Resolution 13-02 Exhibit B. Loan Agreement v LOAN AGREEMENT
by and among
CITY OF ATLANTIC BEACH, FLORIDA
and
NAVAL CONTINUING CARE RETIREMENT FOUNDATION, INC.
Dated as of April 1, 2013
RELATING TO
CITY OF ATLANTIC BEACH, FLORIDA
HEALTH CARE FACILITIES REVENUE AND REFUNDING BONDS
(FLEET LANDING PROJECT),
SERIES 2013A
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
SECTION 1.1. DEFINITIONS 2
ARTICLE II
REPRESENTATIONS
SECTION 2.1. REPRESENTATIONS BY THE ISSUER 9
SECTION 2.2. REPRESENTATIONS BY THE OBLIGOR 10
ARTICLE III
TERM OF LOAN AGREEMENT
SECTION 3.1. TERM OF THIS LOAN AGREEMENT 13
ARTICLE IV
ISSUANCE OF THE BONDS; CONSTRUCTION OF PROJECTS; DISBURSEMENTS
SECTION 4.1. AGREEMENT TO ISSUE BONDS, APPLICATION OF BOND
PROCEEDS 14
SECTION 4.2. PROJECT; COMPLETION CERTIFICATE 14
SECTION 4.3. COST OF CONSTRUCTION 15
SECTION 4.4. PLANS; MODIFICATIONS OF PROJECT 15
SECTION 4.5. COMPLIANCE WITH REGULATORY REQUIREMENTS 15
SECTION 4.6. REQUESTS FOR DISBURSEMENTS 16
SECTION 4.7. COST OF ISSUANCE FUND 16
SECTION 4.8. MODIFICATION OF DISBURSEMENTS 16
SECTION 4.9. COVENANTS REGARDING TAX EXEMPTION 16
SECTION 4.10. ALLOCATION OF, AND LIMITATION ON,
EXPENDITURES FOR THE PROJECT 17
SECTION 4.11. REPRESENTATIONS AND WARRANTIES AS TO TAX
EXEMPT STATUS OF OBLIGOR 17
SECTION 4.12. DISPOSITION OF PROJECT 19
SECTION 4.13. SURPLUS PROJECT FUND MONEYS 19
ARTICLE V
LOAN OF BOND PROCEEDS; NOTE; PROVISION FOR PAYMENT
SECTION 5.1. LOAN OF BOND PROCEEDS 20
SECTION 5.2. REPAYMENT OF LOAN 20
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SECTION 5.3. CREDITS 20
SECTION 5.4. NOTE 20
SECTION 5.5. PAYMENT OF BOND TRUSTEE'S AND PAYING AGENT'S
FEES AND EXPENSES 21
SECTION 5.6. RESERVE FUND 21
SECTION 5.7. PAYMENT OF ADMINISTRATION EXPENSES 21
SECTION 5.8. PAYEES OF PAYMENTS 21
SECTION 5.9. OBLIGATIONS OF OBLIGOR HEREUNDER
UNCONDITIONAL 22
ARTICLE VI
MAINTENANCE AND INSURANCE
SECTION 6.1. MAINTENANCE AND MODIFICATIONS OF PROJECT BY
OBLIGOR 23
SECTION 6.2. INSURANCE 23
ARTICLE VII
SPECIAL COVENANTS
SECTION 7.1. NO WARRANTY OF MERCHANTABILITY, CONDITION
OR SUITABILITY BY THE ISSUER 24
SECTION 7.2. RIGHT OF ACCESS TO THE PROJECT 24
SECTION 7.3. NONSECTARIAN USE 24
SECTION 7.4. FURTHER ASSURANCES 24
SECTION 7.5. INDEMNIFICATION 24
SECTION 7.6. AUTHORITY OF OBLIGOR 26
SECTION 7.7. AUTHORITY OF ISSUER REPRESENTATIVE 27
SECTION 7.8. NO PERSONAL LIABILITY 27
SECTION 7.9. FEES AND EXPENSES 27
ARTICLE VIII
ASSIGNMENT AND LEASING
SECTION 8.1. ASSIGNMENT AND LEASING BY OBLIGOR 28
SECTION 8.2. ASSIGNMENT AND PLEDGE BY ISSUER 28
ARTICLE IX
FAILURE TO PERFORM COVENANTS AND REMEDIES THEREFOR
SECTION 9.1. FAILURE TO PERFORM COVENANTS 29
SECTION 9.2. REMEDIES FOR FAILURE TO PERFORM 29
SECTION 9.3. DISCONTINUANCE OF PROCEEDINGS 29
SECTION 9.4. NO REMEDY EXCLUSIVE 29
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SECTION 9.5. LOAN AGREEMENT TO PAY ATTORNEYS' FEES AND
EXPENSES 30
SECTION 9.6. WAIVERS 30
ARTICLE X
PREPAYMENT OF NOTE
SECTION 10.1. GENERAL OPTION TO PREPAY NOTE 31
SECTION 10.2. CONDITIONS TO EXERCISE OF OPTION 31
ARTICLE XI
MISCELLANEOUS
SECTION 11.1. NOTICES 32
SECTION 11.2. BINDING EFFECT 33
SECTION 11.3. SEVERABILITY 33
SECTION 11.4. AMOUNTS REMAINING IN FUNDS 33
SECTION 11.5. AMENDMENTS, CHANGES, AND MODIFICATIONS 33
SECTION 11.6. EXECUTION IN COUNTERPARTS 33
SECTION 11.7. PAYMENT 33
SECTION 11.8. GOVERNING LAW 33
SECTION 11.9. NO PECUNIARY LIABILITY OF ISSUER 33
SECTION 11.10. PAYMENTS DUE ON HOLIDAYS 34
SECTION 11.11. NO INDIVIDUAL LIABILITY 34
SECTION 11.12. SURVIVAL OF COVENANTS 34
EXHIBIT A PROJECT DESCRIPTION
EXHIBIT B FORM FOR COST OF ISSUANCE DISBURSEMENT
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LOAN AGREEMENT
THIS LOAN AGREEMENT is dated as of April 1, 2013 (the "Loan
Agreement"), between CITY OF ATLANTIC BEACH, a municipality duly organized
and existing under the laws of the State of Florida (the "Issuer"), and the NAVAL
CONTINUING CARE RETIREMENT FOUNDATION, INC., a nonprofit corporation
duly organized and validly existing under the laws of the State of Florida (the "Obligor"),
WITNESSETH:
WHEREAS, pursuant to the provisions of the Act, the Issuer has determined to
issue, sell and deliver its Bonds and to loan the proceeds derived from the sale thereof to
the Obligor for the purpose of(i) financing all or a portion of the cost of the Project, (ii)
refunding the Refunded Bonds, (iii) funding a debt service reserve fund and (ii) paying a
portion of the costs of issuance of the Bonds; and
WHEREAS, the Obligor and the Issuer each have full right and lawful authority
to enter into this Loan Agreement and to perform and observe the provisions hereof on
their respective parts to be performed and observed;
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants hereinafter contained, the parties hereto formally covenant, agree and bind
themselves as follows:
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ARTICLE I
DEFINITIONS
SECTION 1.1. DEFINITIONS. Except as otherwise provided herein, the
terms used in this Loan Agreement shall have the meanings given such terms in the
Master Indenture (as defined below). In addition to such terms defined in the Master
Indenture, the following terms, except where the context indicates otherwise, shall have
the respective meanings set forth below.
"Account" means any account established within a Fund.
"Act" means Part II, Chapter 159, Florida Statutes, and other applicable
provisions of law.
"Administration Expenses" means the reasonable and necessary fees and
expenses incurred by the Issuer pursuant to this Loan Agreement and the Bond Indenture.
"Aggregate Principal Amount" means the outstanding principal amount
including, in the case of a security sold at a discount to the purchaser thereof the accreted
value of such discount calculated in accordance with the documents authorizing such
security, or if not so defined, generally accepted accounting principles.
"Authorized Denominations" means the denomination of $5,000 or any integral
multiple thereof.
"Bond Fund" means the Bond Fund created in Section 3.02 of the Bond
Indenture.
"Bond Indenture" means the Indenture of Trust of even date herewith relating to
the Bonds between the Issuer and the Bond Trustee, including any indentures
supplemental thereto made in conformity therewith.
"Bondholder" or "Owner" of the Bonds mean the registered owner of any fully
registered Bond.
"Bonds" means the City of Atlantic Beach, Florida Health Care Facilities
Revenue and Refunding Bonds (Fleet Landing Project), Series 2013A issued pursuant to
the Bond Indenture.
"Bond Trustee" means U.S. Bank National Association, being the registrar, a
paying agent and the trustee under the Bond Indenture, or any successor corporate
trustee.
"Claims" shall mean all claims, lawsuits, causes of action and other legal actions
and proceedings of whatever nature brought against (whether by way of direct action,
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counter claim, cross action or impleader) any Indemnified Party, even if groundless,
false, or fraudulent, so long as the claim, lawsuit, cause of action or other legal action or
proceeding is alleged or determined, directly or indirectly, to arise out of, to result from,
to relate to or to be based upon, in whole or in part: (a) the issuance of the Bonds, (b) the
duties, activities, acts or omissions (even if negligent) of any Person in connection with
the issuance of the Bonds, or the obligations of the various parties arising under the Bond
Indenture, this Loan Agreement or the Master Indenture, or (c) the duties, activities, acts
or omissions (even if negligent) of any Person in connection with the design,
construction, installation, operation, use, occupancy, maintenance or ownership of the
Project or any part thereof.
"Completion Certificate" means a certificate of the Obligor delivered pursuant
to Section 4.2(b) hereof.
"Continuing Disclosure Agreement" means (i) with respect to the Bonds, the
Continuing Disclosure Agreement between the Obligor and the Bond Trustee, as
dissemination agent, dated the Delivery Date of the Bonds, and (ii) with respect to any
other series of Bonds, the continuing disclosure certificate or agreement delivered by the
Obligor in connection with the issuance of such series of Bonds in order to comply with
the provisions of Rule 15c2-12 of the Securities Exchange Act of 1934.
"Cost" or "Costs" as applied to a Project means and includes any and all costs
permitted by the Code and the Act.
"Cost of Issuance" means (a) with respect to any tax exempt Bonds all costs that
are treated as issuance costs within the meaning of Section 1.150-1(b) of the Code, and
(b) with respect to any Bonds, all costs associated with the issuance of such Bonds
including, but not limited to, (i) underwriter's spread (whether realized directly or derived
through purchase of the Bonds at a discount below the price at which they are expected to
be sold to the public); (ii) counsel fees (including Bond Counsel, underwriter's counsel,
Issuer's counsel, Bond Trustee's counsel and Obligor's counsel fees that relate to the
issuance of the Bonds, as well as any other specialized counsel fees incurred in
connection with the issuance of the Bonds); (iii) financial advisory fees incurred in
connection with the issuance of the Bonds; (iv) Rating Agency fees; (v) Bond Trustee
fees incurred in connection with the issuance of the Bonds; (vi) Paying Agent and
certifying registrar and authenticating agent fees related to issuance of the Bonds; (vii)
accountant fees related to the issuance of the Bonds; (viii) printing costs of the Bonds and
of the preliminary and final offering materials; (ix) publication costs associated with the
financing proceedings; (x) any fees paid to the Issuer; and (xi) costs of engineering and
feasibility studies necessary to the issuance of the Bonds; provided, that bond insurance
premiums and certain credit enhancement fees, to the extent treated as interest expense
under the Code, shall not be treated as "Costs of Issuance" in connection with the
issuance of tax exempt Bonds.
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"Cost of Issuance Fund" means the cost of issuance fund created under Section
3.17 of the Bond Indenture.
"Delivery Date" means the date the Bonds are delivered to the initial purchasers
against payment therefor.
"Event of Default" means those defaults specified in Section 8.01 of the Bond
Indenture.
"Facilities" means the continuing care retirement facilities known as "Fleet
Landing" which are located at One Fleet Landing Boulevard in Atlantic Beach, Florida
and all land, buildings, structures, improvements, equipment, fixtures, machinery,
furniture, furnishings and other real and personal property located thereon and all land,
buildings, structures, improvements, equipment, fixtures, machinery, furniture,
furnishings and other real and personal property now or hereafter attached to, or located
in, or used in connection with, any such land, buildings, structures or improvements and
all additions thereto, substitutions therefor and replacements thereof, whether now owned
or hereafter acquired by the Borrower.
"Funds" means the Cost of Issuance Fund, Bond Fund, the Reserve Fund, Rebate
Fund and the Project Fund.
"Indemnified Party" shall mean the Issuer and any of its respective officers,
directors, members, officials, consultants, agents, servants and employees, and any
successor to any of such Persons.
"Indemnified Persons" means the Indemnified Parties and the Bond Trustee.
"Interest Account" means the account of such name in the Bond Fund created in
Section 3.02 of the Bond Indenture.
"Interest Payment Date" means each May 15 and November 15, commencing
May 15, 2013, or, if such day is not a Business Day, the immediately succeeding business
day in the years during which the Bonds are Outstanding under the provisions of the
Bond Indenture.
"Issuer" means City of Atlantic Beach, Florida, or any public corporation
succeeding to its rights and obligations under this Loan Agreement.
"Issuer Representative" means the Chairman of the Issuer or such other person
at the time, and from time to time, designated by written certificate of the Issuer
furnished to the Obligor and the Bond Trustee containing the specimen signature of such
person and signed on behalf of the Issuer by its Chairman. Such certificate shall
designate an alternate or alternates, any of whom may act at any time as Issuer
Representative.
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"Loan Agreement" means this Loan Agreement and any amendments and
supplements hereto made in conformity herewith and with the Bond Indenture.
"Losses" means losses, costs, damages, expenses, judgments, and liabilities of
whatever nature (including, but not limited to, reasonable attorney's, accountant's and
other professional's fees, litigation and court costs and expenses, amounts paid in
settlement and amounts paid to discharge judgments and amounts payable by
Indemnified Persons to any other Person under any arrangement providing for
indemnification of that Person) directly or indirectly resulting from arising out of or
relating to one or more Claims.
"Master Indenture" means the Master Trust Indenture dated as of April 1, 2013,
between the Obligor and the Master Trustee, as supplemented by the Supplemental
Indenture and any supplements or amendments thereto and modifications thereof.
"Maximum Annual Debt Service Requirement" means an amount equal to the
maximum principal and interest requirements (taking into account all mandatory sinking
fund payments) due in any calendar year on the Bonds calculated in accordance with the
provisions of the Master Indenture; provided, however, that principal of the Bonds in its
final year shall be excluded from the determination of Maximum Annual Debt Service
Requirement to the extent moneys are on deposit as of the date of calculation in the
Reserve Fund.
"Maximum Rate" means the lesser of (a) 15% per annum, or (b) the maximum
interest rate permitted by applicable Florida law.
"Minimum Liquid Reserve Account" means the account maintained pursuant to
the Escrow Agreement, dated as of October 1, 1994 and reissued on October 23, 2002, as
amended by the Escrow Agreement Amendment, dated as of May 9, 2007, each between
the Obligor and U.S. Bank National Association or predecessor entity, as escrow agent,
as acknowledged by the Florida Department of Insurance, in order to satisfy the
minimum liquid reserve requirements of Section 651.035, Florida Statutes. In accordance
with said Section 651.035, Florida Statues, amounts on deposit in the Reserve Fund shall
be credited against the amounts required to be on deposit in the Minimum Liquid Reserve
Account.
"Mortgage" means the Mortgage and Security Agreement dated as of April 1,
2013, from the Obligor as Mortgagor, to the Master Trustee, as mortgagee.
"Note" means the promissory note issued by the Obligor pursuant to the
Supplemental Indenture relating to the Bonds.
"Obligor Documents" means this Loan Agreement, the Master Indenture, the
Supplemental Indenture and the Mortgage.
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"Outstanding" means, as of any particular time, all Bonds which have been duly
authenticated and delivered by the Bond Trustee under the Bond Indenture, except:
(a) Bonds theretofore cancelled by the Bond Trustee or delivered to the Bond
Trustee for cancellation after purchase in the open market or because of payment at or
redemption prior to maturity;
(b) Bonds for the payment or redemption of which cash funds (or Government
Obligations to the extent permitted in Section 7.01 of the Bond Indenture) shall have
been theretofore deposited with the Bond Trustee (whether upon or prior to the maturity
or redemption date of any such Bonds); provided that if such Bonds are to be redeemed
prior to the maturity thereof, notice of such redemption shall have been given or
arrangements satisfactory to the Bond Trustee shall have been made therefor, or waiver
of such notice satisfactory in form to the Bond Trustee, shall have been filed with the
Bond Trustee and provided further that prior to such payment or redemption, the Bonds
to be paid or redeemed shall be deemed to be Outstanding for the purpose of transfers and
exchanges under Section 2.05 of the Bond Indenture; and
(c) Bonds in lieu of which other Bonds have been authenticated under Section
2.06 of the Bond Indenture.
"Paying Agent" means any bank or trust company, including the Bond Trustee,
designated pursuant to the Bond Indenture to serve as a paying agency or place of
payment for the Bonds, and any successor designated pursuant to the Bond Indenture.
"Payment Office" with respect to the Bond Trustee or other Paying Agent means
the office maintained by the Bond Trustee or any affiliate of the Bond Trustee or of
another Paying Agent for the payment of interest and principal on the Bonds.
"Premium Security" means any Permitted Investment purchased or to be
purchased at a premium from funds in the Project Fund.
"Principal Account" means the account of such name in the Bond Fund created
in Section 3.02 of the Bond Indenture.
"Project" means the project described in EXHIBIT A attached hereto.
"Project Fund" means the project fund created under Section 3.06 of the Bond
Indenture.
"Qualified Project Costs" means Costs of the Project which constitute costs for
property which is to be owned by the Obligor or another member of the Obligated Group
and will not be used in an "unrelated trade or business" (as such term is used in Section
513(a) of the Code) of the Obligor (or any other organization described in Section
501(c)(3) of the Code) or in the trade or business of a person who is neither a
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governmental unit nor an organization described in Section 501(c)(3) of the Code. Costs
of Issuance are not Qualified Project Costs and any fees paid to banks for letters of credit,
for municipal bond insurance premiums or other guaranty fees and any capitalized
interest on the Bonds shall be allocated between Qualified Project Costs to be paid or
reimbursed from proceeds of the Bonds and Costs other than Qualified Project Costs to
be paid or reimbursed from the proceeds of the Bonds. Qualified Project Costs shall not
include costs or expenses paid more than sixty (60) days prior to the adoption by the
Issuer, the Obligor or another member of the Obligated Group of a reimbursement
resolution unless those expenditures qualify as "preliminary expenditures" within the
meaning of the Code.
"Rebate Fund" means that special fund established in the name of the Issuer with
the Bond Trustee pursuant to Section 3.16 of the Bond Indenture.
"Refunded Bonds" means, collectively, the Series 1999 Bonds and the Series
2006 Bonds.
"Refunded Bonds Projects" means the capital improvement projects at the
Facilities financed or refinanced with proceeds of the Refunded Bonds.
"Registered Owner" or "Owners" means the person or persons in whose name
or names a Bond shall be registered on books of the Issuer kept by the Bond Trustee for
that purpose in accordance with the terms of the Bond Indenture.
"Regular Record Date" means the last day of the month preceding each
regularly scheduled interest payment date therefor.
"Reserve Fund" means the Debt Service Reserve Fund created in Section 3.08 of
the Bond Indenture.
"Reserve Fund Obligations" means cash and Permitted Investments.
"Reserve Fund Requirement" means an amount equal to Maximum Annual
Debt Service Requirement on the Bonds.
"Responsible Officer" when used with respect to the Bond Trustee means an
officer of the Bond Trustee having direct responsibility for administration of the Bond
Indenture.
"Securities Depository" means The Depository Trust Company, New York, New
York, and any successor thereto as permitted by the Bond Indenture.
"Series 1999 Bonds" means the Issuer's outstanding Health Care Facilities
Revenue Refunding Bonds (Fleet Landing Project), Series 1999.
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"Series 2006 Bonds" means the Issuer's outstanding Variable Rate Demand
Health Care Facilities Revenue Bonds (Fleet Landing Project), Series 2006.
"Special Record Date" means a special date fixed to determine the names and
addresses of owners of Bonds for purposes of paying interest on a special interest
payment date for the payment of defaulted interest, all as further provided in Section 2.03
of the Bond Indenture.
"Supplemental Indenture" means the Supplemental Master Trust Indenture
Number 1, dated as of April 1, 2013, by the Obligor executed and delivered to the Master
Trustee, supplementing the Master Trust Indenture and providing for the issuance of the
Note.
"Surplus Project Fund Moneys" means all moneys (including moneys earned
pursuant to the provisions of Article VI of the Bond Indenture) remaining in the Project
Fund after completion or termination of the Project (as evidenced by a Completion
Certificate) and payment of all other costs then due and payable from the Project Fund.
"Tax Compliance Agreement" means the Tax Regulatory Agreement dated
April 1, 2013, among the Issuer, the Obligor and the Bond Trustee related to the Bonds.
"Trust Estate" means the property pledged and assigned to the Bond Trustee
pursuant to the granting clauses of the Bond Indenture.
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ARTICLE II
REPRESENTATIONS
SECTION 2.1. REPRESENTATIONS BY THE ISSUER. The Issuer
represents that:
(a) The Issuer is a municipality duly organized and validly existing under and
pursuant to the laws of the State of Florida and has full power and authority under the
laws of the State of Florida (including, in particular, the Act) to enter into the transactions
contemplated by this Loan Agreement and to carry out its obligations hereunder. By
proper action the Issuer has duly authorized the execution and delivery of this Loan
Agreement and the Bond Indenture and the performance of its obligations under this
Loan Agreement and the Bond Indenture.
(b) To the best of the Issuer's knowledge, neither the execution and delivery of
the Bonds, the Bond Indenture or this Loan Agreement, the consummation of the
transactions contemplated thereby and hereby nor the fulfillment of or compliance with
the terms and conditions or provisions of the Bonds, the Bond Indenture or this Loan
Agreement conflict with or result in the breach of any of the terms, conditions or
provisions of any constitutional provision or statute of the State of Florida or of any
agreement or instrument or judgment, order or decree of which the Issuer has notice that
it is a party or constitutes a default under any of the foregoing or result in the creation or
imposition of any prohibited lien, charge or encumbrance of any nature upon any
property or assets of the Issuer under the terms of any instrument or agreement.
(c) The Issuer has the power and authority to issue the Bonds for the purpose
of financing all or a portion of the Cost of the Project, refunding the Refunded Bonds,
funding a debt service reserve fund and paying a portion of the Cost of Issuance. The
Bonds shall be in the principal amount, mature, bear interest, be subject to redemption
prior to maturity, be secured, and have such other terms and conditions as are set forth in
the Bond Indenture.
(d) The Bonds are to be issued under and secured by the Bond Indenture
pursuant to which the Issuer's interest in this Loan Agreement and in the Note, and the
revenues and receipts derived by the Issuer from the Note, will be pledged and assigned
to the Bond Trustee as security for payment of the principal of, premium, if any, and
interest on the Bonds.
(e) The Obligor has represented to the Issuer that that the Project and the
Refunded Bonds Projects constitute "projects" within the meaning of the Act.
(f) The issuance of the Bonds and the execution of this Loan Agreement and
the Bond Indenture have been approved by the Issuer at a duly constituted meeting.
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(g) Except as otherwise permitted by this Loan Agreement, the Issuer
covenants that it has not and will not pledge the income and revenues derived from this
Loan Agreement other than to secure the Bonds.
(h) After reasonable public notice given by publication in The Financial News
and Daily Record, a newspaper published and of general circulation in the City of
Atlantic Beach, Florida on January 28, 2013, the Issuer held a public hearing on February
11, 2013 concerning the issuance of the Bonds, the refunding of the Refunded Bonds,
financing of the Project and the location of the Project. After such hearing, the Issuer
authorized the issuance of the Bonds by duly adopting a resolution on February 11, 2013.
(i) After reasonable public notice given by publication in The Financial News
and Daily Record, a newspaper published and of general circulation in Duval County,
Florida on January 16, 2013, the City of Jacksonville, Florida held a public hearing on
January 30, 2013, concerning the issuance of the Bonds, the refunding of the Refunded
Bonds, the financing of the Project, and the location of the Project.
SECTION 2.2. REPRESENTATIONS BY THE OBLIGOR. The Obligor
represents that:
(a) The Obligor is a nonprofit corporation duly incorporated and in good
standing under the laws of the State of Florida, has power to enter into the Obligor
Documents and by proper corporate action has duly authorized the execution and delivery
of the Obligor Documents.
(b) Neither the execution and delivery of any of the Obligor Documents, the
consummation of the transactions contemplated hereby and thereby, nor the fulfillment of
or compliance with the terms and conditions of the Obligor Documents, conflict with or
result in a breach of any of the terms, conditions or provisions of any corporate restriction
or any agreement or instrument to which the Obligor is now a party or by which it is
bound or constitute a default under any of the foregoing.
(c) No event of default or any event which, with the giving of notice or the
lapse of time, or both, would constitute an event of default under the Master Indenture,
has occurred.
(d) To the best of the Obligor's knowledge, information and belief, all of the
documents, instruments and written information supplied by or on behalf of the Obligor,
which have been reasonably relied upon by Bond Counsel in rendering their opinion with
respect to the exclusion from gross income of the interest on the Bonds for federal
income tax purposes or counsel to the Obligor in rendering its opinion with respect to the
status of the Obligor under Section 501(c)(3) of the Code, are true and correct in all
material respects, do not contain any untrue statement of a material fact and do not omit
to state any material fact necessary to be stated therein to make the information provided
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therein, in light of the circumstances under which such information was provided, not
misleading.
(e) The Project and the Refunded Bonds Projects consist entirely of property
that is owned, or to be owned, and operated by the Obligor. Neither the Project nor the
Refunded Bonds Projects will be used in an "unrelated trade or business" (as such term is
used in Section 513(a) of the Code) of the Obligor (or any other organization that is
exempt from federal income tax under Section 501(c)(3) of the Code that may rent or use
any portion of the Project or the Refunded Bonds Projects) or for any private business use
(other than by an organization that is exempt from federal income tax under Section
501(c)(3) of the Code) within the meaning and contemplation of Section 141(b) of the
Code.
(f) The Tax Compliance Agreement executed and delivered by the Obligor
concurrently with the issuance and delivery of the Bonds is true, accurate and complete in
all material respects as of the date on which executed and delivered.
(g) The Obligor agrees that it and any other Obligated Group Member (i) shall
not perform any act or enter into any agreement which would adversely affect its
members' federal income tax status and shall conduct its operations in the manner which
conforms to the standards necessary to qualify the members as a charitable organization
within the meaning of Section 501(c)(3) of the Code or any successor provisions of
federal income tax law, (ii) shall not perform any act, enter into any agreement or use or
permit the Facilities, or any portion thereof, to be used in any manner, or for any trade or
business or other non-exempt use related to the purposes of the Obligor, which would
adversely affect the exclusion of interest on the Bonds, from federal gross income
pursuant to Section 103 of the Code, (iii) shall not do or fail to do any act or undertaking
which may give rise to unrelated trade or business income with respect to its operations at
the Facilities, and (iv) shall not directly or indirectly use or permit the use (including the
making of any investment) of any proceeds of the Bonds or any other funds of the Issuer
or the Obligated Group, or take or omit to take any action, that would cause the Bonds to
be "arbitrage bonds" within the meaning of Section 148(a) of the Code.
(h) The Obligor agrees that neither it nor any related party to the Obligor (as
defined in Section 1.150-1(b) of the Code) will purchase any of the Bonds in an amount
related to the obligation represented by this Loan Agreement, as described in Section
1.148-1(b) of the Code.
(i) Any information that has been or will be supplied by the Obligor that has
been or will be relied upon by the Issuer, the Bond Trustee and Bond Counsel with
respect to the exclusion from gross income for federal income tax purposes of interest on
the Bonds is true and correct.
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(j) The Obligor is duly authorized to operate the Facilities under the laws,
rulings, regulations and ordinances of the State of Florida and the departments, agencies
and political subdivisions thereof.
(k) The Project and the Refunded Bonds Projects constitute a "project" within
the meaning of the Act. All proceeds of the Bonds will be used to finance a "cost" within
the meaning of the Act.
(1) Based on current facts, estimates and circumstances, it is currently expected
that neither the Project nor the Refunded Bonds Projects will be sold or disposed of in a
manner producing sale proceeds which, together with accumulated proceeds of the Bonds
or earnings thereon, would be sufficient to enable the Obligor to retire substantially all of
the Bonds prior to the maturity of the Bonds.
(m) The Obligor will construct the Project and operate its Facilities in
accordance with all applicable zoning, planning, building and environmental laws,
ordinances, rules and regulations of governmental authorities rating or inspection
organizations, bureaus, associations, or offices having jurisdiction over the Facilities or
the Project, as the case may be. The Obligor has obtained or will cause to be obtained all
requisite approvals of the State of Florida and of other federal, state, regional and local
governmental bodies for the Facilities and the Project.
(n) Substantially all of the net proceeds of the Bonds, including earnings from
the investment thereof, were used, or will be used, to pay Qualified Project Costs and to
refund the Refunded Bonds.
(o) The Obligor will not discriminate against the residents of its Facilities or
the Project on the basis of race, religion, sex or national origin.
(p) The Obligor agrees to perform all obligations imposed upon it by the
express terms of the Bond Indenture.
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ARTICLE III
TERM OF LOAN AGREEMENT
SECTION 3.1. TERM OF THIS LOAN AGREEMENT. Subject to
Section 11.12 herein, this Loan Agreement shall remain in full force and effect from the
date of delivery hereof until such time as all of the Bonds shall have been fully paid or
provision made for such payment pursuant to the Bond Indenture and all reasonable and
necessary fees and expenses of the Bond Trustee and the Issuer accrued and to accrue
through final payment of the Bonds and all liabilities of the Obligor with respect to the
Bonds accrued and to accrue through final payment of the Bonds have been paid.
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ARTICLE IV
ISSUANCE OF THE BONDS; CONSTRUCTION OF PROJECTS;
DISBURSEMENTS
SECTION 4.1. AGREEMENT TO ISSUE BONDS, APPLICATION OF
BOND PROCEEDS. The Issuer will sell and cause to be delivered to the initial
purchasers thereof the Bonds and will deliver the proceeds thereof to the Bond Trustee
for disposal as follows:
(a) Payment of the redemption price and discharge of the Series 1999 Bonds on
the date of issuance of the Series 2013A Bonds;
(b) Reimbursement to Wells Fargo Bank, N.A., successor to Wachovia Bank,
N.A., as provider of the letter of credit securing the Series 2006 Bonds, for the payment
of the redemption price and discharge of the Series 2006 Bonds on the date of issuance of
the Series 2013A Bonds;
(c) Deposit, into the Reserve Fund, the amount specified in the request and
authorization to the Bond Trustee described in Section 2.07(d) of the Bond Indenture.
(d) Deposit, into the Cost of Issuance Fund, the amount specified in the request
and authorization to the Bond Trustee described in Section 2.07(d) of the Bond Indenture.
(e) Deposit into the Project Fund $407,512.35 for Costs of the Project.
SECTION 4.2. PROJECT; COMPLETION CERTIFICATE. The Obligor
anticipates that the Project will consist entirely of previously acquired land (as further
described in Exhibit A hereto) and that the Obligor shall, upon providing the Bond
Trustee with a proper reimbursement request in accordance with Section 4.6 hereof, be
reimbursed on the date of issuance of the Bonds for costs previously incurred to acquire
such Project. In such case, no moneys will remain on deposit in the Project Fund after the
date of issuance of the Bonds and Section 4.2(b), Section 4.3 and Section 4.13 will not be
applicable.
(a) The Obligor shall cause the Project to be acquired, constructed and
improved, as applicable, with due diligence and pursuant to the requirements of the
applicable laws of the State of Florida in all material respects.
(b) The Obligor shall deliver to the Bond Trustee within 90 days after the final
completion or termination of the Project a certificate (the "Completion Certificate") of an
Obligor to the effect that:
(i) the Project has been completed substantially in accordance with the
plans and specifications, as then amended, and the date of completion;
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(ii) the Cost of the Project has been fully paid for and no claim or claims
exist against the Obligor or against the Project out of which a lien based on
furnishing labor or material exists or might ripen; provided, however, there may be
excepted from the foregoing statement any claim or claims out of which a lien
exists or might ripen in the event that the Obligor intends to contest such claim or
claims in accordance with this Loan Agreement, in which event such claim or
claims shall be described; provided, further, that it shall be stated that moneys are
on deposit in the applicable account of the Project Fund sufficient to make
payment of the full amount that might in any event be payable in order to satisfy
such claim or claims; provided, further, that there may also be excepted from the
foregoing statement any claim that has been insured over pursuant to an
endorsement to any title insurance; and
(iii) all permits, certificates and licenses necessary for the occupancy and
use of the Project have been obtained and are in full force and effect.
SECTION 4.3. COST OF CONSTRUCTION. The Obligor represents and
warrants that it will use its best efforts to construct or cause the construction of the
Project at a price which will permit completion of the Project within the amount of the
funds to be deposited in the Construction Fund and within the amount of other available
funds of the Obligor.
SECTION 4.4. PLANS; MODIFICATIONS OF PROJECT. The Obligor
hereby covenants and agrees that no changes or modifications, or substitutions, deletions,
or additions shall be made with respect to the Project if such change disqualifies the
Project under the Act.
SECTION 4.5. COMPLIANCE WITH REGULATORY
REQUIREMENTS. The Obligor agrees that the Project shall be constructed strictly in
accordance with all applicable ordinances and statutes, and in accordance with the
requirements of all regulatory authorities in all material respects, and any rating or
inspection organization, bureau, association, or office having jurisdiction, and it will
furnish to the Issuer all information necessary for the Issuer to comply with all of the
foregoing and all laws, regulations, orders and other governmental requirements.
The Obligor shall, at no expense to the Issuer, promptly comply in all material
respects or cause compliance in all material respects with all laws, ordinances, orders,
rules, regulations and requirements of duly constituted public authorities which may be
applicable to the Obligor or to its Facilities and operations, including without limitation,
Chapter 651, Florida Statutes. The Obligor shall cause the Minimum Liquid Reserve
Account to be maintained and funded in an amount which, together with the moneys on
deposit in the Reserve Fund, shall satisfy all of the Obligor's escrow requirements under
Section 651.035, Florida Statutes.
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SECTION 4.6. REQUESTS FOR DISBURSEMENTS. (a) The Obligor
shall be entitled to disbursements of moneys in the Project Fund to pay the Costs related
to the Project. The Obligor shall request disbursements from the Project Fund on the
form attached hereto as EXHIBIT C to pay Costs of the Project, and to reimburse itself
for Costs of the Project paid by the Obligor, upon presentation to the Bond Trustee of a
request for disbursement signed by the Obligor, but in no event more often than once a
month.
(b) Notwithstanding the foregoing, the Obligor shall make no request for
disbursement of moneys from the Project Fund for payment of Cost of Issuance.
SECTION 4.7. COST OF ISSUANCE FUND. The Obligor shall be
entitled to disbursement of moneys in the Cost of Issuance Fund to pay the Cost of
Issuance. The Obligor shall request disbursements from the Cost of Issuance Fund on the
form attached hereto as EXHIBIT B to pay Cost of Issuance, and to reimburse itself for
Cost of Issuance paid by the Obligor, upon presentation to the Bond Trustee of a request
for disbursement signed by the Obligor, but in no event more often than four times a
month.
SECTION 4.8. MODIFICATION OF DISBURSEMENTS. The making of
any disbursement or any part of a disbursement shall not be deemed an approval or
acceptance by the Bond Trustee of the work theretofore done. Upon prior notice to the
Obligor and in order to satisfy requirements specified in the Master Indenture, the Bond
Trustee may deduct from any disbursement to be made under this Loan Agreement any
amount necessary for the payment of fees and expenses required to be paid under this
Loan Agreement and any insurance premiums, taxes, assessments, water rates, sewer
rents and other charges, liens and encumbrances upon the facilities, whether before or
after the making of this Loan Agreement, and any amounts necessary for the discharge of
mechanic's liens, and apply such amounts in payment of such fees, expenses, premiums,
taxes, assessments, charges, liens and encumbrances. All such sums so applied shall be
deemed disbursements under this Loan Agreement.
SECTION 4.9. COVENANTS REGARDING TAX EXEMPTION. The
Obligor hereby represents and covenants as follows:
(a) the Obligor will, at the expense of the Obligor, comply with, and make all
filings required by, all effective rules, rulings or regulations promulgated by the
Department of the Treasury or the Internal Revenue Service with respect to the
obligations such as the Bonds, if any;
(b) the Obligor will continue to conduct its operations in a manner that will
result in its continuing to qualify as an organization described in Section 501(c)(3) of the
Code including but not limited to the timely filing of all returns, reports and requests for
determination with the Internal Revenue Service and the timely notification of the
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Internal Revenue Service of all changes in its organization and purposes from the
organization and purposes previously disclosed to the Internal Revenue Service;
(c) the Obligor will not divert any substantial part of its corpus or income for a
purpose or purposes other than those for which it is organized and operated as described
in Section 4.11 hereof;
(d) the Obligor will use no portion of the proceeds of the Bonds to provide any
airplane, sky-box or other private luxury box, facility primarily used for gambling, or
store the principal business of which is the sale of alcoholic beverages for consumption
off premises; and
(e) the Obligor agrees to provide to the Bond Trustee, at such time as required
by the Bond Trustee, all information required by the Bond Trustee with respect to
Nonpurpose Investments (as defined in Section 148 of the Code) not held in any fund
under the Bond Indenture.
SECTION 4.10. ALLOCATION OF, AND LIMITATION ON,
EXPENDITURES FOR THE PROJECT. The Obligor covenants to account for the
expenditure of sale proceeds and investment earnings to be used for the Cost of the
Project on its books and records by allocating proceeds to expenditures within 18 months
of the later of the date that (1) the expenditure is made, or (2) the Project is completed.
The foregoing notwithstanding, the Obligor shall not expend sale proceeds or investment
earnings thereon more than 60 days after the earlier of (1) the fifth anniversary of the
delivery of the Bonds, or (2) the date the Bonds are retired, unless the Obligor obtains an
Opinion of Bond Counsel that such expenditure will not adversely affect the tax-exempt
status of the Bonds. For purposes hereof, the Obligor shall not be obligated to comply
with this covenant if it obtains an opinion that such failure to comply will not adversely
affect the excludability for federal income tax purposes from gross income of the interest.
SECTION 4.11. REPRESENTATIONS AND WARRANTIES AS TO
TAX EXEMPT STATUS OF OBLIGOR. The Obligor hereby represents and warrants
as follows:
(a) the Obligor is an organization exempt from federal income taxation under
Section 501(a) of the Code by virtue of being described in Section 501(c)(3) of the Code;
(b) the purposes, character, activities and methods of operation of the Obligor
have not changed materially since its organization and are not materially different from
the purposes, character, activities and methods of operation at the time of its receipt of a
determination by the Internal Revenue Service that it is an organization described in
Section 501(c)(3) of the Code (the "Determination");
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(c) the Obligor has not diverted a substantial part of its corpus or income for a
purpose or purposes other than the purpose or purposes for which it is organized or
disclosed to the Internal Revenue Service in connection with its Determination;
(d) the Obligor has not operated since its organization in a manner that would
result in it being classified as an "action" organization within the meaning of Section
1.501(c)(3)-1(c)(3) of the Code including, but not limited to, promoting or attempting to
influence legislation by propaganda or otherwise as a substantial part of its activities;
(e) with the exception of the payment of compensation (and the payment or
reimbursement of expenses) which is not excessive and is for personal services which are
reasonable and necessary to carrying out the purposes of the Obligor, no person
controlled by any such individual or individuals nor any person having a personal or
private interest in the activities of the Obligor has acquired or received, directly or
indirectly, any income or assets, regardless of form, of the Obligor during the current
Fiscal Year and the period, if any, preceding the current Fiscal Year, other than as
reported to the Internal Revenue Service by the Obligor;
(f) the Obligor is not a "private foundation" within the meaning of Section
509(a) of the Code;
(g) the Obligor has not received any indication or notice whatsoever to the
effect that its exemption under Section 501(a) of the Code as an organization described in
Section 501(c)(3) of the Code has been revoked or modified, or that the Internal Revenue
Service is considering revoking or modifying such exemption, and such exemption is still
in full force and effect;
(h) the Obligor has filed with the Internal Revenue Service all requests for
determination, reports and returns required to be filed by it and such requests for
determination, reports and returns have not omitted or misstated any material fact and has
notified the Internal Revenue Service of any changes in its organization and operation
since the date of its Determination;
(i) the Obligor has not devoted more than an insubstantial part of its activities
in furtherance of a purpose other than an exempt purpose within the meaning of Section
501(c)(3) of the Code; and
(j) the Obligor has not taken any action, nor does it know of any action that
any other person has taken, nor does it know of the existence of any condition, which
would cause the Obligor to lose its exemption from taxation under Section 501(a) of the
Code or cause the interest on the Bonds to become taxable to the recipient thereof
because such interest is not excludable from the gross income of such recipient for
federal income tax purposes under Section 103(a) of the Code.
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SECTION 4.12. DISPOSITION OF PROJECT. The Obligor covenants that
the property constituting the Project or any portion thereof will not be sold or otherwise
disposed in a transaction resulting in the receipt by the Obligor of cash or other
compensation, unless the Obligor obtains an Opinion of Bond Counsel that such sale or
other disposition will not adversely affect the tax-exempt status of the Bonds.
SECTION 4.13. SURPLUS PROJECT FUND MONEYS. If, upon delivery
of the Completion Certificate, there shall be any Surplus Project Fund Moneys, such
Surplus Project Fund Moneys (to the extent not otherwise required to be rebated to the
United States in accordance with section 148(f) of the Code) shall, upon the written
request of the Obligor to the Bond Trustee, be used by the Bond Trustee either (i) to
purchase for cancellation Bonds at any reasonable price as determined by the Obligor,
which price, however, shall not exceed the principal amount thereof plus accrued interest
thereon; (ii) unless the Project has been canceled, for application toward the costs of
acquisition, construction, and improvement of additional facilities related thereto; or (iii)
for any combination of (i) and (ii) above all as set forth in such written request. If the
Bonds are then subject to redemption at par, any of such Surplus Project Fund Moneys
not to be used in a manner set forth in (i), (ii) or (iii) above shall be applied to redeem
Bonds in the largest principal amount then subject to redemption at par that does not
exceed the amount of such Surplus Project Fund Moneys. Prior to any such application
described above the Bond Trustee shall have been furnished with an Opinion of Bond
Counsel to the effect that such action will not adversely affect any exclusion of interest
on the Bonds from the gross income of the owners thereof for federal income tax
purposes. Any of such Surplus Project Fund Moneys not to be applied for the purposes
set forth in (i), (ii) or (iii) above or which may not be applied to redeem Bonds as set
forth above shall be deposited in an escrow account and moneys on deposit in such
escrow account shall at the written request of the Obligor be applied to pay the principal
of Bonds upon redemption thereof on the earliest practicable redemption date upon which
such Bonds may be redeemed at par; provided, that any moneys held in such escrow
account shall be invested in accordance with Section 6.01 of the Bond Indenture but may
not be invested to produce a yield greater than the yield on the Bonds except to the extent
permitted by the Code. In lieu of treating the Surplus Project Fund Moneys as set forth
above, upon the written request of the Obligor, such Surplus Project Fund Moneys shall
either be deposited or disbursed by the Bond Trustee in any manner designated in writing
by the Obligor if the Bond Trustee shall have been furnished with an Opinion of Bond
Counsel to the effect that such action will not adversely affect any exclusion of interest
on the Bonds from the gross income of the owners thereof for federal income tax
purposes and is authorized by the Act.
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ARTICLE V
LOAN OF BOND PROCEEDS; NOTE; PROVISION FOR PAYMENT
SECTION 5.1. LOAN OF BOND PROCEEDS. The Issuer hereby agrees
to loan to the Obligor the proceeds of the Bonds to provide financing and refinancing for
the Costs of the Project. The Obligor hereby agrees to repay the loan pursuant to the
conditions set forth in Section 5.2 hereof.
SECTION 5.2. REPAYMENT OF LOAN. The Obligor agrees to pay to the
Bond Trustee for the account of the Issuer all payments when due on the Note pursuant to
the payment provisions contained in such Note. If for any reason the amounts paid to the
Bond Trustee by the Obligor on the Note, together with any other amounts available in
the Bond Fund, are not sufficient to pay principal of, premium, if any, and interest on the
Bonds when due, the Obligor agrees to pay the amount required to make up such
deficiency.
SECTION 5.3. CREDITS. Any amount in an account of the Bond Fund at
the close of business of the Bond Trustee on the day immediately preceding any payment
date on the Note in excess of the aggregate amount then required to be contained in such
account of the Bond Fund pursuant to Section 5.2 hereof shall be credited pro rata against
the payments due by the Obligor on such next succeeding principal or interest payment
date on the Note.
In the event that all of the Bonds then Outstanding are called for redemption, any
amounts contained in the Reserve Fund and the Bond Fund at the close of business of the
Bond Trustee on the day immediately preceding such redemption date shall be credited
against the payments due by the Obligor on the Note, as provided below.
The principal amount of any Bonds to be applied by the Bond Trustee as a credit
against any sinking fund payment pursuant to Section 5.02 of the Bond Indenture shall be
credited against the obligation of the Obligor with respect to payment of installments of
principal of the Note as described in the Supplemental Indenture.
The cancellation by the Bond Trustee of any Bonds purchased by the Obligor or of
any Bonds redeemed or purchased by the Issuer through funds other than funds received
on the Note shall constitute payment of a principal amount of the Note equal to the
principal amount of the Bonds so cancelled. Upon receipt of written notice from the
Bond Trustee of such cancellation, the Master Trustee shall at the request of the Obligor
endorse on the Note such payment of such principal amount thereof.
SECTION 5.4. NOTE. Concurrently with the sale and delivery by the Issuer
of the Bonds, the Obligor shall execute and deliver the Note substantially in the form set
forth in the Supplemental Indenture.
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SECTION 5.5. PAYMENT OF BOND TRUSTEE'S AND PAYING
AGENT'S FEES AND EXPENSES. The Obligor agrees to pay the reasonable and
necessary fees and expenses (including attorney's fees) of the Bond Trustee and any
Paying Agents as and when the same become due, upon submission by the Bond Trustee
or any Paying Agent of a statement therefor.
SECTION 5.6. RESERVE FUND. (a) In the event any moneys in the
Reserve Fund are transferred to the Bond Trustee for deposit to the Bond Fund pursuant
to Section 3.10 or 3.11 of the Bond Indenture, except if such moneys are transferred due
to the redemption of all Bonds, the Obligor agrees to deposit additional Reserve Fund
Obligations into the Reserve Fund in an amount sufficient to satisfy the Reserve Fund
Requirement, such amount to be deposited in accordance with Section 6.03(d) of the
Bond Indenture.
(b) In the event the value of the Reserve Fund Obligations (as determined
pursuant to the statement of the Bond Trustee furnished in accordance with Section
6.03(b) of the Bond Indenture) on deposit in the Reserve Fund is less than 90% of the
Reserve Fund Requirement as a result of a decline in the market value of investments on
deposit in the Reserve Fund, the Obligor agrees to deposit additional Reserve Fund
Obligations into the Reserve Fund in an amount sufficient to satisfy the Reserve Fund
Requirement, such amount to be deposited in accordance with Section 6.03(c) of the
Bond Indenture.
SECTION 5.7. PAYMENT OF ADMINISTRATION EXPENSES. In
consideration of the agreement of the Issuer to issue the Bonds and loan the proceeds
thereof to provide financing for the Project, the Obligor hereby agrees to pay any and all
costs paid or incurred by the Issuer in connection with the financing or refinancing of the
Project, whenever incurred, including out of pocket expenses and compensation in
connection with the issuance of Bonds, including, without limitation, reasonable sums for
reimbursement of the fees and expenses incurred by the Issuer's financial advisors,
consultants and legal counsel in connection with the Project and the issuance of the
Bonds.
SECTION 5.8. PAYEES OF PAYMENTS. The payments on the Note
pursuant to Section 5.2 hereof shall be paid in funds immediately available at the
Payment Office of the Bond Trustee, directly to the Bond Trustee for the account of the
Issuer and shall be deposited into the appropriate account of the Bond Fund. The
amounts provided for in Section 5.6 hereof shall be paid to the Bond Trustee for the
account of the Issuer and shall be deposited into the Reserve Fund. The payments to be
made to the Bond Trustee and the Paying Agent under Section 5.5 hereof shall be paid
directly to the Bond Trustee and the Paying Agent for their own use. The payments for
Administration Expenses under Section 5.7 hereof shall be paid directly to the Issuer for
its own use.
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SECTION 5.9. OBLIGATIONS OF OBLIGOR HEREUNDER
UNCONDITIONAL. The obligations of the Obligor to make the payments required in
Section 5.2 hereof shall be absolute and unconditional. The Obligor will not suspend or
discontinue, or permit the suspension or discontinuance of, any payments provided for in
Section 5.2 hereof for any cause including, without limiting the generality of the
foregoing, any acts or circumstances that may constitute failure of consideration, eviction
or constructive eviction, destruction of or damage to the Project, commercial frustration
of purpose, any change in the tax or other laws or administrative rulings of or
administrative actions by the United States of America or the State of Florida or any
political subdivision of either, or any failure of the Issuer to perform and observe any
agreement, whether express or implied, or any duty, liability, or obligation arising out of
or connected with this Loan Agreement, whether express or implied. Nothing contained
in this Section shall be construed to release the Issuer from the performance of any
agreements on its part herein contained; and in the event the Issuer shall fail to perform
any such agreement, the Obligor may institute such action against the Issuer as the
Obligor may deem necessary to compel performance, provided that no such action shall
violate the agreements on the part of the Obligor contained herein and the Issuer shall not
be required to pay any costs, expenses, damages or any amounts of whatever nature
except for amounts received pursuant to this Loan Agreement. Nothing herein shall be
construed to impair the Obligor's right to institute an independent action for any claim
that it may have against the Issuer, the Bond Trustee, any Bondholder or any other third
party. The Obligor may, however, at its own cost and expense and in its own name or in
the name of the Issuer, prosecute or defend any action or proceedings or take any other
action involving third persons which the Obligor deems reasonably necessary in order to
secure or protect this right of possession, occupancy, and use hereunder, and in such
event the Issuer hereby agrees to cooperate fully with the Obligor.
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ARTICLE VI
MAINTENANCE AND INSURANCE
SECTION 6.1. MAINTENANCE AND MODIFICATIONS OF
PROJECT BY OBLIGOR. The Obligor may, at its own expense, cause to be made
from time to time any additions, modifications or improvements to the Project provided
such additions, modifications or improvements do not impair the character of the Project
as a "health care facility" and a "project" within the meaning of the Act or impair the
extent of the exemption of interest on the Bonds from Federal income taxation.
SECTION 6.2. INSURANCE. Throughout the term of this Loan
Agreement, the Obligor will, at its own expense, provide or cause to be provided
insurance against loss or damage to the Project in accordance with the terms of the
Master Indenture.
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ARTICLE VII
SPECIAL COVENANTS
SECTION 7.1. NO WARRANTY OF MERCHANTABILITY,
CONDITION OR SUITABILITY BY THE ISSUER. The Issuer makes no warranty,
either express or implied, as to the condition of the Project or that the Project will be
suitable for the Obligor's purposes or needs. Without limiting the effect of the preceding
sentence, it is expressly agreed that in connection with each sale or conveyance pursuant
to this Loan Agreement (i) the Issuer makes no warranty of merchantability and (ii) there
are no warranties which extend beyond the description contained herein.
SECTION 7.2. RIGHT OF ACCESS TO THE PROJECT. The Obligor
agrees that the Issuer, the Bond Trustee, and any of their duly authorized agents shall
have the right at all reasonable times upon reasonable notice to the Obligor to examine
and inspect the Project to determine that the Obligor is in compliance with the terms and
conditions of this Loan Agreement; provided that any such inspection will be conducted
in a manner that will minimize any intrusion on the operations of the Project.
SECTION 7.3. NONSECTARIAN USE. The Obligor agrees that no
proceeds of the Bonds will be used to construct, acquire or install any portion of the
Project which is intended to be used or which is being used for sectarian purposes.
SECTION 7.4. FURTHER ASSURANCES. The Issuer and the Obligor
agree that they will, from time to time, execute, acknowledge, and deliver, or cause to be
executed, acknowledged, and delivered, such supplements hereto and such further
instruments as may reasonably be required for carrying out the intention of or facilitating
the performance of this Loan Agreement.
SECTION 7.5. INDEMNIFICATION. (a) THE OBLIGOR AGREES
THAT IT WILL AT ALL TIMES INDEMNIFY AND HOLD HARMLESS EACH OF
THE INDEMNIFIED PARTIES AGAINST ANY AND ALL LOSSES, LIABILITIES,
CLAIMS OR DEMANDS OR EXPENSES (INCLUDING ATTORNEYS FEES),
INCLUDING LOSSES AS A RESULT OF THE NEGLIGENT ACTS OR OMISSIONS
OF ANY INDEMNIFIED PARTY, OTHER THAN LOSSES RESULTING FROM
FRAUD, WILLFUL MISCONDUCT OR THEFT ON THE PART OF THE
INDEMNIFIED PARTY CLAIMING INDEMNIFICATION. THE OBLIGOR ALSO
SHALL INDEMNIFY THE BOND TRUSTEE FOR, AND DEFEND AND HOLD IT
HARMLESS AGAINST, ANY LOSSES, LIABILITIES, CLAIMS OR DEMANDS OR
EXPENSES (INCLUDING ATTORNEYS FEES) INCURRED WITHOUT
NEGLIGENCE OR BAD FAITH ON ITS PART, ARISING OUT OF OR IN
CONNECTION WITH THE ACCEPTANCE OR ADMINISTRATION OF THE
TRUST CREATED UNDER THE BOND INDENTURE OR THE PERFORMANCE OF
ITS DUTIES UNDER THE BOND INDENTURE, INCLUDING THE COSTS AND
EXPENSES OF DEFENDING ITSELF AGAINST ANY CLAIM OR LIABILITY IN
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CONNECTION WITH THE EXERCISE OR PERFORMANCE OF ANY OF ITS
POWERS OR DUTIES UNDER THE BOND INDENTURE. THE BOND TRUSTEE
MAY ENFORCE ITS RIGHTS UNDER THE PRECEDING SENTENCE AS A THIRD
PARTY BENEFICIARY OF THIS LOAN AGREEMENT.
(b) NONE OF THE INDEMNIFIED PERSONS SHALL BE LIABLE TO
THE OBLIGOR FOR, AND THE OBLIGOR HEREBY RELEASES EACH OF THEM
FROM, ALL LIABILITY TO THE OBLIGOR FOR, ALL INJURIES, DAMAGES OR
DESTRUCTION TO ALL OR ANY PART OF ANY PROPERTY OWNED OR
CLAIMED BY THE OBLIGOR THAT DIRECTLY OR INDIRECTLY RESULT
FROM, ARISE OUT OF OR RELATE TO THE DESIGN, CONSTRUCTION,
OPERATION, USE, OCCUPANCY, MAINTENANCE OR OWNERSHIP OF THE
PROJECT OR ANY PART THEREOF, EVEN IF SUCH INJURIES, DAMAGES OR
DESTRUCTION DIRECTLY OR INDIRECTLY RESULT FROM, ARISE OUT OF
OR RELATE TO, IN WHOLE OR IN PART, ONE OR MORE ACTS OR OMISSIONS,
INCLUDING ACTS OR OMISSIONS CONSTITUTING NEGLIGENCE ON THE
PART OF ANY INDEMNIFIED PERSON (BUT NOT INCLUDING ACTS OR
OMISSIONS CONSTITUTING FRAUD, WILLFUL MISCONDUCT OR THEFT ON
THE PART OF THE INDEMNIFIED PERSON CLAIMING RELEASE) IN
CONNECTION WITH THE ISSUANCE OF ANY SERIES OF THE BONDS OR IN
CONNECTION WITH THE PROJECT.
(c) Each Indemnified Person, as appropriate, shall reimburse the Obligor for
payments made by the Obligor pursuant to this Section to the extent of any proceeds, net
of all expenses of collection, actually received by it from any other source (but not from
the proceeds of any claim against any other Indemnified Person) with respect to any Loss
to the extent necessary to prevent a recovery of more than the Loss by such Indemnified
Person with respect to such Loss. At the request and expense of the Obligor, each
Indemnified Person shall claim or prosecute any such rights of recovery from other
sources (other than any claim against another Indemnified Person) and such Indemnified
Person shall assign its rights to such rights of recovery from other sources (other than any
claim against another Indemnified Person), to the extent of such required reimbursement,
to the Obligor.
(d) In case any Claim shall be brought or, to the knowledge of any Indemnified
Person, threatened against any Indemnified Person in respect of which indemnity may be
sought against the Obligor, such Indemnified Person promptly shall notify the Obligor in
writing; provided, however, that any failure so to notify shall not relieve the Obligor of
its obligations under this Section.
(e) The Obligor shall have the right to assume the investigation and defense of
all Claims, including the employment of counsel and the payment of all expenses. Each
Indemnified Person shall have the right to employ separate counsel in any such action
and participate in the investigation and defense thereof, but the fees and expenses of such
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4827-7379-2274.5
counsel shall be paid by such Indemnified Person unless (i) the employment of such
counsel has been specifically authorized by the Obligor, in writing, (ii) the Obligor has
failed after receipt of notice of such Claim to assume the defense and to employ counsel,
or (iii) the named parties to any such action (including any impleaded parties) include
both an Indemnified Person and the Obligor, and the Indemnified Person shall have been
advised by counsel that there may be one or more legal defenses available to it which are
different from or additional to those available to the Obligor (in which case, if such
Indemnified Person notifies the Obligor in writing that it elects to employ separate
counsel at the Obligor's expense, the Obligor shall not have the right to assume the
defense of the action on behalf of such Indemnified Person; provided, however, that the
Obligor shall not, in connection with any one action or separate but substantially similar
or related actions in the same jurisdiction arising out of the same general allegation or
circumstances, be liable for the reasonable fees and expenses of more than one separate
firm of attorneys for the Indemnified Parties, which firm shall be designated in writing by
the Indemnified Parties).
(f) Each Indemnified Person shall cooperate with the Obligor, and the Obligor
shall cooperate with each Indemnified Person, in the defense of any action or Claim.
(g) The Obligor shall not be liable for any settlement of any action or Claim
without the Obligor's consent but, if any such action or Claim is settled with the consent
of the Obligor or there be final judgment for the plaintiff in any such action or with
respect to any such Claim, the Obligor shall indemnify and hold harmless the
Indemnified Persons from and against any Loss by reason of such settlement or judgment
to the extent provided in subsection (a) above.
(h) The provisions of this Section shall survive the termination of this Loan
Agreement, and the obligations of the Obligor hereunder shall apply to Losses or Claims
under subsection (a) above whether asserted prior to or after the termination of this Loan
Agreement or the resignation or removal of the Bond Trustee. In the event of failure by
the Obligor to observe the covenants, conditions and agreements contained in this
Section, any Indemnified Person may take any action at law or in equity to collect
amounts then due and thereafter to become due, or to enforce performance and
observance of any obligation, agreement or covenant of the Obligor under this Section.
The obligations of the Obligor under this Section shall not be affected by any assignment
or other transfer by the Issuer of its rights, titles or interests under this Loan Agreement to
the Bond Trustee pursuant to the Bond Indenture and will continue to inure to the benefit
of the Indemnified Parties after any such transfer. The provisions of this Section shall be
cumulative with and in addition to any other agreement by the Obligor to indemnify any
Indemnified Person.
SECTION 7.6. AUTHORITY OF OBLIGOR. Whenever under the
provisions of this Loan Agreement the approval of the Obligor is required, or the Issuer
or the Bond Trustee are required to take some action at the request of the Obligor, such
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approval or such request shall be made by the Obligor unless otherwise specified in this
Loan Agreement and the Issuer or the Bond Trustee shall be authorized to act on any
such approval or request and the Obligor shall have no complaint against the Issuer or the
Bond Trustee as a result of any action taken.
SECTION 7.7. AUTHORITY OF ISSUER REPRESENTATIVE.
Whenever under the provisions of this Loan Agreement the approval of the Issuer or the
Bond Trustee are required, or the Obligor is required to take some action at the request of
the Issuer, such approval or such request shall be made by the Issuer Representative
unless otherwise specified in this Loan Agreement and the Obligor or the Bond Trustee
shall be authorized to act on any such approval or request and the Issuer shall have no
complaint against the Obligor or the Bond Trustee as a result of any such action taken.
SECTION 7.8. NO PERSONAL LIABILITY. No obligations contained in
the Bonds, the Bond Indenture or this Loan Agreement shall be deemed to be the
obligations of any officer, director, member, trustee, agent or employee of the Issuer, the
Bond Trustee or the Obligor in his or her individual capacity, and neither the governing
body of the Obligor or the Bond Trustee, nor any official of the Issuer executing the
Bonds, the Bond Indenture or this Loan Agreement shall be liable personally thereon or
be subject to any personal liability or accountability with respect thereto.
SECTION 7.9. FEES AND EXPENSES. The Obligor agrees to pay
promptly upon demand therefor all costs paid, incurred or charged by the Issuer in
connection with the Bonds, including without limitation, (i) all fees required to be paid to
the Issuer with respect to the Bonds, (ii) all out of pocket expenses and Cost of Issuance
(including reasonable fees and expenses of attorneys employed by the Issuer) reasonably
incurred by the Issuer in connection with the issuance of the Bonds, and (iii) all out of
pocket expenses (including reasonable fees and expenses of attorneys employed by the
Issuer) reasonably incurred by the Issuer in connection with the enforcement of any of its
rights or remedies or the performance of its duties under the Bond Indenture or this Loan
Agreement.
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ARTICLE VIII
ASSIGNMENT AND LEASING
SECTION 8.1. ASSIGNMENT AND LEASING BY OBLIGOR. This
Loan Agreement may be assigned, and all or any portion of the Project may be leased by
the Obligor without the consent of either the Issuer or the Bond Trustee, provided that
each of the following conditions is complied with:
(a) No assignment or leasing shall relieve the Obligor from primary liability
for any of its obligations hereunder, and in the event of any such assignment or leasing
the Obligor shall continue to remain primarily liable for payment of the loan payments
and other payments specified in Article V hereof and for performance and observance of
the other covenants and agreements contained herein; provided that if: (i) the Obligor
withdraws from the Obligated Group (as defined in the Master Indenture) and is released
from its obligations on the Note by the Master Trustee pursuant to the Master Indenture;
and (ii) this Loan Agreement has been assigned to a remaining member of the Obligated
Group in accordance with this Section 8.1, the Obligor shall also be released from its
liability for its obligations hereunder, including payment of the loan payments and other
payments specified in Article V hereof and the performance and observance of the other
covenants and agreements contained herein.
(b) The assignee or lessee shall assume in writing the obligations of the
Obligor hereunder to the extent of the interest assigned or leased, provided that the
provisions of this subsection shall not apply to a lease of a portion of the Project or an
operating contract for the performance by others of Obligor or medical services on or in
connection with the Project, or any part thereof.
(c) The requirements relating to assignment and leasing contained in the Tax
Compliance Agreement and Master Indenture are met.
(d) The Obligor shall, within 30 days after the delivery thereof, furnish or
cause to be furnished to the Issuer and the Bond Trustee a true and complete copy of each
such assumption of obligations and assignment or lease of the Project, as the case may
be.
SECTION 8.2. ASSIGNMENT AND PLEDGE BY ISSUER. Solely
pursuant to the Bond Indenture, the Issuer may assign its interest in and pledge any
moneys receivable under the Note and this Loan Agreement (except in respect of certain
rights to indemnification and for Administration Expenses, indemnification and payment
of attorneys' fees and expenses pursuant to Sections 5.7, 7.5 and 9.5 hereof and to the
right to receive notices) to the Bond Trustee as security for payment of the principal of,
premium, if any, and interest on the Bonds. The Obligor consents to such assignment and
pledge.
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ARTICLE IX
FAILURE TO PERFORM COVENANTS AND REMEDIES THEREFOR
SECTION 9.1. FAILURE TO PERFORM COVENANTS. Upon failure
of the Obligor to pay when due any payment (other than failure to make any payment on
any Note, which default shall have no grace period) required to be made under this Loan
Agreement or to observe and perform any covenant, condition or agreement on its part to
be observed or performed hereunder, and continuation of such failure for a period of 60
days after written notice, specifying such failure and requesting that it be remedied, is
given to the Obligor by the Issuer or the Bond Trustee, the Issuer or the Bond Trustee
shall have the remedies provided in Section 9.2 hereof.
SECTION 9.2. REMEDIES FOR FAILURE TO PERFORM. Upon the
occurrence of a failure of the Obligor to perform as provided in Section 9.1 hereof, the
Issuer or the Bond Trustee, as assignee or successor of the Issuer, upon compliance with
all applicable law, in its discretion may take any one or more of the following steps:
(a) by mandamus, or other suit, action or proceeding at law or in equity,
enforce all rights of the Issuer, and require the Obligor to carry out any agreements with
or for the benefit of the Bondholders and to enforce performance and observance of any
duty, obligation, agreement or covenant of the Obligor under the Act or this Loan
Agreement; or
(b) by action or suit in equity require the Obligor to account as if it were the
trustee of an express trust for the Issuer; or
(c) by action or suit in equity enjoin any acts or things which may be unlawful
or in violation of the rights of the Issuer; or
(d) upon the filing of a suit or other commencement of judicial proceedings to
enforce the rights of the Bond Trustee and the Bondholders, have appointed a receiver or
receivers of the Trust Estate upon a showing of good cause with such powers as the court
making such appointment may confer.
SECTION 9.3. DISCONTINUANCE OF PROCEEDINGS. In case any
proceeding taken by the Issuer or the Bond Trustee on account of any failure to perform
under Section 9.1 shall have been discontinued or abandoned for any reason, or shall
have been determined adversely to the Issuer or the Bond Trustee, then and in every case
the Issuer and the Bond Trustee shall be restored to their former positions and rights
hereunder, respectively, and all rights, remedies and powers of the Issuer and the Bond
Trustee shall continue as though no such proceeding had been taken.
SECTION 9.4. NO REMEDY EXCLUSIVE. No remedy herein conferred
upon or reserved to the Issuer or the Bond Trustee is intended to be exclusive of any
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4827-7379-2274.5
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 any default shall impair any such right or power or
shall be construed to be a waiver thereof, but any such right or power may be exercised
from time to time and as often as may be deemed expedient. In order to entitle the Issuer
or the Bond Trustee to exercise any remedy reserved to it in this Article IX, it shall not be
necessary to give any notice, other than notice required in Section 9.1 hereof. Such rights
and remedies given the Issuer hereunder shall also extend to the Bond Trustee and the
holders of the Bonds, subject to the Bond Indenture.
SECTION 9.5. LOAN AGREEMENT TO PAY ATTORNEYS' FEES
AND EXPENSES. In the event the Issuer or the Bond Trustee should employ attorneys
or incur other expenses for the enforcement of performance or observance of any
obligation or agreement on the part of the Obligor herein or in the Bond Indenture
contained, the Obligor agrees that it will on demand therefor pay to the Issuer or the
Bond Trustee, as the case may be, the reasonable fee of such attorneys and such other
reasonable expenses incurred by the Issuer or the Bond Trustee.
SECTION 9.6. WAIVERS. 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 waived and shall not be
deemed to waive any other breach hereunder. In view of the assignment of the Issuer's
rights in and under this Loan Agreement to the Bond Trustee under the Bond Indenture,
the Issuer shall have no power to waive any failure to perform under Section 9.1
hereunder without the consent of the Bond Trustee (other than a failure to observe the
covenants contained in Section 4.10 hereof, which may be waived by the Issuer without
the consent of the Bond Trustee).
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ARTICLE X
PREPAYMENT OF NOTE
SECTION 10.1. GENERAL OPTION TO PREPAY NOTE. The Obligor
shall have and is hereby granted the option exercisable at any time to prepay all or any
portion of its payments due or to become due on the Note by depositing with the Bond
Trustee for payment into the Bond Fund an amount of money or Government Obligations
the principal and interest on which when due, will be equal to an amount sufficient to pay
the principal of, premium, if any, and interest on any portion of the Bonds then
Outstanding under the Bond Indenture, without penalty. The exercise of the option
granted by this Section shall not be cause for redemption of Bonds unless such
redemption is permitted at that time under the provisions of the Bond Indenture and the
Obligor specifies the date for such redemption. In the event the Obligor prepays all of its
payments due and to become due on the Note by exercising the option granted by this
Section and upon payment of all reasonable and necessary fees and expenses of the Bond
Trustee, the Issuer and any Paying Agent accrued and to accrue through final payment of
the Bonds called for redemption as a result of such prepayment and of all Administration
Expenses through final payment of the Bonds called for redemption as a result of such
prepayment, this Loan Agreement shall terminate; provided that no such termination shall
occur unless all of the Bonds are no longer Outstanding.
SECTION 10.2. CONDITIONS TO EXERCISE OF OPTION. To exercise
the option granted in Section 10.1 hereof, the Obligor shall give written notice to the
Bond Trustee which shall specify therein the date of such redemption, which date shall be
not less than 30 days from the date the notice is mailed.
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ARTICLE XI
MISCELLANEOUS
SECTION 11.1. NOTICES. Any notice, request or other communication
under this Loan Agreement shall be given in writing and shall be deemed to have been
given by either party to the other party at the addresses shown below upon any of the
following dates:
(a) The date of notice by facsimile, electronic mail or similar communications,
which is confirmed promptly in writing;
(b) Three Business Days after the date of the mailing thereof, as shown by the
post office receipt if mailed to the other party hereto by registered or certified mail; or
(c) The date of the receipt thereof by such other party if not given pursuant to
(a) or (b) above.
The address for notice for each of the parties shall be as follows:
To the Issuer: City of Atlantic Beach, Florida
800 Seminole Road
Atlantic Beach, Florida 32233-5445
Attn: City Manager
Telephone: (904) 247-5809
Telecopier: (904) 247-5805
To the Borrower: Naval Continuing Care Retirement
Foundation, Inc.
1 Fleet Landing Boulevard
Atlantic Beach, Florida 32233
Attn: Chief Executive Officer
Telephone: (904) 246-9900
Telecopier: (904) 246-9447
To the Bond Trustee: U.S. Bank National Association
225 Water Street, Suite 700
Jacksonville, Florida 32202
Attention: Stephanie Moore
Telephone: (904) 358-5363
Telecopier: (904) 358-5374
Notwithstanding the foregoing, notices to the Bond Trustee shall be effective only
upon receipt.
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SECTION 11.2. BINDING EFFECT. This Loan Agreement shall inure to
the benefit of and shall be binding upon the Issuer, the Obligor, and their respective
successors and assigns, subject, however, to the limitations contained in Sections 8.1, 8.2
and 11.9 hereof.
SECTION 11.3. 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.
SECTION 11.4. AMOUNTS REMAINING IN FUNDS. It is agreed by the
parties hereto that any amounts remaining in the Cost of Issuance Fund, Bond Fund, the
Reserve Fund and any Project Fund upon expiration or sooner termination of this Loan
Agreement, after payment in full of the Bonds (or provision for payment thereof having
been made in accordance with the provisions of the Bond Indenture), the fees, charges,
and expenses of the Bond Trustee, the Issuer and the Paying Agent in accordance with
the Bond Indenture, the Administration Expenses and all other amounts required to be
paid under this Loan Agreement and the Bond Indenture, shall belong to and be paid to
the Obligor by the Bond Trustee or the Issuer.
SECTION 11.5. AMENDMENTS, CHANGES, AND MODIFICATIONS.
Except as otherwise provided in this Loan Agreement or in the Bond Indenture,
subsequent to the initial issuance of Bonds and prior to their payment in full (or provision
for the payment thereof having been made in accordance with the provisions of the Bond
Indenture), this Loan Agreement may not be effectively amended, changed, modified,
altered, or terminated without the written consent of the Bond Trustee.
SECTION 11.6. 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.
SECTION 11.7. PAYMENT. At such time as the principal of, premium, if
any, and interest on all Bonds Outstanding under the Bond Indenture shall have been
paid, or shall be deemed to be paid, in accordance with the Bond Indenture, and all other
sums payable by the Obligor under this Loan Agreement shall have been paid, the Note
shall be deemed to be fully paid and shall be delivered by the Bond Trustee to the
Obligor.
SECTION 11.8. GOVERNING LAW. This Loan Agreement shall be
governed and construed in accordance with the law of the State of Florida.
SECTION 11.9. NO PECUNIARY LIABILITY OF ISSUER. No
provision, covenant, or agreement contained in this Loan Agreement, or any obligations
herein imposed upon the Issuer, or the breach thereof, shall constitute an indebtedness of
the Issuer within the meaning of any Florida constitutional provision or statutory
33
4827-7379-2274.5
limitation or shall constitute or give rise to a pecuniary liability of the Issuer or a charge
against its general credit. In making the agreements, provisions, and covenants set forth
in this Loan Agreement, the Issuer has not obligated itself except with respect to the
application of the revenues, income, and all other property therefrom, as hereinabove
provided.
SECTION 11.10. PAYMENTS DUE ON HOLIDAYS. If the date for making
any payment or the last date for performance of any act or the exercising of any right, as
provided in this Loan Agreement, shall be a legal holiday or a day on which banking
institutions in Jacksonville, Florida are authorized by law to remain closed, such payment
may be made or act performed or right exercised on the next succeeding day not a legal
holiday or a day on which such banking institutions are authorized by law to remain
closed with the same force and effect as if done on the nominal date provided in this
Loan Agreement.
SECTION 11.11. NO INDIVIDUAL LIABILITY. No covenant or agreement
contained in this Loan Agreement or the Bond Indenture shall be deemed to be the
covenant or agreement of any member of the governing body of the Obligor or the Bond
Trustee or of any officer, director, trustee, agent or employee of the Issuer, the Bond
Trustee or the Obligor or the governing body of Duval County, Florida, in his or her
individual capacity, and none of such persons shall be subject to any personal liability or
accountability by reason of the execution hereof, whether by virtue of any constitution,
statute or rule of law, or by the enforcement or any assessment or penalty, or otherwise.
SECTION 11.12. SURVIVAL OF COVENANTS. All covenants,
agreements, representations and warranties made by the Obligor in this Loan Agreement,
the Bond Indenture, the Note and the Bonds, and in any certificates or other documents or
instruments delivered pursuant to this Loan Agreement or the Bond Indenture, shall
survive the execution and delivery of this Loan Agreement, and the Bond Indenture and
the Note and shall continue in full force and effect until the Bonds and the Note are paid
in full and all of the Obligor's other payment obligations (including without limitation the
indemnification obligation under Section 7.5 hereof and the obligations under Sections
5.5, 5.7 and 9.5 hereof) under this Loan Agreement, the Bond Indenture, the Note and the
Bonds are satisfied. All such covenants, agreements, representations and warranties shall
be binding upon any successor and assigns of the Obligor.
34
4827-7379-2274.5
IN WITNESS WHEREOF, the Issuer and the Obligor have caused this Loan
Agreement to be executed in their respective corporate names, all as of the date first
above written.
CITY OF ATLANTIC BEACH, FLORIDA
By: Gum Al 3
Louis M. Borno, Jr., Ma or
NAVAL CONTINUING CARE
RETIREMENT FOUNDATION, INC.
By:
Jos; •a Ashby, E cutive Director
35
4827-7379-2274.5
EXHIBIT A
PROJECT DESCRIPTION
The Project consists of the acquisition of approximately two (2) acres of land (the
"Additional Land") to be used as a future site for a facility operations center, located
immediately south/southwest of and adjacent to the existing Facilities. A legal description
of the Additional Land is attached hereto as Schedule I.
A-1
4827-7379-2274.5
SCHEDULE I
(Legal Description)
Schedule I to Exhibit A
4827-7379-2274.5
EXHIBIT B
FORM FOR PROJECT FUND DISBURSEMENT
NO.
U.S. Bank National Association
225 Water Street, Suite 700
Jacksonville, Florida 32202
Attention: Corporate Trust Department
Re: City of Atlantic Beach, Florida Health Care Facilities Revenue and
Refunding Bonds (Fleet Landing Project), Series 2013A
Ladies and Gentlemen:
This request for disbursement is submitted to you pursuant to Section 4.6 of the
Loan Agreement (the "Loan Agreement") dated as of April 1, 2013, between the City of
Atlantic Beach, Florida and the Naval Continuing Care Retirement Foundation, Inc. (the
"Obligor") relating to the captioned Bonds. Terms used in this requisition shall have the
meanings specified for them in the Loan Agreement. The Bond Trustee is hereby
authorized and directed to make payment from the Project Fund as specified in
SCHEDULE A attached hereto. The undersigned authorized representative of the
Obligor hereby certifies to you in connection with the amount for which payment is
requested by this requisition, as follows:
1. The obligations in the amounts stated on Schedule A hereto have been
incurred by the Obligor for the Cost of the Project and are presently due and payable or to
be reimbursed for the payment thereof
2. All previous disbursements, if any, made pursuant to Section 4.6 of the
Loan Agreement have been expended for Costs of the Project described in prior
requisitions, if any, submitted by the authorized representative of the Obligor;
3. This requisition is for costs that were properly incurred and are proper
charges against the Project Fund;
4. Nothing has come to the attention of the Obligor that would cause it to
conclude that the representations and warranties contained in the Loan Agreement are not
true and correct as of the date hereof; and
B-1
4827-7379-2274.5
5. No event has occurred and is continuing which constitutes an Event of
Default under the Bond Indenture or the Loan Agreement.
Date: NAVAL CONTINUING CARE
RETIREMENT FOUNDATION, INC., as
Obligor
By:
Authorized Officer
B-2
4827-7379-2274.5
EXHIBIT C
FORM FOR COST OF ISSUANCE DISBURSEMENT
NO.
U.S. Bank National Association
225 Water Street, Suite 700
Jacksonville, Florida 32202
Attention: Corporate Trust Department
Re: City of Atlantic Beach, Florida Health Care Facilities Revenue and
Refunding Bonds (Fleet Landing Project), Series 2013A
Ladies and Gentlemen:
This request for disbursement is submitted to you pursuant to Section 4.7 of the
Loan Agreement (the "Loan Agreement") dated as of April 1, 2013, between the City of
Atlantic Beach, Florida and the Naval Continuing Care Retirement Foundation, Inc. (the
"Obligor") relating to the captioned Bonds. Terms used in this requisition shall have the
meanings specified for them in the Loan Agreement. The Bond Trustee is hereby
authorized and directed to make payment from the Cost of Issuance Fund as specified in
SCHEDULE A attached hereto. The undersigned authorized representative of the
Obligor hereby certifies to you in connection with the amount for which payment is
requested by this requisition, as follows:
1. The obligations as set forth on this requisition were incurred in connection
with the issuance of the Bonds;
2. All previous disbursements, if any, made pursuant to Section 4.7 of the
Loan Agreement have been expended for Costs of Issuance described in prior
requisitions, if any, submitted by the authorized representative of the Obligor;
3. This requisition is for costs that were properly incurred and are proper
charges against the Cost of Issuance Fund;
4. The expenditures of the amount requested under this requisition, when
added to all disbursements under previous requisitions, will result in no more than two
percent (2%) of the aggregate face amount of the Bonds being used for payment of Costs
of Issuance related to the Bonds;
5. Nothing has come to the attention of the Obligor that would cause it to
conclude that the representations and warranties contained in the Loan Agreement are not
true and correct as of the date hereof; and
C-1
4827-7379-2274.5
6. No event has occurred and is continuing which constitutes an Event of
Default under the Bond Indenture or the Loan Agreement.
Date: NAVAL CONTINUING CARE
RETIREMENT FOUNDATION, INC., as
Obligor
By:
Authorized Officer
C-2
4827-7379-2274.5