and is continuing hereunder and if the Trustee has received written notice thereof or is deemed to have notice pursuant to Section 903(b), the Trustee shall give to all Registered Owners, the Company, the Issuer, the Remarketing Agent and to the Credit Facility Issuer written notice of such default or Event of Default within 30 days after receipt of such information. For the purpose of this Section 903 only, the term "default" means any event which is, or after notice or lapse of time or both would become, an Event of Default under Section 801 hereof. (b) The Trustee shall not be required to take notice or be deemed to have notice of any default or Event of Default hereunder except for a default or Event of Default referred to in Section 801(a), (b), or (�, unless the Trustee shall have received written notice of such Event of Default by the Issuer, the Company, the Credit Facility Issuer or by the Registered Owners of 25% in aggregate principal amount of the Bonds then Outstanding. Section 904. Trustee Entitled to Indemnity. (a) The Company shall indemnify the Trustee, its officers, directors and employees (herein, the "Iridemnitees") against any loss, liability or expense incurred by them arising out of or in connection with the acceptance or administration of their duties under this Indenture, except as set forth in subsection (b). An Indemnitee shall notify the Company promptly of any claim for which it may seek indemnity. Except where the Company is the claimant, the Company shall defend the claim, and the Indemnitee shall cooperate in the defense. An Indemnitee may have separate counsel, and the Company shall pay the reasonable fees and expenses of such counsel. An Indemnitee shall not be required to give any bond or surety in respect to the execution of its rights and obligations hereunder. (b) The Company shall not be obligated to reimburse any expense or to indemnify against any loss or liability incurred by an Indemnitee through gross negligence or willful misconduct. (c) To secure the Company's payment obligations in this Section, the Trustee shall have a lien prior to the lien created by this Indenture for the benefit of the owners of the Bonds on all money or property held or collected by the Trustee other than money derived from a draw on the Credit Facility. Such obligations shall survive the satisfaction and discharge of this Indenture. 48 (d) When the "Trustee incurs expenses or renders services after an Event of Default, the expenses and compensation for the services are intended to constitute expenses of administration under any applicable bankruptcy law. (e) The Trustee may, nevertheless, begin suit, or appear in and defend suit, or do anything else in its judgment proper to be done by it as Trustee, without indemnity, and in such case the Company shall reimburse the Trustee for all costs- and expenses, outlays and counsel fees and other reasonable disbursements properly incurred in connection therewith; provided, however, that the Trustee shall (i) make all payments hereunder of principal and redemption price of and interest on the Bonds and of the purchase price of Bonds tendered at the option of the Registered Owners thereof or purchased by the Company in lieu of redemption, (ii) accelerate the Bonds when required to do so hereunder other than at the direction of the Registered Owners, and (Ili) draw on the Credit Facility when required to do so hereunder, each without the necessity of the Registered Owners providing security or indemnity to the Trustee. If the Company shall fail to make reimbursement, the Trustee may reimburse itself from any moneys in its possession under the provisions of this Indenture (other than monies derived from a draw on the Credit Facility) and shall be entitled with respect thereto to a preference over the Bonds. (� Subject to the standards described in Section 901 hereof, prior to taking action under this Indenture except for a declaration of acceleration under Section 802 or a drawing under the Credit Facility or the payment of principal and interest on the Bonds, the Trustee may require that satisfactory indemnity be furnished to it for reimbursement of all expenses to which it may be put and to protect it against all liability by reasons of any action so taken, except liability resulting from its gross negligence or willful misconduct. None of the provisions contained in this Indenture is intended to require the Trustee to expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties or other exercise of its rights or powers hereunder. Section 905. Trustee Not Responsible for Insurance, Taxes, Execution of Indenture, Acts of the Issuer or Application of Moneys Applied in Accordance with this Indenture. The Trustee shall be under no obligation to effect or maintain insurance or to renew any policies of insurance or to inquire as to the sufficiency of any policies of insurance carried by the Company, or to report, or make or file claims or proof of loss for, any loss or damage insured against or which may occur, or to keep itself informed or advised as to the payment of any taxes or assessments, or to require any such payment to be made. The Trustee shall have no responsibility in respect of the validity, sufficiency, due execution or acknowledgment of this Indenture by the Issuer or the validity or sufficiency of the security provided thereunder or in respect of the validity of the Bonds or the due execution or issuance thereof. The Trustee shall be under no obligation to see that any duties herein imposed upon any party other than itself, or any covenants herein contained on the part of any party other than itself to be performed, shall be done or performed, and the Trustee shall incur no liability for failure to see that any such duties or covenants are so done or performed. The Trustee shall not be liable or responsible because of the failure of the Issuer or of any of its employees or agents to make any collections or deposits or to perform any act herein required of the Issuer or because of the loss of any moneys arising through the insolvency or the act or default or omission of any other depositary in which such moneys shall have been deposited under the provisions of this Indenture. The Trustee shall not be responsible for the application of any of the proceeds of 49 C� the Bonds or any other moneys deposited with it and paid out, withdrawn or transferred hereunder if such application, payment, withdrawal or transfer shall be made in accordance with the provisions of this Indenture. The immunities and exemptions from liability of the Trustee hereunder shall extend to its directors, officers, employees and agents. Section 906. Compensation. Subject to the provisions of any contract relating to the compensation of the Trustee, the Company shall pay to the Trustee as administrative expenses its reasonable fees and charges incurred in performing its duties hereunder, including but not limited to, the reasonable fees and expenses of attorneys, consultants and others. In computing the Trustee's compensation, the parties shall not be limited by any law on the compensation of an express trust. If the Company shall fail to make any payment required by this Section 906, the Trustee may, but shall be under no obligation to, make such payment from any moneys in its possession under the provisions of this Indenture and shall be entitled to a preference therefor over the Bonds hereunder; provided that no payments under this Section 906 shall be made with moneys drawn under the Credit Facility. Section 907. Trustee to Preserve Records. All records and files pertaining to the Bonds in the custody of the Trustee shall be open at all reasonable times to the inspection of the Company, the Issuer, the Credit Facility Issuer and their agents and representatives. Section 908. Trustee May be Registered Owner. The institution acting as Trustee under this Indenture and its directors, officers, employees or agents, may in good faith buy, sell, own, hold and deal in the Bonds issued under and secured by this Indenture, and may join in the capacity of a Registered Owner in any action which any Registered Owner may be entitled to take with like effect as if such institution were not the Trustee under this Indenture. Section 909. Trustee Not Responsible for Recitals. The recitals, statements and representations contained herein and in the Bonds shall be taken and construed as made by and on the part of the Company and not by the Trustee, and the Trustee shall have no responsibility for the correctness of the same. Section 910. No Responsibility for Recording or Filing. The Trustee shall be under no obligation to see to the recording or filing of this Indenture, any financing statements or any other instrument or otherwise to the giving to any person of notice of the provisions hereof or thereof. Section 911. Certain Rights of the Trustee. (a) Subject to the provisions of Section 901 hereof, the Trustee shall be protected and shall incur no liability in acting or proceeding, or in not acting or not proceeding, in good faith and in accordance with the terms of this Indenture, upon any resolution, order, notice, request, consent, waiver, certificate, statement, affidavit, requisition, bond or other paper or document which it shall in good faith believe to be genuine and to have been adopted or signed by the proper board or person or to have been prepared and furnished pursuant to any of the provisions of this Indenture, or upon the written opinion of any attorney, engineer, accountant or other expert believed by it to be qualified 50 in relation to the subject matter, and the Trustee shall have no duty to make any investigation or inquiry 0 as to any statements contained or matters referred to in any such instrument. (b) Whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering, or omitting any action hereunder, the Trustee (unless other evidence is herein specifically prescribed) may, in the absence of bad faith on its part, rely upon a certificate of the Company or the Issuer. (c) The Trustee may consult with legal counsel and the written advice of such legal counsel or any opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by the Trustee hereunder in good faith and in reliance thereon. (d) The Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond or other paper or document, but the Trustee, in its sole discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to have any of its employees, agents or attorneys examine the books, records and premises of the Company or the Issuer. (e) The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys, may pay reasonable compensation to such agents and attorneys, and shall not be responsible for any misconduct or negligence on the part of any agent or attorney (unless an employee) appointed with due care by it hereunder. (0 Except for information provided by the Trustee concerning the Trustee, the Trustee shall have no responsibility with respect to any information in any offering memorandum or other disclosure material distributed with respect to the Bonds and the Trustee shall have no responsibility for compliance with securities laws in connection with the issuance and sale of the Bonds. (g) Except as otherwise especially provided by the provisions of this Indenture, the Trustee shall not be obligated or required to give or furnish any notice, demand, report, request, reply, statement, advice or opinion to any Bondholder of any Bond, to the Issuer or to the Company or any other person, and the Trustee shall incur no liability for its failure or refusal to give or furnish the same unless obligated or required to do so by the express provisions of the Indenture. (h) The Trustee shall not be required to give any bond or surety with respect to the performance of its duties or the exercise of its powers under this Indenture. Section 912. Qualification of the Trustee. (a) There shall at all times be a Trustee hereunder; which shall be (1) an association or a corporation organized and doing business under the laws of the United States of America or of any state, authorized under such laws or the applicable laws of the State to exercise corporate trust powers and act as Bond Registrar hereunder, having a combined capital and surplus of at least $100,000,000, and subject to supervision or examination by federal or state authority. If such association or corporation is not a commercial bank or trust company, it shall also have a rating by Moody's of 51 Baa3/P-3 or higher, or by S&P of BBB/A3 or higher or shall otherwise be approved in writing by Moody's or S&P, as the case may be. If such association or corporation publishes reports of condition at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining authority, then for the purposes of this Section 912, the combined capital and surplus of such association or corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. (b) If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section 912, it shall resign immediately in the manner and with the effect specified in Section 913 hereof. Section 913. Resignation and Removal of Trustee. (a) No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective until the acceptance of appointment by the successor Trustee under Section 914 hereof. (b) The Trustee may resign at any time by giving written notice thereof to the Issuer and the Company. If an instrument of acceptance by a successor Trustee shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation, the retiring Trustee may petition any court of competent jurisdiction for the appointment of a successor Trustee. (c) The Trustee may be removed at any time by an instrument or instruments in writing signed by the Registered Owners of more than 50% in aggregate principal amount of Bonds then Outstanding or by their attorneys, legal representatives or agents and delivered to the Trustee, the Issuer and the Company (such instruments to be effective only when received by the Trustee, accompanied by a signed acceptance by a successor trustee). (d) If at any time: (1) the Trustee shall cease to be eligible under Section 912 hereof, and shall fail to resign after written request therefor by the Issuer, the Company or by the Majority Registered Owners, or (2) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or its property shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, then, in any such case, (i) the Issuer or the Company may remove the Trustee, or (ii) any Registered Owner may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor. (e) If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause, the Issuer with the approval of the Company, shall promptly appoint a successor. If, within 60 days after such resignation, removal or incapability, or the 52 C. occurrence of such vacancy, a successor Trustee shall be appointed by act of the Majority Registered Owners delivered to the Issuer and the retiring Trustee, the successor Trustee so appointed shall forthwith upon its acceptance of such appointment become the successor "Trustee and supersede the successor Trustee appointed by the Issuer with the approval of the Company. If within such 60-day period no successor Trustee shall have been so appointed by the Issuer or the Majority Registered Owners and accepted appointment in the manner hereinafter provided, any Registered Owner, if he has been a bona fide Registered Owner of a Bond for at least six months, may petition any court of competent jurisdiction for the appointment of a successor Trustee. (� The Issuer shall give notice of each resignation and each removal of the Trustee, and each appointment of a successor Trustee by mailing written notice of such event by first-class mail, postage prepaid, to each Registered Owner. Each notice shall include the name and address of the principal corporate trust office of the successor Trustee. Section 914. Successor Trustee. Every successor Trustee appointed hereunder shall execute, acknowledge and deliver to its predecessor, and also to the Issuer and the Company, an instrument in writing accepting such appointment hereunder, and thereupon such successor Trustee, without any further act, shall become fully vested with all the rights, immunities, powers and trusts, and subject to all the duties and obligations, of its predecessor•, but such predecessor shall, nevertheless, on the written request of its successor or of the Issuer and upon payment of the expenses, charges and other disbursements of such predecessor which are payable pursuant to the provisions of Section 906 hereof, execute and deliver an instrument transferring to such successor Trustee all the rights, immunities, powers and trusts of such predecessor hereunder; and every predecessor Trustee shall deliver all property and moneys held by it hereunder to its successor, subject, nevertheless, to its preference, if any, provided for in Sections 904 and 906 hereof. Should any instrument in writing from the Issuer be required by any successor Trustee for more fully and certainly vesting in such Trustee the rights, immunities, powers and trusts hereby vested or intended to be vested in the predecessor Trustee, any such instrument in writing shall and will, on request, be executed, acknowledged and delivered by the Issuer. Notwithstanding any of the foregoing provisions of this Article, any bank or trust company having power to perform the duties and execute the trusts of this Indenture and otherwise qualified to act as Trustee hereunder with or into which the bank or trust company acting as Trustee, may be merged or consolidated, or to which the assets and business of such bank or trust company may be sold, shall be deemed the successor of the Trustee. Section 915. Co -Trustee. It is the purpose of this Indenture that there shall be no violation of any law of any jurisdiction denying or restricting the right of certain banking corporations or associations to transact business as trustee as contemplated herein in such jurisdiction. It is recognized that in case of litigation under this Indenture upon the occurrence of an Event of Default, it may be necessary that the Trustee appoint an additional individual or institution as a separate Trustee or Co -Trustee, which shall be satisfactory to the Company. The following provisions of this Section 915 are adapted to these ends. 53 . In the event of the incapacity or lack of authority of the Trustee, by reason of any present or future law of any jurisdiction, to exercise any of the rights, powers and trusts herein granted to the Trustee or to hold title to the Trust Estate or to take any other action which may be necessary or desirable in connection therewith, each and every remedy, power, right, claim, demand, cause of action, immunity, estate, title, interest and lien expressed or intended by this Indenture to be exercised by or vested in or conveyed to the Trustee with respect thereto shall be exercisable by and vest in such separate Trustee or Co -Trustee but only to the extent necessary to enable the separate Trustee or Co -Trustee to exercise such rights, powers and trusts, and every covenant and obligation necessary to the exercise thereof shall run to and be enforceable by such separate Trustee or Co -Trustee. r] Should any deed, conveyance or instrument in writing from the Issuer be required by the separate Trustee or Co -Trustee so appointed by the Trustee in order to more fully and certainly vest in and confirm to him or it such properties, rights, powers, trusts, duties and obligations, any and all such deeds, conveyances and instruments shall, on request, be executed, acknowledged and delivered by the Issuer. In case any separate Trustee or Co -Trustee or a successor to either, shall die, become incapable of acting, resign or be removed, all the estates, properties, rights, powers, trusts, duties and obligations of such separate Trustee or Co -Trustee, so far as permitted by law, shall vest in and be exercised by the Trustee until the appointment of a new Trustee or successor to such separate Trustee or Co -Trustee. The combined fees and compensation of any separate Trustee or Co -Trustee and the Trustee shall not exceed the fees and compensation that the Trustee acting alone would otherwise be entitled to under the fee arrangement then in effect between the Trustee and the Company. Section 916. Notice to Moody's or S&P. At any time during which the Bonds are rated by Moody's and/or S&P, the Trustee shall notify Moody's and/or S&P, as applicable, promptly of (i) any change in the Trustee, (ii) the expiration, termination or substitution of the Credit Facility during any Variable Rate Period unless an Alternate Credit Facility is provided to the Trustee in accordance with the terms of this Indenture, (iii) a change in the interest rate borne by the Bonds from one Interest Rate Determination Method to another, (iv) the payment of all of the Bonds or (v) any change to this Indenture, the Reimbursement Agreement, the Credit Facility or the Remarketing Agreement. [Remainder of Page Intentionally Left Blank] 54 0 ARTICLE X 9 EXECUTION OF INSTRUMENTS BY REGISTERED OWNERS AND PROOF OF OWNERSHIP OF BONDS Section 1001. Execution of Instruments by Registered Owners and Proof of Ownership of Bonds. Any request, direction, consent or other instrument in writing required or permitted by this Indenture to be signed or executed by a Registered Owner may be signed or executed by the Registered Owner or its attorneys or legal representatives. Proof of the execution of any such instrument and of the ownership of the Bonds shall be sufficient for any purpose of this Indenture and shall be conclusive in favor of the Trustee with regard to any action taken by it under such instrument if made in the following manner: The fact and date of the execution by any person of any such instrument may be proved by the verification of any officer in any jurisdiction who, by the laws thereof, has power to take affidavits within such jurisdiction, to the effect that such instrument was subscribed and sworn to before him, or by an affidavit of a witness to such execution, and where such execution is by an officer of a corporation or association or a member of a partnership on behalf of such corporation, association or partnership, such verification or affidavit shall also constitute sufficient proof of his authority. Nothing contained in this Section 1001 shall be construed as limiting the Trustee to such proof, it being intended that the Trustee may accept any other evidence of the matters herein stated which may be sufficient. Any request or consent of a Registered Owner shall bind every future Registered Owner of the Bonds to which such request or consent pertains or any Bonds issued in lieu thereof in respect of anything done by the Trustee pursuant to such request or consent. Notwithstanding any of the foregoing provisions of this Section 1001, the Trustee shall not be required to recognize any person as an owner of Bonds or to take any action at his request unless the Bonds shall be deposited with it. Section 1002. Preservation of Information. The Trustee shall preserve in the Bond Register, in as current a form as is reasonably practicable the name and address of each Registered Owner received by the Trustee in its capacity as Bond Registrar. [Remainder of Page Intentionally Left Blank] 55 0 ARTICLE XI THE REMARKETING AGENT; THE TENDER AGENT; THE PLACEMENT AGENT Section 1101. The Remarketing Agent. (a) The Issuer hereby appoints First Union Securities, Inc. as Remarketing Agent under this Indenture. The Remarketing Agent and any successor Remarketing Agent, by written instrument delivered to the Trustee, the Issuer and the Company, shall accept the duties and obligations imposed on it under this Indenture and the Remarketing Agreement. (b) In addition to the other obligations imposed on the Remarketing Agent hereunder, the Remarketing Agent shall agree to keep such books and records in connection with its activities as Remarketing Agent hereunder as shall be consistent with prudent industry practice and make such books and records available for inspection by the Trustee, the Issuer, the Credit Facility Issuer and the Company at all reasonable times. (c) The Remarketing Agent shall at all times be a member of the National Association of Securities Dealers, Inc. or registered as a Municipal Securities Dealer under the Securities Exchange Act of 1934, as amended, or a national banking association or a bank or a trust company, in each case authorized by law to perform its obligations hereunder. (d) If at any time the Remarketing Agent is unable or unwilling to act as Remarketing Agent, the Remarketing Agent, upon 15 Business Days' prior written notice to the Trustee, the Tender Agent, the Issuer and the Company, may resign. The Remarketing Agent may be removed at any time by the Company, with the consent of the Issuer, by written notice signed by the Company delivered to the Trustee, the Remarketing Agent and the Tender Agent. Upon resignation or removal of the Remarketing Agent, the Company, with the consent of the Issuer, shall appoint a substitute Remarketing Agent meeting the qualifications of Section 1101(c). (e) In the event that the Company shall fail to appoint a successor Remarketing Agent upon the resignation or removal of the Remarketing Agent or upon its dissolution, insolvency or bankruptcy, the Trustee may, but is not required to, appoint a Remarketing Agent or itself act as Remarketing Agent until the appointment of a successor Remarketing Agent in accordance with this Section 1101. (0 Notwithstanding any other provisions herein, the Remarketing Agent may at any time assign its duties as Remarketing Agent to an Affiliate of the Remarketing Agent. In the event of such assignment, the Remarketing Agent shall deliver written notice to the Trustee, the Tender Agent, the Issuer and the Company. ( The Remarketing Agent shall place Bonds only with purchasers that customarily acquire securities with characteristics similar to the Bonds in the ordinary course of its business and that are "accredited investors" as defined in Rule 501 of Regulation D of the Securities Act of 1933, as amended from time to time. 56 0 Section 1102. The Tender Agent. (a) The Issuer hereby appoints First Union National Bank as Tender Agent under this Indenture, which agent has a corporate trust office in Miami, Florida. The Tender Agent and any successor Tender Agent, by written instrument delivered to the Trustee, the Issuer and the Company, shall accept the duties and obligations imposed on it under this Indenture. (b) The Tender Agent shall at all times be a member of the National Association of Securities Dealers, Inc. having a capitalization of at least $15,000,000 and a rating by Moody's of Baa3/P-3 or higher, or a national banking association or a bank or a trust company having capital and surplus of at least $50,000,000, in each case authorized by law to perform its obligations hereunder. (c) If at any time the Tender Agent is unable or unwilling to act as Tender Agent, the Tender Agent, upon 60 days' prior written notice to the Trustee, the Issuer, the Remarketing Agent and the Company, may resign; provided, however, that in no case shall such resignation become effective until the appointment of a successor Tender Agent. The Tender Agent may be removed at any time by the Company, with the consent of the Issuer, by written notice signed by the Company delivered to the Trustee, the Remarketing Agent, the Issuer, the Credit Facility Issuer and the Tender Agent. Upon resignation or removal of the Tender Agent, the Company, with the consent of the Issuer, shall appoint a substitute Tender Agent meeting the qualifications of Section 1102(b); provided, however, that in no case shall such removal become effective until the appointment of a successor Tender Agent. (d) In the event the Company shall fail to appoint a successor Tender Agent upon the resignation or removal of the Tender Agent or upon its dissolution, insolvency or bankruptcy, the Trustee may at its discretion, but is not required to, act as Tender Agent until the appointment of a successor Tender Agent in accordance with this Section 1102. (e) The Tender Agent shall have no responsibility with respect to the source of any funds provided to it for the purpose of paying the purchase price of the Bonds. The Tender Agent shall have no responsibility to determine the amount representing accrued interest which may be payable in connection with the purchase of the Bonds and may rely conclusively on the computation of such accrued interest by the Trustee pursuant to this Indenture. The Tender Agent shall have no obligation to expend its own funds in connection with any such purchase, and shall have no obligation to pay the purchase price in any type of funds other than that received by the Tender Agent for such purpose as aforesaid. (0 The Company shall, to the fullest extent permitted by law, indemnify and hold the Tender Agent harmless from any and all liability, losses, damages, costs and expenses of any nature (including interest and reasonable counsel fees and disbursements) arising out of or in connection with its duties, or those of its employees or agents arising from their performance under this Agreement and this Indenture, except for liabilities, losses, damages, costs, expenses and fees arising out of the gross negligence or willful misconduct of the Tender Agent or its employees or agents. (g) The Company shall pay the Tender Agent such fees and charges as shall be agreed upon . between them from time to time. The Company shall reimburse the Tender Agent for all reasonable 57 �J • out-of-pocket expenses of the Tender Agent including, but not limited to counsel fees, special stationery, checks, postage, wire tender of funds, shipping, insurance, telecommunications and such other expenses associated with the giving of notices and messenger delivery. Section 1103. The Placement Agent. The Placement Agent shall be a member of the National Association of Securities Dealers, Inc. and registered as a Municipal Securities Dealer under the Securities Exchange Act of 1934, as amended, or a national banking association or a bank or trust company, in each case authorized by law to perform its obligations described in Sections 202(e) and 203 hereof. The Placement Agent shall agree to establish the Preliminary Fixed Rate and to use its best efforts to arrange for the sale of Tendered Bonds on the Fixed Rate Conversion Date, all as more particularly described in Sections 202(e) and 203 hereof. Section 1104. Notices. The Trustee shall, within 30 days of the resignation or removal of the Remarketing Agent or the Tender Agent or the appointment of a successor Placement Agent or a successor Remarketing Agent or Tender Agent, give notice thereof by first-class mail, postage prepaid, to the Registered Owners of the Bonds. [Remainder of Page Intentionally Left Blank] 58 0 ARTICLE XII AMENDMENTS AND SUPPLEMENTS Section 1201. Amendments and Supplements Without Registered Owners' Consent. This Indenture may be amended or supplemented at any time and from time to time, without the consent of the Registered Owners, but with the consent of the Company and the Credit Facility Issuer, if a Credit Facility is in effect, and with the consent of the Tender Agent, if such amendment affects the rights, duties and responsibilities of the Tender Agent, by a supplemental indenture authorized by a resolution of the Issuer filed with the Trustee, for one or more of the following purposes: (a) to add additional covenants of the Issuer or to surrender any right or power herein conferred upon the Issuer; (b) for any purpose not inconsistent with the terms of this Indenture or to cure any ambiguity or to correct or supplement any provision contained herein or in any supplemental indenture which may be defective or inconsistent with any other provision contained herein or in any supplemental indenture, or to make such other provisions in regard to matters or questions arising under this Indenture which shall not adversely affect the interests of the Registered Owners of the Bonds; (c) to permit the Bonds to be converted to certificated securities; 0 (d) to permit the appointment of a Co -Trustee under this Indenture; (e) to modify, eliminate or add to the provisions of this Indenture to such extent as shall be necessary to effect the qualification of this Indenture under the Trust Indenture Act of 1939, or under any similar federal statute hereafter enacted, and to add to this Indenture such other provisions as may be expressly permitted by the Trust Indenture Act of 1939; T except as otherwise provided in Section 1202 hereof, to modify, eliminate or add to the provisions of this Indenture to such extent as shall be necessary to obtain a rating of the Bonds from Moody's or S&P; or W to amend the administrative provisions hereof to accommodate the provisions of an Alternate Credit Facility. Notwithstanding the foregoing, prior to the making of any amendment or supplement as described in the preceding paragraph, the Company shall provide the Issuer and the Trustee with (1) a copy of the proposed amendment or supplement and (2) an opinion of Bond Counsel to the effect that such amendment or supplement will not adversely affect the exclusion of the interest on the Bonds from the gross income of the recipients thereof for federal income tax purposes, except no opinion of Bond Counsel shall be necessary for any amendment or supplement relating to subsection (0 above. Section 1202. Amendments With Registered Owners' and Credit Facility Issuer's Consent. This Indenture may be amended by the Company, the Issuer and the Trustee from time to 59 time, except with respect to (1) the principal, redemption price, purchase price, or interest payable upon any Bonds, (2) the Interest Payment Dates, or the purchase provisions of any Bonds, and (3) this Article XII, by a supplemental indenture consented to by the Credit Facility Issuer (if a Credit Facility is in effect) and approved by the Majority Registered Owners of more than 50% in aggregate principal amount of the Bonds then Outstanding which would be affected by the act proposed to be taken. This Indenture may be amended with respect to the matters enumerated in clauses (1) through (3) of the preceding sentence only with the unanimous consent of all Registered Owners and the Credit Facility Issuer (if a Credit Facility is in effect). Notwithstanding the foregoing, prior to the making of any amendment or supplement as described in the preceding paragraph, the Company shall provide the Issuer and the Trustee with (1) a copy of the proposed amendment or supplement and (2) an opinion of Bond Counsel to the effect that such amendment or supplement will not adversely affect the exclusion of the interest on the Bonds from the gross income of the recipients thereof for federal income tax purposes, except no opinion of Bond Counsel shall be necessary for any amendment or supplement relating to subsection (0 of Section 1201 above. Section 1203. Supplemental Indentures Affecting Rights of Credit Facility Issuer. Anything herein to the contrary notwithstanding, a supplemental indenture under this Article XII which in the judgment of the Credit Facility Issuer (if a Credit Facility is in effect) adversely affects the rights of the Credit Facility Issuer hereunder shall not become effective unless or until the Credit Facility Issuer shall have consented to the execution and delivery thereof. 0 Section 1204. Amendment of the Loan Agreement. (a) The Company and the Issuer may amend the Loan Agreement but as to any amendment to the Loan Agreement during the Variable Rate Period with the consent of the Credit Facility Issuer (if no default has occurred and is continuing under the Credit Facility); provided that prior to making any amendment, the Company shall provide the Issuer and the Trustee and during the Variable Rate Period (if no default has occurred and is continuing under the Credit Facility) the Credit Facility Issuer with: (1) copy of the proposed amendment, and (2) an opinion of Bond Counsel to the effect that such amendment will not adversely affect the exclusion of the interest on the Bonds from the gross income of the recipients thereof for federal income tax purposes, and, unless the Trustee shall have otherwise given its consent to such amendment, to the further effect that such amendment will not otherwise adversely affect the interests of the Bondholders. Notwithstanding the foregoing, the Issuer and the Company may amend the Loan Agreement to such extent as may be necessary to obtain a rating of the Bonds from Moody's or S&P without providing the opinion of Bond Counsel specified in paragraph (2) above. (b) If the Company proposes to amend the Loan Agreement in such a manner as would adversely affect the interests of the Bondholders, the Trustee shall notify Bondholders of the proposed 60 • amendment and may consent thereto with the consent of at least a Majority of the Bondholders which would be affected by the action proposed to be taken; provided, that the Trustee shall not, without the unanimous consent of the owners of all Bonds then Outstanding, consent to any amendment which would: (1) decrease the amounts payable under the Loan Agreement, (2) change the due date of loan payments corresponding with payment of principal of or interest on the Bonds or change any of the prepayment provisions of the Loan Agreement, or (3) change Section 5.6 of the Loan Agreement. Section 1205. Amendment of the Loan Agreement Requiring the Consent of the Credit Facility Issuer. Anything herein to the contrary notwithstanding, any amendment, change or modification of the Loan Agreement which in the judgment of the Credit Facility Issuer (if a Credit Facility is in effect and no default has occurred and is continuing under the Credit Facility) adversely affects the rights of the Credit Facility Issuer shall not become effective unless or until the Credit Facility Issuer shall have consented to the execution and delivery of such amendment, change or modification. Section 1206. Amendment of Credit Facility. The initial Credit Facility may be amended to increase the amount of the Credit Facility or to such extent as shall be necessary to obtain a rating of the Bonds from Moody's or S&P provided in either case that (a) the Issuer and the Company consent to such amendment or supplement and (b) such amendment or supplement will not adversely affect the interests of the Registered Owners. The Trustee shall notify the Registered Owners of any proposed amendment of the Credit Facility which would adversely affect the interests of the Registered Owners and may consent thereto with the consent of at least a majority in aggregate principal amount of the Bonds then Outstanding which would be affected by the action proposed to be taken; provided, that the Trustee shall not, without the unanimous consent of the Registered Owners of all Bonds then Outstanding, consent to any amendment which would decrease the amount payable under the Credit Facility or reduce the term of the Credit Facility. Section 1207. Trustee Authorized to Join in Amendments and Supplements; Reliance on Counsel. The Trustee is authorized to join with the Issuer in the execution and delivery of any supplemental indenture or amendment permitted by this Article XII and in so doing shall be fully protected by an opinion of Counsel that such supplemental indenture or amendment is so permitted and has been duly authorized by the Issuer and that all things necessary to make it a valid and binding agreement have been done; provided that certain amendments may, by agreement between the Trustee and the Credit Facility Issuer, require the prior consent of the Credit Facility Issuer. 61 ARTICLE XIII DEFEASANCE; OTHER PAYMENTS Section 1301. Defeasance. (a) When the principal or redemption price (as the case may be) of, and interest on all Bonds issued hereunder have been paid, together with the compensation of the Trustee and all other sums payable hereunder by the Issuer, the right, title and interest of the Trustee in and to the Trust Estate shall thereupon cease, and the Trustee, on written demand of the Issuer, shall release this Indenture and shall execute such documents to evidence such release as may be reasonably required by the Issuer and shall turn over to the Company or to such person, body or authority as may be entitled to receive the same all balances then held by it hereunder; provided, that if any payments have been received by the Trustee from the Credit Facility in connection with such release, such balances shall be paid to the Credit Facility Issuer to the extent of such payments. If payment or provision therefor is made with respect to less than all of the Bonds, the particular Bonds (or portion thereof) for which provision for payment shall have been considered made shall be selected by lot by the Trustee and thereupon the Trustee shall take similar action for the release of this Indenture with respect to such Bonds, (b) Provision for the payment of Bonds shall be deemed to have been made when the Trustee holds in the Bond Fund, in trust and irrevocably sets aside exclusively for such payment, (1) moneys sufficient to make such payment, provided that if a Credit Facility is then held by the Trustee, such moneys shall constitute Available Moneys or (ii) noncallable Government Obligations maturing as to principal and interest in such amounts and at such times as will provide sufficient moneys without reinvestment to make such payment; provided that the Issuer and the Trustee shall have received an opinion of Bond Counsel to the effect that such deposit will not affect the exclusion of the interest on any of the Bonds from gross income of the recipients thereof for federal income tax purposes; provided that such provision for payment may only be made after the Fixed Rate Conversion Date, and provided further, that if a Credit Facility is then held by the Trustee, such Government Obligations shall have been on deposit with the Trustee in a separate and segregated account for a period of 366 days during and prior to which no Event of Bankruptcy has occurred or which Government Obligations were purchased with Available Moneys. No Bonds in respect of which a deposit under clause (b) above has been made shall be deemed paid within the meaning of this Article unless the Trustee is satisfied that the amounts deposited are sufficient to make all payments that might become due on the Bonds including purchase price payments for Bonds tendered at the option of the Registered Owners or purchased by the Company, in lieu of redemption, if any, Notwithstanding the foregoing, no delivery to the Trustee under this subsection (b) shall be deemed a payment of any Bonds which are to be redeemed prior to their stated maturity until such Bonds shall have been irrevocably called or designated for redemption on a date thereafter on which such Bonds may be redeemed in accordance with the provisions of this Indenture or the Issuer shall have given the Trustee, in form satisfactory to the Trustee, irrevocable instructions to give notice of redemption. Neither the obligations nor moneys deposited with the Trustee pursuant to this Section shall be withdrawn or used for any purpose other than, and shall be segregated and held in trust for, the payment of the principal of, redemption price of, purchase price if applicable of, and W • interest on the Bonds with respect to which such deposit has been made. In the event that such moneys or obligations are to be applied to the payment of principal or redemption price of any Bonds more than 60 days following the deposit thereof with the Trustee, the Trustee shall mail a notice stating that such moneys or obligations have been deposited and identifying the Bonds for the payment of which such moneys or obligations are being held to all Registered Owners of such Bonds at their addresses shown on the Bond Register. (c) Anything in Article XII to the contrary notwithstanding, if moneys or Government Obligations have been deposited or set aside with the Trustee pursuant to this Article for the payment of the principal or redemption price of the Bonds and the interest thereon and the principal or redemption price, of such Bonds and the interest thereon shall not have in fact been actually paid in full, no amendment to the provisions of this Article shall be made without the consent of the Registered Owner of each of the Bonds affected thereby. Notwithstanding the foregoing„ those provisions relating to the maturity of Bonds, interest payments and dates thereof, and the dates, premiums and notice requirements for optional and mandatory redemption and the Trustee's remedies with respect thereto, and provisions relating to exchange, transfer and registration of Bonds, replacement of mutilated, destroyed, lost or stolen Bonds, the safekeeping and cancellation of Bonds, nonpresentment of Bonds, the holding of moneys in trust and repayments to the Company or the Credit Facility Issuer from the Bond Fund and the duties of the Trustee in connection with all of the foregoing and the fees, expenses and indemnities of the Trustee, shall remain in effect and shall be binding upon the Trustee, the Company, the Issuer and the Registered Owners, notwithstanding the release and discharge of the lien of this Indenture. Section 1302. Deposit of Funds for Payment of Bonds. If the principal or redemption price of any Bonds becoming due, either at maturity or by call for redemption or otherwise, together with all interest accruing thereon to the due date, has been paid or provisions therefor made in accordance with Section 1301 hereof, all interest on such Bonds shall cease to accrue on the due date and all liability of the Issuer with respect to such Bonds shall likewise cease, except as hereinafter provided. Thereafter the Registered Owners of such Bonds shall be restricted exclusively to the funds so deposited for any claim of whatsoever nature with respect to such Bonds, and the Trustee shall hold such funds in trust for such Registered Owners. Section 1303. Effect of Purchase of Bonds. No purchase of Bonds pursuant to Section 303 shall be deemed to be a payment or redemption of such Bonds or any portion thereof and such purchase will not operate to extinguish or discharge the indebtedness evidenced by such Bonds. [Remainder of Page Intentionally Left Blank] 63 0 ARTICLE XIV MISCELLANEOUS PROVISIONS Section 1401. Covenants of Issuer to Bind its Successors. In the event of the dissolution of the Issuer, all of the covenants, stipulations, obligations and agreements contained in this Indenture by or on behalf of or for the benefit of the Issuer shall bind or inure to the benefit of the successor or successors of the Issuer from time to time and any officer, board, commission, authority, agency or instrumentality to whom or to which any power or duty affecting such covenants, stipulations, obligations and agreements shall be transferred by or in accordance with law, and the word "Issuer" as used in this Indenture shall include such successor or successors. Section 1402. Notices. Any notice, demand, direction, request or other instrument authorized or required by its Indenture to be given to or filed with the Trustee, the Issuer, the Company or the Credit Facility Issuer shall be in writing and shall be deemed given or filed for all purposes of this Indenture when delivered by hand delivery, Federal Express or other overnight delivery service, return receipt requested, or received by first-class, postage prepaid, registered or certified mail, addressed as follows: If to the Issuer: City of Tamarac, Florida 7525 N.W. 88`' Avenue Tamarac, Florida 33321-2401 Attention: Finance Director If to the Company: Sonny's Enterprises, Inc., as general partner of Fazio Holdings, LP 1400 S. W. 33' Place Ft. Lauderdale, Florida 33315 Attention: President If to the Trustee: First Union National Bank 200 South Biscayne Blvd., 14' Floor Miami, Florida 33131 Attention: Corporate Trust Department or if to any successor Trustee or Co -Trustee, addressed to it at its principal corporate trust office; If to the Credit Facility Issuer: First Union National Bank 1950 Hillsboro Blvd. Deerfield Beach, Florida 33442 Attention: Vice President and if sent by telegraph, telegram report of delivery requested, addressed as above, at the time and date appearing on the report of delivery. 64 0 All documents received by the Trustee under the provisions of this Indenture, or photographic copies thereof, shall be retained in its possession until this Indenture shall be released in accordance with the provisions hereof, subject at all reasonable times to the inspection of the Company and the Registered Owners and the agents and representatives thereof. The Trustee, the Credit Facility Issuer, the Issuer and the Company may, by notice given hereunder, designate any further or different addresses to which subsequent notices, certificates or other communications shall be sent. Section 1403. Trustee as Paying Agent. The Trustee is hereby designated and agrees to act as Paying Agent for and in respect of the Bonds. Section 1404. Rights Under Indenture. Except as herein otherwise expressly provided, nothing in this Indenture expressed or implied is intended or shall be construed to confer upon any person, firm or corporation other than the parties hereto, the Company and the Registered Owners of the Bonds issued under and secured by this Indenture, any right, remedy or claim, legal or equitable, under or by reason of this Indenture or any provision hereof, this Indenture and all its provisions being intended to be and being for the sole and exclusive benefit of the parties hereto, the Company and the Registered Owners from time to time of the Bonds issued hereunder. Section 1405. Form of Certificates and Opinions. Except as otherwise provided in this Indenture, any request, notice, certificate or other instrument from the Issuer or the Company shall be deemed to have been signed by the proper party or parties if signed by the authorized representative of the Issuer or the authorized representative of the Company, and the Trustee may accept and rely upon a certificate signed by the such party as to any action taken by the Company. Section 1406. Severabihty. In case any one or more of the provisions of this Indenture or of the Bonds issued hereunder shall for any reason be held to be illegal or invalid, such illegality or invalidity shall not affect any other provision of this Indenture or of the Bonds, but this Indenture and the Bonds shall be construed and enforced as if such illegal or invalid provision had not been contained therein. In case any covenant, stipulation, obligation or agreement of the Issuer contained in the Bonds or in this Indenture shall for any reason be held to be in violation of law then such covenant, stipulation, obligation or agreement shall be deemed to be the covenant, stipulation, obligation or agreement of the Issuer to the full extent permitted by law. Section 1407. State Law Governs. This Indenture shall be governed by and construed in accordance with the laws of the State. Section 1408. Payments Due on Days Other Than Business Days. In any case where the date of maturity of interest on or principal of the Bonds or the date fixed for redemption of the Bonds shall be a day other than a Business Day, then payment of interest or principal need not be made on such date but may be made on the next succeeding Business Day with the same force and effect as if made on the date of maturity or the date fixed for redemption, provided that interest shall accrue for the period of any such extension. 65 C] • Section 1409. Execution in Counterparts. This Indenture may be executed in multiple counterparts, each of which shall be regarded for all purposes as an original, and such counterparts shall constitute but one and the same instrument, and no one counterpart of which need be executed by all parties. Section 1410. Covenants of Issuer Not Covenants of Officials Individually. All covenants, stipulations, obligations and agreements of the Issuer contained in this Indenture shall be deemed to be covenants, stipulations, obligations and agreements of the Issuer to the full extent permitted by the laws of the State. No covenant, stipulation, obligation or agreement contained herein shall be deemed to be a covenant, stipulation, obligation or agreement of any present or future officer, member, agent or employee of the Issuer in his individual capacity, and no officer of the Issuer executing the Bonds shall be liable personally on the Bonds or be subject to any liability or accountability by reason of the issuance thereof. No officer, agent or employee of the Issuer shall incur any personal liability in acting or proceeding or not acting or not proceeding in accordance with the terms of this Indenture. [Remainder of Page Intentionally Left Blank] 66 IN WITNESS WHEREOF, the Issuer has caused this Indenture to be executed in its name and on its behalf by an authorized representative and the official seal of the Issuer to be impressed hereon and attested by an officer of the Issuer; and the Trustee has caused this Indenture to be executed in its name and on its behalf by an authorized officer, all as of the date and year first above written. (SEAL) ATTEST: By: Name: Carol Gold Title: City Clerk Ll CITY OIL TAMARAC, FLORIDA By: Name: Joe Schreiber Title: Mayor I hereby certify that I have approved this Agreement as to form By: Name: Mitchell S. Kraft Tide: City Attorney FIRST UNION NATIONALBANK, as Trustee By: Name: Title: [Signature page for Trust Indenture for City of Tamarac, Florida Industrial Development Revenue Bonds (Fazio Holdings, LP Project), Series 2000] 67 0 EXHIBIT A No. REQUISITION AND CERT—1EICATE First Union National Bank, as Trustee 200 S. Biscayne Blvd., 14'' Floor Miami, Florida 33131 Attention: Corporate Trust Department Re: [$7,000,000] City of Tamarac, Florida Industrial Development Revenue Bonds (Fazio Holdings, LP Project), Series 2000 Ladies and Gentlemen: Fazio Holdings, LP (the "Company") hereby requisitions, from the funds representing the proceeds of the sale of the [$7,000,000] City of Tamarac, Florida Industrial Development Revenue Bonds (Fazio Holdings, LP Project), Series 2000 issued by the Company and dated as of April _, 2000 (the "Bonds"), which funds are held by you in the Project Fund in accordance with the Trust Indenture (the "Indenture") dated as of April 1, 2000, from the Issuer to you, the sum of $ from the Project Fund to be used to pay to the payees the amounts designated on the schedule attached hereto. I hereby certify that (a) the obligation to make such payment was incurred by the Issuer or the Company in connection with the Project, is a proper charge against the Costs of the Project (as defined in the Loan Agreement) and has not been the basis for any prior requisition which has been paid; (b) neither the Company nor, to the best of Company's knowledge, the Issuer has received written notice of any lien, right to lien or attachment upon, or claim affecting the right of such payee to receive payment of, any of the money payable under this requisition to any of the persons, firms or corporations named herein, or if any notice of any such lien, attachment or claim has been received such lien, attachment or claim has been released or discharged or will be released or discharged upon payment of this requisition; (c) this requisition contains no items representing payment on account of any retained percentages which the Issuer or the Company is entitled to retain at this date; (d) the payment of this requisition will not result in less than substantially all (95% or more) of the proceeds of the Bonds to be expended under this requisition and under all prior requisitions having been used for the acquisition, construction, installation and equipping of the property of a character subject to the allowance for depreciation under the Internal Revenue Code of 1986, as amended; and (e) no "event, of default" or event which after notice or lapse of time or both would constitute such an "event of default" has occurred and not been waived. A-1 • [The following paragraph is to be completed when any requisition and certificate includes any item for payment for labor, for indicated items of equipment, or to contractors, builders or materialmen.] The Company hereby certifies 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 on or about the project and are a proper charge against the cost of the project; and (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. W4 FAZIO HOLDINGS, LP By: Sonny's Enterprises, Inc., as general partner to Fazio Holdings, LP By: Name: Title: APPROVED: FIRST UNION NATIONAL BANK By: Name: Title: 9 SCHEDULE TO REQUISITION AND CERTIFICATE NO. r-1 L.J 11 Payee Item Amount A-3 EXHIBIT B FORM OF NOTICE OF CONVERSION TO NEW INTEREST RATE DETERMINATION METHOD Date: To: [Registered Owners of Bonds] Re: [$7,000,000] City of Tamarac, Florida Industrial Development Revenue Bonds (Fazio Holdings, LP Project), Series 2000 Ladies and Gentlemen: (1) The interest rate on the above -captioned Bonds is being converted to the [Weekly] [Monthly] [Semiannual] [Fixed] Rate (as defined in, and to be determined in, the Indenture) effective on (the "Conversion Date" as defined in the Indenture). (2) After (the tenth day preceding the Conversion Date), Registered Owners of Bonds shall not be entitled to deliver Bonds to First Union National Bank, as Tender Agent, for purchase pursuant to Section 204 of the Indenture. [do not include paragraphs 3 and 4 if converting to Weekly Rate] (3) The [Proposed Rate] [Preliminary Fixed Rate] (as defined in, and determined as described in, the Indenture) is %. (4) Depending on market conditions, the [Monthly] [Semiannual] [Fixed] Rate may be higher but in no event shall be lower than the [Proposed Rate] [Preliminary Fixed Rate]. the (5) Payment of the Bonds [will] [will not] be supported by a Credit Facility (as defined in Indenture) after the Conversion Date [, which Credit Facility will be issued by effective on the Conversion Date and expiring on _ unless otherwise terminated by the terms thereofJ. (6) All Bonds will be deemed to have been tendered by their Registered Owners on the Conversion Date. In order to receive payment of the purchase price of any Bond which is deemed to have been tendered, the Registered Owner of such Bond must deliver such Bond to the principal corporate trust office of First Union National Bank, as Tender Agent, at before 10:00 a.m. on the Conversion Date. First Union National Bank, as Trustee By: Name: Title: B-1 EXHIBIT C Dorm of Bond] Unless this certificate is presented by an authorized representative of The Depository Trust Company, a New York corporation ("DTC"), to issuer or its agent for registration of transfer, exchange, or payment and any certificate issued is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entry as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein. CUSIP THIS BOND MAY BE TENDERED FOR PURCHASE AS DE'SCRIBED HEREIN. DELIVERY OF AN OPTIONAL TENDER NOTICE WITH RESPECT TO THIS BOND CONSTITUTES AN IRREVOCABLE OFFER TO SELL THIS BOND ON THE DATE SPECIFIED THEREIN AND IS BINDING ON SUBSEQUENT REGISTERED OWNERS OF TI-IIS BOND. IN THE EVENT THE REGISTERED OWNER PAILS TO DELIVER THIS BOND TO THE TENDER AGENT ON THE SPECIFIED PURCHASE DATE, THE OWNER HEREOF SHALL THEREAFTER BE ENTITLED ONLY TO PAYMENT OF THE PURCHASE PRICE AND NOT TO THE BENEFITS OF THE INDENTURE. THIS BOND ALSO IS SUBJECT TO MANDATORY TENDER AND PURCHASE AS DESCRIBED HEREIN. Registered Owner: Principal Amount: Maturity Date: [$7,000,000] City of Tamarac, Florida Industrial Development Revenue Bonds (Fazio Holdings, LP Project), Series 2000 MILLION DOLLARS No. R- Interest Rate: The Bonds shall initially bear a variable rate of interest determined by the Placement Agent on the Date of Issuance. Thereafter, the Bonds shall bear interest at the Weekly Rate unless converted as provided herein. C-1 C. Interest Payment Dates: During any Variable Rate Period: The first Business Day of each January, April, July and October commencing the first Business Day of July, 2000 and on any Conversion Date, through the earlier of a Fixed Rate Conversion Date or the Maturity Date. During a Fixed Rate Period: The first Business Day of each April and October, commencing the first Business Day of the first April or October following a Fixed Rate Conversion Date, through the earlier of the Maturity Date or the date on which principal -of and interest on the Bonds shall have been paid in full or provision shall have been made for the payment thereof in accordance with the Indenture. Original Delivery Date: April _, 2000 The City of Tamarac, Florida (the "Issuer"), for value received, hereby promises to pay (but only from the sources and in the manner hereinafter mentioned) to the Registered Owner, or registered assigns, the Principal Amount on the Maturity Date and to pay (but only from the sources and in the manner hereinafter mentioned) interest thereon from the Interest Payment Date next preceding the Date of Authentication indicated hereon, unless it is authenticated on an Interest Payment Date, in which event it shall bear interest from such date, or if it is authenticated prior to this original delivery date in which event it shall bear interest from the Date of Authentication, payable on each Interest Payment Date, until payment of said principal sum has been made or provided for, at the rate or rates per annum provided for below. Principal and interest and premium, if any, shall be paid in any coin or currency of the United States of America which, at the time of payment, is legal tender for the payment of public and private debts. Interest shall be paid on each Interest Payment Date by check mailed to the person in whose name this Bond is registered at the close of business on the Regular Record Date (as hereinafter defined) next preceding such Interest Payment Date; provided, however, that interest shall also be payable by wire transfer to the account at a member bank of the Federal Reserve System of any Registered Owner of Bonds in the aggregate principal amount of $500,000 or more at the written request (identifying such account by number) of the registered owner received by the Trustee (as hereinafter defined) at least five (5) days before the Regular Record Date or Special Record Date (as defined in the Indenture). While the Bonds bear interest at a Variable Rate (as hereinafter defined), the Regular Record Date will be the close of business on the Business Day immediately preceding each Interest Payment Date. While the Bonds bear interest at the Fixed Rate (as hereinafter defined), the Regular Record Date will be the 15th day of the calendar month preceding each Interest Payment Date. Any such interest not so punctually paid or duly provided for shall forthwith cease to be payable to the registered owner on such Regular Record Date, and may be paid to the person in whose name this Bond is registered at the close of business on a Special Record Date (as defined in the Indenture) for the payment of such defaulted interest to be fixed by the Trustee, or may be paid at any time in any other lawful manner, all as more fully provided in the Indenture. Principal, accrued interest and redemption premium, if any, shall be paid upon surrender of this Bond at the principal corporate trust office of First Union National Bank, as Trustee, in the City of Atlanta, Georgia. Payment of the purchase price of Bonds purchased as described herein shall be paid, upon surrender of such Bonds, at the office of First Union National Bank (in such capacity, the "Tender Agent") in the City of Atlanta, Georgia. This Bond is issued under and pursuant to Chapter 159, Part II, Florida Statutes, as amended, and other applicable provisions of law (the "Act"). C-2 THIS BOND AND THE ISSUE OF WHICH IT IS A PART AND THE PURCHASE PRICE TIIEREOF, THE PREMIUM, IF ANY, AND INTEREST THEREON ARE LIMITED OBLIGATIONS OF THE ISSUER PAYABLE BY THE ISSUER SOLELY FROM THE REVENUES AND RECEIPTS DERIVED FROM THE LOAN AGREEMENT (AS HEREINAFTER DEFINED), WHICH REVENUES AND RECEIPTS HAVE BEEN PLEDGED AND ASSIGNED TO THE TRUSTEE TO SECURE PAYMENT THEREOF AND FROM AMOUNTS RECEIVED PURSUANT TO THE CREDIT FACILITY (AS HEREINAFTER DEFINED). THIS BOND AND THE INTEREST HEREON WILL NOT CONSTITUTE AN INDEBTEDNESS OR A CHARGE AGAINST THE GENERAL CREDIT OR TAXING POWERS OF THE ISSUER WITHIN THE MEANING OF ANY CONSTITUTIONAL PROVISION OR STATUTORY LIMITATION AND SHALL NEVER CONSTITUTE NOR GIVE RISE TO ANY PECUNIARY LIABILITY OF THE ISSUER, BUT WILL BE A LIMITED OBLIGATION OF THE ISSUER PAYABLE SOLELY FROM THE REVENUES AND OTHER FUNDS PLEDGED THEREFOR AND WILL NOT BE PAYABLE FROM ANY ASSETS OR FUNDS OF THE ISSUER OTHER THAN THE REVENUES AND OTHER FUNDS PLEDGED THEREFOR, AND NEITHER THE FAITH AND CREDIT NOR THE TAXING POWER OF THE STATE OR ANY POLITICAL SUBDIVISION OR ANY AGENCY THEREOF IS PLEDGED TO THE PAYMENT OF THE PRINCIPAL OF OR THE INTEREST ON THIS BOND. This Bond is one of the Bonds of a duly authorized issue of variable rate industrial development revenue bonds of the Issuer in the aggregate principal amount of [$7,000,000] and designated City of Tamarac, Florida Industrial Development Revenue Bonds (Fazio Holdings, LP Project), Series 2000 (the "Bonds"). The Bonds are issued under and pursuant to a Trust Indenture, dated as of April 1, 2000 (said Trust Indenture, together with all such supplements and amendments thereto as therein permitted, being herein called the "Indenture"), between the Issuer and First Union National Bank, as trustee (the "Trustee"). An executed counterpart of the Indenture is on file at the principal corporate trust office of the Trustee. Reference is hereby made to the Indenture for the provisions, among others, with respect to the custody and application of the proceeds of the Bonds; the collection and disposition of revenues; a description of the funds charged with and pledged to the payment of the principal of and interest on and any other amounts payable under the Bonds; the nature and extent of the security; the terms and conditions under which the Bonds are or may be issued; and the rights, duties and obligations of the Issuer and of the "Trustee and the rights of the owners of the Bonds, and, by the acceptance of this Bond, the owner hereof assents to all of the provisions of the Indenture. The Bonds have been issued for the purpose of financing the acquisition, construction, installation and equipping of a manufacturing facility as more fully described in the Indenture (herein called the "Project") and to pay [a portion ofJ the costs of issuing the Bonds. The Issuer has entered into a Loan Agreement, dated as of April 1, 2000 (herein called the "Loan Agreement"), with Fazio Holdings, LP, a Florida limited partnership (the "Borrower"), under which the Issuer has agreed to use the proceeds of the Bonds to provide financing for the Project, and in consideration therefor, the Borrower has agreed to make loan payments in installments, bearing • interest at a rate or rates and payable at times corresponding to the principal amount of, installments G3 of principal of, interest rates on and due dates of the Bonds. The Loan Agreement also provides for the payment by the Borrower of certain fees and expenses of the Issuer and the "Trustee, and the Loan Agreement further obligates the Borrower (a) to pay the cost of maintaining the Project in good repair in all materiel respects and keeping the same properly insured and (b) to maintain a Credit Facility (as hereinafter defined) during the period of time the Bonds bear interest at the Variable Rate (herein called the "Variable Rate Period"). As security for the payment of the Bonds, all right, title and interest of the Issuer in (a) the Loan Agreement (except certain rights reserved by the Issuer under the terms of the Indenture), together with the Loan Agreement; (b) all money and securities at any time on deposit in, in transit to or credited to any account or Fund created under the Indenture, including without limitation the Project Fund and the Bond Fund (as defined in the Indenture), but excluding the Rebate Fund (as defined in the Indenture); and (c) Revenues (as defined in the Indenture) have been assigned to the Trustee under the Indenture and pledged to the payment of the principal of, and the redemption premium (if any) and the interest on, the Bonds. The Issuer shall not be vested with any interest in the Project by virtue of the issuance of the Bonds to finance the construction and installation of the Project, and the Project shall not otherwise constitute any part of the security for the payment of the Bonds. Reference to the Indenture is hereby made for a description of the aforesaid Bond Fund which is charged with, and pledged to, the payment of the principal of, and the redemption premium (if any) and the interest on, the Bonds, the nature and extent of the security, the rights, duties and obligations of the Issuer, the Borrower and the Trustee, the rights of the owners of the Bonds, the terms and conditions under and upon the occurrence of which the Indenture and the Loan Agreement may be modified and the terms and conditions under and upon the occurrence of which the lien of the Indenture may be defeased as to this Bond prior to the maturity or redemption date hereof, to all of the provisions of which the owner hereof, by the acceptance of this Bond, assents. Credit Facility. The Company has entered into a Letter of Credit and Security Agreement dated as of 2000 (the "Reimbursement Agreement") with First Union National Bank (in such capacity, the "Bank"). Pursuant to the Reimbursement Agreement, the Company has caused a Letter of Credit issued by the Bank (the "Letter of Credit"), to be delivered to the Trustee, as provided in the Indenture. The Trustee shall be entitled under the Letter of Credit to draw up to an amount of $ of which (a) $ shall support the payment of principal or that portion of the purchase price corresponding to principal of the Bonds and (b) $ shall support the payment of up to 120 days' interest or that portion of the purchase price corresponding to interest on the Bonds at an assumed rate of 15% per annum. Subject to the provisions of the Indenture, the Company is required during a Variable Rate Period to maintain with the Trustee the Letter of Credit or an alternate credit facility with terms and provisions substantially the same as those of the Letter of Credit (an "Alternate Credit Facility") - During any Variable Rate Period, unless the Letter of Credit or the then current .Alternate Credit hacility is replaced prior to its expiration in accordance with the terms of the Indenture, this Bond will become subject to mandatory redemption as provided in the Indenture upon expiration of the Credit Facility. Source of Funds. The principal of, premium (if any) and interest on the Bonds are payable solely from loan payments under the Loan Agreement and from any other moneys held by the Trustee C-4 under the Indenture for such purpose, including, with respect to principal and interest only, moneys drawn by the Trustee under the Letter of Credit or Alternate Credit Facility for the benefit of the Bondholders (the Bank as the issuer of the Letter of Credit and the institution issuing any Alternate Credit Facility are herein called the "Credit Facility Issuer"). Except as otherwise specified in the Indenture, this Bond is entitled to the benefits of the Indenture equally and ratably both as to principal (and redemption and purchase price) and interest with all other Bonds issued under the Indenture. Interest Rates. The Bonds shall bear interest at the applicable rate provided below. On each Interest Payment Date, interest accrued through the day immediately preceding such Interest Payment Date shall be payable. While the Bonds bear interest at any Variable Rate, interest shall be computed on the basis of a 365 or 366 day year, as applicable, for the number of days actually elapsed. After the Fixed Rate Conversion Date, interest on the Bonds shall be computed on the basis of a 360-day year of 12 equal months of 30 days each. Initial IntCEe5t Rate. This Bond shall bear interest from the Date of Authentication to and including 2000 at the Initial Interest Rate. Variable Rate. Following the Initial Rate Period (as defined in the Indenture) and until any Conversion Date (as defined in the Indenture), the Bonds shall bear interest at the Weekly Rate (hereinafter defined). During the Variable Rate Period (as defined in the Indenture), the Remarketing Agent shall give telephonic or written notice on the Determination Date (as defined in the Indenture) to the 'Trustee and the Company of the Variable Rate to be in effect for the next succeeding Calculation Period (as defined in the Indenture). The determination of any Variable Rate by the Remarketing Agent shall be conclusive and binding upon the Registered Owners, the Beneficial Owners, the Company, the Trustee, the Tender Agent, the Issuer, the Remarketing Agent and the Credit Facility Issuer. Notwithstanding anything herein to the contrary, each Interest Rate Determination Method (as defined in the Indenture) in effect from time to time shall continue in effect until the date on which such Interest Rate Determination Method is changed as described in Section 203 of the Indenture. (A) Weekly Rate. During any Weekly Rate Period (as defined in the Indenture) the Bonds will bear interest at the Weekly Rate. During any Weekly Rate Period, the Remarketing Agent will determine the Weekly Rate for the applicable Calculation Period on the applicable Determination Date. Each Weekly Rate shall be the rate of interest per annum determined by the Remarketing Agent on and as of each applicable Determination Date as the minimum rate of interest per annum necessary, in the judgment of the Remarketing Agent taking into account market conditions prevailing on the Determination Date, to enable the Remarketing Agent to arrange for the sale of all of the Bonds on the first day of the applicable Calculation Period in the secondary market at a price equal to the principal amount thereof (plus accrued interest to the date of settlement). If the Remarketing Agent fails to certify such rate, the Weekly Rate for any Calculation Period, or if for any reason the Weekly Rate is held to be invalid or unenforceable by a court of competent jurisdiction for any period, the Weekly Rate for such Calculation Period shall be the Alternate Rate (as defined in the Indenture). Notwithstanding anything else contained herein, the Weekly Rate shall not in any event exceed the lesser of (i) 15% per annum or (it) the maximum rate permitted by law. A Mon hx ly late. During any Monthly Rate Period (as defined in the Indenture) the Bonds will bear interest at the Monthly Rate. During any Monthly Rate Period, the Remarketing C-5 Agent will determine the Proposed Rate (as defined in the Indenture) for the applicable Calculation Period on the Proposed Rate Determination Date. Thereafter, the Remarketing Agent will determine a Monthly Rate on the applicable Determination Date; provided, however, that such rate shall not be less than the Proposed Rate determined by the Remarketing Agent on the preceding Proposed Rate Determination Date (as defined in the Indenture). Each Monthly Rate shall be the rate of interest per annum determined by the Remarketing Agent on and as of each applicable Determination Date as the minimum rate of interest per annum necessary, in the judgment of the Remarketing Agent taking into account market conditions prevailing on the Determination Date and subject to the foregoing proviso concerning the Proposed Rate, to enable the Remarketing Agent to arrange for the sale of all of the Bonds on the first day of the applicable Calculation Period in the secondary market at a price equal to the principal amount thereof (plus accrued interest to the date of settlement). If the Remarketing Agent fails to certify such rate or if, for any reason, the Monthly Rate is held to be invalid or unenforceable by a court of competent jurisdiction for any Calculation Period, the Monthly Rate for such Calculation Period shall be the Alternate Rate. In connection with any change in the Interest Rate Determination Method to a Monthly Rate pursuant to Section 203, the Proposed Rate shall be determined as provided above on the applicable Proposed Rate Determination Date and the initial Monthly Rate shall be determined as provided above on the applicable Determination Date. Notwithstanding anything else contained herein, the Monthly Rate shall not in any event exceed the lesser of (i) 15% per annum or (ii) the maximum rate permitted by law. (C) Semiannual Rate. During any Semiannual Rate Period the Bonds will bear interest at the Semiannual Rate. During any Semiannual Rate Period, the Remarketing Agent will determine the Proposed Rate for the next Calculation Period on the Proposed Rate Determination Date. Thereafter, the Remarketing Agent will determine a Semiannual Rate for the next Calculation Period on the applicable Determination Date; provided, however, that such Semiannual Rate shall not be less than the Proposed Rate determined by the Remarketing Agent on the preceding Proposed Rate Determination Date. Each Semiannual Rate shall be the rate of interest per annum determined by the Remarketing Agent on and as of each applicable Determination Date as the minimum rate of interest per annum necessary, in the judgment of the Remarketing Agent taking into account market conditions prevailing on the Determination Date and subject to the foregoing proviso concerning the Proposed Rate, to enable the Remarketing Agent to arrange for the sale of all of the Bonds on the first day of the applicable Calculation Period in the secondary market at a price equal to the principal amount thereof (plus accrued interest to the date of settlement). If the Remarketing Agent fails to certify such rate or if, for any reason, the Semiannual Rate is held to be invalid or unenforceable by a court of competent jurisdiction for any Calculation Period, the Semiannual Rate for such Calculation Period shall be the Alternate Semiannual Rate (as defined in the Indenture). In connection with any change in the Interest Rate Determination Method to a Semiannual Rate pursuant to Section 203, the Proposed Rate shall be determined as provided above on the applicable Proposed Rate Determination Date and the initial Semiannual Rate shall be determined as provided above on the applicable Calculation Date. Notwithstanding anything else contained herein, the Semiannual Rate shall not in any event exceed the lesser of (1) 15% per annum or (ii) the maximum rate permitted by law. C-6 0 Exed Rate. During the Fixed Rate Period, the Bonds shall bear interest at the Fixed Rate. (1) On the Fixed Rate Conversion Date (as defined in the Indenture) the Fixed Rate shall be established as follows: (a) if the Placement Agent shall have arranged for the sale of any or all Tendered Bonds (as defined in the Indenture) at a price equal to the principal amount thereof, the Fixed Rate shall be equal to the interest rate or rates at which such Bonds were sold by the Placement Agent, provided that all Tendered Bonds shall be sold at par and at a rate greater than or equal to the Preliminary Fixed Rate (as defined in the Indenture); or (b) if the Placement Agent shall have arranged for the sale of none of the Tendered Bonds, the Fixed Rate shall be equal to the Preliminary Fixed Rate. (2) If, for any reason, the Fixed Rate is held to be invalid or unenforceable by a court of competent jurisdiction, the Fixed Rate will be 8% per annum. Notwithstanding anything to the contrary contained herein or in the Indenture, the Fixed Rate shall in no event be a rate of interest in excess of the maximum rate permitted by law. (3) On or before the Fixed Rate Conversion Date, all Bonds shall be presented to the Trustee for stamping or otherwise noting thereon of the legend: 40 "The interest rate on this Bond has been fixed at % per annum in accordance with the provisions of this Bond and Section 202(e) of the Indenture." Interest Rate, Qeterminatipn Binding. The determination of the interest rate on the Bonds in accordance with the terms of the Indenture shall be conclusive and binding upon the Registered Owners, the Beneficial Owners, the Company, the Trustee, the Remarketing Agent, the Placement Agent, the Tender Agent and the Credit Facility Issuer. REDEMP" 'I N OR PURCHASE F B M. e _ (a) While the Bonds bear interest at a Variable Rate, the Bonds shall be subject to redemption on any Interest Payment Date, at the option of the Company, but only upon the 30 days prior written direction of the Company delivered to the Trustee and the Issuer, with the prior written consent of the Credit Facility Issuer, in whole or in part, at a redemption price equal to 100% of the principal amount thereof plus accrued interest to the redemption date. (b) While the Bonds bear interest at the Fixed Rate, the Bonds shall be subject to redemption, at the option and upon the written direction of the Company delivered to the Trustee and the Issuer at least 45 days prior to the date set for redemption, in whole or in part, on any Interest Payment Date occurring on or after the dates specified below at the redemption prices (with a premium C-7 1] expressed as a percentage of the principal amount thereof to be redeemed) specified below plus accrued interest to the redemption date. Commencement of Fixed Rate Redemption Period Four years from the Fixed Rate Conversion Date Redemption Price 103%, declining by 1 /2% on each succeeding anniversary of the first day of the Fixed Rate Redemption Period until reaching 100% and thereafter at 100% F=Qrdin= Maw Redemption. (1) During any Variable Rate Period, the Bonds shall be subject to mandatory redemption in whole on the Interest Payment Date occurring closest to but not less than 15 days prior to the date of expiration of the then current Credit Facility unless an Alternate Credit Facility has been provided in accordance with the Indenture, at a redemption price equal to 100% of the principal amount thereof plus accrued interest to the redemption date. (2) The Bonds will be subject to mandatory redemption in whole on any date at a redemption price equal to one hundred percent (100%) of the principal amount thereof plus accrued interest to the redemption date within one hundred eighty (180) days after receipt by the Trustee of a written notice of a Determination of Taxability (as defined in the Loan Agreement). (3) The Bonds are subject to redemption without premium from proceeds of the Bonds not used to complete the Project or from moneys drawn under the Credit Facility for which the Credit Facility Issuer is reimbursed from such excess proceeds in accordance with the provisions of the Indenture, which redemption date shall be no more than sixty (60) days following the date of transfer of moneys to the Bond Fund established under the Indenture from the Project Fund established under the Indenture. Notice f Redemption n le i n of Bonds. Any notice of redemption, identifying the Bonds or portions thereof to be redeemed, shall be given by the Trustee not more than 60 days and not less than 30 days prior to the redemption date, by mailing a copy of the redemption notice by first class mail to the registered owner of each Bond to be redeemed in whole or in part at the address shown on the Bond Register maintained by the Bond Registrar. Notice of optional redemption may be conditioned upon the deposit of moneys with the Trustee before the date fixed for redemption and such notice shall be of no effect unless such moneys are so deposited. All Bonds so called for redemption, including Bonds purchased by the Company as provided in the Indenture but not yet surrendered for payment of the purchase price, will cease to bear interest on the specified redemption date provided funds for their redemption price and any accrued interest payable on the specified redemption date are on deposit with the Tender Agent. If less than all the Bonds are to be redeemed, the particular Bonds to be called for redemption shall be selected in the following order of priority: first, Bonds pledged to the Credit Facility Issuer, second Bonds owned by the Company, and third, Bonds selected by lot as further provided in the Indenture. W:3 MandatoEy P r hase on Conversion Date. The Bonds shall be subject to mandatory purchase in whole at 100% of the principal amount thereof, without premium, plus accrued interest, if any, thereon to the date of purchase, on any Conversion Date. THE OWNER OF THIS BOND, BY ACCEPTANCE HERE.OI1, AGREES TO THE MANDATORY PURCHASE OF 'PHIS BOND AS PROVIDED IN 'THI;: INDENTURE, AND AGREES THAT THIS BOND SHALL BE PURCHASED ON THE DATE SPECIFIED UPON DEPOSIT WITI-I TI-IE TRUSTEE OF AN AMOUNT SUFFICIENT TO PAY THE PURCHASE PRICE HEREOF. THE OWNER OF THIS BOND ALSO UNDERSTANDS AND AGREES THAT IN THE EVENT THE OWNER FAILS TO DELIVER THIS BOND, PROPERLY ENDORSED FOR TRANSFER, TO THE TRUSTEE ON THE DATE SPECIFIED, INTEREST SHALL CEASE TO ACCRUE HEREON AND THE OWNER HEREOF SHALL THEREAFTER BE ENTITLED ONLY TO PAYMENT OF THE PURCHASE PRICE AND NOT TO THE BENEFITS OF THE INDENTURE. Purch—we at option of Regi5lcred Owner During Variable Rate Period. While the Bonds bear interest at a Variable Rate, any Bond or portion thereof in an authorized denomination shall be purchased on the demand of the Registered Owner thereof on any Optional Tender Date (as defined in the Indenture) at a purchase price equal to 100% of the principal amount thereof, plus accrued interest, if any, to the date of purchase upon delivery to the Tender Agent of an Optional Tender Notice in the form attached hereto as Exhibit B (the "Optional Tender Notice") at least seven (7) days prior to the Optional Tender Date specified in such Optional Tender Notice during any Weekly Rate Period or Monthly Rate Period or at least twenty (20) days prior to the Optional Tender Date specified in such Optional Tender Notice during any Semiannual Rate Period. Unless the Bonds are held pursuant to a book -entry system as described below, to receive payment of the purchase price, the owner will be required to deliver such Bond to the Tender Agent, accompanied by an executed form of assignment and any other instruments of transfer satisfactory to the Tender Agent, not less than five days prior to the purchase date specified in such notice as provided in the Indenture. No purchase of Bonds at the option of the owner thereof or on the Conversion Date shall be deemed to be a payment or redemption of the Bonds or any portion thereof. Notwithstanding the foregoing, no owner shall have a right to tender his Bond(s) for purchase as described in this paragraph following acceleration of the payment of the Bonds pursuant to the terms of the Indenture. THE OWNER OF THIS BOND, BY ACCEPTANCE HEREOF, AGREES THAT DELIVERY OF THE WRITTEN NOTICE DESCRIBED IN THIS PARAGRAPH BY THE OWNER CONSTITUTES AN IRREVOCABLE OFFER TO SELL THIS BOND ON THE DATE SPECIFIED, AND THAT THIS BOND SHALL BE PURCHASED ON SUCH DATE UPON DEPOSIT WITII THE TENDER AGENT OF AN AMOUNT SUFFICIENT TO PAY THE PURCHASE PRICE HEREOF. THE OWNER OF THIS BOND UNDERSTANDS AND AGREES THAT IN THE EVENT THE OWNER FAILS TO DELIVER THIS BOND, PROPERLY ENDORSED FOR TRANSFER, TO THE TENDER AGENT ON THE DATE SPECIFIED IN THE NOTICE, THIS BOND SIIALL BE HELD BY THE OWNER AS AGENT FOR THE ISSUER, INTEREST SHALL CEASE TO ACCRUE HEREON AND THE OWNER HEREOF SHALL THEREAT TER BE ENTITLED ONLY TO PAYMENT OF THE PURCHASE PRICE AND NOT TO THE BENEFIT OF THE INDENTURE AND THE ISSUER SHALL, TO THE EXTENT PERMITTED BY LAW, EXECUTE AND THE TRUSTEE SHALL AUTHENTICATE AND . DELIVER A SUBSTITUTC? BOND IN LIEU OF THE UNDELIVERED BOND. C-9 0 Tender Agent. The Issuer has appointed First Union National Bank as Tender Agent. The Tender Agent may be changed at any time by the Issuer. Autkdzed Denominations. Subject to the provisions of the Indenture, the Bonds are issuable as registered. Bonds in the denomination of $100,000 or any integral multiple of $5,000 in excess thereof; provided that if less than $100,000 principal amount of Bonds is outstanding, one Bond shall be issued in such smaller denomination. Subject to the limitations provided in the Indenture and upon payment of any tax or governmental charge, if any, Bonds may be exchanged for a like aggregate principal amount of Bonds of other authorized denominations. Except as provided in this paragraph, in no event shall Bonds be redeemed or selected for redemption if such redemption will result in any Registered Owner owning Bonds in principal amounts other than authorized denominations. Transfer. This Bond is transferable by the registered owner hereof or his duly authorized attorney at the principal corporate trust office of First Union National Bank as Bond Registrar, in Atlanta Georgia, in compliance with the terms and conditions set forth in the Indenture and upon surrender of this Bond, accompanied by a duly executed instrument of transfer in form satisfactory to the Bond Registrar, subject to such reasonable regulations as the Issuer, the Bond Registrar or the Trustee may prescribe, and upon payment of any tax or other governmental charge incident to such transfer, PROVIDED, THAT IF MONEYS FOR THE PURCHASE OF THIS BOND HAVE BEEN PROVIDED PURSU _NT TO A DRAW UNDER THE CREDIT FACILITY, THIS BOND IS NOT TRANSFERABLE TO ANYONE OTHER THAN THE COMPANY OR ITS ASSIGNEE OR PLEDGEE. Upon any such transfer, a new Bond or Bonds registered in the name of the transferee or transferees in denominations authorized by the Indenture and in the same aggregate principal amount as the principal amount of this Bond will be issued to the transferee. Except as set forth in this Bond and as otherwise provided in the Indenture, the person in whose name this Bond is registered shall be deemed the owner hereof for all purposes, and neither the Issuer, the Bond Registrar nor the Trustee shall be affected by any notice to the contrary. The Trustee may make appropriate arrangements for the Bonds (or any portion thereon to be issued or held by means of a book -entry system administered by The Depository Trust Company ("DTC") with no physical distribution of Bonds made to the public (other than those Bonds, if any, not held under such book -entry system). References in the remainder of this paragraph and in the next five succeeding paragraphs to a Bond or the Bonds shall be construed to mean the Bond or Bonds held under the book -entry system. In such event, one Bond for each maturity shall be issued to DTC, and immobilized in its custody. A book -entry system shall be employed, evidencing ownership of the Bonds in Authorized Denominations, with transfers of beneficial ownership effected on the records of DTC and the DTC Participants pursuant to rules and procedures established by DTC. Each DTC Participant shall be credited in the records of DTC with the amount of such DTC Participant's interest in the Bonds. Beneficial ownership interests in the Bonds may be purchased by or through DTC Participants. The holders of these beneficial ownership interests are hereinafter referred to as the "Beneficial Owners." The Beneficial Owners shall not receive Bonds representing their beneficial ownership interests. The ownership interests of each Beneficial Owner shall be recorded through the records of the DTC Participant from which such Beneficial Owner purchased its Bonds. Transfers of ownership interests in the Bonds shall be accomplished by book entries made by DTC and, in turn, by DTC Participants acting on behalf of Beneficial Owners. SO LONG AS C-10 CEDE & CO., AS NOMINEE FOR DTC, IS THE REGISTERED OWNER OF TIIE BONDS, THE TRUSTEE SHALL TREAT CEDE & CO. AS THE ONLY HOLDER OF TI IE BONDS FOR ALL PURPOSES UNDER THE INDENTURE, INCLUDING RECEIPT OF ALL PRINCIPAL OF, PREMIUM, IF ANY, AND INTEREST ON THE BONDS, RECEIPT OF NOTICES, VOTING AND REQUESTING OR DIRECTING THE TRUSTEE TO TAKE OR NOT TO TAKE, OR CONSENTING TO, CERTAIN ACTIONS UNDER THE INDENTURE. Payments of principal, premium, interest and purchase price with respect to the Bonds, so long as DTC is the only owner of the Bonds, shall be paid by the Trustee directly to DTC or its nominee, Cede & Co. as provided in the Blanket Letter of Representations dated August 22, 1997, from the Issuer, the Remarketing Agent and the Trustee (in its capacities as such and as Tender Agent and Paying Agent) to DTC (the "Letter of Representations"). DTC shall remit such payments to DTC Participants, and such payments thereafter shall be paid by DTC Participants to the Beneficial Owners. Neither the Issuer nor the Trustee shall be responsible or liable for payment by DTC or DTC Participants, for sending transaction statements or for maintaining, supervising or reviewing records maintained by DTC or DTC Participants. In the event that (a) DTC determines not to continue to act as securities depository for the Bonds or (b) the Issuer determines that the continuation of the book -entry system of evidence and transfer of ownership of the Bonds would adversely affect its interests or the interests of the Beneficial Owners of the Bonds, the Issuer shall discontinue the book -entry system with DTC. If the Issuer fails to identify another qualified securities depository to replace DTC, the Trustee shall authenticate and deliver replacement Bonds in the form of fully registered Bonds to each Beneficial Owner. THE ISSUER, THE REMARKETING AGENT, THE TENDER AGENT AND THE TRUSTEE SHALL NOT HAVE ANY RESPONSIBILITY OR OBLIGATIONS TO DTC OR ANY DTC PARTICIPANT OR ANY BENEFICIAL OWNER WITH RESPECT TO (i) THE BONDS; (ii) THE ACCURACY OF ANY RECORDS MAINTAINED BY DTC OR ANY DTC PARTICIPANT; (Ili) THE PAYMENT BY DTC OR ANY DTC PARTICIPANT OF ANY AMOUNT DUE TO ANY BENEFICIAL OWNER IN RESPECT OF THE PRINCIPAL OF AND INTEREST ON THE BONDS; (iv) THE DELIVERY OR TIMELINESS OF DELIVERY BY DTC OR ANY DTC PARTICIPANT OF ANY NOTICE DUE TO ANY BENEFICIAL OWNER THAT IS REQUIRED OR PERMITTED UNDER THE TERMS OF THE INDENTURE TO BE GIVEN TO BENEFICIAL OWNERS; (v) THE SELECTION OF BENEFICIAL OWNERS TO RECEIVE PAYMENT'S IN THE EVENT OF ANY PARTIAL REDEMPTION OF THE BONDS; OR (vi) ANY CONSENT GIVEN OR OTHER ACTION TAKEN BY DTC, OR ITS NOMINEE, CEDE & CO., AS REGISTERED OWNER. In the event that a book -entry system of evidence and transfer of ownership of the Bonds is discontinued pursuant to the provisions of the Indenture, the Bonds shall be delivered solely as fully registered Bonds without coupons in the Authorized Denominations, shall be lettered "R" and numbered separately from 1 upward, and shall be payable, executed, authenticated, registered, exchanged and canceled pursuant to the provisions hereof and of the Indenture. 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 C-11 • Default under the Indenture, or to institute, appear in or 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 this Bond may become or may be declared due and payable before the stated maturity hereof, together with the interest accrued hereon. Modifications or alterations of the Loan Agreement and the Indenture and any supplement or amendment thereto may be made only to the extent and in the circumstances permitted by the Indenture and may be made in certain cases without the consent of the owners of the Bonds. No recourse shall be had for the enforcement of any obligation, promise or agreement of the Issuer contained herein or other documents to which the Issuer is a party or for any claim based hereon or thereon or otherwise in respect hereof or thereof against any director, member, officer, agent, attorney or employee, as such, in his/her individual capacity, past, present or future, of the Issuer or of any successor entity, either directly or through the Issuer or any successor entity, under or by reason of any of the obligations, promises or agreements entered into in this Bond or between the Issuer and the Trustee; and all personal liability of that character against every such director, member, officer, agent, attorney and employee is, by the execution of the Indenture and as a condition of, and as part of the consideration for, the execution of this Indenture, expressly waived and released. Notwithstanding anything to the contrary, any liability for payment of money and any other liability or obligation which the Issuer may incur under this Bond shall not constitute a general obligation of the Issuer but shall constitute limited obligations of the Issuer payable solely from and enforced only against the Trust Estate. No recourse shall be had for the enforcement of any obligation, promise or agreement of the Issuer contained herein or in the Bonds or the Loan Agreement to which the Issuer is a party or for any claim based hereon or thereon or otherwise in respect hereof or thereof against any director, member, officer, agent, attorney or employee, as such, in his individual capacity, past, present or future, of the Issuer or of any successor entity, either directly or through the Issuer or any successor entity whether by virtue of any constitutional provision, statute or rule of law, or by the enforcement of any assessment or penalty otherwise. No personal liability whatsoever shall attach to, or be incurred by, any director, member, officer, agent, attorney or employee as such, past, present or future, of the Issuer or of any successor entity, either directly or through the Issuer or any successor entity, under or by reason of any of the obligations, promises or agreements entered into in this Bond or between the Issuer and the Trustee, whether herein contained or to be implied herefrorn as being supplemental hereto; and to all personal liability of that character against every such director, member, officer, agent, attorney and employee is, by the execution of the Indenture and as a condition of, and as part of the consideration for, the execution of the Indenture, expressly waived and released. Anything herein or in the Indenture to the contrary notwithstanding, the obligations of the Issuer hereunder shall be subject to the limitation that payment of interest to the owner of this Bond shall not be required to the extent that receipt of any such payment by the owner of this Bond would be contrary to the provisions of law applicable to such Bond which limits the maximum rate of interest which may be charged or collected by such owner. C-12 Florida. This Bond shall be governed by and construed in accordance with the laws of the State of All acts, conditions and things required to happen, exist and be performed precedent to and in the issuance of this Bond and the execution of the Indenture have happened, exist and have been performed as so required. IN WITNESS THEREOF, the Issuer has caused this Bond to be executed with the manual or facsimile signature of its authorized representatives as of the Original Delivery Date set forth above. [SEAL] ATTEST: By. Name: Carol Gold Title: City Clerk THE CITY OF TAMARAC, FLORIDA By: Name: Joe Schreiber Title: Mayor I hereby certify that I have approved this Agreement as to form By: Name Title: Mitchell S. Kraft City Attorney CERTIFICATE OF AUTHENTICATION This Bond is one of the Bonds of the series designated therein and issued under the provisions of the within -mentioned Indenture. Date of Authentication: r -I C-13 FIRST UNION NATIONAL BANK, as Trustee By: Authorized Signatory 0 (Form of Abbreviations) The following abbreviations, when used in the description on the face of the within Bond, shall be construed as though they were written out in full according to applicable laws or regulations. TEN COM -as tenants in common TEN ENT -as tenants by the entireties JT TEN -as joint tenants with the right of survivorship and not as tenants in common UTMA -Uniform Transfers to Minors Act Custodian for (Cult) under Uniform Transfers to Minors Act of (Minor) (State) Additional abbreviations may also be used though not in the above list. [Form of Assignment] For value received, the undersigned hereby sells, assigns and transfers unto the within Bond and all rights thereunder, and hereby irrevocably constitutes and appoints attorney to transfer the said Bond on the bond register, with full power of substitution in the premises. Dated: Signature of Assignor Social Security Number or Tax Identification Number of Transferee: Signature guaranteed by an institution which is a participant in the Securities Transfer Agents Medallion Program ("STAMP") or similar program: NOTICE: The assignor's signature to this Assignment must correspond with the name as it appears on the face of the within Bond in every particular without alteration or any change whatever. C-14 0 EXHIBIT A FORM OF REGISTERED OWNI.�R'S OPTIONAL TENDER NOTICE Date First Union National Bank, as Tender Agent for the Bonds issued under the Trust Indenture dated as of April 1, 2000 (the "Indenture") between First Union National Bank, as Trustee, and the City of Tamarac, Florida (the "Issuer") Attention: Corporate Trust Department Re: City of Tamarac, Florida Industrial Development Revenue Bonds (Fazio Holdings, LP Project), Series 2000 numbered _ CUSIP in the principal amount of [$7,000,000] (the "Bonds"). (1) The undersigned hereby certifies that it is the lawful registered owner (or beneficial owner, if the Bonds are held under a book -entry system) of the Bonds described above on the date . hereof and that such Bonds are free and clear of any liens or encumbrances. (2) Pursuant to the provisions of the Indenture, the undersigned hereby irrevocably request(s) the purchase of the Bonds described above. (3) The date on which the Bonds shall be purchased shall be [Note: This date must be an Optional Tender Date (as defined in the Indenture) at least seven (7) days after delivery of this notice to the Tender Agent during any Weekly Rate Period or Monthly Rate Period or at least twenty (20) days after delivery of this notice to the Tender Agent during any Semiannual Rate Period]. (4) The person or persons to whom or to whose order the proceeds of the purchase of the Bonds are to be paid is and the address or addresses of such payee or payees is and the address or addresses of such payee or payees is (5) The undersigned hereby irrevocably authorizes and instructs the Trustee or the Bond Registrar (as defined in the Bonds) to effect the transfer of such Bonds (or any Bond(s) exchanged therefor), upon payment of the purchase price therefor, to the purchaser(s) thereof, whether or not it delivers such Bonds as agreed pursuant to paragraph (7) hereof. (6) The undersigned hereby acknowledges that, even if it fails to deliver such Bonds, the Bonds may nevertheless be purchased pursuant to the Indenture, and that, in any event, on and after the proposed purchase date set forth in paragraph 3 hereof, the Bonds will cease to be outstanding for C-15 . all purposes under the Indenture, to evidence the indebtedness of the Issuer with respect thereto and to bear interest. (7) The undersigned hereby undertakes to deliver the Bonds to you, as Tender Agent, at 999 Peachtree Street, Suite 1100, Atlanta, Georgia 30309, Attention: Corporate Trust Department at least five days prior to the proposed purchase date set forth in paragraph 3 above duly endorsed in blank for transfer. Date: • L` Name of Registered Owner: Signature: Signature Guaranteed by: (Type or Print) Signature(s) must be guaranteed by an institution which is participating in the Securities Transfer Agents Medallion Program ("STAMP") or similar program. C-16 EXHIBIT D DESCRIPTION OF PROJECT The Project is the acquisition of land and the construction and improvements of an approximately 102,000 square foot building, and the acquisition of certain equipment for the manufacture of car wash equipment and related products at the Tamarac Commerce Park (with the proposed street address of 5605 Hiatus Road) within the municipal boundaries of the Issuer, to be owned by the Company and operated by an Affiliate of the Company. • J: \BONDS\ 4289 \7I-2-pd Febr—y 11, 2000 • D-1 . EXHIBIT "B" LOAN AGREEMENT • EXHIBIT "B" LOAN AGREEMENT • 0 Temp. Reso. #8929 March 8, 2000 Page 14 • LOAN AGREEMENT between CITY OF TAMARAC, FLORIDA and FAZIO HOLDINGS, LP relating to [$7,000,000] CITY OF TAMARAC, FLORIDA INDUSTRIAL DEVELOPMENT REVENUE BONDS (FAZIO HOLDINGS, LP PROJECT), SERIES 2000 NOTE: CERTAIN RIGHTS OF THE CITY OF TAMARAC, FLORIDA UNDER THIS LOAN AGREEMENT HAVE BEEN ASSIGNED TO, AND ARE SUBJECT TO A SECURITY INTEREST IN FAVOR OF, FIRST UNION NATIONAL BANK, AS TRUSTEE, UNDER A TRUST INDENTURE OF EVEN DATE HEREWITH, AS AMENDED OR SUPPLEMENTED FROM TIME TO TIME. INFORMATION CONCERNING SUCH SECURITY INTEREST MAY BE OBTAINED FROM THE''TRUSTEE AT FIRST UNION NATIONAL BANK, ATLANTA, GEORGIA, A-17E'NTION: CORPORATE TRUST DEPARTMENT, DATED AS OF APRIL 1, 2000 0 TABLE OF CONTENTS Page ARTICLf? I DEFINITIONS AND RULES OF CONSTRUCTION Section 1.1 Definitions ......................................................... 2 Section 1.2 Rules of Construction ................................................. 9 ARTICLE II REPRESENTATIONS Section 2.1 Representations by the Issuer ......................................... 10 Section 2.2 Representations, Warranties and Covenants by the Company ................ 11 ARTICLE III PERMITS AND APPROVALS; COMPANY CONSENT TO ASSIGNMENT Section 3.1 Approvals Required for the Project ..... 16 Section 3.2 Company Consent to Assignment of Agreement and Execution of Indenture ... 16 ARTICLE IV ISSUANCE OF THE BONDS Section 4.1 Agreement to Issue the Bonds ......................................... 17 Section 4.2 Disbursements from the Project Fund .................................. 17 Section 4.3 Closeout of the Project Fund .......................................... 17 Section 4.4 Disposition of the Balance in the Project Fund ........................... 17 Section 4.5 Company Required to Pay in Event Project Fund Insufficient ................ 17 Section 4.6 No Third Party Beneficiary ........................................... 17 ARTICLE V LOAN BY THE ISSUF.,'R TO THE COMPANY; REPAYMENT Section 5.1 Loan by the Issuer; Repayment ........................................ 18 Section 5.2 Payment Obligations of the Company ................................... 18 Section 5.3 Security for Payments Under the Loan Agreement ......................... 19 • Section 5.4 Company's Performance Under Indenture ............................... 19 Section 5.5 No Set -Off ........................................................ 19 Section 5.6 Prepayments....................................................... 19 Section 5.7 Letter of Credit and Reimbursement Agreement .......................... 19 • ARTICLE VI MAINTENANCE AND MODIFICATIONS; TAXES AND UTILITY CHARGES; INSURANCE AND EMINENT DOMAIN Section 6.1 Maintenance and Modification of the Project by the Company ............... 20 Section 6.2 Taxes and Utility Charges ............................................. 20 Section 6.3 Casualty and Liability Insurance Required ................................ 21 Section 6.4 General Requirements Applicable to Insurance ........................... 21 Section 6.5 Advances by the Issuer or the Trustee ................................... 22 Section 6.6 Company to Make Up Deficiency in Insurance Coverage ................... 22 Section 6.7 Eminent Domain ................................................... 22 Section 6.8 Application of Net Proceeds of Insurance and Eminent Domain ............. 23 Section 6.9 Parties to Give Notice ............................................... 24 Section 6.10 No Warranty of Condition or Suitability by Issuer ......................... 24 ARTICLE VII SPECIAL COVENANTS Section 7.1 Access to the Project and Inspection .................................... 25 Section 7.2 Further Assurances and Corrective Instruments ........................... 25 Section 7.3 Recording and Filing; Other Instruments .............. I ................. 25 Section 7.4 Arbitrage Covenants: Notice of Event of Taxability ........................ 26 Section 7.5 No Prohibited Payments .................................... 1 ........ 27 Section 7.6 Permitted Investments: Prohibited Payments ............................. 27 Section 7.7 Investment in Tax -Exempt Securities ................................... 28 Section 7.8 Administrative Expenses ............................................. 28 Section 7.9 Indemnity Against Claims ............................................ 28 Section 7.10 Indemnity of Issuer and Trustee ....................................... 28 Section 7.11 Additional Information .............................................. 29 Section 7.12 Default Certificates.................................................. 30 Section 7.13 Observe Laws...............................I.....................1 30 ARTICLE VIII ASSIGNMI?NT, LASING AND SELLING Section 8.1 Assignment of this Loan Agreement or Lease or Sale of the Project by theCompany ...................................................... 31 Section 8.2 Restrictions on Transfer of the Issuer's Rights ............................ 31 Section 8.3 Assignment by the Issuer ............... I ............................. 31 11 • ARTICLE IX EVENTS OF DEFAULT AND REMEDIES Section 9.1 Events of Default Defined ............................................ 32 Section 9.2 Remedies on Default ................................................ 33 Section 9.3 Application of Amounts Realized in Enforcement of Remedies .............. 33 Section 9.4 No Remedy Exclusive ............................................... 33 Section 9.5 Agreement to Pay Attorneys' Fees and Expenses .. I . I .......... I .......... 34 Section 9.6 Correlative Waivers .................................................. 34 ARTICLE X PREPAYMENTS Section 10.1 Optional Prepayments ............................................... 35 Section 10.2 Mandatory Prepayments .............................................. 35 Section 10.3 Other Mandatory Prepayments ............ I .. I . I ...................... 35 ARTICLE XI REBATE PROVISIONS Section 11.1 Creation of the Rebate Fund .......................................... 36 Section 11.2 Determinations, Notices and Records of Rebate Amount ................... 36 Section 11.3 Investment Earnings on Bond Funds ................................... 36 Section 11.4 Filing of Required Rebate ........................................ I .... 37 ARTICLE XII MISCELLANEOUS Section 12.1 References to the Bonds Ineffective After Bonds Paid ...................... 38 Section 12.2 No Implied Waiver .................................................. 38 Section 12.3 Issuer Representative................................................ 38 Section 12.4 Company Representative ............................................. 38 Section 12.5 Notices ............. .......... ..................... I ......... ..... 38 Section 12.6 If Payment or Performance Date Is Other Than a Business Day ............. 39 Section 12.7 Binding Effect ...................................................... 39 Section 12.8 Severability........................................................ 39 Section 12.9 Amendments, Changes and Modifications ............................... 39 Section 12.10 Execution in Counterparts ............................................ 39 Section 12.11 Applicable Law ..................................................... 39 Section 12.12 Expenses.......................................................... 39 Section 12.13 Amounts Remaining with the "Trustee ................................... 40 ff • Section 12.14 References to the Credit Facility Issuer and Credit Facility ............. I ..... 40 Section 12.15 Covenants of Issuer Not Covenants of Officials Individually ................. 40 Section 12.16 No Personal Liability .................................. I ............. 40 Section 12.17 Limited Liability of the Issuer ......................................... 41 IV 0 LOAN AGREEMENT This LOAN AGREEMENT, dated as of April 1, 2000 between the CITY OF TAMARAC, FLORIDA (the "Issuer"), a municipality duly organized and existing under the laws of the Constitution and laws of the State of Florida (the "State") and FAZIO HOLDINGS, I,P (the "Company"), a Florida limited partnership. IT N E'S-FT WHEREAS, the Issuer is authorized and empowered by the provisions of Chapter 159, Part II, Florida Statutes, as amended, and other applicable provisions of law (the "Act") to issue its industrial development revenue bonds for the purpose of financing projects (as defined in the Act) and to lend the proceeds of such revenue bonds upon terms and conditions as the Issuer may deem advisable; and WHEREAS, to obtain funds for such purposes the Issuer will issue and sell its City of Tamarac, Florida Industrial Development Revenue Bonds (Fazio Holdings, LP Project), Series 2000 (the "Bonds"), under and pursuant to the Act, to be secured by and contain such terms and provisions as are set forth in that certain Trust Indenture (the "Indenture") dated as of April 1, 2000 between the Issuer and First Union National Bank, as Trustee (the "Trustee"), and the proceeds from the sale of the Bonds shall be deposited with the Trustee and disbursed in the manner and for the purposes set forth herein and in the Indenture, all as more fully provided herein and therein; and NOW, THEREFORE, in consideration of the respective representations and agreements contained herein, the parties hereto, recognizing that under the Act this Loan Agreement shall not be a debt of the Issuer and neither the Issuer, the State nor any political subdivision thereof, shall be liable thereon within the meaning of any constitutional provision or statutory limitation, except from moneys received or to be received under the provisions of this Loan Agreement and from the Credit Facility Issuer under a Credit Facility (each as hereinafter defined) or derived from the exercise of the rights of the Issuer thereunder, agree as follows: [Remainder of Page Intentionally Left Blank] 0 0 ARTICLE I • DEFINITIONS AND RULES OF CONSTRUCTION Section 1.1 Definitions. In addition to words and terms elsewhere defined in this Loan Agreement or in the Indenture, the following words and terms shall have the following meanings: "Act" shall mean Chapter 159, Part II, Florida Statutes, as amended, and other applicable provisions of applicable law. "Administrative Expenses" shall mean the amounts payable pursuant to Section 7.8 hereof by the Company to or for the account of the Issuer to provide for payment of the costs and expenses incurred by the Issuer. "Affiliate" shall mean, with respect to any Person, any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such Person. For the purposes of this definition, "control', when used with respect to a Person, means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise, and the terms "controlling" and "controlled" have meanings correlative to the foregoing. "Bank" shall mean the Credit Facility Issuer. "Bond" or "Bonds" shall mean the City of Tamarac, Florida Industrial Development Revenue Bonds (Fazio Holdings, LP Project), Series 2000, authorized to be issued pursuant to the Indenture, including such Bonds issued in replacement for mutilated, destroyed, lost or stolen Bonds pursuant to Section 212 of the Indenture, and any amendments and supplements thereto, and any renewals and extensions thereof, permitted by the Indenture. "Bond Documents" shall mean collectively the Indenture, the Bonds, this Loan Agreement, the Letter of Credit Documents and the Remarketing Agreement. "Bond Resolution" means, collectively, the resolutions adopted by the Issuer on February 23, 2000 and March 8, 2000, respectively, as supplemented, authorizing, among other things, the execution and delivery of the Issuer Documents to be signed by the Issuer and the issuance of the Bonds by the Issuer. "Bond Year" means a one-year period commencing on April _ of each year. "Business Day" means a day on which (a) banks located in each of the cities in which the principal office of the Trustee, the Credit Facility Issuer and the Remarketing Agent is located are not required or authorized by law or executive order to close for business, and (b) The New York Stock Exchange is not closed. "Capital Expenditures" shall have the meaning as specified in Section 2.2(y) hereof. K • "Closing Date" means the date of the issuance and delivery of the Bonds. "Code" shall mean the Internal Revenue Code of 1986, as amended. "Company" shall mean Fazio Holdings, LP, a Florida limited partnership, and any surviving, resulting or transferee corporation or other entity. "Company Representative" shall mean any one of the persons at the time designated to act on behalf of the Company by written certificate furnished to the Trustee containing the specimen signatures of such persons and signed on behalf of the Company. "Completion Date" shall mean the date of completion of the Project, as that date shall be certified as provided in Section 4.3 hereof. "Consistent Basis" shall mean, in reference to the application of Generally Accepted Accounting Principles, that the accounting principles observed in the period referred to are comparable in all material respects to those applied in the preceding period, except as to any changes consented to by the Trustee and the Credit Facility Issuer. "Construction," when used in connection with the Project, shall mean, without limitation, the acquisition construction, installation, improving or equipping of the Project. "Costs of the Project" shall mean all costs and allowances for the acquisition, equipping and renovation of the Project which are permitted under the Act and which include, but are not limited to, all capital costs of the Project, including the following: (1) the acquisition, expansion and improving of the Project, including the acquisition of all machinery and equipment; (2) preparation of the plans and specifications for the Project (including any preliminary study or plan of the Project or any aspect thereon, any labor, services, materials and supplies used or furnished in the Construction of the Project, the construction and installation necessary to provide utility services or other services and all real and tangible personal property deemed necessary by the Company in connection with the Project; (3) the fees for architectural, engineering, supervisory and consulting services in connection with Construction of the Project; (4) to the extent they shall not be paid by a contractor, the premiums of all insurance and surety and performance bonds required to be maintained in connection with the Construction of the Project; (5) any fees and expenses incurred in connection with construction, perfection and protection of title to the Project; 3 • (6) interest prior to and during the period until completion of construction of the Project; and (7) any administrative or other fees charged by the Issuer or reimbursement thereof of expenses, in connection with the Project to the completion of construction of the Project. "Counsel" shall mean an attorney or firm of attorneys acceptable to the Trustee, and may, but need not, be counsel to the Issuer or the Company. "Credit Facility" shall mean the Letter of Credit or any Alternate Credit Facility delivered to the Trustee pursuant to Section 503 of the Indenture. "Credit Facility Issuer" shall mean the Bank with respect to the Letter of Credit and the institution issuing any Alternate Credit Facility. "Determination of Taxability" shall be defined as and shall be deemed to have occurred on the first to occur of the following: (1) on the date when the Company files any statement, supplemental statement or other tax schedule, return or document which discloses that an Event of Taxability shall have in fact occurred; (2) on the date when any Bondholder or former Bondholder notifies the Company or the Trustee that it has received a written opinion of Bond Counsel to the effect that an Event of Taxability shall have occurred unless, within one (1) year after receipt by the Company of such notification from the Trustee, any Bondholder or any former Bondholder, the Company shall obtain and deliver to the Trustee a favorable ruling or determination letter issued to or on behalf of the Company by the Commissioner or any District Director of Internal Revenue (or any other government official exercising the same or a substantially similar function from time to time) to the effect that, after taking into consideration such facts as form the basis for the opinion that an Event of Taxability has occurred, an Event of Taxability shall not have occurred; (3) on the date when the Company shall be advised in writing by the Commissioner or any District Director of Internal Revenue (or any other government official or agent exercising the same or a substantially similar function from time to time) that, based upon filings of the Company, or upon any review or audit of the Company, or upon any other ground whatsoever, an Event of Taxability shall have occurred; (4) on the date when the Company shall receive notice in writing from any Bondholder or former Bondholder, or from the Trustee, that the Internal Revenue Service (or any other government agency exercising the same or a substantially similar function from time to time) has assessed as includable in the gross income of any Bondholder or former Bondholder the interest on such Bondholder's or former Bondholder's Bonds due to the occurrence of an I vent of Taxability; 4 0 provided, however, no Determination of Taxability shall be deemed to have occurred under subparagraph (3) or (4) hereof unless the Company has been afforded the opportunity, at its expense, to contest any such assessment or unfavorable ruling and, further, no Determination of Taxability shall be deemed to have occurred until such contest, if made, has been finally determined. "Eminent Domain" shall mean the taking of title to, or the temporary use of, the Project or any part thereof pursuant to eminent domain or condemnation proceedings, or any voluntary conveyance of any part of the Project during the pendency of, or as a result of a threat of, such proceedings. "Event of Default" or "Default" shall have the meaning set forth in Section 9.1 hereof. "Event of Taxability" shall mean a change in law or fact or the interpretation thereof, or the occurrence or existence of any fact, event or circumstance (including, without limitation, the issuance of obligations or the incurring of capital expenditures in excess of those permitted by Section 144(a)(4) of the Code, or the taking of any action by the Company, or the failure to take any action by the Company, or the making by the Company of a misrepresentation herein or in any certificate required to be given in connection with the issuance, sale or delivery of the Bonds) which has the effect of causing the interest paid or payable on any Bond to become includable in the gross income of any Bondholder or former Bondholder of any Bond other than a Bondholder or former Bondholder who is or was a Substantial User or Related Person. "Fair Market Value" means the price at which a willing buyer would purchase an investment from a willing seller in a bona -fide, arm's length transaction, as more specifically set forth in Section 1.148-5(d)(6) of the Regulations. "Financing Statements" means any and all financing statements (including continuation statements) filed for record from time to time to perfect the security interests created or assigned pursuant to the Bond Documents. "Generally Accepted Accounting Principles" shall mean those principles of accounting set forth in pronouncements of the Financial Accounting Standards Board and its predecessors or pronouncements of the American Institute of Certified Public Accountants or those principles of accounting which have other substantial authoritative support and are applicable in the circumstances as of the date of application, as such principles are from time to time supplemented and amended. "Indenture" shall mean the Trust Indenture of even date herewith between the Issuer and the Trustee, together with any amendments or supplements thereof permitted thereby. "Issuer" shall mean the City of Tamarac, Florida, a municipal corporation duly created and existing under and by virtue of the laws of the State of Florida. "Issuer Documents" shall mean collectively the Indenture, the Placement Agent Agreement and this Loan Agreement. w7 "Issuer Representative" shall mean any one of the persons at the time designated to act on behalf of the Issuer by written certificate furnished to the Company and the Trustee containing the specimen signatures of such persons and signed on behalf of the Issuer by the Chairman. "Letter of Credit" shall mean the irrevocable direct pay letter of credit dated April _, 2000 in the amount of $ issued by the Bank, with an initial term of five (5) years, subject to any extensions thereof. "Letter of Credit Documents" shall mean the Letter of Credit, the Reimbursement Agreement and the Pledge Agreement. "Loan Agreement" shall mean this Loan Agreement and any amendments and supplements thereto permitted by the Indenture. "Local Facilities" means "facilities" (as that term is used in Section 144(a) (4) of the Code) of which the Company, any other Principal User of the Project, or a Related Person of any of the foregoing, is or will be a Principal User and which are located within the geographical limits of the Issuer. For the purposes of this definition, a "contiguous or integrated facility" (as that term is used in Section 1.103-10(d)(2)(i) of the Regulations) located partly within and partly without shall be considered as being located entirely within the geographical limits of the Issuer. "Net Proceeds," when used with respect to (i) any insurance proceeds or (ii) any award resulting from, or other amount received in connection with, Eminent Domain, means the gross proceeds from such proceeds, award or other amount, less all expenses (including attorneys' fees) incurred in the realization thereof. "Non -Purpose Investment" means any investment property (other than a tax-exempt obligation under Section 103(a) of the Code) that is not acquired to carry out the governmental purpose of the Bonds. "Overdue Rate" shall mean the Prime Rate plus two percent per annum, or the maximum contract rate permitted by law, whichever is lower. "Payment of the Bonds" shall mean payment of (i) the principal of and interest on the Bonds in accordance with their terms whether through payment at maturity, upon acceleration or prepayment, (ii) all amounts due as Administrative Expenses or otherwise, and (iii) any and all other liabilities and obligations arising under the Indenture and this Loan Agreement; in any case, payment in such a manner that all such amounts due and owing with respect to the Bonds shall have been paid. "Permitted Encumbrances" shall mean, as of any particular time, (i) liens for ad valorem taxes and special assessments, if any, which are not then delinquent or which are being contested in good faith, (ii) the liens created pursuant to the Indenture, any mortgage or deed to secure debt from the Company to the Bank, (iii) judgment liens which remain undischarged and unstayed for not more than 6 thirty (30) days, (iv) mechanic's, materialmen's, warehousemen's, carrier's and other similar liens incurred in the ordinary course of business remaining undischarged or unstayed for not longer than sixty (60) days from the date of attachment thereof, and (v) all liens and encumbrances listed as exceptions to the title insurance policy required by Section 3.1(e) of the Reimbursement Agreement which liens and exceptions are in all respects satisfactory to the Bank. "Person" shall mean an individual, partnership, corporation, trust, unincorporated organization, association, joint venture, joint-stock company, or a government or agency or political subdivision thereof. "Placement Agent" shall mean the securities dealer, bank or trust company which is designated by the Company with the consent of the Credit Facility Issuer, which will use its best efforts to arrange for the initial placement of the Bonds and which will agree to establish the Preliminary Fixed Rate and to use its best efforts to arrange for the sale of Tendered Bonds on the Conversion Date, all as more particularly described in Section 203 of the Indenture. "Placement Agent Agreement" shall mean that certain letter agreement dated the date of issuance of the Bonds among the Issuer, the Company and Placement Agent for the initial placement of the Bonds. "Pledge Agreement" shall mean the Pledge Agreement of even date herewith by the Company to the Bank, and any amendments or supplements thereof. "Prime Rate", prior to the Conversion Date, shall mean that rate of interest per annum announced by First Union National Bank at its principal office in Charlotte, North Carolina, from time to time to be its "prime rate", and after the Conversion Date shall mean the interest rate published in the "Money Rate" table of Th Journalas such rate (or if a range of rates is published, then the highest rate in such range). In the event that The Wall StrrQt„ Journal shall abolish or abandon the practice of publishing a "prime rate", or should the same become unascertainable, the Trustee shall designate a comparable reference rate which shall be deemed to be the Prime Rate for purposes hereof. "Principal User" shall have the meaning as specified in Section 2.2 hereof. "Project" shall have the meaning ascribed thereto in the Indenture. "Project Fund" shall mean the trust fund so designated which is established pursuant to Section 401 of the Indenture. "Qualified Costs" means those Costs of the Project paid or incurred subsequent to December 25, 1995 for the acquisition and renovation of land or property of a character subject to the allowance for depreciation under Section 167 of the Code and shall include all amounts which are chargeable to the capital account of the Project or would be so chargeable either with a proper election by the Company or but for a proper election by the Company to deduct such amounts. "Rebate Amount," means all interest income and profits earned on investment of the proceeds . of the Bonds which are required to be paid to the United States under Section 148(o of the Code, calculated and determined in accordance with the Regulations, and any penalties in lieu of making payments of rebate amounts if the Issuer has elected pursuant to Section 148(0(4)(C)(vii) of the Code to pay such penalties to the United States. "Rebate Fund" means the fund of that name created pursuant to Section 405 of the Indenture and described in Section 11.1 hereof. "Regulations" shall mean the applicable Treasury Regulations under Sections 103 and 141 through 150 of the Code whether at the time proposed, temporary, final or otherwise, including, where applicable, Treasury Regulations under Section 103 of the Internal Revenue Code of 1954, as amended and in effect prior to adoption of the Code. "Reimbursement Agreement" shall mean the Letter of Credit and Security Agreement, of even date herewith, by and between the Company and the Bank, and any supplements or amendments thereto. "Related Person" means "related person" within the meaning of Section 144(a)(3) of the Code. "Remarketing Agent" shall mean First Union Securities, Inc., Charlotte, North Carolina and its successors as provided in Section 1101 of the Indenture. "Remarketing Agreement" shall mean the Remarketing Agreement of even date herewith between the Company and the Remarketing Agent. "Security Interest" or "security interests" shall refer to the security interests created in the Indenture. "State" shall mean the State of Florida. "Substantial User" shall have the meaning as specified in Section 2.2 hereof. "Trustee" shall mean the banking institution at the time serving as Trustee under the Indenture. "Yield" means, on a fixed yield issue, the discount rate that, when used in computing the present value as of the issue date of all unconditionally payable payments of principal, interest, and fees for qualified guarantees on such issue and amounts reasonably expected to be paid as fees for qualified guarantees on such issue, produces an amount equal to the present value, using the same discount rate, of the same aggregate issue price of the issue as of the issue date thereof. The "yield "on an investment allocated to an issue of bonds is the discount rate that, when used in computing the present value as of the date the investment is first allocated to such issue of all unconditionally payable receipts from the investment, produces an amount equal to the present value of all unconditionally payable payments for the investment. The yield on an investment allocated to an issue is computed under the economic accrual method, using the same compounding interval and financial conventions to compute the yield on the issue. Thus, for example, if the yield on an investment allocated to an issue is determined on the basis of semiannual interest compounding, then the yield on the issue shall also be expressed in 0 terms of semiannual interest compounding. The yield on a variable yield issue is computed separately .J for each computation period. The yield for each computation period is the discount rate that, when used in computing the present value as of the first day of the computation period of all the payments of principal and interest and fees for qualified guarantees that are attributable to the computation period, produces an amount equal to the present value, using the same discount rate, of the aggregate issue price (or deemed issued price, as determined in Regulation Section 1.148-4(c)(2)(iv)) of the bonds of the issue as of the first day of the computation period. Section 1.2 Rules of Construction. (1) Words of masculine gender shall be deemed and construed to include correlative words of the feminine and neuter genders, and words of the neuter gender shall be deemed and construed to include correlative words of the masculine and feminine genders. (2) The table of contents, captions and headings in this Loan Agreement are for convenience only and in no way define, limit or describe the scope or intent of any provisions or Sections of this Loan Agreement. (3) All references herein to particular Articles or Sections are references to Articles or Sections of this Loan Agreement unless some other reference is established. (4) All accounting terms not specifically defined herein shall be construed in accordance with Generally Accepted Accounting Principles applied on a Consistent Basis. (5) All references herein to the Company shall be deemed to refer to each of the Persons if more than one are described by such term. Obligation, duty or liability of the Company shall be a joint and several agreement, obligation, duty or liability of each of the Persons so described by such term. (6) Any terms not defined herein but defined in any of the other Bond Documents shall have the same meaning herein. [Remainder of Page Intentionally Left Blank] V] 0 ARTICLE II REPRESENTATIONS Section 2.1 Representations by the Issuer. The Issuer represents, warrants and agrees as follows: (a) The Issuer is a municipal corporation duly organized under the Constitution and laws of the State. (b) Under the provisions of the Act, the Issuer is duly authorized to enter into, execute and deliver or, if appropriate, accept the Issuer Documents, to issue and deliver the Bonds, to undertake the transactions contemplated by the Issuer Documents and the Bonds and to carry out its obligations hereunder and thereunder. (c) The Issuer proposes to issue the Bonds in the aggregate principal amount of [$7,000,000] to finance, in whole or in part, the acquisition, construction, installation and equipping of the Project. (d) By the Bond Resolution, the Issuer has duly authorized the execution, delivery and performance or, if appropriate, acceptance of the Issuer Documents, including the borrowing under and the issuance and performance of the Bonds. I* (e) The Bonds will be issued under and pursuant to the Indenture and will mature, bear interest, and have the other terms and provisions set forth or provided for in the Indenture. (0 To the best of its knowledge, no event has occurred and no condition exists with respect to the Issuer which would constitute an "event of default" as defined in this Loan Agreement or the Indenture or which, with the lapse of time or with the giving of notice or both, would become an "event of default" under this Loan Agreement or the Indenture. (g) Neither this Loan Agreement nor any portion of the Trust Estate have been pledged or hypothecated in any manner or for any purpose other than as provided in the Indenture as security for the payment of the Bonds. The Bonds constitute the only bonds or other obligations of the Issuer in any manner payable from the revenues to be derived from this Loan Agreement, and except for the Bonds, no bonds or other obligations have been or will be issued on the basis of this Loan Agreement. (h) With respect to the Bonds, there are no other obligations of the Issuer that have been, are being or will be sold (1) at substantially the same time, (2) under the same plan of financing, and (3) payable from the same source of funds. (i) On February 23, 2000 and March 8, 2000, respectively, the Issuer adopted an initial resolution approving the issuance of the Bonds. (j) No member of the Issuer voting on this financing has any interest whatsoever in the Company or in the transactions contemplated by this Loan Agreement. 10 (k) The Issuer will not enter into any agreement or instrument which might in any way prevent or materially impair its ability to perform its obligations under the Bond Documents. (1) So long as any Bonds shall remain unpaid, the Issuer will, upon request of the Trustee and provided it shall be furnished with sufficient funds to pay all costs and expenses (including attorney's fees) reasonably incurred by it as such costs and expenses accrue: (1) take all action and do all things which it is authorized by law to take and do in order to perform and observe all covenants and agreements on its part to be performed and observed under the Bond Documents; and (2) execute, acknowledge, where appropriate, and deliver from time to time promptly at the request of the Trustee all such instruments and documents as in the opinion of the Trustee are necessary or desirable to carry out the intent and purpose of the Bonds Documents or any of them. (m) So long as any Bonds shall remain unpaid, the Issuer will not, without the written consent of the Trustee: (1) take any action which, directly or indirectly, adversely affects its existence or status as a political subdivision organized and existing under the laws of the State; (2) take any action which would adversely affect the exclusion from gross income for federal income tax purposes of interest on the Bonds; or (3) pledge any interest in this Loan Agreement, or the amounts to be derived herefrom, other than as contemplated by the Indenture. Section 2.2 Representations, Warranties and Covenants by the Company. The Company represents, warrants and covenants and agrees as follows: (a) The Company is a limited partnership duly organized and validly existing under the laws of the State. The Company is not in violation of any provision of its partnership agreement as amended, has the corporate power to enter into and perform this Agreement, and has duly authorized by proper corporate action the execution and delivery of this Agreement, and is qualified to do business and is in good standing under the laws of the State. Sonny's Enterprises, Inc., the general partner of the Company, is a corporation duly organized and validly existing under the laws of the State, is not in violation of any provisions of its articles of incorporation, as amended, has corporate power to enter into this Agreement as general partner of the Company, and has duly authorized by proper corporate actions the execution and delivery of this Agreement in such capacity, and is qualified to do business and is in good standing under the laws of the State. (b) Neither the execution and delivery of this Loan Agreement, the Remarketing Agreement, the Reimbursement Agreement or the Pledge Agreement, nor the consummation of the transactions contemplated hereby and thereby, nor the fulfillment of or compliance with the terms and conditions hereof or thereof (i) conflicts with or results in a breach of the partnership agreement or 11 the bylaws of the Company or constitutes a default under the partnership agreement of the Company, (ii) materially conflicts with or results in a material breach of the terms, conditions, or provisions of any agreement or instrument to which the Company is now a party or by which the Company is bound, or constitutes a material default under any of the foregoing, or (iii) results in the creation or imposition of any lien, charge or encumbrance whatsoever upon any of the property or assets of the Company other than as expressly contemplated by the terms of any such instrument or agreement. (c) There is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, public board or body, known to be pending or threatened against or affecting the Company or any of its general or limited partners, nor to the best of the knowledge of the Company is there any basis therefor, wherein an unfavorable decision, ruling, or finding would materially adversely affect the transactions contemplated by this Loan Agreement or which would adversely affect, in any way, the validity or enforceability of the Bonds, this Loan Agreement, the Pledge Agreement, the Reimbursement Agreement, the Remarketing Agreement, or any agreement or instrument to which the Company is a party, used or contemplated for use in the consummation of the transactions contemplated hereby. (d) The Project is of the type authorized and permitted by the Act, and its estimated cost is not less than [$7,000,000]. (e) The proceeds of the Bonds deposited under the Indenture will be used only for payment of Costs of the Project and costs of issuing the Bonds (not exceeding 2% of the principal amount of the Bonds). None of the Net Proceeds of the Bonds will be used as working capital or to finance inventory. (0 The Company will use due diligence to cause the Project to be constructed and operated in all material respects in accordance with the laws, rulings, regulations and ordinances of the State and the departments, agencies and political subdivisions thereof. The Company has obtained or will cause to be obtained all requisite approvals of the State and of other federal, state, regional and local governmental bodies for the construction and equipping of the Project. (g) The Company will keep all taxes and assessments against the Project fully paid before the same become delinquent. (h) The Company will fully and faithfully perform all the duties and obligations which the Issuer has covenanted and agreed in the Indenture to cause the Company to perform, any duties and obligations which the Company is required in the Indenture to perform and any delegable or assignable duties and obligations which the Issuer is required in the Indenture to perform. The foregoing shall not apply to any duty or undertaking of the Issuer which by its nature cannot be delegated or assigned. (1) Except for any architectural, engineering, surveying, soil testing, or similar preliminary activities occurring earlier, the commencement of the construction of the Project, and each of the several components thereof, occurred subsequent to December 25, 1999, which is sixty days prior to the date of adoption by the Issuer of its initial inducement resolution. No proceeds of the Bonds will be used to reimburse the Company for amounts paid prior to December 25, 1999 other than for "preliminary expenditures" as defined in Section 1.150-2(o of the Income Tax Regulations. 12 • 0) The Company has entered into various contracts providing for the construction and improving of the Project that collectively create a substantial binding commitment on the Company's Part to expend at least five percent (5%) of the net sale proceeds of the Bonds on the Project. For purposes of the preceding sentence and subsection (m) below, the term "net sale proceeds" means the proceeds actually or constructively received by the Issuer from the sale of the Bonds (including amounts used to pay any placement agent's or underwriters' discount). (k) The Project consists of land and/or property subject to the allowance for depreciation under the Code, and substantially all of the net proceeds of the Bonds, including earnings from the investment thereof, will be used to pay Qualified Costs. 0) No changes shall be made in the Project and no actions will be taken by the Company that shall in any way cause interest on the Bonds to be included in gross income for federal income tax purposes. (m) Based on current facts, estimates and circumstances, the Company currently expects: (1) that the acquisition, construction, installation and equipping of the Project and the expenditure of all of the net sale proceeds of the Bonds will be completed by January 31, 2001; (2) to proceed with due diligence toward completion of the Project (the work on which has already commenced) and the expenditure of the net sale proceeds of the Bonds in connection with the Project; and (3) the proceeds of the Bonds deposited under the Indenture are needed for the purpose of paying all or a part of the Cost of the Project. (n) As of the date of execution and delivery of this Loan Agreement, there exists no Event of Default or any condition or event which would constitute, or with the passage of time or the giving of notice, or both, would constitute an Event of Default hereunder. (o) The average maturity of the Bonds does not exceed one hundred twenty percent (120%) of the average reasonably expected economic life of the assets being financed with the proceeds of the Bonds, with the average reasonably expected economic life of each asset being measured from the later of the date of issuance of the Bonds or the date such asset is reasonably expected to be placed in service and by taking into account the respective cost of each asset being financed. The information furnished by the Company and used by the Issuer to verify the average reasonably expected economic life of each asset of the Project to be financed with the proceeds of the Bonds is true, accurate and complete. (p) (i) The payment of principal or interest with respect to the Bonds is not guaranteed (in whole or in part) by the United States (or any agency or instrumentality thereof); (ii) five percent (5%) or more of the proceeds of the Bonds will not be (A) used in making loans the payment of principal and interest with respect to which are to be guaranteed (in whole or in part) by the United States (or any agency or instrumentality thereof), or (B) invested (directly or indirectly) in federally insured 13 deposits or accounts as defined in Section 149(B) of the Code; and (Ili) the payment of principal or interest on the Bonds is not otherwise indirectly guaranteed (in whole or in part) by the United States (or any agency or instrumentality thereoO. The foregoing provisions of this subsection shall not apply to proceeds of the Bonds being (1) invested for an initial temporary period until such proceeds are needed for the purpose for which such issue was issued; (ii) held in a bona fide debt service fund; (iii) held in a reserve that meets the requirements of Section 148(d) of the Code with respect to reasonably required reserve or replacement funds; (iv) invested in obligations issued by the United States Treasury; or (v) held in a refunding escrow (i.e., a fund containing proceeds of a refunding bond issue established to provide for the payment of principal or interest on one or more prior bond issues); or (vi) invested in other investments permitted under regulations promulgated pursuant to Section 149(b)(3)(B) of the Code. (q) Any information supplied by the Company that has been relied upon by the Issuer and by Bond Counsel with respect to the eligibility of the Project and the exclusion from gross income for federal income tax purposes of interest on the Bonds is true and correct. (r) The Company shall promptly provide written notice to the Issuer and the 'Trustee if the Company becomes aware of an Event of Default as such term is used in Section 9.1 hereof. (s) All components of the Project are or will be located wholly within the boundaries of the Issuer. • (t) This Loan Agreement constitutes a valid and binding obligation of the Company enforceable against the Company in accordance with its terms. (u) There is no other bond or issue of bonds, the interest on which is tax exempt pursuant to Section 144(a) of the Code or Section 103(b)(6) of the Internal Revenue Code of 1954, as amended, part or all of the net proceeds of which are to be used with part or all of the net proceeds of the Bonds with respect to a single building, an enclosed shopping mall, or a strip of offices, stores or warehouses using substantial common facilities, as contemplated by Section 144(a)(9) of the Code. There are no heating, cooling or other facilities shared by the Project and by any other facility financed with tax- exempt bonds. There are no common entrances, to plazas, malls, lobbies, parking, elevators or stairways shared by the Project and any other facility financed with tax-exempt use by employees or patrons of the Project and such facility. (v) Neither the Company nor any Related Persons (as such term is used in the Code) to the Company are owners or principal users (as such term is used in the Code) of any facility (other than the Project) with the boundaries of the Issuer, or outside of, but contiguous within, the boundaries of the Issuer. (w) The Project is not integrated with any facility located outside of the limits of the Issuer. (x) (i) The aggregate authorized face amount of the Bonds allocated to any test -period beneficiary (as such term is used in the Code), when increased by the outstanding tax-exempt facility - related bonds (within the meaning of Section 144(a)(10) of the Code) of such beneficiary, does not 14 0 exceed $40,000,000. (ii) For purposes of applying subparagraph (i) above, with respect to any issue, the outstanding tax-exempt facility -related bonds of any person who is a test -period beneficiary, as such term is used in the Code, with respect to such issue is the aggregate face amount of all tax-exempt bonds which, within the meaning of Section 144(a)(10)(B)(ii) of the Code, are exempt facility bonds, qualified small issue bonds and qualified redevelopment bonds or industrial development bonds (as defined in Section 103(b)(2) of the Internal Revenue Code of 1954, as in effect on the date before the date of enactment of the Tax Reform Act of 1986) to which Section 141(a) of the Code does not apply: (A) which are allocated to such beneficiary, and (B) which are outstanding on the date of issuance of the Bonds (not including as outstanding any obligation which is to be redeemed from the proceeds of the Bonds). (Ili) The amount of any issue shall be allocated so that: (y) except as may otherwise be provided in regulations promulgated under Section 144(a)(10)(C) of the Code, the portion of the face amount of any issue allocated to any test -period beneficiary of the facility financed by the proceeds of such issue (other than an owner of such facility) is an amount which bears the same relationship to the entire face amount of such issue as the portion of such facility used by such beneficiary bears to the entire facility; and (z) except as otherwise provided in regulations promulgated under Section 144(a)(10)(C) of the Code, the portion of the face amount of an issue allocated to any test period beneficiary who is an owner of a facility financed by the proceeds of such issue is an amount which bears the same relationship to the entire face amount of such issue as the portion of such facility owned by such beneficiary bears to the entire facility. (y) The information furnished by the Company and used by the Issuer in making its election to issue the Bonds pursuant to Section 144(a)(4) of the Code was true and complete as of the date hereof. The aggregate principal amount of all obligations assumed, expenditures made and obligations incurred during the six year period beginning on the date three years prior to the issuance of the Bonds and ending on the date three years after the issuance of the Bonds with respect to Local Facilities (including, without limitation, the leasing of equipment) which constitute "capital expenditures", as that term is used in Section 144(a)(4) of the Code ("Capital Expenditures") (other than those mentioned in Section 144(a)(4)(C) of the Code), by the Company, any other Principal User of the Project, any Related Person of either, or otherwise with respect to Local Facilities, but excluding such Capital Expenditures paid out of the proceeds of the Bonds, did not at any time during the period referenced above exceed $10,000,000, (z) No customer of the Company is expected to purchase ten percent (109/6) or more of the Company's annual output from the Project during the first three years of the term of the Loan Agreement on a basis different than any other customer of the Company. (aa) The Project constitutes a "manufacturing facility" within the meaning and contemplation of Section 144(a)(12) of the Code, and any office space included as part of the Project will be (i) located at or within the Project, (ii) directly related to the day-to-day manufacturing operations at the Project, and (Ili) de minimis in size and cost in relation to the size and cost of the Project. All of the above representations, warranties, covenants and agreements shall survive the execution of this Loan Agreement. 15 .7 ARTICLE III PERMITS AND APPROVALS; COMPANY CONSENT TO ASSIGNMENT Section 3.1 Approvals Required for the Project. The Company has obtained or caused to be obtained all necessary material permits and approvals for the operation and maintenance of the Project and has complied and will continue to comply in all material respects with all lawful requirements of any governmental body regarding the use or condition of the Project. The Company may, however, contest any such requirement by an appropriate proceeding diligently prosecuted. Section 3.2 Company Consent to Assignment of Agreement and Execution of Indenture. The Company understands that the Issuer, as security for the payment of the principal of, and the interest on, the Bonds, will assign and pledge to, and create a security interest in favor of, the Trustee pursuant to the Indenture certain of its rights, tide and interest in and to this Loan Agreement including all Revenues, reserving, however, its rights (a) pursuant to this Loan Agreement providing that notices, approvals, consents, requests and other communications be given to the Issuer, (b) to reimbursement and payment of costs and expenses under this Loan Agreement, and (c) to indemnification and to exemption from liability, both individual and corporate, under this Loan Agreement, and the Company hereby agrees and consents to such assignment and pledge. The Company acknowledges that it has received a copy of the Indenture and consents to the execution of the same by the Issuer. [Remainder of Page Intentionally Left Blank] 16 ARTICLE IV ISSUANCE OF THE BONDS Section 4.1 Agreement to Issue the Bonds. To provide funds to finance the acquisition, construction and improving of the Project, the Issuer agrees that it will authorize, sell, issue and deliver the Bonds in the aggregate principal amount of [$7,000,000] in the manner set forth in the Indenture and cause the proceeds of the Bonds to be applied as provided in the Indenture. Section 4.2 Disbursements from the Project Fund. The Issuer has, in the Indenture, authorized and directed the Trustee to make disbursements from the Project Fund in accordance with the terms of this Loan Agreement including refinancing the loan as more fully set forth in the Indenture. Section 4.3 Closeout of the Project Fund. The Completion Date for the Project shall be promptly established and evidenced to the Trustee and shall be the date on which the Company Representative delivers to the Trustee a certificate stating that, except for amounts retained by the Trustee at the Company's direction for any Cost of the Project not then due and payable, the Construction of the Project has been completed substantially in accordance with the plans and specifications, if any, and all costs and expenses incurred in connection therewith have been paid. Notwithstanding the foregoing, such certificate may state that it is given without prejudice to any rights against third parties that exist at the date of such certificate or that may subsequently come into being. Section 4.4 Disposition of the Balance in the Project Fund. Pursuant to Section 401(g) of the Indenture, as soon as practicable after, and in any event within sixty (60) days from, the Trustee's receipt of the certificate mentioned in Section 4.3 hereof, all amounts remaining in the Project Fund, including any unliquidated investments made with money theretofore deposited in the Project Fund, except for amounts to be retained in the Project Fund for any Cost of the Project not then due and payable as provided in Section 4.3 hereof, shall be transferred by the Trustee to the Bond Fund and shall be applied immediately as set forth in the written direction of the Company as described in subsections (i) through (Ili) of Section 401(g) of the Indenture. Section 4.5 Company Required to Pay in Event Project Fund Insufficient. In the event the moneys in the Project Fund available for the Project are not sufficient for the Project, the Company agrees to provide such funds and to pay the amount in excess of the moneys available therefor in the Project Fund. The Issuer does not make any warranty, either express or implied, that the moneys paid into the Project Fund will be sufficient for such purpose. The Company agrees that if after exhaustion of the moneys in the Project Fund, the Company should pay any amount to finance the construction and equipping of the Project pursuant to the provisions of this Section, the Company shall not be entitled to any reimbursement therefor from the Issuer, the Trustee or the Bondholders, nor shall the Company be entitled to any diminution of the amounts payable under Section 5.2 hereof. Section 4.6 No Third Party Beneficiary. It is specifically agreed between the parties executing this Loan Agreement that it is not intended by any of the provisions of any part of this Loan Agreement to create in the public or any member thereof, other than as may be expressly provided herein or as contemplated in the Indenture, a third party beneficiary hereunder, or to authorize anyone not a party to this Loan Agreement to maintain a suit for personal injuries or property damage pursuant to the terms or provisions of this Loan Agreement. The duties, obligations, and responsibilities of the parties to this Loan Agreement with respect to third parties shall remain as imposed by law. 17 . ARTICLE V LOAN BY THE ISSUER TO THE COMPANY; REPAYMENT Section 5.1 Loan by the Issuer; Repayment. (a) Upon the terms and conditions of this Loan Agreement, the Issuer shall lend to the Company the proceeds from the sale of the Bonds. The loan shall be evidenced by and repayable as set forth in this Loan Agreement. The loan shall be made by depositing said proceeds in the Project Fund in accordance with the terms of the Indenture. (b) As consideration for the issuance of the Bonds and the making of the loan to the Company by the Issuer, the Company will execute and deliver this Loan Agreement, and the Issuer will assign this Loan Agreement to the Trustee, as the assignee of the Issuer under the Indenture, contemporaneously with the issuance of the Bonds. The Company shall repay the loan in accordance with the provisions of this Loan Agreement, Section 5.2 Payment Obligations of the Company. (a) One day prior to the first Business Day of each January, April, July and October beginning on the first Business Day of July, 2000, and in each year thereafter until payment in full of the Bonds, the Company shall pay or cause to be paid to the Trustee for the account of the Issuer as loan payments a sum equal to the amount payable on each such date as principal of (whether at maturity or upon redemption prior to maturity) and interest on the Bonds, as provided in the Indenture. Each loan payment under this Section shall be sufficient to pay the total amount of principal (whether at maturity or upon redemption prior to maturity) and interest payable on such payment date, and if at any payment date the balance in the Bond Fund is insufficient to make required payments of principal and interest on such date, the Company shall forthwith pay any such deficiency. Such payments may be applied by the Trustee to reimburse the Credit Facility Issuer if funds for such payment or redemption are obtained or are to be obtained pursuant to a draw under the Credit facility. On or by the third Business Day before the first Business Day of each January, April, July or October that the Company's payment has not been received, the Issuer hereby directs the Trustee, in accordance with the Indenture, to give telephonic and written notice to the Company of the upcoming loan payment date. Anything herein to the contrary notwithstanding, any amount at any time held by the Trustee in the Bond Fund shall be credited against the next succeeding loan payment and such credit shall reduce the payment to be then made by the Company; and further, if the amount held by the Trustee in the Bond Fund should be sufficient to pay at the times required the principal of and interest on all Bonds then remaining unpaid, the Company shall not be obligated to make any further loan payments under the provisions of this Section. (b) The Company agrees to pay to the Trustee until the Bonds are paid in full, (i) an amount equal to the aggregate annual fee of the Trustee which is $4,500 for the ordinary services of the Trustee rendered and its ordinary expenses incurred under the Indenture, (ii) the reasonable fees and charges of the Trustee and any other paying agent for acting as paying agent and as Bond Registrar as IC] • and when the same become due, and (iii) the reasonable fees and charges of the Trustee for extraordinary services rendered by it and extraordinary expenses incurred by it under the Indenture, as and when the same become due. If the Company should fail to make any of the payments required in this paragraph, the item or installment so in default shall continue as an obligation of the Company until the same shall have been fully paid, and the Company agrees to pay the same with interest thereon, to the extent legally enforceable, at the Overdue Rate until paid. Section 5.3 Security for Payments Under the Loan Agreement. It is understood and agreed that payments required to be made to the Issuer under this Loan Agreement are assigned and pledged to the Trustee under the Indenture. The Company hereby assents to such assignment and pledge. The Company further agrees that (i) all payments under this Loan Agreement shall be paid directly to the Trustee for the account of the Issuer and shall be deposited in the Bond Fund; and (ii) all payments required to be made as provided in Section 5.2(b) hereof shall be paid directly to the Trustee for its own use, or any paying agents or Counsel. Section 5.4 Company's Performance Under Indenture. The Company agrees, for the benefit of the holders from time to time of the Bonds, to do and perform all acts and things contemplated in the Indenture to be done or performed by it. Section 5.5 No Set -Off. The obligation of the Company to make the payments required by this Loan Agreement shall be absolute and unconditional. The Company will pay without abatement, diminution or deduction (whether for taxes or otherwise) all such amounts regardless of any cause or circumstance whatsoever including, without limitation, any defense, set-off, recoupment or counterclaim that the Company may have or assert against the Issuer, the Trustee, any Bondholder or any other person. The provisions of this Section 5.5, however, are subject to the provisions of the last paragraph of Section 5.2. Section 5.6 Prepayments. The Company may prepay all or any part of the amounts it is obligated to pay as provided in Section 601 of the Indenture with respect to prepayment of the Bonds. Except as provided in this Section 5.6 and in Sections 10.1, 10.2 and 10.3 hereof, the Company shall not be entitled to cause the Bonds to be prepaid. The Company shall prepay all of the amounts it is required to prepay as provided in Sections 10.2 and 10.3 hereof. Section 5.7 Letter of Credit and Reimbursement Agreement. As a further condition to the Issuer's financing the Project hereunder, the Company shall: (a) cause the Letter of Credit to be issued and delivered to the Trustee as security for the Bonds and until the Conversion Date, cause a Credit Facility meeting the requirements of Section 503 of the Indenture to be maintained with the Trustee; and (b) enter into the Reimbursement Agreement with the Bank in form and substance satisfactory to the Bank and execute and deliver the other Letter of Credit Documents required by the Bank. 19 0 ARTICLE VI MAINTENANCE AND MODIFICATIONS; TAXES AND UTILITY CHARGES; INSURANCE AND EMINENT DOMAIN Section 6.1 Maintenance and Modification of the Project by the Company. (a) The Company agrees that, until Payment of the Bonds shall be made, it will at its own expense, (1) keep the Project or cause the Project to be kept in as reasonably safe condition as its operations shall permit, (2) make or cause to be made from time to time all necessary repairs thereto and renewals and replacements thereof and otherwise keep the Project in good repair and in good operating condition, and (3) not permit or suffer others to commit a nuisance on or about the Project. The Company shall pay or cause to be paid all costs and expenses of operation and maintenance of the Project. (b) The Company may, at its own expense, make from time to time any additions, modifications or improvements to the Project that it may deem desirable for its business purposes and that do not materially impair the effective use or decrease the value of the Project. Section 6.2 Taxes and Utility Charges. (a) The Company shall pay as the same respectively become due, (i) all taxes, assessments, levies, claims and charges of any kind whatsoever that may at any time be lawfully assessed or levied . against or with respect to the Project (including, without limiting the generality of the foregoing, any tax upon or with respect to the income or profits of the Issuer from the Project and that, if not paid, would become a charge on the payments to be made under this Loan Agreement prior to or on a parity with the charge thereon created by the Indenture and including ad valorem, sales and excise taxes, assessments and charges upon the Company's interest in the Project), (2) all utility and other charges incurred in the operation, maintenance, use, occupancy and upkeep of the Project and (3) all assessments and charges lawfully made by any governmental body for public improvements that may be secured by a lien on any portion of the Project. (b) The Company may, at its expense, contest in good faith any such levy, tax, assessment, claim or other charge, but the Company may permit the items so contested to remain undischarged and unsatisfied during the period of such contest and any appeal therefrom only if the Company shall notify the Issuer and the Trustee that in the opinion of Counsel, by non- payment of any such items, the rights of the Trustee with respect to this Loan Agreement created by the assignment under the Indenture, as to the rights assigned under this Loan Agreement or any part of the payments to be made under this Loan Agreement will not be materially endangered, nor will the Project or any part thereof be subject to loss or forfeiture. If the Company is unable to deliver such an opinion of Counsel, the Company shall promptly pay or bond and cause to be satisfied or discharged all such unpaid items or furnish, at the expense of the Company, indemnity satisfactory to the Trustee; but provided further, that any tax, assessment, charge, levy or claim shall be paid forthwith upon the commencement of proceedings to foreclose any lien securing the same. The Issuer and the Trustee, at the expense of the Company, will cooperate fully in any such permitted contest. 20 (c) If the Company shall fail to pay any of the items required to be paid by it pursuant to (a) above, the Issuer or the Trustee may (but shall be under no obligation to) pay the same, and any amounts so advanced therefor by the Issuer or the Trustee shall become an additional obligation of the Company to the one making the advancement which amounts, together with interest thereon at the Overdue Rate, from the date of payment, the Company agrees to pay on demand therefor. (d) The Company shall furnish the Issuer and the Trustee, upon request, with proof of payment of any taxes, governmental charges, utility charges, insurance premiums or other charges required to be paid by the Company under this Loan Agreement. Section 6.3 Casualty and Liability Insurance Required. Until Payment of the Bonds shall be made, the Company will keep the Project properly and continuously insured against such risks as are customarily insured against by businesses of like size and type engaged in the same or similar operations (other than business interruption insurance) including, without limiting the generality of the foregoing, all insurance required under the Reimbursement Agreement or any of the Letter of Credit Documents; (a) casualty insurance on the Project in an amount not less than the full insurable value of all property located at, and all improvements to, the Project, against loss or damage by fire and lightning and other hazards ordinarily included under uniform broad form of extended coverage endorsement at the time in use in the State; (b) general comprehensive liability insurance against claims for bodily injury, death or property damage occurring on, in or about the Project (such coverage to include provisions waiving subrogation against the Issuer and the Trustee) in amounts no less than $1,000,000 with respect to bodily injury to any one person, $1,000,000 with respect to bodily injury to two or more persons in any one accident and $1,000,000 with respect to property damage resulting from any one occurrence; (c) liability insurance with respect to the Project under the workers' compensation laws of the State; provided, however, that the insurance so required may be provided by blanket policies or under a self insurance program now or hereafter maintained by the Company; and (d) if at any time any portion of the Project is in an area that has been identified by the Secretary of Housing and Urban Development as having special flood and mudslide hazards, a policy of flood insurance covering improvements located on such portion of the Project with amounts and coverage reasonably satisfactory to the Trustee and the Credit Facility Issuer. Section 6.4 General Requirements Applicable to Insurance. (a) Except as otherwise agreed to by the Credit Facility Issuer during such time as a Credit Facility is in effect, each insurance policy obtained in satisfaction of the requirements of Section 6.3 hereof- (1) shall be by such insurer (or insurers) as shall be financially responsible, qualified to do business in the State and of recognized standing; 21 (2) shall be in such form and have such provisions (including, without limitation, the lenders long -form loss payable clause, the waiver of subrogation clause, the deductible amount, if any, and the standard mortgagee endorsement clause), as are generally considered standard provisions for the type of insurance involved and are acceptable in all respects to the Trustee and the Credit Facility Issuer; (3) shall prohibit cancellation or substantial modification, termination or lapse in coverage by the insurer without at least thirty (30) days' prior written notice to the Issuer, the Trustee and the Credit Facility Issuer; (4) shall provide that losses thereunder, prior to the occurrence of an Event of Default (or event which, with notice or lapse of time or both, would constitute an Event of Default) shall be adjusted with the insurer by the Company at its expense on behalf of the insured parties and the decision of the Company as to any adjustment shall be final and conclusive; and (5) without limiting the generality of the foregoing, all insurance policies carried on the Project shall name the Company, the Trustee and the Credit Facility Issuer as parties insured thereunder as the respective interests of each of such parties may appear, and any loss thereunder shall be made payable and shall be applied as provided in Section 6.8 hereof. (b) Prior to expiration of any such policy, the Company shall furnish the Issuer and the Trustee with evidence satisfactory to them that the policy or certificate has been renewed or replaced in compliance with this Loan Agreement or is no longer required by this Loan Agreement and the Credit Facility Issuer. Section 6.5 Advances by the Issuer or the Trustee. In the event the Company shall fail to maintain, or cause to be maintained, the full insurance coverage required by this Loan Agreement or shall fail to keep or cause to be kept the Project in good repair and good operating condition, the Issuer or the Trustee may (but shall be under no obligation to), after ten (10) days written notice to the Company, contract for the required policies of insurance and pay the premiums on the same or make any required repairs, renewals and replacements; and the Company agrees to reimburse the Issuer and the Trustee to the extent of the amounts so advanced by them or any of them with interest thereon at the Overdue Rate, from the date of advance to the date of reimbursement. Any amounts so advanced by the Issuer or the Trustee shall become an additional obligation of the Company, shall be payable on demand, and shall be deemed a part of the obligation of the Company. Section 6.6 Company to Make Up Deficiency in Insurance Coverage. The Company agrees that to the extent that it shall not carry insurance required by Sections 6.3 and 6.4 hereof, it shall pay promptly to the Trustee for application in accordance with the provisions of Section 6.8 hereof, such amount as would have been received as Net Proceeds by the Trustee under the provisions of Section 6.8 hereof had such insurance been carried to the extent required. Section 6.7 Eminent Domain. Unless the Company shall have prepaid its obligations pursuant to the provisions of Article Y hereof, in the event that title to, or the temporary use of, the Project or any part thereof shall be taken by Eminent Domain, the Company shall be obligated to 22 continue to make the payments required to be made pursuant to this Loan Agreement and the Net Proceeds received as a result of such Eminent Domain shall be applied as provided in Section 6.8(b) hereof. Section 6.8 Application of Net Proceeds of Insurance and Eminent Domain. (a) Except as otherwise agreed to by the Credit Facility Issuer during such time as a Credit Facility is in effect, the Net Proceeds of the insurance carried pursuant to the provisions of Sections 6.3(b) and 6.3(c) hereof shall be applied by the Company toward extinguishment of the defect or claim or satisfaction of the liability with respect to which such insurance proceeds may be paid. (b) Except as otherwise provided in the Reimbursement Agreement (which shall govern during such time that the Credit Facility is in effect), the Net Proceeds of the insurance carried with respect to the Project pursuant to the provisions of Sections 6.3(a) and (d) hereof (excluding the Net Proceeds of any business interruption insurance, which shall be paid to the Company), and the Net Proceeds resulting from Eminent Domain shall be paid to the Trustee and applied as follows: (1) If the amount of the Net Proceeds does not exceed $50,000, the Net Proceeds shall be paid to the Company and shall be applied to any repair, replacement, renewal or improvement of the Project, if any, as the Company deems necessary. (2) If the amount of the Net Proceeds exceeds $50,000, the Net Proceeds shall be paid to and held by the Trustee as a special trust fund and invested in accordance with Section 502 of the Indenture and the provisions of Article XI hereof pending receipt of written instructions from the Company. At the option of the Company, to be exercised within the period of ninety (90) days from the receipt by the Trustee of such Net Proceeds, the Company shall advise the Trustee that (A) the Company will use the Net Proceeds for the repair, replacement, renewal or improvement of the Project (such funds to be delivered by the Trustee to the Company), or (B) the Net Proceeds shall be applied to the prepayment of the Bonds as provided in Section 10.1 hereof If the Company does not advise the Trustee within said period of ninety (90) days that it elects to proceed under clause (A) to use such Net Proceeds for the repair, replacement, renewal or improvement of the Project, such Net Proceeds shall be applied to the prepayment of the Bonds pursuant to Article X hereof. Any prepayment pursuant to the preceding sentence shall be effected on the next Interest Payment Date not less than thirty (30) days after the expiration of said period of ninety (90) days without an election by the Company. (c) The Company agrees that if it shall elect to use the moneys paid to the Trustee pursuant to subsection (b)(2) of this Section 6.8 for the repair, replacement, renewal or improvement of the Project, it will restore the Project, or cause the same to be done, to a condition substantially equivalent to its condition prior to the occurrence of the event to which the Net Proceeds were attributable. To the extent that the Net Proceeds are not sufficient to restore or replace the Project, the Company shall use its own funds to complete the restoration or replacement of the Project. Any balance remaining after any such application of such Net Proceeds shall be paid to the Company. The Company shall be entitled to the Net Proceeds of any insurance or resulting from Eminent Domain relating to property . of the Company not included in the Project and not providing security for this Loan Agreement. 23 �J Section 6.9 Parties to Give Notice. In case of any material damage to or destruction of all or any part of the Project, the Company shall give prompt notice thereof to the Issuer, the Credit Facility Issuer and the Trustee. In case of a taking or proposed taking of �, Il or any part of the Project or any right therein by Eminent Domain, the Company shall give prompt notice thereof to the Issuer, the Credit Facility Issuer and the Trustee. Each such notice shall describe generally the nature and extent of such damage, destruction, taking, loss, proceeding or negotiations. Section 6.10 No Warranty of Condition or Suitability by Issuer. The Company recognizes that the Issuer does not deal in goods of the kind comprising components of the Project or otherwise hold itself out as having knowledge or skill peculiar to the practices or goods involved in the Project, and that the Issuer is not one to whom such knowledge or skill may be attributed by its employment of an agent or broker or other intermediary who by his occupation holds himself out as having such knowledge or skill. The Company further recognizes that since the components of the Project have been and are to be designated and selected by the Company, THE ISSUER HAS NOT MADE AN INSPECTION OF THE PROJECT OR OF ANY FIXTURE OR OTHER ITEM CONSTITUTING A PORTION THEREOF, AND, EXCEPT AS OTHERWISE PROVIDED HEREIN, THE ISSUER MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED OR OTHERWISE, WITH RESPECT TO THE SAME OR TO THE LOCATION, USE, DESCRIPTION, DESIGN, MERCHANTABILITY, FITNESS FOR USE FOR ANY PARTICULAR PURPOSE, CONDITION OR DURABILITY THEREOF, TO THE QUALITY OF THE MATERIAL OR WORKMANSHIP THEREIN, IT BEING AGREED THAT ALL RISKS INCIDENT THERETO ARE TO BE BORNE BY THE COMPANY. IN THE EVENT OF ANY DEFECT OR DEFICIENCY OF ANY NATURE IN THE PROJECT OR ANY FIXTURE OR OTHER ITEM CONSTITUTING A PORTION THEREOF, OR WHETHER PATENT OR LATENT, THE ISSUER SHALL HAVE NO RESPONSIBILITY OR LIABILITY WITH RESPECT THERETO. THE PROVISIONS OF THIS SECTION HAVE BEEN NEGOTIATED AND ARE INTENDED TO BE A COMPLETE EXCLUSION AND NEGATION OF ANY WARRANTIES OR REPRESENTATIONS BY THE ISSUER, EXPRESS OR IMPLIED (TO THE EXTENT PERMITTED BY APPLICABLE LAW), WITH RESPECT TO THE PROJECT OR ANY FIXTURE OR OTHER ITEM CONSTITUTING A PORTION THEREOF, WHETHER ARISING PURSUANT TO THE U.C.C. OR ANOTHER LAW NOW OR HEREAFTER IN EFFECT OR OTHERWISE. So long as no Event of Default has occurred and is continuing, the Issuer covenants and agrees that it will not take any action which prevents the Company from having quiet and peaceful possession and enjoyment of the Project. [Remainder of Page Intentionally Left Blank] 24 0 ARTICLE VII SPECIAL COVENANTS Section 7.1 Access to the Project and Inspection. The Credit Facility Issuer, the Trustee and the Issuer shall have the right, at all reasonable times upon the furnishing of reasonable notice to the Company under the circumstances, to enter upon the Project site and to examine and inspect the Project. The Trustee, the Credit Facility Issuer, the Issuer and their duly authorized agents shall also have such right of access to the Project as may be reasonably necessary for its proper maintenance, in the event of failure by the Company to perform its obligations relating to maintenance under this Loan Agreement. The Company hereby covenants to execute, acknowledge and deliver all such further documents, and do all such other acts and things as may be reasonably necessary to grant to the Credit Facility Issuer, the Trustee and the Issuer such right of entry. The Credit Facility Issuer, the Trustee and the Issuer shall also be permitted, at all reasonable times, to examine the books and records of the Company with respect to obligations of the Company hereunder, but neither shall be entitled to access to trade secrets or other proprietary information (other than financial information) of the Company. All information obtained in any such examination shall be kept confidential and shall not be disclosed except in connection with any proceedings to enforce the Company's obligations hereunder. Section 7.2 Further Assurances and Corrective Instruments. Subject to the provisions of the Indenture, the Issuer and the Company agree that they will, from time to time, execute, acknowledge and deliver, or cause to be executed, acknowledged and delivered, such supplements and amendments hereto and such further instruments as may reasonably be required for correcting any inadequate or incorrect description of the Project and for carrying out the intention or facilitating the performance of this Loan Agreement. Section 7.3 Recording and Filing; Other Instruments. (a) The Company covenants that it will, upon the request of the Trustee and at the Company's expense, cause Counsel in the State to take all steps as are reasonably necessary to render an opinion to the Issuer and the Trustee to the effect that all financing statements, continuation statements, notices and other instruments required by applicable law have been recorded or filed or re- recorded or re -filed in such manner and in such places required by law in order to fully preserve and protect the rights of the Trustee in the granting by the Issuer of certain rights of the Issuer, pursuant to the Indenture, under this Loan Agreement. (b) The Company, the Issuer and the Trustee shall execute and deliver all instruments and shall furnish all information and evidence deemed necessary or advisable by such Counsel to enable such Counsel to render the opinion referred to in subsection (a) of this Section. The Company, at the request of the Trustee, shall file and re -file and record and re-record or cause to be filed and re -filed and recorded and re -recorded all instruments required to be filed and re -filed and recorded or re- recorded pursuant to the opinion of such Counsel and shall continue or cause to be continued the liens of such instruments for so long as the Bonds shall be outstanding, except as otherwise required by this Loan Agreement. 25 0 Section 7.4 Arbitrage Covenants: Notice of Event of Taxability. (a) Neither the Company nor the Issuer shall take any action or fail to take any action, and the Company covenants that it will not approve the 'Trustee's taking any action or failure to take any action or making any investment or use of the proceeds of the Bonds, if such action, use or failure would adversely affect the tax-exempt status of the interest on the Bonds under Section 103 of the Code or cause any of the Bonds to be an "arbitrage bond" within the meaning of Section 148 of the Code and the Regulations as the same may be applicable to the Bonds at the time of such action, investment or use. (b) The Company shall give prompt written notice to the Issuer and the Trustee of the filing by the Company of any statement, tax schedule, return or document with the Internal Revenue Service which discloses that an Event of Taxability shall have occurred and its receipt of any oral or written advice from the Internal Revenue Service that an Event of Taxability shall have occurred. (c) The Company acknowledges that it has examined the provisions of this Loan Agreement and the certificates executed by the Company in connection with the issuance of the Bonds relating to compliance with the Code and shall comply in all material respects with the covenants, instructions and guidelines contained herein and therein. The Company's obligation herein and/or therein to make any rebate payments and to prepare and furnish to the Issuer and the Trustee the statements and forms described herein and/or therein shall survive payment in full of the Bonds notwithstanding any provision of this Loan Agreement to the contrary. (d) The Company and the Issuer also covenant and agree that the Company and the Issuer will furnish accurate information necessary to enable Bond Counsel to make any certifications which might be required under the Regulations. (e) Whenever the Issuer shall be required to file, deliver or execute, or produce any reports, notices of other documents while the Bonds are outstanding, the Company shall furnish or cause the proper person to furnish in due time to the Issuer, through the attorney for the Issuer, the completed form of such report, notice or other required document together with (i) a certification by the Company or other proper person required to provide information that such document is accurate, and (ii) if requested by the Issuer or if otherwise required herein or in the Indenture, an opinion of Bond Counsel addressed to the Issuer that the report or other document is not in violation of any provision of law or of the documents constituting the complete transcript of proceedings relating to the issuance of the Bonds and that such report, notice or other required document meets the legal requirements for such filing, delivery or execution. In the event of the failure or refusal of the Company or other proper person to comply with this provision, the Company agrees to pay the statement for reasonable attorney's fees and administrative time presented by the Issuer for filing, delivering or executing such report or documents, such statement to be paid within thirty (30) days after written notice to the Company by the Issuer. (0 In order to insure that interest on the Bonds is not and will not become subject to federal income taxes as a result of failure of the Bonds to satisfy the requirement of Section 149(e) of the Code, the Company covenants with the Issuer and the Trustee that it will, on or before the date of issuance of the Bonds, supply to the Issuer and the Trustee all information required under Internal NO • Revenue Service Form 8038, Information Return for Private Activity Bond Issues (Form 8038), including without limitation the following: (1) the name and address of the Issuer; (2) the date of issue, the amount of lendable proceeds of the issue, and the stated interest rate, term and face amount of each obligation which is part of the issue; (3) where required, the name of the applicable elected representative who approved the issue, or a description of the voter referendum by which the issue was approved; and (4) a description of any property to be refinanced from the proceeds of the issue. The Company further covenants that on or before the due date thereof, it will cause Form 8038 to be completed, executed and filed with the appropriate office of the Internal Revenue Service. Section 7.5 No Prohibited Payments. The Company covenants and agrees that it will not purchase, nor will it direct the Trustee to purchase, any Non -Purpose Investment for a price in excess of the Fair Market Value of such investment. This Section shall apply to all investments made by the Company and the Trustee under the Indenture, except for investments of moneys in the Bond Fund in any Bond Year in which earnings on investments in the Bond Fund do not exceed $100,000.00. Section 7.6 Permitted Investments: Prohibited Payments. Reference is made to Section 6.2 of the Indenture, wherein the investments permitted to be made by the Trustee are set forth. For the purpose of determining the Fair Market Value of an investment, the following rules shall apply: (1) The Fair Market Value of a United States Treasury obligation purchased directly from the United States Treasury is its purchase price. (2) The purchase price of a certificate of deposit is treated as its Fair Market Value if the yield on such certificate of deposit is not less than (i) the yield on reasonably comparable direct obligations of the United States and (ii) the highest yield that is published or posted by the provider to be currently available from the provider on reasonably comparable certificates of deposit offered to the public. (3) The purchase price of a guaranteed investment contract is treated as its Fair Market Value on the purchase date if the requirements of Section 1.148-5(d)(6)(iii) of the Regulations are satisfied. Any investment not described in subsections (1), (2), or (3) of this Section 7.6 or which is not alternatively of a type traded on an established securities market, within the meaning of Section 1273 of the Code, or otherwise within the definition of Investment Obligations shall not be permitted unless the Trustee receives, if the "Trustee so requests, an opinion of Bond Counsel that such investment will not adversely affect the tax-exempt status of the Bonds. The Company agrees that it shall bear the cost 27 40 of obtaining such opinion and shall not require the Trustee to make any such investment without said opinion of Bond Counsel. Section 7.7 Investment in Tax -Exempt Securities. Notwithstanding anything to the contrary in Section 7.5 or 7.6, the 'Trustee may invest moneys under the terms of the Indenture in tax- exempt obligations described in Section 103(a) of the Code without obtaining any opinion of Bond Counsel, if and to the extent permitted by the Indenture, but all such investments shall be directed and authorized by the Company. Section 7.8 Administrative Expenses. The Company shall pay to or for the account of the Issuer within thirty (30) days after notice thereof all reasonable costs and expenses incurred by the Issuer in connection with the financing and administration of the Project, except such as may be paid out of the proceeds of the Bonds on deposit in the Project Fund, including, without limitation, the costs of administering this Loan Agreement and the fees and expenses of the Trustee, attorneys, consultants and others. Section 7.9 Indemnity Against Claims. (a) The Company will pay and discharge and will indemnify and hold harmless the Issuer and the Trustee from (1) any lien or charge upon amounts payable hereunder by the Company to the Issuer, and (2) any taxes, assessments, impositions and other charges in respect of the Project. (b) If any claim of any such lien or charge upon payments, or any such taxes, assessments, impositions or other charges, are sought to be imposed, the Issuer or the Trustee, as the case may be, Will give prompt notice to the Company, and the Company shall have the right and duty to assume, and shall assume, the defense thereof, with full power to litigate, compromise or settle the same in its sole discretion. Section 7.10 Indemnity of Issuer and Trustee. If the Issuer or the Trustee, or any director, member, employee, officer, attorney or agent thereof (collectively the "Indemnified Persons") is made a party defendant to any litigation concerning the Project or any part thereof, or concerning the occupancy thereof by the Company, or concerning the issuance of the Bonds, the Company agrees to indemnify, defend and hold Indemnified Persons harmless from and against any and all liability by reason of such litigation, including reasonable attorneys' fees and expenses incurred by the Indemnified Persons, whether or not any such litigation is prosecuted to judgment. If the Issuer commences an action against the Company to enforce any of the terms of any of the documents executed in connection with the Bonds, or for the breach by the Company of any such terms, the Company shall pay to the Issuer reasonable attorneys' fees and expenses in connection with such action, and the right to such attorneys' fees and expenses shall be enforceable whether or not such action is prosecuted to judgment. If the Company breaches any term of any of the documents executed in connection with the Bonds, the Issuer may employ an attorney or attorneys to protect its rights, and in the event of such employment following any such breach by the Company, the Company shall pay the reasonable attorneys' fees and expenses of the Issuer so incurred, whether or not any action is actually commenced against the Company by reason of such breach. ►: (a) It is the intention of the parties that the Indemnified Persons shall not incur pecuniary liability by reason of the terms of this Agreement or by reason of the undertakings of the Indemnified Persons required hereunder in connection with the issuance of the Bonds or execution of this Loan Agreement or the Indenture or in connection with the performance of any act by the Indemnified Persons requested by the Company or in any way arising from the transaction with which this Agreement is a part arising in any manner in connection with the Project or financing of the Project; nevertheless, if any of the Indemnified Persons should incur any such pecuniary liability, then in such event the Company shall indemnify and hold the Indemnified Persons harmless against all claims by and on behalf of any person arising out of the same, and all costs incurred in connection with any claim, action or proceeding brought thereon, and upon notice from the Issuer, the Company shall defend the Indemnified Persons in any such action, or proceeding in consultation with counsel for the Issuer. In the event any proceeding shall be initiated against any of the Indemnified Persons, the Company shall furnish a defense to the Indemnified Persons, shall be permitted to control, in the exercise of its reasonable judgment, the defense of any such action or proceeding, and pay all fees of counsel to the Issuer. Any settlement of litigation that involves the Issuer shall require the consent of the Issuer. Notwithstanding anything to the contrary contained herein, the Company shall have no liability to indemnify the Issuer or the Trustee against claims or damages resulting from the Issuer's or the Trustee's own gross negligence or willful misconduct. (b) No recourse shall be had for the enforcement of any obligation, promise or agreement of the Issuer contained herein or in the other documents to which the Issuer is a party or for any claim based hereon or otherwise in respect hereof or thereof against any director, member, officer, agent, attorney or employee, as such, in his individual capacity, past, present or future, of the Issuer or of any successor entity, either directly or through the Issuer or any successor entity whether by virtue of any constitutional provision, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise. No personal liability whatsoever shall attach to, or be incurred by, any director, member, officer, agent, attorney or employee as such, past, present or future, of the Issuer or any successor entity, either directly or through the Issuer or any successor entity, under or by reason of any of the obligations, promises or agreements entered into between the Issuer and the Company, whether herein contained or to be implied herefrom as being supplemental hereto; and all personal liability of that character against every such director, member, officer, agent, attorney and employee is, by the execution of this Loan Agreement and as a condition of, and as part of the consideration for execution of this Loan Agreement, expressly waived and released. Notwithstanding any other provision of this Loan Agreement, the Issuer shall not be liable to the Company or the Trustee or any other person for any failure of the Issuer to take action under this Loan Agreement unless the Issuer (a) is requested in writing by an appropriate person to take such action, (b) is assured of payment of, or reimbursement for, any reasonable expenses in such action, and (c) is afforded, under the existing circumstances, a reasonable period to take such action. In acting under this Loan Agreement, or in refraining from acting under this Loan Agreement, the Issuer may conclusively rely on the advice of its counsel. Section 7.11 Additional Information. Until payment of the Bonds shall have occurred, the Company shall promptly from time to time deliver to the Trustee such information regarding the 29 • 11 operations, business affairs and financial condition of the Company as the Trustee may reasonably request. The Trustee is hereby authorized to deliver a copy of any such financial information delivered hereunder to any regulatory authority having jurisdiction over the Trustee and to any other Person as may be required by law. The Issuer and the Trustee are authorized to provide information concerning the outstanding principal amount and payment history of, and other information pertaining to, the Bonds to any agency or regulatory authority of the State requesting such information. Section 7.12 Default Certificates. The Company shall deliver to the Trustee forthwith, upon obtaining knowledge of any Event of Default hereunder, under the Indenture or the Reimbursement Agreement, or an event which would constitute such an Event of Default but for the requirement that notice be given or time elapse or both, a certificate of the Company specifying the nature and period of existence thereof and what action the Company proposes to take with respect thereto. Section 7.13 Observe Laws, The Company shall observe in all material respects all applicable laws, regulations and other valid requirements of any regulatory authority with respect to its operations at the Project. [Remainder of Page Intentionally Left Blank] 30 0 ARTICLE VIII • ASSIGNMENT, LEASING AND SELLING Section 8.1 Assignment of this Loan Agreement or Lease or Sale of the Project by the Company. The rights of the Company under this Loan Agreement may be assigned, and the Project may be leased or sold as a whole or in part, without the necessity of obtaining the consent of the Issuer or the Trustee, subject to the following conditions: (a) no assignment, transfer, sale or lease shall relieve the Company from primary liability for any of its obligations hereunder, and if any such assignment, transfer, sale or lease occurs, the Company shall continue to remain primarily liable for the payments specified herein and for performance and observance of the other agreements on its part herein provided to be performed and observed by it, subject to the provisions of the last paragraph of Section 5.2; (b) the assignee, lessee or purchaser shall assume the obligations of the Company hereunder to the extent of the interest assigned, leased or sold (except to the extent such lease relates to less than ten percent (10%) of the property and is on a temporary or transitional basis and does not adversely effect the tax-exempt status of the Bonds); (c) the Company shall, within thirty (30) days after the delivery thereof, furnish or cause to be furnished to the Issuer and to the Trustee, a true and complete copy of each such assignment, instrument of transfer, lease or sale agreement, as the case may be, together with any instrument of assumption; (d) the Company shall, prior to such assignment, transfer, sale or lease, deliver to the Trustee an opinion of Bond Counsel to the effect that such assignment, transfer, sale or lease does not adversely affect the legality of the Bonds or the exclusion of interest on the Bonds from gross income for federal income tax purposes; and (e) if a Credit Facility is in effect, such assignment, transfer, sale or lease must be permitted under the Reimbursement Agreement or the Credit Facility Issuer must have given its prior written consent to such assignment, transfer, sale or lease. Section 8.2 Restrictions on Transfer of the Issuer's Rights. Except for the assignment made pursuant to the Indenture of certain of its rights under this Loan Agreement, the Issuer will not during the term of this Loan Agreement sell, assign, transfer or convey any of its interests in this Loan Agreement except as hereinafter provided in Section 8.3 hereof. Section 8.3 Assignment by the Issuer. It is understood, agreed and acknowledged that the Issuer, as security for payment of the principal of and interest on the Bonds, will grant to the Trustee pursuant to the Indenture, inter alia, certain of its right, title and interest in and to this Loan Agreement (reserving certain of its rights, as more particularly described in the Indenture). 31 0 ARTICLE IX EVENTS OF DEFAULT AND REMEDIES Section 9.1 Events of Default Defined. The term "Event of Default" shall mean any one or more of the following events: (a) the failure by the Company to pay when due on the first Business Day of each January, April, July or October beginning on July, 2000, any payment of principal of or interest on or other amount payable under Section 5.2 of this Loan Agreement; (b) [Reserved.] (c) the failure of the Company to perform any of its obligations under Section 7.4 hereof provided, however, that unless an Event of Taxability shall have occurred the Company shall be afforded a thirty (30) day cure period after notice of same from the Issuer or the Trustee to perform such obligations; (d) the occurrence of an "Event of Default" or "event of default" under any of the other Bond Documents upon the expiration of any applicable notice or cure period; (e) any representation or warranty of the Company contained in Section 2.2 hereof, or in any document, instrument or certificate delivered pursuant hereto or to the Indenture or in connection with the issuance and sale of the Bonds shall be false, misleading or incomplete in any material respect on the date as of which made and to the extent curable, has not been cured within thirty (30) days after notice of same from the Issuer or the Trustee; (� failure by the Company to observe and perform any covenant, condition or agreement on the part of the Company under this Loan Agreement, other than as referred to in the preceding paragraphs of this Section 9.1, for a period of thirty (30) days after written notice, specifying such failure and requesting that it be remedied, is given to the Company by the Issuer or the Trustee, unless the Issuer and the Trustee shall agree in writing to an extension of such time prior to its expiration; provided, however, if such default shall be such that it cannot be corrected within the applicable period, it shall not constitute an Event of Default if corrective action is instituted by the Company within the applicable period and diligently pursued until the default is corrected; (g) the commencement against the Company of an involuntary case under the federal bankruptcy laws, as now constituted or hereafter amended, or any other applicable federal or state bankruptcy, insolvency or other similar law, or of any action or proceeding for the appointment of a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the Company or for any substantial part of its property, or for the winding -up or liquidation of its affairs and the continuance of any such case, action, or proceeding unstayed and in effect for a period of ninety (90) consecutive days; or (h) the commencement by the Company of a voluntary case under the federal bankruptcy laws, as now constituted or hereafter amended, or any other applicable federal or state bankruptcy, W • insolvency or other similar law, or the consent by it to, or its acquiescence in the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator (or other similar official) of the Company or of any substantial part of its property, or the making by it of or the consent by it to any assignment for the benefit of creditors, or the failure of the Company generally to pay its debts as such debts become due, or the taking of any action by the Company in furtherance of any of the foregoing. Section 9.2 Remedies on Default. (a) If Payment of the Bonds shall not have been made, whenever any Event of Default referred to in Section 9.1 hereof shall have happened and shall not have been waived: (1) The Issuer may, by written notice, declare all installments of principal repayable pursuant to this Loan Agreement for the remainder of the term hereof to be immediately due and payable, whereupon the same, together with accrued interest thereon as provided for in this Loan Agreement, shall become immediately due and payable without presentment, demand, protest or any other notice whatsoever, all of which are hereby expressly waived by the Company; provided, however, all such amounts shall automatically be and become immediately due and payable without notice upon the occurrence of any event described in Section 9.1(g) or 9.1(h) hereof, which notice the Company hereby expressly waives. (2) The Issuer may take whatever other action at law or in equity may appear necessary or desirable to collect the amounts payable pursuant to this Loan Agreement then due and thereafter to become due, or to enforce the performance and observance of any obligation, agreement or covenant of the Company under this Loan Agreement or under any of the other Bond Documents. (b) In the enforcement of the remedies provided in this Section 9.2, the Issuer may treat all reasonable expenses of enforcement including, without limitation, legal, accounting and advertising fees and expenses, as additional amounts payable by the Company then due and owing, and the Company agrees to pay such additional amounts upon demand, the amount of such legal fees to be without regard to any statutory presumption. Section 9.3 Application of Amounts Realized in Enforcement of Remedies. Any amounts collected pursuant to action taken under Section 9.2 hereof shall be paid to the Trustee and applied as set forth in Article VIII of the Indenture. Section 9.4 No Remedy Exclusive. No remedy herein conferred upon or reserved to the Issuer 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 Loan Agreement 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 the occurrence of an Event of Default 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. 33 • 11 Section 9.5 Agreement to Pay Attorneys' Fees and Expenses. In any Event of Default, if the Issuer, the Trustee, the Credit Facility Issuer or any Bondholder employs attorneys or incurs other expenses for the collection of amounts payable hereunder or for the enforcement of the performance or observance of any covenants or agreements on the part of the Company herein contained, the Company agrees that it will on demand therefor pay to the Issuer, the Trustee, the Credit Facility Issuer or such Bondholder the reasonable fees of such attorneys and such other reasonable expenses so incurred by the Issuer,- the Trustee, the Credit Facility Issuer or such Bondholder, the amount of such fees of attorneys to be without regard to any statutory presumption. Section 9.6 Correlative Waivers. If an "Event of Default" under Section 801 of the Indenture shall be cured or waived and any remedial action by the Trustee rescinded, any correlative default under this Loan Agreement shall be deemed to have been cured or waived. [Remainder of Page Intentionally Left Blank] 34 0 ARTICLE X PREPAYMENTS Section 10.1 Optional Prepayments. (a) The Company is hereby granted, -and shall have, the option to prepay the unpaid principal of the Bonds in whole or in part in accordance with and as set forth in Section 601(a) of the Indenture with respect to the prepayment of the Bonds; provided, all prepayments shall be made in immediately available funds and with interest accrued to the date of prepayment and that any prepayment of the Bonds in part shall be applied to unpaid installments of principal in inverse order of maturity. Any prepayment pursuant to this subsection (a) shall be made by the Company taking, or causing the Issuer to take, the actions required (1) for Payment of the Bonds, in the case of prepayment of the Bonds in whole, or (2) to effect prepayment of less than all of the Bonds according to their terms in the case of a partial prepayment Bonds. (b) To exercise the option granted in subsection (a) of this Section 10.1, the Company shall give written notice to the Issuer and the Trustee at least forty-five (45) days prior to the redemption date which shall specify therein (i) the date of the intended prepayment of the Bonds, which shall not be less than forty-five (45) nor more than sixty (60) days from the date the notice is mailed and (2) the principal amount of the Bonds to be prepaid. When given, such notice shall be irrevocable by the Company unless the Company in such notice states that it is revocable and requests that the notice of the Trustee to the Bondholders pursuant to Section 604 of the Indenture be conditioned on the deposit of Available Moneys with the Trustee no later than the redemption date of the Bonds. Section 10.2 Mandatory Prepayments. (a) In the event of a Determination of Taxability, the Company shall, on a date selected by the Company not more than one hundred eighty (180) days following the receipt by the Trustee of written notice of a Determination of Taxability, prepay the entire unpaid principal balance of the Bonds in full. Immediately upon the occurrence of a Determination of Taxability, the Company shall notify the Issuer and the Trustee of the date selected for payment pursuant to this Section 10.2. (b) During the Variable Rate Period, in the event any Credit Facility is not renewed and an Alternate Credit Facility has not been provided in accordance with Section 503 of the Indenture, the Company shall on or before the Interest Payment Date occurring closest to but not after fifteen (15) days prior to the expiration date of the then current Credit Facility, prepay the entire unpaid principal balance of the Bonds in full. The Company shall promptly notify the Issuer and the Trustee of the date selected for such payment. Section 10.3 Other Mandatory Prepayments. The amounts required to be applied to the prepayment of the Bonds by Section 4.4 hereof shall be applied by the Company to prepay, together with accrued interest, all or a portion of the unpaid principal of the Bonds. Such prepayment shall be made by the Company taking, or causing the Issuer to take, the actions required (a) for Payment of the Bonds, in the case of prepayment of the Bonds in whole, or (b) to effect the prepayment of less than all of the Bonds in inverse order of their maturities. 35 • ARTICLE XI REBATE PROVISIONS Section 11.1 Creation of the Rebate Fund. (a) The Issuer hereby creates and establishes with the Trustee on behalf of the Company a special trust fund in the name of the Issuer to be designated by the Trustee and which is referred to herein as the Rebate Fund (the "Rebate Fund"), which shall be held, invested, expended and accounted for in accordance with this Loan Agreement and the Indenture. (b) Moneys in the Rebate Fund shall be held in trust by the Trustee and, subject to Section 7.4 hereof, shall be held for the benefit of the United States as contemplated under the provisions of this Loan Agreement and shall not be considered to be held for the benefit of the Issuer, the Company, the Trustee or the owners of the Bonds. Section 11.2 Determinations, Notices and Records of Rebate Amount. (a) The Company shall determine the Rebate Amount or cause the same to be determined in the manner provided in Section 148(i) of the Code and the Regulations. The Company shall provide the Trustee and the Issuer with a written copy of each such determination when made; this covenant shall survive the defeasance of any Bonds pursuant to Article XIV of the Indenture. The Company shall retain records of each such determination until a date six (6) years after the retirement of the last Bond. The Company shall make such records available for review by the Issuer and the Trustee upon reasonable notice. (b) The Company shall make payments to the Trustee for deposit in the Rebate Fund in such amounts and at such times as are required by the Code, the Regulations and this Loan Agreement so that the Trustee will have sufficient amounts in the Rebate Fund to pay the Rebate Amount to the United States when required by the Code and the Regulations. In the event that the amount in the Rebate Fund shall be insufficient to make the necessary payment to the United States of the Rebate Amount when required by the Code and the Regulations, the Company shall immediately pay to the Trustee for deposit into the Rebate Fund such insufficiency. The Issuer and the Trustee have no responsibility for calculating, receiving, holding or paying the Rebate Amount nor for compelling the Company to calculate or pay the Rebate Amount. (c) The Company shall furnish the Trustee with all information and forms necessary to cause the Rebate Amount to be properly and timely paid to the United States in accordance with the Code and the Regulations. Section 11.3 Investment Earnings on Bond Funds. [',or the purpose of determining the amount to be paid into the Rebate Fund hereunder, the Company shall not take into account amounts earned on the investment of moneys in the Bond Fund during a Bond Year (or earnings attributable to the reinvestment of such amounts) if such earnings during the Bond Year in question do not exceed One Hundred Thousand Dollars ($100,000). Pursuant to Section 148-3(k) of the Regulations, an issue 00, • • with an average annual debt service that is not in excess of $2,500,000 may be treated as satisfying this $100,000 limitation. Section 11.4 Filing of Required Rebate. Each payment of the Rebate Amount shall be filed by the Company with the Internal Revenue Service Center, Philadelphia, Pennsylvania 19255 and shall be accompanied by (i) a copy of Form 8038-T, and (ii) a statement summarizing the Company's determination of the amount of the Rebate Amount so paid. The Company shall provide the Trustee, and to the Issuer upon request, with copies of all documents and reports required by this Section and filed with the Internal Revenue Service. [Remainder of Page Intentionally Left Blank] 37 ARTICLE XII MISCELLANEOUS Section 12.1 References to the Bonds Ineffective After Bonds Paid. Upon Payment of the Bonds, all references in this Loan Agreement to the Bonds shall be ineffective and the Issuer and any owner of the Bonds shall not thereafter have any rights hereunder, excepting reporting and payment of rebate payments under Sections 7.4, 11.2 and 11.4 hereof and rights of the Issuer to indemnification and payment of expenses contained, without limitation, in Sections 7.8, 7.9 and 7.10 hereof. Section 12.2 No Implied Waiver. In the event any agreement contained in this Loan Agreement should be breached by either party and thereafter waived by the other party, such waiver shall be limited to the particular breach so waived and shall not be deemed to waive any other breach hereunder. Neither any failure nor any delay on the part of the Trustee to exercise any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof, or the exercise of any other right, power or privilege. Section 12.3 Issuer Representative. Whenever under the provisions of this Loan Agreement the approval of the Issuer is required or the Issuer is required to take some action at the request of the Company, such approval may be made or such action may be taken by the Issuer Representative or by the Issuer; and the Company, the Trustee and the Bondholders shall be authorized to rely on any such approval or action. Section 12.4 Company Representative. Whenever under the provisions of this Loan Agreement the approval of the Company is required or the Company is required to take some action upon the request of the Issuer, such approval shall be made or such action shall be taken by the Company Representative; and the Issuer, the Trustee and the Bondholders shall be authorized to act on any such approval or action. Section 12.5 Notices. (a) All notices, certificates or other communications hereunder shall be sufficiently given and shall be deemed given when delivered by hand delivery, sent via overnight courier service or mailed by first class, postage prepaid, registered or certified mail, addressed as follows: (1) if to the Issuer, to: City of Tamarac, Florida 7525 N.W. 88`s Avenue City of Tamarac, Florida 33321-2401 (2) if to the Company, to: Sonny's Enterprises, Inc., as general partner of Fazio Holdings, LP 1400 S. W. 33`d Place Ft. Lauderdale, Florida 33315 Attention: President 38 (3) if to the Trustee, to: First Union National Bank 200 S. Biscayne Blvd, 14`s Floor Miami, Florida 33131 (4) if to any successor 'Trustee or Co -Trustee, addressed to it at its principal corporate trust office (Attention: Corporate Trust Department). (b) The Issuer, the Company or the Trustee may, by notice given hereunder, designate from time to time any further or different addresses to which subsequent notices, certificates or other communications shall be sent. Section 12.6 If Payment or Performance Date Is Other Than a Business Day. If the specified or last date for the making of any payment, the performance of any act or the exercising of any right, as provided in this Loan Agreement, shall be a day other than a Business Day, such payment may be made or act performed or right exercised on the next succeeding Business Day; provided that interest shall accrue during any such period during which payment shall not occur. Section 12.7 Binding Effect. This Loan Agreement shall inure to the benefit of and shall be binding upon the Issuer, the Company and their respective successors and assigns, subject to the provisions of Sections 7.12, 8.1 and 8.3 hereof. Section 12.8 Severability. In the event any provision of this Loan Agreement shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision hereof or thereof. Section 12.9 Amendments, Changes and Modifications. Subsequent to the issuance of the Bonds and prior to Payment of the Bonds, this Loan Agreement and the Indenture may not be effectively amended, changed, modified, altered or terminated except in accordance with the Indenture. Section 12.10 Execution in Counterparts. This Loan Agreement may be executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument, and no one counterpart of which need be executed by all parties. Section 12.11 Applicable Law. This Loan Agreement shall be governed by and construed in accordance with the laws of the State. Section 12.12 Expenses. From the Project Fund and/or from other legally available funds of the Company, the Company agrees, and the Issuer consents, to pay all reasonable fees and expenses incurred in connection with the preparation, execution, delivery, modification, waiver, and amendment of this Loan Agreement, the other Bond Documents and related documents, and the fees and expenses of Bond Counsel, Counsel for the Issuer and Counsel for the Trustee. The Company also agrees to pay to the Trustee, as and when the same become due, an aggregate of $4,500 each year for services rendered and its expenses incurred as Trustee, including the reasonable fees of its counsel, and such other amounts as the Company herein assumes or agrees to pay, including any costs or expenses necessary to cancel and discharge the Indenture. The Company also agrees to pay all expenses incurred by the Trustee or the Issuer in collection of any indebtedness incurred hereunder in the event of default 01 by the Company, including reasonable attorneys fees, provided that the amount of any legal fees so incurred shall be without regard to any statutory presumption. Section 12.13 Amounts Remaining with the Trustee. Any amounts remaining in the Bond Fund, the Project Fund or otherwise in trust with the Trustee under the Indenture or this Loan Agreement shall, after Payment of the Bonds and all Administrative Expenses in accordance with this Loan Agreement, be disbursed by the Trustee in accordance with the provisions of the Indenture or otherwise as may be required by law. Section 12.14 References to the Credit Facility Issuer and Credit Facility. If the Credit Facility is not in effect at any time, all references herein to the Credit Facility Issuer, the Credit Facility and the Trustee shall be deemed ineffective during such time. Section 12.15 Covenants of Issuer Not Covenants of Officials Individually. All covenants, stipulations, obligations and agreements of the Issuer contained in this Indenture shall be deemed to be covenants, stipulations, obligations and agreements of the Issuer to the full extent permitted by the Constitution and laws of the State. No covenant, stipulation, obligation or agreement contained herein shall be deemed to be a covenant, stipulation, obligation or agreement of any present or future officer, member, agent or employee of the Issuer in his individual capacity, and no officer of the Issuer executing the Bonds shall be liable personally on the Bonds or be subject to any personal liability or accountability by reason of the issuance thereof. No officer, agent or employee of the Issuer shall incur any personal liability in acting or proceeding or in not acting or not proceeding in accordance with the terms of this Indenture. Section 12.16 No Personal Liability. No recourse shall be had for the enforcement of any obligation, promise or agreement of the Issuer contained herein or in the Bonds or other documents to which the Issuer is a party or for any claim based hereon or thereon or otherwise in respect hereof or thereof against any director, member, officer, agent, attorney or employee, as such, in his/her individual capacity, past, present or future, of the Issuer or of any successor entity, either directly or through the Issuer or any successor entity, under or by reason of any of the obligations, promises or agreements entered into in the Bonds or between the Issuer and the Trustee, whether herein contained or to be implied herefrom as being supplemental hereto; and all personal liability of that character against every such director, member, officer, agent, attorney and employee is, by the execution of this Indenture and as a condition of, and as part of the consideration for, the execution of this Indenture, expressly waived and released. The Bonds shall be limited obligations of the Issuer. The Bonds and the interest thereon and redemption premium, if any, shall not be deemed to constitute or create an indebtedness, liability or obligation of the Issuer, the State or any political subdivision or agency thereof within the meaning of any State constitutional provision or statutory limitation or a pledge of the faith the credit or the taxing power of the State or any such political subdivision or agency. The Bonds and the interest thereon are payable solely from and secured by the Trust Estate, including the moneys available to be drawn by the Trustee under the Letter of Credit that may be in effect from time to time to support payments due on or with respect to the Bonds, all as described in and subject to limitations set forth in this Indenture, for the equal and ratable benefit of the Holders, from time to time, of the Bonds. Nothing in the Bonds or in the Indenture or the proceedings of the Issuer to create a debt of the Issuer, the State, or 40 • any political subdivision thereof «rithin the meaning of any constitutional or statutory provision of the State. No member, director or officer, agent, attorney or employee of the Issuer, including any person executing the Indenture or the Bonds, shall be liable personally on the Bonds or subject to any personal liability for any reason relating to the issuance of the Bonds. The Bonds and interest due thereon shall not be a general obligation, debt or liability of the Issuer and do not constitute or give rise to any pecuniary liability or charge against the general credit of the Issuer. No recourse shall be had for the enforcement of any obligation, promise or agreement of the Issuer contained herein or in the Bonds or the other documents to which the Issuer is a party or for any claim based hereon or thereon or otherwise in respect hereof or thereof against any director, member, officer, agent, attorney or employee, as such, in his/her individual capacity, past, present or future, of the Issuer or of any successor entity, either directly or through the Issuer or any successor entity whether by virtue of any constitutional provision, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise. No personal liability whatsoever shall attach to, or be incurred by, any member, officer, agent, attorney or employee as such, past, present or future, of the Issuer or of any successor entity, either directly or through the Issuer or any successor entity, under or by reason of any of the obligations, promises or agreements entered into in the Bonds or between the Issuer and the Trustee, whether herein contained or to be implied herefrom as being supplemental hereto; and all personal liability of that character against every such direct, member, officer, agent, attorney and employee is, by the extension of this Indenture and as a condition of, and as part of the consideration for, the execution of this Indenture, expressly waived and released. Section 12.17 Limited Liability of the Issuer. Notwithstanding anything to the contrary, any liability for payment of money and any other liability or obligation which the Issuer may incur under the Bonds, this Indenture, the Loan Agreement or the Placement Agreement shall not constitute a general obligation of the Issuer but shall constitute limited obligations of the Issuer payable solely from and enforced only against the Trust Estate. No recourse shall be had for the enforcement of any obligation, promise or agreement of the Issuer contained herein or in the Bonds or the Loan Agreement to which the Issuer is a party or for any claim based hereon or thereon or otherwise in respect hereof or thereof against any director, member, officer, agent, attorney or employee, as such, in his individual capacity, past, present or future, of the Issuer or of any successor entity, either directly or through the Issuer or any successor entity whether by virtue of any constitutional provision, statute or rule o law, or by the enforcement of any assessment or penalty otherwise. No personal liability whatsoever shall attach to, or be incurred by, any director, member, officer, agent, attorney or employee as such, past, present or future, of the Issuer or of any successor entity, either directly or through the Issuer or any successor entity, under or by reason of any of the obligations, promises or agreements entered into in the Bonds or between the Issuer and the Trustee, whether herein contained or to be implied herefrom as being supplemental hereto; and to all personal liability of that character against every such director, member, officer, agent, attorney and employee is , by the execution of this Indenture and as a condition of, and as part of the consideration for, the execution of this Indenture, expressly waived and released. 41 1] Ll IN WITNESS WHEREOF, the Issuer and the Company have caused this Loan Agreement to be executed in their respective legal names by their duly authorized representatives as of the date first above written. (SEAL) ATTEST: By: Name: Carol Gold Title: City Clerk Attest: By: Name: Title: eNDS \4289 \LA-2.wpd Fbrue�uuy 27, 2000 CITY OF TAMARAC, FLORIDA By: Name: Joe Schreiber Tide: Mayor I hereby certify that I have approved this Agreement as to form By: Name Title: Mitchell S. Kraft City Attorney FAZIO HOLDINGS, LP By: Sonny's Enterprises, Inc., as general partner of Fazio Holdings, LP By: Name: Paul G. Fazio Title: President [Signature Page for Loan Agreement for City of Tamarac, Florida Industrial Development Revenue Bonds (Fazio Holdings, IT Project), Series 2000] 42 EXHIBIT "C" PLACEMENT LETTER AGREEMENT • Temp. Reso. #8929 March 8, 2000 Page 15 PLACEMENT LETTER AGREEMENT April ,, 2000 City of Tamarac, Florida Tamarac, Florida Attn: Mayor Fazio Holdings, LP Ft. Lauderdale, Florida Attn: Paul G. Fazio Re: Placement of $7,000,000 City of Tamarac, Florida Industrial Development Revenue Bonds (Fazio Holdings, LP Project), Series 2000 Ladies and Gentlemen: This letter confirms our agreement to act as your agent (the "Placement Agent") in introducing certain institutional investors, as prospective initial purchasers, to the Bonds in caption (collectively, the "Bonds"), designated $7,000,000 City of Tamarac, Florida Industrial Development Revenue Bonds (Fazio Holdings, LP Project), Series 2000. The Bonds are to be issued by City of Tamarac, Florida (the "Issuer") pursuant to a resolution adopted on March 8, 2000. The Bonds are being issued in accordance with the provisions of a Trust Indenture dated as of April 1, 2000 between the Issuer and First Union National Bank, as Trustee (the "Trustee"). The Bonds are being issued for the purpose of financing the acquisition, construction, installation and equipping of a manufacturing facility, and any other related real and personal property located in the City of Tamarac, Florida (the "Project") - It is understood by and between the parties hereto that the Bonds will be sold to the purchasers (each a "Purchaser"), each of which shall be an "accredited investor" within any of the following categories at the time of the sale of the Bonds to that entity: (i) a bank, as defined in Section 3(a)(2) of the Securities Act of 1933 as amended, (the "Securities Act"), acting in its individual or fiduciary capacity; (ii) a broker -dealer registered pursuant to Section 15 of the Securities Exchange Act of 1934, as amended; (iii) an insurance company, as defined in Section 2(13) of the Securities Act; . (iv) an investment company, as defined under the Investment Company Act of 1940; (v) a natural person whose individual net worth, or joint net worth with such person's spouse, at the time of his or her purchase exceeds $1,000,000; or (vi) a natural person who had an individual income in excess of $200,000 in each of the two most recent years or joint income with the person's spouse in excess of $300,000 in each of those years and who has a reasonable expectation of reaching the same income level in the current year; a trust with total assets in excess of $5,000,000, not formed for the specific purpose of acquiring the Bonds, whose purchase is directed by a sophisticated person as described in 17 C.F.R. §230.506(b)(2)(ii) promulgated under the Securities Act; and (vii) an entity the owners of which are accredited investors. As Placement Agent, we will use our best efforts to identify potential initial purchasers of the Bonds and introduce them to the Issuer and the Company. The Issuer and the Company hereby agree to perform such of their obligations as may be set forth in any purchase agreement that may be entered into by the Issuer and the Company with the Purchaser. For purposes of soliciting the interest of potential purchasers, you hereby confirm your authorization for us to use a private placement memorandum, including any appendices attached thereto (the "Placement Memorandum") prepared from information provided by the Issuer, the Company, and First Union National Bank (the "Bank") as issuer of a Letter of Credit. In connection with the above -referenced matter, we hereby confirm our understanding with you as follows: 1. No representative of the Company, the Issuer, the Placement Agent or any other person has been authorized to give any information or make any representations in connection with the offer or sale of the Bonds other than those contained in the Placement Memorandum. The Placement Memorandum shall provide that the information contained therein is not guaranteed as to accuracy or completeness by, and is not to be construed as a representation of, the Placement Agent. Neither the Placement Agent, the Company, the Issuer nor any person acting on behalf of the Company, the Issuer or the Placement Agent will utilize any form of general solicitation or general advertising in offering the Bonds. 2. The Company shall be solely responsible for the contents of the Placement Memorandum and hereby represents and warrants that the Placement Memorandum did not and will not, as of the date of any offer or sale of the Bonds, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements relating to such items made, in light of the circumstances in which they were made, not misleading. 3. The Company or the Issuer shall not, directly or indirectly (except through the Placement Agent), sell or offer, or attempt or offer to dispose of, or solicit any offer to buy, or otherwise approach or negotiate with any person in respect of, any of the Bonds and has not heretofore done any of the foregoing. 4. (a) The Company represents and warrants to the Placement Agent that any representations and warranties made by the Company to any Purchaser will be true and correct as -2- Doc# 347009.01 of the date of sale of the Bonds (the "Closing Date"), including without limitation, customary representations regarding the due organization and good standing of the Company, the lack of defaults under the Company's limited partnership agreement, and the various agreements to which the Company is a party, the absence of any material litigation, the due authorization, execution and delivery of the Bond Documents to which the Company is a party, and such other representations as are customary for bonds of the type being offered; provided, however, that an incorrect representation shall not subject the Company to liability for punitive damages. (b) The Placement Agent hereby represents and warrants to the Company that it will offer the Bonds only in states or other jurisdictions 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 such state or jurisdiction, and will comply with all applicable state and federal securities laws, and with all applicable regulations of the Securities and Exchange Commission and other federal regulatory agencies; provided, however, this representation and warranty shall not affect or diminish the Company's obligations hereunder, including without limitation, Section 7. (c) The Company and the Issuer hereby agree promptly from time to time to take such action as the Placement Agent may reasonably request to qualify the Bonds for offering and sale under the securities laws of such states as the Placement Agent may reasonably request and to comply with such laws so as to permit such offers and sales; provided that in connection therewith the Issuer shall not be required to file a general consent to service of process. 5. (a) The Company shall furnish to the Placement Agent an opinion of counsel for the Company, addressed to the Placement Agent among others, dated the Closing Date, as to (i) the matters contained in the opinion of counsel to the Company required by the Bank and (ii) such other matters as may be reasonably requested by the Placement Agent. (b) The Issuer shall furnish to the Placement Agent an opinion of counsel for the Issuer, addressed to the Placement Agent, dated the Closing Date, in form and substance satisfactory to the Placement Agent and its counsel. 6. The Placement Agent hereby covenants that: (a) Upon request, it will provide the Company and the Issuer with a complete list of all persons that it has contacted regarding their interest in purchasing the Bonds, such list to be provided at such time or times as the Company and the Issuer shall reasonably request; (b) In the event it learns of any circumstances or facts which it believes would make the Placement Memorandum inaccurate or misleading as to any material fact, it will immediately bring such circumstances to the attention of the Company or the Issuer. 7, The Company and the Placement Agent hereby agree as follows: (a) The Company agrees to indemnify and hold harmless the Placement Agent, the Issuer and the Trustee, their respective directors, officers, employees and agents and each person, if any, and its directors, officers, employees and agents, who controls the Placement Agent within the meaning of the Securities Act (collectively, the "Indemnified Persons" and -3- Duck 347009,01" individually, an "Indemnified Person") against any and all losses, claims, damages, liabilities and costs (1) arising out of any statement or information contained in the Placement Memorandum that is untrue or incorrect in any material respect or the omission therefrom of any statement or information that is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading in any material respect, (ii) to the extent of the aggregate amount paid in settlement of any litigation commenced or threatened arising from a claim based upon any such untrue statement or omission if -such settlement is effected without the written consent of the Indemnified Persons, and (iii) to which the Indemnified Persons may become subject under the Securities Act, the Securities Exchange Act of 1934, as amended or other federal or state statutory laws or regulations insofar as such losses, claims, damages, liabilities and costs (and any legal or other expenses incurred by the Indemnified Persons in investigating or defending the same or in giving testimony or furnishing documents in response to a request of any government agency or subpoena) that in any way relate to or in any way arise out of the activities of the Indemnified Persons contemplated by this letter agreement; provided, however, that the Company shall not be liable in any such case (a) to any Indemnified Party, to the extent that any such loss, claim, damage, liability or cost arises out of, or is based upon, any such untrue statement or omission made therein in reliance upon and in conformity with written information about the Placement Agent, the Bank, the rating, if any, assigned to the Bonds, or the manner in which the Bonds are to be placed or sold furnished by persons other than the Company for use in preparation of the Placement Memorandum, or (b) to the Placement Agent, if the person asserting any such loss, claim, damage or liability purchased Bonds through the Placement Agent, and delivery to such person of the Placement Memorandum in the form available at closing for the Bonds would have been a valid defense to the action from which such loss, claim, damage or liability arose but the Placement Memorandum was not delivered to such person by or on behalf of the Placement Agent. Such indemnity agreement shall also not cover any loss, claim, damage, liability or cost which is held in a final judgment of a court to have arisen out of the gross negligence or bad faith of the Indemnified Persons contained herein. This indemnity agreement will be in addition to any liability which the Company may otherwise have, but shall not be construed to cause the Company to pay any Indemnified Person twice for the same loss, claim, damage, liability or cost, (b) If any claims shall be made or action brought against any of the Indemnified Persons for which indemnity may be sought against the Company, such Indemnified Persons or Person shall promptly notify the Company in writing setting forth the particulars of such claim or action. Failure to so notify the Company will reduce the liability of the Company under this Agreement by the amount of damages directly attributable to the failure of the Indemnified Person to give such notice, but shall not relieve the Company from any liability that it may have otherwise than on account of this section. The Company may participate at its own expense in defense of such action. If the Company so elects within a reasonable time after receipt of such notice, the Company may assume the defense of such action with counsel chosen by it and approved by the Indemnified Persons in such action, unless such Indemnified Persons reasonably object in writing on the ground that there may be legal defenses available to them that are different from or in addition to those available to the Company, in which case the Indemnified Persons shall have the right to designate and retain separate counsel in such action and the fees and expenses of such counsel so designated and retained shall be paid by the Company. -4- -boc# 347009.01- (c) In order to provide for just and equitable contribution in circumstances in which the indemnification provided for in paragraphs (a) and (b) of this Section 7 is due in accordance with its terms but is for any reason held by a court to be unavailable on grounds of policy or otherwise, the Company and the Indemnified Persons shall contribute to the aggregate losses, claims, damages and liabilities (including legal or other expenses reasonably incurred in connection with investigating or defending the same) to which the Company and the Indemnified Persons may be subject in such proportion as" is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Indemnified Persons on the other hand, but also the relative fault of the Company and the Indemnified Persons, as well as any relevant equitable considerations. (d) This indemnity agreement shall remain operative and in full force and effect, regardless of any investigation made by or on behalf of the Placement Agent, the Issuer, the Trustee or the Company, or on delivery of and payment for any Bonds hereunder, and shall survive the termination or cancellation of this letter agreement. 8. The Placement Agent's aggregate fee for introducing the prospective purchasers will be one percent (1%) of the original aggregate principal amount of the Bonds. Such fee shall be payable by the Company at the closing of the sale of the Bonds and may be paid out of the proceeds from the sale of the Bonds. The Company hereby represents and warrants to the Placement Agent that it has not had, and will not have prior to the Closing Date, any discussion with any person other than representatives of the Placement Agent for the purpose of engaging, • or considering the engagement of, such person as a finder or broker in connection with the sale of the Bonds or similar securities. In addition to the fee that is payable hereunder to the Placement Agent at the closing of the sale of the Bonds, the Company shall reimburse the Placement Agent for all of the Placement Agent's reasonable out-of-pocket expenses incurred in connection with the Placement Agent's engagement hereunder (including the reasonable fees and disbursements of counsel for the Placement Agent). 9, The Company hereby agrees to pay the costs and expenses incurred by the Issuer with respect to the issuance of the Bonds including the costs and expenses of counsel to the Issuer. 10. The benefits of this letter agreement shall inure to the respective successors and assigns of the parties hereto, and the obligations and liabilities assumed in this letter agreement by the parties hereto shall be binding upon their respective successors and assigns. 11. This engagement shall be governed by and construed in accordance with the laws of the State of Florida, without giving effect to choice of law principles. 12. This letter agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which together shall be deemed to be the same agreement. 13. The Company hereby agrees that the Placement Agent will be acting as the Company's and Issuer's agent in the introduction of potential purchasers of the Bonds and that the Placement Agent's responsibility in this transaction is limited to a "best efforts" basis in -S- ' Doc# 347009.01 " • • identifying potential purchasers of the Bonds, with no understanding, expressed or implied, of a commitment by the Placement Agent to purchase or place the Bonds. -6- ' Duch 347009.01 11 14. If the foregoing is in accordance with your understanding, kindly confirm your acceptance and agreement by signing and returning one of the enclosed duplicates of this letter which will thereupon constitute an agreement between us. ACCEPTED BY: CITY OF TAMARAC, FLORIDA M. Name: Joe Schreiber Title: Mayor (SEAL) ATTEST: LIM Name: Carol Gold Title: City Clerk Very truly yours, FIRST UNION SECURITIES, INC. M. Name: Title: I hereby certify that I have approved this Agreement as to form By: Name: Mitchell S. Kraft Title: City Attorney (Signatures Continued on Following Page) -7- 'Doe# 347009,01' 0 FAZIO HOLDINGS, LP, a Florida limited partnership n L__ A By: SONNY'S .ENTERPRISES, INC., a Florida corporation, its general partner By Attest: By: Name: _ Title: Name: Paul G. Fazio Title: President Doc# 347009.01' WE • EXHIBIT "D" Cs1il;j_=1;11iMcily,N►TI07717s1upillI 1 is Temp. Reso. #8929 March 8, 2000 Page 16 PRIVATE PLACEMENT MEMORANDUM April , 2000 NEW ISSUE TC Book Entry Only In the opinion of Bryant, Miller and Olive, P.A., Bond Counsel, the interest on the Bonds is excluded from gross income under existing law, except for interest on any Bond during any period while it is held by a person who is a "substantial user" of the Project or a "related person" as those terms are used in Section 147(a) of the Internal Revenue Code of 1986, as amended (the "Code"), and subject to continued compliance with the tax covenants of the Company contained in the Loan Agreement. The Code provides in effect that interest on the Bonds is included as an item of tax preference for purposes of calculating the alternative minimum tax imposed on individuals and corporations. The interest on the Bonds is exempt from present Florida state income taxation under laws now in force on Bonds owned by residents of the State of Florida. See "TAX TREATMENT" herein. $6,000,000 CITY OF TAMARAC, FLORIDA INDUSTRIAL DEVELOPMENT REVENUE BONDS (FAZIO HOLDINGS, LP PROJECT), SERIES 2000 Dated as of date of issuance Price of All Bonds: 100% Maturity Date: April 1, 2016 From the date of original issuance of the Bonds through April 15, 2005, unless extended or earlier terminated prior thereto, principal and interest payments on the Bonds will be payable from funds drawn under an irrevocable direct pay letter of credit (the "Letter of Credit") issued in favor of First Union National Bank, as Trustee (in such capacity, the "Trustee") by FIRST UNION NATIONAL BANK (in such capacity, the "Bank"). THE INff1AL LETTER OF CREDIT MAY EXPIRE BFFORE THE, MATURITY DATE OF THE BONDS. The initial Letter of Credit is the direct obligation of the Bank to pay to the Trustee, in conformity with the terms thereof, sums up to the principal amount of the Bonds and up to 120 days' accrued interest on the Bonds (calculated at an assumed maximum rate of interest of 15% per antrum). Except to the extent payable from draws under the Letter of Credit, the Bonds will be payable solely from payments and property subject to the lien under the Trust Indenture, dated as of April 1, 2000, between City of Tamarac, Florida (the "Issuer") and the Trustee (the "Indenture"), including without limitation, payments made under the Loan Agreement, April 1, 2000, between the Issuer and Fazio Holdings, LP, a Florida limited partnership (the "Company"). Pursuant to the Indenture, prior to the date on which the Bonds commence to bear interest at a fixed rate (a "Fixed Rate Conversion Date"), y Bond bearing interest at a Variable Rate (as described herein) will be purchased on the demand of the registered owner thereof on any Optional Tender Date (as defined herein) upon delivery of seven days', or during any Semiannual Rate Period (as described herein) twenty days', irrevocable prior written notice to First Union National Bank, as Tender Agent. Bonds initially issued under the Indenture will bear interest from their date of authentication and delivery until payment of the principal thereof shall have been made or provided for in accordance with the provisions of the Indenture, whether at maturity, upon redemption, acceleration or otherwise. For the period from and including the date of the first authentication and delivery of the Bonds to and including April _, 2000, the Bonds will bear interest at a variable rate of interest determined by the Remarketing Agent on the date of issuance. Thereafter prior to a Conversion Date (see "THE BONDS --Interest on the Bonds -Variable Rate"), the Bonds shall bear interest at a Weekly Rate (as described herein) and continue to bear interest at a Weekly Rate to, but not including, the date upon which the such Weekly Rate is converted, if ever, to a Monthly Rate, a Semiannual Rate or a Fixed Rate (each as described herein) in accordance with the terms of the Indenture. While Bonds bear interest at a Weekly Rate, a Monthly Rate or a Semiannual Rate, interest on the Bonds shall be payable on the first Business Day of each January, April, July and October commencing July, 2000, and on any Conversion Date. If the Bonds are converted to a Fixed Rate, during the Fixed Rate Period, interest on the Bonds shall be payable on the first Business Day of each April and October, commencing on the first Business Day of the first April or October that follows such Fixed Rate Conversion Date, until the principal of and interest on the Bonds shall have been paid in full or provision shall have been made for the payment thereof in accordance with the Indenture. While the Bonds bear interest at any Variable Rate, interest on the Bonds will be computed on the basis of a 365 or 366 day year for the number of days actually elapsed. After the Fixed Rate Conversion Date, interest on the Bonds will be computed on the basis of a 360-day year of 12 equal months of 30 days each. The Bonds are subject to optional and mandatory redemption and mandatory tender for purchase prior to maturity in the manner and at the times described herein. (See "THE BONDS --Redemption of Bonds; Optional Redemption" and "THE BONDS --Redemption of Bonds; Mandatory Redemption" and "TIE BONDS --Mandatory Purchase on Conversion Date.") The Bonds will be issuable as fully registered Bonds and when issued will be registered to Cede & Co. as nominee of The Depository Trust Company, New York, New York to which principal, premium, if any, and interest payments on the Bonds will be made. Individual purchases of the Bonds will be made in book entry only form, in the principal amount, during a Variable Rate Period, of at least $100,000 and any integral multiple of $5,000 in excess thereof except as otherwise provided in the Indenture. Purchasers of the Bonds will not receive physical delivery of bond certificates. So long as Cede & Co. is the registered owner of the Bonds as nominee of The Depository Trust Company, reference herein to the Holders or registered owners of the Bond shall mean Cede & Co. and shall not mean the beneficial owners of the Bonds. So long as Cede & Co. is e registered owner of the Bonds, the principal of and interest and premium, if any, on the Bonds are payable to Cede & Co. as nominee of 'fhe st", epository Trust Company, which will in turn remit such principal, interest and premium, if any, to the Participants and Indirect Participants for subsequent disbursement to the beneficial owners. See "THE BONDS--Book-Entry System." FON FIRST UNION SECURITIES, INC. "Doc# 348262.01- THE BONDS ARE LIMITED 013LIGATIONS OF THE ISSUER PAYABLE SOLELY OUT OF THE AMOUNTS PAYABLE BY THE COMPANY PURSUANT TO THE LOAN AGREEMENT AND OTHER AMOUNTS (IF ANY) AVAILABLE UNDER THE INDENTURE (THE "PLEDGED REVENUES"). THE BONDS SHALL NEVER CONSTITUTE AN INDEBTEDNESS OR PLEDGE. OF THE FAITH AND CREDIT OF TIIL' STATE OF FLORIDA (THE "STATE") OR ANY POLITICAL SUBDIVISION THEREOF WITHIN THE MEANING OF ANY 0ONSI'ITUTTONAh PROVISIONS OR STATUTORY LIMITATION AND SHALL NEVER CONSTITUTE OR GIVE RISE TO A PECUNIARY LABILITY OF THE STATE OR A CHARGE AGAINST THE GENERAL CREDIT OR TAXING POWERS OF THE STATE. The Bonds are being offered in a nonpublic offering to a limited number of prospective investors who qualify as "accredited investors' under any of the following categories at the time of the sale of Bonds to that person or entity: fiduciary capacity; (i) a bank, as defined in Section 3(aX2) of the federal Securities Act of 1933 (the "Securities Act"), acting in its individual or (ii) a broker -dealer registered pursuant to Section 15 of the Securities Exchange Act of 1934, as amended; (iii) an insurance company, as defined in Section 2(13) of the Securities Act; (iv) an investment company, as defined under the Investment Company Act of 1940; (v) a natural person whose individual net worth, or joint net worth with such person's spouse, at the time of his or her purchase exceeds $1,000,000; (vi) a natural person who had an individual income in excess of $200,000 in each of the two most recent years or joint income with the person's spouse in excess of $300,000 in each of those years and who has a reasonable expectation of reaching the same income level in the current year; (vii) a trust with total assets in excess of $5,000,000, not formed for the specific purpose of acquiring the Bonds, whose purchase is directed by a sophisticated person as described in 17 C.F.R. §230.506(b)(2Xii) promulgated under the Securities Act; and (viii) any entity the owners of which are accredited investors. The Bonds are not deemed to be suitable investments for anyone other than an "accredited investor." No dealer, broker, salesman or other person has been authorized to give any information or to make any representation other than those contained in this Private Placement Memorandum in connection with the offering described herein, and, if given or made, such other information or representation must not be relied upon as having been authorized. This Private Placement Memorandum does not constitute an offer to sell or the solicitation of an offer to buy any securities other than the Bonds offered hereby, nor shall there be any offer or solicitation of such offer or sale of the Bonds in any jurisdiction in which it is unlawful for such person to make such offer, solicitation or sale. Neither the delivery of this Private lacement Memorandum nor the sale of any of the Bonds implies that the information herein is correct as of any date subsequent to the date hereof. The information contained herein has been obtained from sources believed to be reliable, but the accuracy or completeness of such information is not guaranteed by, and should not be construed as a representation of, the Placement Agent. The information contained herein is subject to change after the date of this Private Placement Memorandum, and this Private Placement Memorandum speaks only as of its date. THESE SECURITIES HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION BY REASON OF THE PROVISIONS OF SECTION 3(AX2) OF THE SECURITIES ACT OF 1933, AS AMENDED. THE REGISTRATION OR QUALIFICATION OF THESE SECURITIES IN ACCORDANCE WITH APPLICABLE PROVISIONS OF SECURITIES LAWS OF THE STATES IN WHICH THESE SECURITIES HAVE BEEN REGISTERED OR QUALIFIED AND THE EXEMPTION FROM REGISTRATION OR QUALIFICATION IN OTHER STATES, SHALL NOT BE REGARDED AS A RECOMMENDATION THEREOF. NEITHER THE STATES, NOR ANY OF THEIR AGENCIES HAVE PASSED UPON THE MERITS OF THE SECURITIES OR THE ACCURACY OR COMPLETENESS OF THIS PRIVATE PLACEMENT MEMORANDUM. ANY REPRESENTATION TO THE CONTRARY MAY BE A CRIMINAL OFFENSE. • `Doc# 348262.01" TABLE OF CONTENTS 0 Page �J r' INTRODUCTION......................................................................................................................1 THEISSUER.............................................................................................................................4 USEOF PROCEEDS.................................................................................................................4 THEBONDS ..................................................... :........................................................................ 4 THE INDENTURE ................................... ..................................... ........................ .................. 15 THE LOAN AGREEMENT.....................................................................................................18 THE LETTER OF CREDIT AND THE LETTER OF CREDIT AND SECURITY AGREEMENT........ . ... ..... -- ............................................................................................ 21 PLACEMENT AGENT ................................... ........... .............................................................23 . TENDER AGENT ....... ................................ ....................................................................... 23 REMARKETING AGENT... . .............. ..................... --- ... --- ............................................. 23 TAX EXEMPTION.......................................................................... ........ 23 LEGAL MATTERS...................................24 ..................................................................... LITIGATION........................................................................................................................... 25 CONTINUING DISCLOSURE................................................................................................25 MISCELLANEOUS ............................................ 25 Appendices A -The Company .................................... B-First Union National Bank .................. .................................... A-1 R-1 NP=6 1leiF:MOXIIN $6,000,000 CITY OF TAMARAC, FLORIDA INDUSTRIAL DEVELOPMENT REVENUE BONDS (FAZIO HOLDINGS, LP PROJECT), SERIES 2000 INTRODUCTION This Private Placement Memorandum, including the cover page and the Appendices, is provided to furnish information in connection with the issuance and sale by City of Tamarac, Florida (the "Issuer") of its City of Tamarac, Florida Industrial Development Revenue Bonds (Fazio Holdings, LP Project), Series 2000 in the aggregate principal amount of $6,000,000 (the "Bonds") in accordance with the provisions of Chapter 159, Part II, Florida Statutes, as amended (the "Act"). The Bonds are being issued by the Issuer pursuant to a Trust Indenture, dated as of April 1, 2000 (the "Indenture"), between the Issuer and First Union National Bank, as Trustee (in such capacity, the "Trustee"). The Bonds are being issued in order to provide funds to finance the costs of the acquisition, construction, installation or equipping of a manufacturing facility located in the City of Tamarac, Florida (the "Project") and provide for payment of a portion of costs of issuance of the Bonds. The proceeds of the Bonds will be loaned to Fazio Holdings, LP, a Florida limited partnership (the "Company"), pursuant to a Loan Agreement, dated as of April 1, 2000, between the Issuer and the Company (the "Loan Agreement"). For a discussion of the Company, see Appendix A to this Private Placement Memorandum. The Bonds and the interest thereon are limited obligations of the Issuer payable solely from the revenues and funds pledged under the Indenture and from moneys drawn under the irrevocable direct pay Letter of Credit dated the date hereof (the "Letter of Credit"), which with any Alternate Credit Facility (as defined herein) from time to time in effect is sometimes referred to as the "Credit Facility") in the respective amounts hereinafter set forth issued by First Union National Bank (in such capacity, the "Bank"). THE BONDS ARE LIMITED OBLIGATIONS OF THE ISSUER PAYABLE SOLELY OUT OF THE AMOUNTS PAYABLE BY THE COMPANY PURSUANT TO THE LOAN AGREEMENT AND OTHER AMOUNTS (IF ANY) AVAILABLE UNDER THE INDENTURE (THE "PLEDGED REVENUES"). THE BONDS SHALL NEVER CONSTITUTE AN INDEBTEDNESS OR PLEDGE OF THE FAITH AND CREDIT OF THE STATE OF FLORIDA (THE "STATE") OR ANY POLITICAL SUBDIVISION THEREOF WITHIN THE MEANING OF ANY CONSTITUTIONAL PROVISIONS OR STATUTORY LIMITATION AND SHALL NEVER CONSTITUTE OR GIVE RISE TO A PECUNIARY LIABILITY OF THE STATE OR A CHARGE AGAINST THE GENERAL CREDIT OR TAXING POWERS OF THE STATE. Concurrently with the issuance of the Bonds, the Company will cause to be delivered to the Trustee the Letter of Credit, which may be terminated or may be replaced by another letter of credit or credit facility (an "Alternate Credit Facility") as described herein under "LETTER OF CREDIT AND THE LETTER OF CREDIT AND SECURITY AGREEMENT." The initial �r�iT�-#iSf�dha[1I� • Letter of Credit issued by the Bank will be issued in an amount approximately equal to the principal amount of the Bonds issued on the date hereof plus 120 days' interest thereon at an assumed interest rate of 15% per annum. The Letter of Credit will be issued pursuant to a Letter of Credit and Security Agreement dated as of April 1, 2000 (the "Reimbursement Agreement"), by and among the Company and the Bank providing for, among other things, repayment by the Company to the Bank of amounts drawn under the Letter of Credit pursuant to the Reimbursement Agreement and containing certain covenants of the Company. Expiration of the Letter of Credit or any Alternate Credit Facility without provision by the Company of a replacement Alternate Credit Facility will result in a mandatory redemption of the Bonds pursuant to the terms of the Indenture. Prior to its expiration, the Letter of Credit may be extended as provided therein or replaced with an Alternate Credit Facility in accordance with the provisions of the Indenture. (See "THE LETTER OF CREDIT AND THE LETTER OF CREDIT AND SECURITY AGREEMENT.") All right, title and interest of the Issuer in, to and under the Loan Agreement (other than certain reserved rights of the Issuer), all moneys and securities deposited or credited to any account or fund established under the Indenture including without limitation the Bond Fund, but excluding the Rebate Fund, and Revenues (as defined in the Indenture), as its interests may appear, are assigned, pledged and conveyed under the Indenture to the Trustee and its successors and assigns for the benefit of the Bondowners (which term, as well as the term "Registered Owners" or "Owners," when used herein, shall mean the owners of the Bonds as shown in the bond register maintained by First Union National Bank, as Bond Registrar (in such capacity, the "Bond Registrar")). While the Bonds bear interest at the Weekly Rate, the Monthly Rate or the Semiannual Rate (each as defined herein) (each a "Variable Rate Period"), interest on the Bonds will be payable on the first Business Day of each January, April, July and October commencing July, 2000, and on any Conversion Date and ending on the earlier of (i) the Fixed Rate Conversion Date or (ii) the maturity date for the Bonds (the "Variable Interest Payment Dates"). During the Variable Rate Period, the Bonds will bear interest at a variable rate not to exceed 15% per annum (or, if less, the maximum rate permitted by law) determined in accordance with the Indenture. The manner in which the Weekly Rate, the Monthly Rate or the Semiannual Rate (each a "Variable Rate") is determined is described more fully under "THE BONDS --Interest on the Bonds -Variable Rate." At the election of the Company, the Bonds are subject to conversion to a fixed interest rate (the "Fixed Rate") upon terms described in the Indenture (See "THE BONDS --Interest on the Bonds -Fixed Rate"). While the Bonds bear interest at a Fixed Rate, interest on the Bonds will be payable on the first Business Day of each April and October commencing on the first Business Day of the first April or October that follows the Fixed Rate Conversion Date, until the principal of and interest on the Bonds shall have been paid in full or provision shall have been made for the payment thereof in accordance with the Indenture (the "Fixed Rate Interest Payment Dates," which, together with the Variable Rate Interest Payment Dates, are referred to herein as the "Interest Payment Dates"). The manner in which the Fixed Rate is determined and the procedures for the conversion of the Bonds to bear the Fixed Rate are described more fully under "THE BONDS --Interest on the Bonds -Conversion to Fixed Rate." -2- Doc# 348262,01" . All of the Bonds are subject to mandatory tender for purchase on any Conversion Date. While the Bonds bear interest at a Variable Rate, any Owner of Bonds will have the right to demand the purchase of Bonds, on any Optional Tender Date (as defined herein), at a purchase price equal to the principal amount thereof plus interest accrued to the purchase date, upon not less than seven days' and, in the case of Bonds bearing interest at the Semiannual Rate twenty days', irrevocable written notice to First Union National Bank, as tender agent (in such capacity, the "Tender Agent"), in the form prescribed in the Bonds. An Optional Tender Date is (i) any Business Day, while the Bonds bear interest at a Weekly Rate, and (ii) the first Business Day of each Calculation Period (as defined in the Indenture) while the Bonds bear interest at a Monthly or Semiannual Rate. For the purpose of facilitating the purchase of Bonds which are tendered for purchase, the Company has entered into a Remarketing Agreement with respect to the Bonds, dated as of April 1, 2000 (the "Remarketing Agreement") with First Union Securities, Inc., as remarketing agent (the "Remarketing Agent"), pursuant to which the Remarketing Agent has agreed, subject to the conditions therein contained, to use its best efforts to arrange for the sale in the secondary market of such Bonds. During any Variable Rate Period, the Bonds may be redeemed as a whole or in part, by the option of the Issuer, at the request of the Company with the consent of the issuer of the Credit Facility in effect (the "Credit Facility Issuer") at a redemption price equal to the principal amount thereof, provided, however, that during any Weekly Rate Period or Monthly Rate Period such optional redemption can only occur on an Interest Payment Date, and during any . Semiannual Rate Period such optional redemption can only occur on the last day of the applicable Calculation Period. During the Fixed Rate Period, the Bonds may be redeemed as a whole or in part on any Interest Payment Date after the end of the fourth year following the Fixed Rate Conversion Date at the redemption prices set forth in the Indenture (all as more specifically described herein under "THE BONDS --Redemption of Bonds -Optional Redemption"). In addition the Bonds are subject to mandatory redemption as described herein. See "THE BONDS --Redemption of Bonds -Mandatory Redemption." THE BONDS ARE BEING OFFERED PRIMARILY ON THE BASIS OF THE FINANCIAL STRENGTH OF FIRST UNION NATIONAL BANK UNDER ITS LETTER OF CREDIT AND NOT UPON THE FINANCIAL STRENGTH OF THE COMPANY OR ON ANY OTHER SECURITY. PROSPECTIVE PURCHASERS OF THE BONDS ARE ADVISED TO RELY SOLELY UPON THE LETTER OF CREDIT FOR PAYMENT OF PRINCIPAL AND PURCHASE PRICE OF AND INTEREST ON THE BONDS. AN EVENT OF DEFAULT UNDER THE REIMBURSEMENT AGREEMENT, INCLUDING, AMONG OTHERS, THE COMPANY'S FAILURE TO PAY AMOUNTS DUE UNDER THE REIMBURSEMENT AGREEMENT OR COMPLY WITH CERTAIN COVENANTS, WILL PERMIT THE BANK TO CAUSE AN EVENT OF DEFAULT UNDER THE INDENTURE, WHICH WOULD REQUIRE THE TRUSTEE TO DECLARE THE BONDS TO BE IMMEDIATELY DUE AND PAYABLE. Brief descriptions of the Issuer, the Bonds, the Letter of Credit, the Reimbursement Agreement, the Loan Agreement and the Indenture are included in this Private Placement Memorandum, and brief descriptions of the Company and the Bank are attached to this Private Placement Memorandum as Appendices A and B, respectively, which Appendices refer to and incorporate by reference certain documents and financial statements. Such descriptions do not -3- -Doc# 348262.01" purport to be comprehensive or definitive. All references herein to the Remarketing Agreement, the Reimbursement Agreement, the Letter of Credit, the Loan Agreement and the Indenture are qualified in their entirety by reference to the document in question. All references herein to the Bonds are qualified in their entirety by the definitive form thereof contained in the Indenture. Definitive copies of all documents described in this Private Placement Memorandum will be available at the corporate trust offices of the Trustee. During the initial offering period with respect to the Bonds, preliminary copies of all such documents will be available in limited quantities at the principal office of the Placement Agent, First Union Securities, Inc. (in such capacity, the "Placement Agent"), in Charlotte, North Carolina. THE ISSUER [Bond Counsel will need to provide a description for the Issuer] Florida law requires the Issuer to make a full and fair disclosure of any bonds or other debt obligations which it has issued or guaranteed and which are or have been in default as to principal or interest at any time after December 31, 1975 including bonds or other debt obligations for which it has served as a conduit issuer. Certain obligations issued by the Issuer in which the Issuer has acted merely as a conduit for payment do not constitute an actual debt, liability or obligation of the Issuer, but are instead secured by payments to be made from certain users of bond -financed property. As of the date of this Private Placement Memorandum, the Issuer is not in default in payment of the principal or interest with respect to any obligations for which it is primarily responsible for repayment, any obligations for which it has pledged its faith and credit, or any obligations it has guaranteed by pledge of its faith and credit. USE OF PROCEEDS The proceeds of the Bonds will be used for the purposes of (i) financing the costs of the acquisition, construction, installation or equipping of a manufacturing facility located in the City of Tamarac, Florida, and (ii) paying a portion of the costs of the issuance of the Bonds. THE BONDS The following is a summary of certain provisions of the Bonds. Reference is made to the Bonds themselves for the complete text thereof and to the Indenture, and the discussion herein is qualified by such reference. General The Bonds will be issuable as registered Bonds and upon the issuance will be registered in the name of Cede & Co. as nominee for The Depository Trust Company ("DTC"). Individual purchases of the Bonds will be made in book -entry -only form, in the principal amount of $100,000 or any integral multiple of $5,000 in excess thereof; provided that if less than $100,000 principal amount of Bonds is outstanding, one Bond shall be issued in such smaller denomination. Subject to the limitations provided in the Indenture and upon payment of any tax or governmental charge, if any, Bonds may be exchanged for a like aggregate principal amount -4- -DocM 348262.01" of Bonds of other authorized denominations. The Bonds shall be numbered from "I" consecutively upwards prefixed by the letter "R". Transfer, Registration and Exchange The Bonds may be transferred, registered or exchanged as provided in the Indenture. Exchanges and transfers will be without expense to the owner except for any applicable taxes or other governmental charges. The Bond Registrar shall not be required to make any exchange or registration of transfer of any Bond called for redemption. The Indenture directs the Trustee, the Issuer and certain other persons to deem and treat the person in whose name any Bond is registered in accordance with the Indenture on the registration books maintained pursuant to the Indenture as the Owner thereof for all purposes. Notwithstanding the above, so long as the Bonds are held under a book -entry system, transfers and exchanges of beneficial ownership of the Bonds will be effected on the books of the Securities Depository (as hereinafter defined) pursuant to its rules and procedures. Book -Entry System DTC, New York, New York, will initially act as securities depository for the Bonds. DTC and any successor or substitute securities depository are sometimes referred to herein as the "Securities Depository." Upon issuance of the Bonds, one fully registered Bond will be registered in the name of Cede & Co., as nominee for DTC, in the aggregate principal amount of the Bonds. Cede & Co. and any future nominee of a Securities Depository are sometimes herein referred to as the "Securities Depository Nominee." So long as Cede & Co., as nominee of DTC, is the registered owner of the Bonds references herein to the Holders or Owners of the Bonds or registered owners of the Bonds shall mean Cede & Co. and shall not mean the Beneficial Owners (as defined in the Indenture) of the Bonds. The information under this caption concerning DTC and DTC's book -entry system has been obtained from sources believed to be reliable, but the Issuer, the Company and the Placement Agent do not take any responsibility for the accuracy or completeness thereof DTC is a limited -purpose trust company organized under the New York Banking Law, a "banking organization" within the meaning of the New York Banking Law, a member of the Federal Reserve System, a "clearing corporation" within the meaning of the New York Uniform Commercial Code, and a "clearing agency" registered pursuant to the provisions of Section 17A of the Securities Exchange Act of 1934. DTC holds securities that its participants ("Participants") deposit with DTC. DTC also facilitates the settlement among Participants of securities transactions, such as transfers and pledges, in deposited securities through electronic computerized book -entry changes in Participants' accounts, thereby eliminating the need for physical movement of securities certificates. Direct Participants include securities brokers and dealers, banks, trust companies, clearing corporations, and certain other organizations. DTC is owned by a number of its Direct Participants and by the New 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 through or maintain a custodial relationship with a Direct Participant, -5- -Doc# 348262.01" either directly or indirectly ("Indirect Participants"). The Rules applicable to DTC and its Participants are on file with the 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 Beneficial 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 purchases, but Beneficial Owners are expected to receive written confirmations providing details of the transaction, as well as periodic statements of their holdings, from the Direct or Indirect Participants through which the Beneficial Owner entered into the transaction. Transfers of ownership interests in the Bonds are to be accomplished by entries made on the books of Participants acting on behalf of Beneficial Owners. Beneficial Owners will not receive certificates representing their ownership interests in the Bonds, except in the event that use of the book -entry system for the Bonds is discontinued. To facilitate subsequent transfers, all Bonds deposited by Participants with DTC are registered in the name of DTC's partnership nominee, Cede & Co. The deposit of Bonds with DTC and their registration in the name of Cede & Co. effect no change in beneficial ownership. DTC has no knowledge of the actual Beneficial Owners of the Bonds; DTC's records reflect only the identity of the Direct Participants to whose accounts the Bonds are credited, which may or may not be the Beneficial Owners. The Participants will remain responsible for keeping account of their holdings on behalf of their customers. The Company, the Issuer and the Trustee will recognize DTC or its nominee, Cede & Co., as the registered owner of the Bonds for all purposes, including notices and voting. Conveyance of notices and other communications by DTC to Direct Participants, by Direct Participants to Indirect Participants and by Direct Participants and Indirect Participants to Beneficial owners of the Bonds will be governed by arrangements among them, subject to any statutory or regulatory requirements as may be in effect from time to time. Neither DTC nor Cede & Co. will consent or vote with respect to the Bonds. Under its usual procedures, DTC mails an Omnibus Proxy to the Issuer as soon as possible after the record date. The Omnibus Proxy assigns Cede & Co.'s consenting or voting rights to those Direct Participants to whose accounts the Bonds are credited on the record date (identified in a listing attached to the Omnibus Proxy). Principal and interest payments on the Bonds will be made to DTC. DTC's practice is to credit Direct Participants' accounts on each 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 such payable date. Payments by Participants to Beneficial Owners will be governed by standing instructions and customary practices, as is the case with securities held for the accounts of customers in bearer form or registered in "street name," and will be the responsibility of such Participant and not of DTC, the Issuer or the Trustee, subject to any statutory or regulatory requirements as may be in effect from time to time. Payment of principal and interest to DTC is the responsibility of the Bond Registrar, disbursement 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 and Indirect Participants. -6- ' Doc# 348262.01- THE ISSUER, THE COMPANY, THE REMARKETING AGENT, THE TENDER AGENT AND THE TRUSTEE DO NOT HAVE ANY RESPONSIBILITY OR OBLIGATION TO DTC, TO DIRECT PARTICIPANTS, TO INDIRECT PARTICIPANTS, OR TO THE PERSONS FOR WHOM THEY ACT AS NOMINEES WITH RESPECT TO THE BONDS, OR TO ANY BENEFICIAL OWNER OF BONDS IN RESPECT OF THE ACCURACY OF ANY RECORDS MAINTAINED BY DTC OR ANY DIRECT PARTICIPANT OR INDIRECT PARTICIPANT, THE PAYMENT BY DTC OR ANY DIRECT PARTICIPANT OR INDIRECT PARTICIPANT OF ANY AMOUNT IN RESPECT OF THE PRINCIPAL OR PURCHASE PRICE OF OR PREMIUM OR INTEREST ON THE BONDS, ANY NOTICE WHICH IS PERMITTED OR REQUIRED TO BE GIVEN UNDER THE INDENTURE, THE SELECTION BY DTC OR ANY DIRECT PARTICIPANT OR INDIRECT PARTICIPANT OF ANY PERSON TO RECEIVE PAYMENT IN THE EVENT OF A PARTIAL REDEMPTION OF THE BONDS, OR ANY CONSENT GIVEN OR OTHER ACTION TAKEN BY DTC AS HOLDER. The Company, the Issuer and the Trustee cannot and do not give any assurances that DTC, Direct Participants or Indirect Participants will distribute to the Beneficial Owners of the Bonds (i) payments of principal or Purchase Price of, premium, if any, and interest on, the Bonds, (ii) confirmation of ownership interests in Bonds, (iii) redemption or other notices sent to DTC or Cede & Co., its nominee, as the registered owner of the Bonds, or that they will do so on a timely basis or that DTC, Direct Participants or Indirect Participants will serve and act in the manner described in this Private Placement Memorandum. Any provision of the Indenture or of the Bonds requiring physical delivery of the Bonds will, with respect to any Bonds held under the book -entry system, be deemed to be satisfied by a notation on the Register maintained by the Registrar that such Bonds are subject to the book - entry system. In the event that (1) the Securities Depository determines not to continue to administer a book -entry system for the Bonds, or (ii) the Issuer determines that continuation of a book -entry system of evidence and transfer of ownership of the Bonds would adversely affect the interests of the Issuer or of the Beneficial Owners, the book -entry system will be discontinued if the Issuer fails to replace or removes the then -acting Securities Depository, in which case the Trustee will deliver replacement Bonds in the form of fully -registered certificates in authorized denominations in exchange for the Outstanding Bonds as required by the Trustee and the Beneficial Owners. The Beneficial Owners of the Bonds, upon registration of certificates held in the Beneficial Owners' names, will become the registered owners of the Bonds. Interest on the Bonds Variable Rate. The Bonds will initially bear interest at a variable rate determined by the Remarketing Agent on the date of issuance. Thereafter, prior to any Conversion Date, the Bonds shall bear interest at the Weekly Rate. During the Variable Rate Period, the Remarketing Agent shall give telephonic or written notice on the Determination Date (as defined in the Indenture) to the Trustee and the Company of the Variable Rate to be in effect for the next succeeding Calculation Period (as defined in the Indenture). The determination of any Variable Rate by the Remarketing Agent shall be conclusive and binding upon the Registered Owners, the Beneficial -7- 'Doc# 348262.01" Owners, the Company, the Issuer, the Trustee, the Tender Agent, the Remarketing Agent and the Credit Facility Issuer. Notwithstanding any other provisions of the Indenture to the contrary, the Weekly Rate, Monthly Rate, Semiannual Rate or Fixed Rate (each an "Interest Rate Determination Method") in effect from time to time shall continue in effect until the date on which such Interest Rate Determination Method is changed as described in the Indenture. While the Bonds bear interest at any Variable Rate, interest on the Bonds will be computed on the basis of a year of 365 or 366 days, as applicable, for the number of days actually elapsed. (1) Weekly Rate. For any period during which the Bonds bear interest at the Weekly Rate (a "Weekly Rate Period"), the Remarketing Agent will determine the Weekly Rate for the applicable Calculation Period on the applicable Determination Date. Each Weekly Rate shall be the rate of interest per annum determined by the Remarketing Agent on and as of each applicable Determination Date as the minimum rate of interest per annum necessary, in the judgment of the Remarketing Agent taking into account market conditions prevailing on the Determination Date, to enable the Remarketing Agent to arrange for the sale of all of the Bonds on the first day of the applicable Calculation Period in the secondary market at a price equal to the principal amount thereof (plus accrued interest to the date of settlement). If the Remarketing Agent fails to certify such rate for any Calculation Period, or if for any reason the Weekly Rate is held to be invalid or unenforceable by a court of competent jurisdiction for any period, the Weekly Rate shall be a rate equal to the Tax -Exempt Rate for a period equal to one month. Notwithstanding anything else contained herein, the Weekly Rate shall not in any event exceed the lesser of (i) 15% per annum or (ii) the maximum rate permitted by law. For purposes of this Private Placement Memorandum, "Tax -Exempt Rate" shall mean, for any period, an interest rate per annum (based on a 360-day year) determined by the Remarketing Agent to be the rate equal to 90% of the yield for the United States Treasury bills maturing approximately 30 days after the Determination Date as published by The Wall Street Journal on such Determination Date (or the next preceding Business Day on which The Wall Street Journal is published on the Determination Date) (or, if The Wall Street Journal is no longer published, then any reasonably equivalent publication selected by the Remarketing Agent). (2) Monthly Rate. For any period during which the Bonds bear interest at the Monthly Rate (a "Monthly Rate Period"), the Remarketing Agent will determine the Proposed Rate for the applicable Calculation Period on the Proposed Rate Determination Date. Thereafter, the Remarketing Agent will determine a Monthly Rate on the applicable Determination Date; provided, however, that such rate shall not be less than the Proposed Rate determined by the Remarketing Agent on the preceding Proposed Rate Determination Date, Each Monthly Rate shall be the rate of interest per annum determined by the Remarketing Agent on and as of each applicable Determination Date as the minimum rate of interest per annum necessary, in the judgment of the Remarketing Agent taking into account market conditions prevailing on the Determination Date and subject to the foregoing proviso concerning the Proposed Rate, to enable the Remarketing Agent to arrange for the sale of all of the Bonds on the first day of the applicable Calculation Period in the secondary market at a price equal to the principal amount thereof (plus accrued interest to the date of settlement). if the Remarketing Agent fails to certify such rate for any Calculation Period or if, for any reason, the Monthly Rate is held to be invalid or unenforceable by a court of competent jurisdiction for any Calculation Period, the Monthly `Doc# 348262.01' Rate for such Calculation Period shall be the Tax -Exempt Rate for a period equal to one month. In connection with any change in the Interest Rate Determination Method to a Monthly Rate pursuant to the Indenture, the Proposed Rate shall be determined as provided above on the applicable Proposed Rate Determination Date and the initial Monthly Rate shall be determined as provided above on the applicable Determination Date. Notwithstanding anything else contained herein, the Monthly Rate shall not in any event exceed the lesser of (i) 15% per annum or (11) the maximum rate permitted by law. (3) Semiannual Rate. For any period during which the Bonds bear interest at the Semiannual Rate (a "Semiannual Rate Period"), the Remarketing Agent will determine the Proposed Rate for the next Calculation Period on the Proposed Rate Determination Date. Thereafter, the Remarketing Agent will determine a Semiannual Rate for the next Calculation Period on the applicable Determination Date; provided, however, that such Semiannual Rate shall not be less than the Proposed Rate determined by the Remarketing Agent on the preceding Proposed Rate Determination Date. Each Semiannual Rate shall be the rate of interest per annum determined by the Remarketing Agent on and as of each applicable Determination Date as the minimum rate of interest per annum necessary, in the judgment of the Remarketing Agent taking into account market conditions prevailing on the Determination Date and subject to the foregoing proviso concerning the Proposed Rate, to enable the Remarketing Agent to arrange for the sale of all of the Bonds on the first day of the applicable Calculation Period in the secondary market at a price equal to the principal amount thereof (plus accrued interest to the date of settlement). If the Remarketing Agent fails to certify such rate for any Calculation Period or if, for any reason, the Semiannual Rate is held to be invalid or unenforceable by a court of competent jurisdiction, the Semiannual Rate shall be a rate equal to the Tax -Exempt Rate for a period equal to six months. In connection with any change in the Interest Rate Determination Method to a Semiannual Rate pursuant to the Indenture, the Proposed Rate shall be determined as provided above on the applicable Proposed Rate Determination Date and the initial Semiannual Rate shall be determined as provided above on the applicable Calculation Date. Notwithstanding anything else contained herein, the Semiannual Rate shall not in any event exceed the lesser of (i) 15% per annum or (ii) the maximum rate permitted by law. Fixed Rate. The Indenture provides that the Borrower Representative has an option to convert the interest rate payable on the Bonds from a Variable Rate to the Fixed Rate. On the date on which the Interest Rate Determination Method is converted to the Fixed Rate (the "Fixed Rate Conversion Date") the Fixed Rate shall be established as follows: (i) if the Placement Agent shall have arranged for the sale of any or all Bonds tendered for purchase ("Tendered Bonds") at a price equal to the principal amount thereof, the Fixed Rate shall be equal to the interest rate or rates at which such Bonds were sold by the Placement Agent, provided that all Tendered Bonds shall be sold at par and at a rate greater than or equal to the Preliminary Fixed Rate (as herein defined); or (ii) if the Placement Agent shall have arranged for the sale of none of the Tendered Bonds, the Fixed Rate shall be equal to the rate of interest per annum determined by the Placement Agent at least 25 days prior to the Fixed Rate Conversion Date to be that rate which, in the sole judgment of the Placement Agent based on market conditions prevailing on the date such rate is determined, is the minimum fixed annual rate of interest necessary to enable the Placement Agent to arrange for the sale of all of the Bonds in the secondary market at a price equal to the principal amount thereof, for which the Placement Agent would be so required to arrange for the sale on the Fixed Rate Conversion Date pursuant to the Indenture (the _9_ -Doc# 348262.01 "Preliminary Fixed Rate"). After the Fixed Rate Conversion Date, interest on the Bonds will be computed on the basis of a 360-day year of 12 equal months of 30 days each. If, for any reason, the Fixed Rate is held to be invalid or unenforceable by a court of competent jurisdiction, the Fixed Rate will be 8% per annum. Notwithstanding anything to the contrary contained herein or in the Indenture, the Fixed Rate shall in no event be a rate of interest in excess of the maximum rate permitted by law. Conversion of Interest Rate Determination Method. Conversion Notice. The Interest Rate Determination Method may be changed, at the direction of the Company, from any Variable Rate to any other Interest Rate Determination Method on any Interest Payment Date selected by the Company (each, a "Conversion" Date"), in whole but not in part, upon delivery of written notice of such change (a "Conversion Notice") by the Company to the Issuer, the Remarketing Agent, the Trustee, the Credit Facility Issuer and the Tender Agent. Such Conversion Notice shall be accompanied by an opinion of nationally recognized bond counsel satisfactory to the Trustee stating that the conversion of the Interest Rate Determination Method is authorized and permitted by the Indenture and will not, in and of itself, cause interest on the Bonds to be includable in gross income for federal income tax purposes. The Conversion Notice must be delivered (i) not less than 15 days prior to the proposed Conversion Date if the new Interest Rate Determination Method will be a Weekly Rate or a Monthly Rate or (ii) not less than 35 nor more than 60 days prior to the proposed Conversion Date if the new Interest Rate Determination Method will be a Semiannual Rate or a Fixed Rate. Each Conversion Notice shall state (i) that the Company elects to change the Interest Rate Determination Method to a new Interest Rate Determination Method, (ii) the proposed Conversion Date, (iii) the Interest Rate Determination Method to be in effect from and after such Conversion Date, (iv) whether a Credit Facility is to be in effect from and after such Conversion Date, and, if so, the terms of such Credit Facility, and (v) if a Fixed Rate is to be in effect from and after such Conversion Date, designation of a Placement Agent together with a copy of the agreement between the Placement Agent and the Company concerning the placement of the Bonds at the Fixed Rate. The Placement Agent or Remarketing Agent, as applicable, shall promptly notify the Trustee, the Issuer and the Company of the determination of the Preliminary Fixed Rate or Proposed Rate, as applicable, by telephone, telecopier, telex, telegram or other telecommunication device and upon request shall confirm such notice in writing. Upon receipt of notice of the Proposed Rate or the Preliminary Fixed Rate (or the Conversion Notice, if the new Interest Rate Determination Method is the Weekly Rate), the Trustee shall, as soon as practicable (but in no event more than two Business Days thereafter), mail, in the name of the Issuer, a notice to the owners of the Bonds. If the Company elects to convert the interest rate on the Bonds to any new Interest Rate Determination Method, all Bonds shall be deemed to have been tendered by the Registered Owners thereof on the Conversion Date. Registered Owners of Bonds which are deemed tendered as described above shall not be entitled to any payment (including any interest to accrue subsequent to the Conversion Date) other than the purchase price for such Bonds which shall be -10 "Doc# 348262.01" equal to the unpaid principal amount of such Bonds, and any such Bonds shall cease to accrue interest and shall no longer be entitled to the benefits of the Indenture, except for the purpose of payment of the purchase price therefor and interest payable on the Conversion Date. Payment of the purchase price of any such Bonds shall be made only upon the presentment and surrender of such Bonds to the Tender Agent. Upon request, the Trustee shall provide the Tender Agent with the address set forth on the Bond Register for such Registered Owner. In the case of any Bond deemed tendered, the Issuer shall cause to be executed, and the Trustee shall authenticate and deliver to the new Registered Owner as provided in Indenture, a new Bond of like date and tenor in lieu of and in substitution for such Bond deemed to be tendered. Conversion Date. The Conversion Date must be an Interest Payment Date. Failure or Revocation of Conversion. If (i) the Company fails to deliver the Trustee and the Remarketing Agent on the Conversion Date a supplemental opinion of Bond Counsel or (ii) an Event of Default shall have occurred under the Indenture, the Interest Rate Determination Method for the Bonds shall not be changed on the Conversion Date and the Trustee shall immediately notify by telephone, confirmed in writing, the Credit Facility Issuer, if any, the Remarketing Agent, the Issuer, the Company, the Paying Agent and the Tender Agent that the Interest Rate Determination Method for the Bonds shall not be changed on the Conversion Date. Notwithstanding any other provision in the Indenture to the contrary, no conversion of the Interest Rate Determination Method to the Fixed Rate shall occur if the Company, not later than 10:00 a.m. (prevailing Eastern time), on the Business Day immediately preceding the applicable Determination Date, directs the Remarketing Agent not to change the Interest Rate Determination Method to the Fixed Rate by written notice, with a copy to the Issuer, the Trustee, the Tender Agent, the Remarketing Agent and the Credit Facility Issuer, if any. If a proposed conversion of the Interest Rate Determination Method is canceled pursuant to the Indenture as described above, all Bonds shall nevertheless be deemed to have been tendered for purchase on the Conversion Date and shall be purchased on the Conversion Date. The Bonds shall continue to bear interest in accordance with the Interest Rate Determination Method in effect prior to the Conversion Date; provided, however, that (i) the rate of interest that the Bonds will bear shall be determined on the Conversion Date and (ii) if the Interest Rate Determination Method in effect prior to the Conversion Date is an Interest Rate Determination Method that requires the Remarketing Agent to set a Proposed Rate, the provisions of the Indenture requiring the setting of such Proposed Rate shall not be applicable. Failure to Mail Certain Notices. Failure of the Trustee to mail the notice of conversion of the interest rate, or any defect therein, shall not affect the validity of any interest rate or change in the Interest Rate Determination Method on any of the Bonds or the requirement that the Bonds shall be tendered pursuant to the Indenture or extend the period for tendering any of the Bonds for purchase, and the Trustee shall not be liable to any Registered Owner or Beneficial Owner by reason of its failure to mail such notice or any defect therein. Credit Facility_ UponConversionto Fixed Rate. If a Credit Facility is to be in effect immediately following the Fixed Rate Conversion Date, such Credit Facility must provide for -11- "DocM 348262.01" drawings with respect to the interest component thereunder to pay 210 days' interest on the Bonds at an assumed rate of 15% plus any premium payable pursuant to the Indenture. Payments of Principal and Interest. Principal of and redemption price of any Bond will be payable to the Owner of such Bond upon presentation and surrender thereof at the principal office of the Trustee. Interest on the Bonds will be paid by check and mailed on the Interest Payment Date to the Owners of such Bonds as of the close of business on the Record Date or, if applicable, the Special Record Date (each as defined in the Indenture) at the addresses appearing in the registration book in accordance with the terms of the Indenture. While the Bonds bear interest at the Variable Rate, interest may also be paid by wire transfer to the Owner of Bonds in the principal amount of $500,000 or more at the written request of the Owner to the Trustee on or prior to the applicable Record Date or Special Record Date. Tender for Purchase Upon Election of Bondholder While the Bonds bear interest at a Variable Rate, any Bond or portion thereof in an authorized denomination (other than a Bond registered in the name of the Company) shall be purchased on the demand of the Registered Owner thereof, on any Optional Tender Date at a purchase price equal to 100% of the principal amount thereof plus accrued interest to the purchase date, if the Owner of such Bond delivers to the Tender Agent at its address filed with the Trustee a notice (an "Optional Tender Notice") (i) at least seven (7) days prior to the purchase date specified in such Optional Tender Notice during any Weekly Rate Period or Monthly Rate Period or (ii) at least twenty (20) days prior to the purchase date specified in such Optional Tender Notice during any Semiannual Rate Period. Any Optional Tender Notice delivered as described above shall automatically constitute: (i) an irrevocable offer to sell such Bond on the Optional Tender Date set forth therein, at a price equal to 100% of the principal amount of such Bond plus accrued interest to such Optional Tender Date; and (11) an irrevocable authorization and instruction to the Bond Registrar to effect transfer of such Bond to the purchaser thereof on the such Optional Tender Date. No purchase of Bonds pursuant to the optional tender for purchase provisions of the Indenture shall be deemed a redemption thereof. Any Registered Owner who delivers an Optional Tender Notice pursuant to the Indenture as described above shall deliver such Bond to the Tender Agent, at its address filed with the Trustee, not less than five days prior to the Optional Tender Date specified in the Optional Tender Notice. All Bonds delivered to the Tender Agent pursuant to the Indenture must be duly endorsed for transfer in blank in form satisfactory to the Trustee. If a Registered Owner who gives the Optional Tender Notice fails to deliver the Bond or Bonds identified in the Optional Tender Notice to the Tender Agent at or prior to 10:00 a.m. (prevailing Eastern time) on the Optional Tender Date, such Undelivered Bond as defined in the Indenture shall be purchased and shall cease to accrue interest on such Optional Tender Date and the Registered Owner thereof shall thereafter be entitled only to payment of the purchase price therefor and to no other benefits of the Indenture, and the Issuer, to the extent permitted by law, shall execute and the Trustee shall authenticate and deliver a substitute Bond or Bonds in lieu of the Undelivered Bond and the Bond Registrar shall register such Bond in the name of the -12- - Doc # 348262.01' purchaser or purchasers thereof pursuant to the Indenture. The Tender Agent shall notify the Trustee and the Bond Registrar of any Undelivered Bonds. The Trustee shall (i) notify the Remarketing Agent of such Undelivered Bonds and (ii) place a stop transfer against such Undelivered Bonds until the Undelivered Bonds are properly delivered to the Tender Agent. Upon notice of such delivery, the Bond Registrar shall make any necessary adjustment to the Bond Register. Notwithstanding anything to the contrary contained herein, the rights of the Registered Owners to tender Bonds shall cease immediately and without further notice from and including the date payment of the Bonds is accelerated following an Event of Default under the Indenture. If the Bonds are being held pursuant to a book -entry system as provided in the Indenture, then an Optional Tender Notice may be delivered by a Beneficial Owner. Such Optional Tender Notice must be delivered as set forth above and must state that the Beneficial Owner will cause its beneficial interest or portion thereof in an authorized denomination to be tendered, the amount of such interest to be tendered, the Optional Tender Date on which such interest is to be tendered and the identity of the DTC Participant through which the Beneficial Owner maintains its interest. Upon delivery of such notice, such Beneficial Owner must arrange to have its beneficial ownership interest in the Bonds being tendered transferred to the Tender Agent at or prior to 10:00 a.m. on the Optional Tender Date but need not otherwise comply with the provisions of the Indenture. . Mandatory Purchase on Conversion Date The Bonds are subject to mandatory purchase in whole on any Conversion Date at a purchase price equal to 100% of the principal amount thereof, without premium, plus interest accrued to the Conversion Date. Redemption of Bonds; Optional Redemption 1. Optional Redemption -During Variable Rate Period. While the Bonds bear interest at a Variable Rate, the Bonds will be subject to redemption on any Interest Payment Date, at the option of the Issuer, but only upon 45 days' prior written direction of the Company delivered to the Trustee, with the prior written consent (which may not be unreasonably withheld) of the Credit Facility Issuer, in whole or in part, at a redemption price equal to 100% of the principal amount thereof, without premium, plus accrued interest to the redemption date. 2. Optional Redemption with Premium During Fixed Rate Period. While the Bonds bear interest at the Fixed Rate, the Bonds will be subject to redemption at the option and written direction of the Issuer, given at the request of the Company, delivered to the Trustee at least 45 days prior to the date set for redemption, in whole or in part, on any Interest Payment Date occurring on or after the dates specified below at the redemption prices (with a premium expressed as a percentage of the principal amount thereof) specified below plus accrued interest to the redemption date. -13- "Doc# 348262.01' Commencement of Fixed Rate Redemption Period Redemption Price Four years from the Fixed Rate 103%, declining by'/2% on each succeeding Conversion Date anniversary of the first day of the redemption period until reaching 100% and thereafter at 100% Redemptiony_ Redemption _o Bonds, Mandator (a) The Bonds will be subject to mandatory redemption in whole on any date prior to their maturity at a redemption price equal to 100% of the principal amount thereof, without premium, plus accrued interest to the redemption date, upon the occurrence of any of the following: (i) within 180 days after receipt by the Company of written notice from any Owner of Bonds, or former Owner, or from the Trustee of a determination that the interest paid or payable on any Bond is includable in the gross income of any Owner or former Owner for federal income tax purposes other than a "substantial user" or "related person" as such terms are used in the Internal Revenue Code of 1986; or (ii) during any Variable Rate Period on the Interest Payment Date occurring closet to but not less than 15 days prior to the date of expiration of the then current Credit Facility, unless an Alternate Credit Facility has been provided in accordance with the terms of the Indenture. (b) The Bonds will be subject to mandatory redemption in whole or in part from excess moneys in the Project Fund or from moneys drawn under the Credit Facility for which the Credit Facility Issuer has been reimbursed from such excess moneys in accordance with the provisions of the Loan Agreement, which redemption date shall be no more than sixty (60) days following the dte of transfer of moneys to the Bond Fund from the Project Fund. Notice of Redemption, Selection of Bonds and Miscellaneous The Trustee must give notice, in the name of the Issuer, of the redemption of Bonds, which notice must (i) specify the particular Bonds to be redeemed, the redemption date, the redemption price, and the place or places where amounts due upon such redemption will be payable (which will be the principal office of the Trustee or the Trustee's paying agent, if any), and (ii) state that on the redemption date, and upon the satisfaction of any such conditions, the Bonds to be redeemed will cease to bear interest. Such notice may set forth any additional information relating to such redemption. Such notice must be given by mail at least 30 but not more than 60 days prior to the date fixed for redemption to the Owners of Bonds to be redeemed. If less than all the Bonds are to be redeemed, Bonds to be called for redemption shall be selected in the following order of priority: first, Bonds pledged to the Credit Facility Issuer pursuant to the Reimbursement Agreement; second, Bonds owned by the Company; and third, Bonds selected by lot from among the owners of less than $1,000,000 in aggregate principal amount; - 14- - Doc# 348262.01- provided that if there are no such owners, or if after selection from among such owners such selection has resulted in redemption of less than a sufficient amount of Bonds or in Bonds outstanding in unauthorized denominations, then the remaining amount of Bonds to be redeemed shall be selected from among the owners of $1,000,000 or more in aggregate principal amount of Bonds. In no event shall the Trustee select Bonds for redemption if such redemption will result in any Bondholder owning Bonds in principal amounts other than in authorized denominations under the Indenture. If a redemption candot be effected to result in such authorized denominations, the Trustee shall select Bonds for redemption by lot and the denomination of the remaining Bonds outstanding shall be deemed authorized under the Indenture. THE INDENTURE The following is a summary of certain provisions of the Indenture by and between the Issuer and the Trustee. Reference is made to the Indenture itself for a complete text thereof, and the discussion herein is qualified by such reference. All capitalized terms used herein shall have the meaning given to them in the Indenture. Pledge and Security All right, title and interest of the Issuer in and to (i) the Loan Agreement (other than certain rights reserved by the Issuer); (ii) all moneys and securities deposited or credited to or required to be deposited in or credited to any account or fund including but not limited to the Bond Fund and the Project Fund (other than the Rebate Fund) established under the Indenture; (iii) Revenues (as defined herein); and (iv) any and all other property from time to time delivered, conveyed, mortgage, pledged, assigned or transferred as and for additional security under the Indenture are assigned and pledged under the Indenture to the Trustee and its successors and assigns for the benefit of the Bondowners. "Revenues" means (i) all amounts payable to the Trustee with respect to the principal or redemption price of, or interest on the Bonds (a) by the Company under the Loan Agreement, (b) by the Credit Facility Issuer under a Credit Facility and (c) by transfer from the Project Fund pursuant to the Indenture; and (ii) investment income with respect to any moneys held by the Trustee in the Bond Fund. Rnnri Vilna The Indenture provides for the establishment of a Bond Fund, the moneys in which the Trustee will (i) use to pay principal or redemption price of the Bonds as they mature or become due and interest on the Bonds when due or (ii) hold and invest at the direction of the Company and distribute to the Company upon receipt of proper documentation. The Bond Fund will contain three separate and segregated accounts designated "Repayments Account," "Credit Facility Account" and "Investment Account." Deposits into the Repayments Account of the Bond Fund will consist of all payments of principal or redemption price (including premium) of or interest on the Bonds as well as all other moneys which the Trustee receives under the provisions of the Indenture. Deposits into the Credit Facility Account of the Bond Fund will consist of all moneys which the Trustee draws under the Credit Facility to pay principal or redemption price (excluding; any premium) of and interest on the Bonds. Deposits into the -15- -Doc# 348262.01" Investments Account will consist of all of the proceeds of the sale of the Bonds. The moneys in the Investments Account will be distributed to the Company upon receipt by the Trustee of a Requisition and Certificate in the form attached to the Indenture as Exhibit A. On the Business Day preceding each date on which any principal or interest payment is due and payable on the Bonds (each, a "Payment Date"), the Trustee will notify the Company and the Credit Facility Issuer in writing of the -amounts of principal and redemption price and interest on such Bonds due on such Payment Date. Not later than 9:30 A.M. on the Payment Date, the Trustee will present a draft or drafts under the Credit Facility in the amounts due and payable on the Bonds. The Credit Facility Issuer will wire such funds to the Trustee to be deposited in the Credit Facility Account. The Trustee will make payments due under the Bonds to the Owners in accordance with the Indenture. The Trustee will, on behalf of the Company, promptly pay moneys on deposit in the Loan Repayments Account in an amount equal to the amount of such drawing or drawings to the Credit Facility Issuer as reimbursement to the issuer of such Credit Facility under the terms of the Reimbursement Agreement. If no amounts are owed by the Company to the Credit Facility Issuer under the Reimbursement Agreement, any amounts remaining in the Loan Repayments Account on the Business Day next following the Payment Date shall be paid to the Company, upon request with the consent of the Credit Facility Issuer. Investments At the Company's direction, moneys held for the credit of the Project Fund and the Credit Facility Account of the Bond Fund shall be invested and reinvested by the Trustee in Investment Obligations (as defined in the Indenture); provided that such obligations shall mature not later than the respective dates when the moneys held for the credit of said funds will be required for the purposes intended and further provided that moneys in the Credit Facility Account of the Bond Fund shall be invested and reinvested only in direct obligations of the United States of America or securities or obligations, the full and timely payment of which is unconditionally guaranteed by the United States of America, which shall mature not later than the date on which such moneys will be required to be paid. Obligations so purchased shall be part of such Fund, and any interest accruing thereon and profit realized from such investment shall be credited to such Fund. Any loss resulting from such investment shall be charged to such Fund. The Trustee shall sell or present for redemption any obligation whenever it is necessary to do so in order to provide cash to meet any payment or transfer from such Fund. Default and Remedies The occurrence of any of the following events constitutes an "Event of Default" under the Indenture: Failure to pay interest on any of the Bonds when such interest has become due; or 9 2. Failure to pay the principal or redemption price of any of the Bonds when the same shall become due, whether at maturity, upon redemption or otherwise; or - lb- `Aoc# 348262.01" . 3. The occurrence of an "Event of Default" or "event of default" under the Loan Agreement which is not waived or cured); or 4. The Trustee receives written notice from the Credit Facility Issuer that an "Event of Default" under the Reimbursement Agreement has occurred and has not been waived or cured; or 5. The Trustee receives, on or before the close of business on the tenth day following a drawing under a Credit Facility to pay interest on the Bonds, notice by telecopier, by telex or in writing from the Credit Facility Issuer that the Credit Facility has not been reinstated for the amount so drawn; or 6. Payment of the purchase price of any Bond tendered pursuant to the Indenture is not made when payment is due; or 7. The Issuer shall default in the due and punctual performance of any of the covenants, conditions, agreements and provisions contained in the Bonds or in this Indenture on the part of the Company to be performed other than as referred to in the preceding paragraphs of this section; provided, however, that such default specified in clauses (3) or (7) shall not constitute such an Event of Default until written notice specifying such default and requiring the same to be remedied shall have been given to the Issuer by the Trustee, which may give such notice in its discretion or shall give such notice at the written direction of the Registered Owners of not less than 25% in aggregate principal amount of Bonds then outstanding, and the Company shall have had 30 days after receipt of such notice to correct said default and shall not have corrected said default within the applicable period. Subject to the requirement that the consent of the Credit Facility Issuer must be obtained for any acceleration in the case of an Event of Default described in clauses (3) or (7) above, upon the occurrence of an Event of Default the Trustee may, and upon (i) the written request of the owners of not less than 25% in aggregate principal amount of such Bonds then outstanding, (11) the written request of the Credit Facility Issuer, if any, or (iii) the occurrence of an Event of Default described in clauses (1), (2), (4), (5) and (6) above, the Trustee shall, by written notice to the Company, declare the entire unpaid principal of and interest on all Bonds due and payable. Upon such declaration the principal on the Bonds, together with interest accrued thereon, shall become due and payable immediately. Upon the occurrence of any acceleration, the Trustee shall immediately exercise such rights as it may have under the Indenture, and to the extent it has not already done so, shall immediately draw upon the Credit Facility, if any, to the extent permitted by the terms thereof, and payment will be made to owners of the Bonds as soon as practicable. Interest on the Bonds shall cease to accrue upon receipt by the Trustee of funds drawn under the Credit Facility. Immediately after any acceleration because of the occurrence of an Event of Default under clauses (1), (2), (4), (5), (6) and (7) above, the Trustee shall notify in writing the Company and the Credit Facility Issuer of such acceleration. Within five days of the occurrence of any acceleration, the Trustee shall notify the owners of the Bonds of such acceleration. If after any acceleration described above, the Company pays all interest in arrears in accordance with the terms of the Indenture, performs all other things in respect to which it may -17- -Doc# 348262.01" have been in default, and pays charges of the Trustee and the Owners, then the Credit Facility Issuer or the owners of a majority of the principal amount of then outstanding Bonds may, by written notice to the Company and the Trustee, annul such acceleration and its consequences, provided that the Trustee obtains the prior consent of the Credit Facility Issuer unless it has failed to honor a draw for payment under the Credit Facility; provided further that the Trustee shall not annul any acceleration which has resulted in a drawing under the Credit Facility unless the Credit Facility has been reinstated in accordance with its terms to an amount equal to the principal amount of the Bonds outstanding plus 120 days' interest accrued thereon (210 days' interest if the Bonds then bear interest at the Fixed Rate). Immediately upon such annulment, the Trustee shall notify the Borrower Representative of the cancellation of any demand for payment of the Bonds made by the Trustee. If an Event of Default occurs, the Trustee may exercise its discretion to pursue remedies available at law or in equity. The Trustee may be compelled, subject to the provisions of the Indenture, to take action at the request or direction of the Credit Facility Issuer or a majority of the Owners of a principal amount of the Bonds outstanding. THE LOAN AGREEMENT The following is a summary of certain provisions of the Loan Agreement by and between the Issuer and the Company under which the Issuer has agreed to make available the proceeds of the Bonds to finance the Project and the Company has agreed, among other things, to make payments thereunder. Reference is made to the Loan Agreement itself for the complete text thereof, and the discussion herein is qualified by such reference. Payments Pursuant to the Loan Agreement, the Company will agree to make payments in amounts sufficient to pay when due: (a) the principal and redemption price of and interest on the Bonds, whether at maturity, upon redemption or acceleration or otherwise; (b) all costs incident to the payment thereof, (c) all fees and expenses of the Issuer incurred in connection with the Loan Agreement, the Indenture and any transaction or event contemplated by the Loan Agreement or the Indenture; (d) the payment of the compensation and the reimbursement of expenses and advances of the Trustee, the Bond Registrar and the Paying Agent under the Indenture; and (e) all other costs which the Company has agreed to pay under the Loan Agreement, including taxes and government assessments. Acquisition and Construction of the Protect The proceeds of the sale of the Bonds will be deposited in the Project Fund established under the Indenture. The Company, on behalf of the Issuer, will acquire, construct, install, renovate and equip the Project with all reasonable dispatch in accordance with the plans and specifications to be prepared by the Company, as the same may be amended from time to time. If moneys in the Project Fund available for the payment of the costs of the Project should not be sufficient to pay the costs thereof in full, the Company has agreed to complete the Project 18_ "Doc:# 348262.01" at its expense, without any right to reimbursement for or diminution in or postponement or abatement of the payments required to be made pursuant to the Loan Agreement. Certain Covenants of the Com an Under the Loan Agreement, the Company will agree, among other things, and except as permitted thereunder, to preserve their existence, to comply in all material respects with laws applicable to the Project, to maintain the Project, to pay all taxes against and all utility charges for the Project, and to maintain casualty and liability insurance for the Project. Assignment, Leasing, Sale or Transfer of Project The Company may assign, lease or sell, in whole or in part, interests in the Project, without obtaining the consent of the Issuer, the Trustee and the Credit Facility Issuer subject to the following conditions: (a) no assignment, transfer, sale or lease shall relieve the Company from primary liability for any of their obligations under the Loan Agreement, and if any such assignment, transfer, sale or lease occurs, the Company shall continue to remain liable for the payments specified in the Loan Agreement and for performance and observance of the other agreements on its part in the Loan Agreement provided to be performed and observed by it; (b) the assignee, lessee or purchaser shall assume the obligations of the Company under the Loan Agreement to the extent of the interest assigned, leased or sold (except to the extent such lease relates to less than ten percent (10%) of the property and is on a temporary or transitional basis and does not adversely effect the tax-exempt status of the Bonds); (c) the Company shall, within 15 days after the delivery thereof, furnish or cause to be furnished to the Issuer, to the Trustee a true and complete copy of each such assignment, instrument of transfer, lease or sale agreement, as the case may be, together with any instrument of assumption; (d) the Company shall, prior to such assignment, transfer, sale or lease, deliver to the Trustee an opinion of Bond Counsel to the effect that such assignment, transfer, sale or lease does not adversely affect the legality of the Bonds or the exclusion of interest on the Bonds from gross income for federal income tax purposes, and (e) if a Credit Facility is in effect, such assignment, transfer, sale or lease must be permitted under the Reimbursement Agreement or the Credit Facility Issuer must have given its prior written consent to such assignment, transfer, sale or lease. Default and Remedies The occurrence of any one or more of the following events shall be an Event of Default under the Loan Agreement: - 19- "Doc# 348262.01" (a) The failure by the Company to pay when due any payment of principal of or interest on or any other amount payable under the Loan Agreement; or (b) The failure by the Company to perform any of its obligations under Section 7.4 of the Loan Agreement, however, that unless an Event of Taxability, if applicable, shall have occurred, the Company shall be afforded a thirty (30) day cure period after notice of same from the Issuer or the Trustee to perform such obligations; or (c) The occurrence of an Event of Default under the Indenture, Credit Facility or Reimbursement Agreement and related documents and expiration of any applicable notice or cure period; or (d) A breach of any representation, warranty or covenant contained in the Loan Agreement or other documents delivered in connection with the issuance of the Bonds and after the expiration of any applicable cure periods; or (e) Failure by the Company to observe and perform any covenant, condition or agreement on the part of the Company under the Loan Agreement for a period of 30 days after written notice to the Company, specifying such failure and requesting that it be remedied, from the Issuer or the Trustee, unless the Issuer and the Trustee shall agree in writing to an extension of such time prior to its expiration; provided, however, if such default shall be such that it cannot be corrected within the applicable period, it shall not constitute an Event of Default if corrective action is instituted by the Company within the applicable period and diligently pursued until the default is corrected; or (f) The commencement against any Company of an involuntary case under the federal bankruptcy laws, as now constituted or hereafter amended, or any other applicable federal or state bankruptcy, insolvency or other similar law, or of any action or proceeding for the appointment of a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of such Company or for any substantial part of their property, or for the winding -up or liquidation of its affairs and the continuance of any such case, action or proceedings unstayed and in effect for a period of ninety (90) consecutive days; or (g) The commencement by the Company of a voluntary case under the federal bankruptcy laws, as now constituted or hereafter amended, or any other applicable federal or state bankruptcy, insolvency or other similar law, or the consent by it to, or its acquiescence in the appointment of or taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator (or other similar official) of such Company or of any substantial part of its property, or the making by it of or the consent by it to any assignment for the benefit of creditors, or the failure of such Company generally to pay its debts as such debts become due, or the taking of any action by such Company in furtherance of any of the foregoing. Upon the occurrence and continuance of any such Event of Default, and further upon the condition that, in accordance with the terms of the Indenture, the Bonds shall have been declared -20- Doc# 348262.01 " to be immediately due and payable pursuant to any provisions of the Indenture, all payments under the Loan Agreement may be declared and will, without further action, become and be immediately due and payable. Any waiver of any Event of Default under the Indenture and a rescission and annulment of its consequences will constitute a waiver of the corresponding Event or Events of Default under the Loan Agreement and a rescission and annulment of the consequences thereof. Upon the occurrence and continuance of any Event of Default, the Trustee, as assignee of the Issuer, may take any action at law or in equity that may appear necessary or desirable to collect any payments then due and thereafter to become due, or to enforce performance and observance of any obligation, agreement or covenant of the Company under the Loan Agreement, Letter of Credit or Reimbursement Agreement and related documents. Any amounts collected from the Company as described in this paragraph will be applied in accordance with the terms of the Indenture. THE LETTER OF CREDIT AND THE LETTER OF CREDIT AND SECURITY AGREEMENT The Letter of Credit The Letter of Credit is a direct -pay irrevocable obligation of the Bank to pay to the Trustee, during the term thereof and pursuant to draws made in accordance with the terms thereof, (1) an amount not exceeding the principal amount of the Bonds, to pay principal or portion of the purchase price corresponding to principal of the Bonds, in connection with the scheduled maturity, redemption, acceleration or tender of the Bonds, and (2) an amount not exceeding the amount required to pay interest or portion of the purchase price corresponding to interest on the Bonds for 120 days at an assumed maximum rate of 15% in order to pay interest on the Bonds as such interest becomes due, whether on a regularly scheduled interest payment date, upon redemption, acceleration or tender of such Bonds. Only the Trustee, upon presentation of sight drafts accompanied by supporting documentation, is entitled to make a drawing under the Letter of Credit. The Letter of Credit will terminate on the earliest of (i) April 15, 2005, (ii) the second day following the date on which the Bank receives a certificate from the Trustee stating that the Bonds have been converted to bear the Fixed Rate, (iii) the date on which the Bank receives a certificate from the Trustee stating that the Company has provided and the Trustee has accepted an Alternate Credit Facility in accordance with the terms of the Indenture, or (iv) the honoring by the Bank of the Final Draft (as defined in the Letter of Credit) presented thereunder. The Bank's obligations under the Letter of Credit will be reduced automatically to the extent of any drawings thereunder. The Trustee's right to draw on the Letter of Credit with respect to the payment of interest on a regularly scheduled interest payment date will be automatically reinstated effective on or before the eleventh calendar day after any such drawing unless the Trustee has received notice from the Bank within ten calendar days from the date of such drawing that the Bank has not been reimbursed for such drawing and that the interest portion of the Letter of Credit will not be reinstated. The Trustee's right to draw on the Letter of Credit with respect to amounts previously drawn in connection with Bonds tendered (i) for purchase on demand of the owners thereof or (1i) pursuant to the mandatory purchase on the Conversion Date, will be reinstated when and to the extent, but only to the extent, that the Bank -21- "Dock 348262.01 is reimbursed by or on behalf of the Company for such amounts. Other amounts drawn under a Letter of Credit will not be reinstated. The Letter of Credit and Security Agreement The following is a summary of certain provisions of the Reimbursement Agreement. Reimbursement. The Company has agreed to reimburse the Bank immediately after and on the date of any drawing under the Letter of Credit for all amounts drawn under such Letter of Credit, other than amounts corresponding to principal of Bonds tendered for purchase on demand of the owners thereof and not remarketed. The Company has also agreed to pay to the Bank interest on any such amounts that are not timely paid. Amounts drawn under the Letter of Credit to pay the purchase price of Bonds which have been tendered for purchase may be reimbursed on a date not later than twelve months after any such drawing. If the Company fails to reimburse the Bank in accordance with the terms of the Reimbursement Agreement, such failure could result in an acceleration of the maturity of the Bonds. Fees and Expense . The Company will pay to the Bank annual fees for maintaining the Letter of Credit, a fee upon the drawing by the Trustee under the Letter of Credit and a fee upon the transfer of the Letter of Credit. The Company will also pay certain costs and expenses of the Bank in connection with the Reimbursement Agreement and the issuance of the Letter of Credit. Certain_ Affirmative and Negative Covenants. The Company has agreed, unless the Bank otherwise consents, to comply with certain affirmative and negative covenants set forth in the Reimbursement Agreement including without limitation, affirmative covenants relating to payment of indebtedness, maintenance of insurance and properties, and negative covenants relating to merger and dissolution, disposition of assets and transactions affecting the Bank's collateral. Notices of Substitution or Replacement of Credit Facility. If the Credit Facility is replaced by an Alternate Credit Facility, the Trustee will give notice to the Owners of the Bonds by mail at least 20 days prior to such replacement. In addition, the Trustee will promptly notify the Trustee, the Tender Agent and the Remarketing Agent of such replacement. Events of Default and Remedies. Upon the occurrence of an Event of Default as defined in the Reimbursement Agreement the Bank may, among other actions, so notify the Trustee, and upon receipt of such notice the Trustee shall declare the principal of all Bonds then outstanding and all accrued and unpaid interest thereon to be due and payable immediately. Events of Default under the Reimbursement Agreement include, without limitation, failure by the Company to pay any amount payable under the Reimbursement Agreement and certain other agreements relating to the Bonds when due, any representation or warranty made by the Company (or any of its officers) in connection with the Reimbursement Agreement or certain other agreements relating to the Bonds being incorrect in any material respect when made; failure by the Company to perform or observe any other term, covenant or agreement in the Reimbursement Agreement for a period of 30 days after the Company acquires knowledge thereof or receives written notice from the Bank; the occurrence of a payment default on other indebtedness for money borrowed of the Company or other default on such indebtedness for -22- -DocN 348262.01' money borrowed if the effect of such default is to accelerate or permit the acceleration of the maturity of such indebtedness for money borrowed and the acceleration of such obligation would have a material and adverse effect on the business or financial condition of the Company; acts of insolvency, bankruptcy, liquidation or receivership of the Company; and the rendering of certain judgments against the Company. This description of the Reimbursement Agreement is qualified in full by reference to the Reimbursement Agreement, a copy of which is available for inspection as described in the Introduction to this Private Placement Memorandum. PLACEMENT AGENT First Union Securities, Inc. will act as Placement Agent in connection with the initial placement of the Bonds, subject to the terms of the Placement Agreement entered into among the Company and the Placement Agent. Under the Placement Agreement, the Company has agreed to indemnify the Placement Agent against certain liabilities, including liabilities under certain provisions of the federal securities laws. TENDER AGENT First Union National Bank will serve as Tender Agent under the Indenture, and in addition to other administrative services, will receive delivery of Bonds from the owners thereof pursuant to the exercise of such owners' tender option. A successor Tender Agent may be appointed in accordance with the terms of the Indenture and the Tender Agency Agreement. REMARKETING AGENT First Union Securities, Inc. will act as Remarketing Agent under the Remarketing Agreement. A successor Remarketing Agent may be appointed in accordance with the terms of the Remarketing Agreement. TAX EXEMPTION The Internal Revenue Code of 1986, as amended (the "Code"), establishes certain requirements which must be met concurrently with, and subsequent to, the issuance of the Bonds, in order that the interest on the Bonds be and remain excluded from gross income of the recipients thereof for federal income tax purposes. At the time of the issuance and delivery of the Bonds, the Issuer, the Company and the Trustee will make certain representations, certifications and covenants which are intended to assure compliance with such requirements. In the event of the inaccuracy of such representations and certifications, or the noncompliance with such covenants, interest on the Bonds may be required to be included in the gross income of the . recipients thereof, retroactively to the date of issuance of the Bonds under certain circumstances. -23- DocH 348262.01 ` • On the date of issuance and delivery of the Bonds, Bryant, Miller and Olive, P.A., Bond Counsel will deliver an opinion to the effect that the interest on the Bonds, under existing statutes, regulations and judicial decisions, is excluded from the gross income of the owners of the Bonds for federal income tax purposes, except for interest on any Bond during any period while it is held by a "substantial user" of the project or a "related person" as those terms are used in the Code. NOTWITHSTANDING THE FOREGOING, INTEREST ON THE BONDS CONSTITUTES AN ITEM OF TAX PREFERENCE INCLUDABLE IN ALTERNATIVE MINIMUM TAX FOR OWNERS OF THE BONDS. No opinion will be expressed with respect to any other federal tax consequences of the receipt or accrual of the interest on the Bonds. The opinion of Bond Counsel will state that it assumes the accuracy of the representations and certifications of the Issuer, the Company and the Trustee, and the continued compliance with the covenants related to the exclusion of interest on the Bonds for gross income. Prospective purchasers of the Bonds should be aware that the ownership of tax-exempt obligations may result in other federal income tax consequences to certain taxpayers, including, but not limited to, financial institutions, property and casualty insurance companies, individual recipients of Social Security or Railroad Retirement Benefits, foreign incorporations engaged in a trade or business in the United States, certain "S Corporations", certain corporations subject to the environmental tax imposed under the Code, and tax payers who may be deemed to have incurred or continued indebtedness to purchase or carry tax-exempt obligations. Prospective purchasers, including any of those falling within such categories, should consult their own tax advisors. The opinion of Bond Counsel will also provide that interest on the Bonds is exempt from all present Florida income taxes. Interest on the Bonds, however, may or may not be subject to state or local income taxation in other jurisdictions under applicable state or local tax law. Each purchaser of the Bond should consult his or her own tax advisor regarding the taxable status of the Bond in a particular state or local jurisdiction. LEGAL MATTERS Legal matters incident to the authorization, issuance, and sale by the Issuer of the Bonds will be subject to the approving opinion of Bryant, Miller and Olive, P.A., Bond Counsel. Copies of such opinion will be available at the time of delivery of such Bonds. Certain legal matters pertaining to the Borrower will be passed upon by Trip Scott, Counsel to the Company. Certain legal matters pertaining to the Bank and the validity of the Letter of Credit will be passed upon by the Nelson Mullins Riley & Scarborough, L.L.P., Atlanta, Georgia, Counsel to the Bank. Certain legal matters pertaining to the Placement Agent and the Remarketing Agent will be passed upon by Nelson Mullins Riley & Scarborough, L.L.P., Atlanta, Georgia, Counsel, to Placement Agent and the Remarketing Agent. -24- Doc# 348262,01` 0 LITIGATION • There is no pending or threatened litigation seeking to restrain or enjoin the issuance, sale, execution or delivery of the Bonds, or in any way questioning or affecting the validity of the Bonds or any proceedings of the Issuer taken with respect to the issuance or sale thereof, or in any way questioning or affecting the validity of the pledge or application of any moneys, revenues or security provided for the payment -of the Bonds, the use of Bond proceeds or the existence or powers of the Issuer. There is no litigation pending or, to the knowledge of the Company, threatened which could have a material adverse effect upon the business, operations or properties of the Company. CONTINUING DISCLOSURE The Issuer, the Company and the Bank are exempt under Rule 15c2-12(d) of the Securities and Exchange Act of 1934 and are not required to provide any continuing disclosure from the date of this Private Placement Memorandum unless the Bonds are converted to a Fixed Rate. MISCELLANEOUS The references herein to the Bonds, the Indenture, the Loan Agreement, the Letter of Credit, the Reimbursement Agreement and other materials are brief outlines of certain provisions thereof. Such outlines do not purport to be complete, and for full and complete statements of such provisions reference is made to such instruments, documents and other materials, copies of which are on file at the Issuer, and the principal corporate trust office of the Trustee. The information contained in this Private Placement Memorandum has been compiled or prepared from information obtained from the Issuer, the Company, the Bank, and official or other sources deemed to be reliable and, while not guaranteed as to completeness or accuracy, is believed to be correct as of this date. Any statements involving matters of opinion, whether or not expressly so stated, are intended as such and not as representations of fact. The contents of this Private Placement Memorandum are the responsibility of the Company, except that the Bank is responsible for the statements under the caption "The Letter of Credit and The Letter of Credit and Security Agreement" and in Appendix B hereto. The Company has reviewed the information contained herein relating to the Use of Proceeds, the Company, including Appendix A hereto, and the summaries of all documents to which the Company is a party, and the Company has approved those portions of this Private Placement Memorandum. -25- Doc# 348262.01" • �J • APPENDIX A The Company [Company or Company Counsel will need to provide a brief description of the Company and their Guarantors] A-1 "Doc# 348262.01" 0 APPENDIX B FIRST UNION NATIONAL BANK (To be Updated) The information contained in this Appendix.B to the Private Placement Memorandum has been obtained from First Union National Bank (the "Bank") and is not to be construed as a representation by the Issuer or the Company. First Union National Bank (the "Bank") "Corporation"), whose principal office is located in sixth largest bank holding company in the United assets as of September 30, 1999. is a subsidiary of First Union Corporation (the Charlotte, North Carolina. The Corporation is the hates based on approximately $235 billion in total The Bank is a national banking association with its principal office in Charlotte, North Carolina and is subject to examination and primary regulation by the Office of the Comptroller of the Currency of the United States. The Bank is a commercial bank offering a wide range of banking, trust and other services to its customers. As of September 30, 1999 the Bank had total assets of approximately $221 billion, total net loans of approximately $133 billion, total deposits of approximately $139 billion and stockholder's equity of approximately $17 billion. The Bank submits quarterly to the Federal Deposit Insurance Corporation (the "FDIC") certain reports called Consolidated Reports of Condition and Income for a Bank With Domestic and Foreign Offices (each, a "Call Report", and collectively, the "Call Reports"). The publicly available portions of the Call Reports with respect to the Bank are on file with the FDIC, and copies of such portions of the Call Reports may be obtained from the FDIC, Disclosure Group, Room F518, 550 17th Street, N.W., Washington, D.C. 20429, at prescribed rates. In 1989, the United States Congress passed comprehensive financial institutions legislation known as the Financial Institutions Reform, Recovery and Enforcement Act ("FIRREA"). Pursuant to the provisions of FIRREA, an FDIC -insured financial institution sharing common ownership with a failed institution can be required to indemnify the FDIC for its losses resulting from the insolvency of the failed institution, even if such indemnification causes the affiliated institution also to become insolvent. As a result, the Bank, may under certain circumstances, be obligated for the liabilities of the banking subsidiaries of the Corporation. NO BANKING OR OTHER AFFILIATE CONTROLLED BY THE CORPORATION, EXCEPT THE BANK, IS OBLIGATED TO MAKE PAYMENTS UNDER THE LETTER OF CREDIT. The information contained in this section relates to and has been obtained from the Bank and is furnished solely to provide limited introductory information regarding the Bank and does not purport to be comprehensive. Information regarding the Bank is qualified in its entirety by the detailed information appearing in the documents and financial statements referenced above. The delivery hereof shall not create any implication that there has been no change in the affairs of the Bank since the date hereof, or that the information contained in this section is correct as of any time subsequent to its date. B-1 "Doc# 348262.01-