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EXHIBIT NO. 4(A)
$4,000,000 HILLSBOROUGH COUNTY INDUSTRIAL DEVELOPMENT
AUTHORITY INDUSTRIAL DEVELOPMENT REVENUE BONDS
(PROGRESSIVE AMERICAN INSURANCE COMPANY PROJECT)
SERIES 1982
DATED DECEMBER 16, 1982
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LOAN AND DEBT OBLIGATION AGREEMENT
HILLSBOROUGH COUNTY INDUSTRIAL
DEVELOPMENT AUTHORITY
AND
PROGRESSIVE AMERICAN INSURANCE COMPANY
Dated as of December 16, 1982
This Loan and Debt Obligation Agreement (including Trustee's rights but
excluding certain rights of Hillsborough County Industrial Development
Authority) has been assigned to Sun Bank, N.A., as Trustee, and is subject to a
security interest in favor of the Trustee under the Indenture of Trust dated as
of December 16, 1982, by and between Hillsborough County Industrial Development
Authority and the Trustee.
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LOAN AND DEBT OBLIGATION AGREEMENT
Table of Contents
(The Table of Contents is not a part of the Loan and Debt Obligation Agreement
but is for convenience of reference only)
ARTICLE I
Definitions
Page
Section 1.1. Definitions 1
"Act" 1
"Additional Bonds" 1
"Agreement" 1
"Agreement Term" 2
"Authorized Company Representative" 2
"Bondholder" 2
"Bond Registrar" 2
"Bonds" 2
"1982 Bonds" 2
"Code" 2
"Company" 2
"Completion Date" 2
"Construction Fund" 2
"Guarantor" 2
"Indenture" 2
"Issuer" 3
"Loan" 3
"Loan Installments" 3
"Mortgage" 3
"Note" 3
"Original Purchaser" 3
"Paying Agent" 3
"Permitted Encumbrances" 3
"Plans and Specifications" 3
"Prime Rate" 4
"Project" 4
"Project Manager" 4
"Project Site" 4
"Debt Service Fund" 4
"Trustee" 4
"Yield" 4
Section 1.2. Rules of Construction 4
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ARTICLE II
Representations
Section 2.1. Representations by the Issuer 5
Section 2.2. Representations by the Company 6
ARTICLE III
Loan; Assignment of Agreement and Note
Section 3.1. Loan 9
Section 3.2. Assignment of the Issuer's Rights 9
ARTICLE IV
Commencement and Completion of the Project,
Issuance of the Bonds
Section 4.1. Agreement to Acquire and Construct the Project 9
Section 4.2. Agreement to Issue Bonds; Application of Bond Proceeds;
Additional Bonds 11
Section 4.3. Disbursements from the Construction Fund 12
Section 4.4. Obligation of the Company to Cooperate In Furnishing
Documents to Trustee 16
Section 4.5. Establishment of Completion Date 16
Section 4.6. The Company Required to Pay Cost of the Project in
Event Construction Fund Insufficient 16
Section 4.7. Project Manager 17
Section 4.8. Pursuit of Remedies Against Contractors and
Subcontractors and Their Sureties 17
Section 4.9. Investment of Moneys in the Construction Fund and
the Debt Service Fund 18
ARTICLE V
Effective Date of This Agreement; Duration
of Agreement Term; Repayment Provisions
Section 5.1. Effective Date of this Agreement;
Duration of Agreement Term 18
Section 5.2. Loan Installments and Other Amounts Payable 18
Section 5.3. Payment of Loan Installments 20
Section 5.4. Obligations Unconditional 20
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ARTICLE VI
Maintenance, Modifications, Operation,
Insurance and Other Covenants of the Company
Section 6.1. Maintenance of Project 23
Section 6.2. Conditions to Changes in the Project 23
Section 6.3. After-Acquired Property Not Part of Project 24
Section 6.4. Removal or Disposition 24
Section 6.5. No Abatement of Loan Installments; Damages 24
Section 6.6. Covenant Against Unauthorized Removal 24
Section 6.7. Liens and Encumbrances 24
Section 6.8. Permitted Contests 25
Section 6.9. Notice of Event of Default 26
Section 6.10. Requested Information 26
Section 6.11. Inspections, Reports and Financial Statements 26
Section 6.12. Certificate of Compliance and No Default 29
Section 6.13. Insurance 29
Section 6.14. Insurance Proceeds; Condemnation Awards 29
Section 6.15. Approvals 30
Section 6.16. Covenants of Company and Issuer with Respect to
Capital Expenditures 30
Section 6.17. Covenants as to Use of Bond Proceeds; Payback Provision 33
Section 6.18. Covenant as to Recordation 34
ARTICLE VII
Special Covenants
Section 7.1. Indemnification by the Company 34
Section 7.2. Compliance with All Laws 34
Section 7.3. Maintenance of Corporate Existence 35
Section 7.4. Nonassignability 36
Section 7.5. Payment of Loan Installments 36
Section 7.6. No Warranty of Condition or Suitability by the Issuer 36
ARTICLE VIII
Obligation Continues; Redemption; Prepayment and
Abatement; Mortgage and Security Interest
Section 8.1. Redemption of Bonds 37
Section 8.2. Permissible Prepayment of Loan Installments 37
Section 8.3. Mandatory Prepayment of Loan Installments 37
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Section 8.4. References to Bonds Ineffective After Bonds Paid 39
Section 8.5. Vesting of Interest in Issuer 39
Section 8.6. Mortgage and Security Interest 40
ARTICLE IX
Events of Default and Remedies
Section 9.1. Events of Default Defined 41
Section 9.2. Remedies on Default 43
Section 9.3. Authorization to Foreclose 44
Section 9.4. No Remedy Exclusive 44
Section 9.5. Agreement to Pay Attorneys' Fees and Expenses 44
Section 9.6. No Additional Waiver Implied by One Waiver 45
Section 9.7. Issuer's Right to Advance Funds upon Default;
Reimbursement of Same 45
ARTICLE X
Miscellaneous
Section 10.1. Notices 45
Section 10.2. Binding Effect; Controlling Law 46
Section 10.3. Severability 47
Section 10.4. Amounts Remaining in Funds 47
Section 10.5. Complete Agreement; Supplements or Amendment 47
Section 10.6. Net Contract 47
Section 10.7. Arbitrage; Preservation of Tax Exemption 47
Section 10.8. Controlling Law; Members of Issuer Not Liable 48
Section 10.9. Company Approval of Indenture 48
Section 10.10. Further Assurances 48
Section 10.11. Rights not Extinguished 49
Section 10.12. Execution of Counterparts 49
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LOAN AND DEBT OBLIGATION AGREEMENT
THIS LOAN AND DEBT OBLIGATION AGREEMENT, made and entered into as of
the ____ day of _______, 1982, by and between HILLSBOROUGH COUNTY INDUSTRIAL
DEVELOPMENT AUTHORITY, a public body corporate and politic of the State of
Florida, and PROGRESSIVE AMERICAN INSURANCE COMPANY, a corporation organized and
existing under the laws of the State of Florida.
W I T N E S S E T H:
In consideration of the respective representations and agreements
hereinafter contained, the parties hereto agree as follows (provided, that in
the performance of the agreements of the Hillsborough County Industrial
Development Authority herein contained, any obligation it may thereby incur for
the payment of money shall not be a general debt, liability or obligation of
said Authority, Hillsborough County or of the State of Florida or any political
subdivision thereof but shall be payable solely out of the proceeds derived from
or pursuant to this Loan and Debt Obligation Agreement and the sale of the Bonds
referred to in Section 4.2 hereof):
ARTICLE I
Definitions
SECTION 1.1. Definitions. As used herein unless some other meaning
is plainly intended:
"Act" means the Constitution of the State of Florida, Parts II and III
of Chapter 159, Florida Statutes, and other applicable provisions of law.
"Additional Bonds" means the additional parity Bonds authorized to be
issued by the Issuer pursuant to the Indenture.
"Agreement" means this Loan and Debt Obligation Agreement and any
amendments and supplements hereto.
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"Agreement Term" means the duration of this Agreement as specified in
Section 5.1 hereof.
"Authorized Company Representative" means the person at the time
designated to act on behalf of the Company (or his duly designated alternate or
alternates) by written certificate furnished to the Issuer and the Trustee
containing the specimen signature of such person.
"Bondholder" means the registered owner (or its authorized
representative) of any Bonds at any time outstanding.
"Bond Registrar" means the registrar appointed by the Issuer, from
time to time, under the provisions of Section 3.05 of the Indenture.
"Bonds" means the 1982 Bonds and any Additional Bonds issued and to be
issued pursuant to the Indenture.
"1982 Bonds" means the Hillsborough County Industrial Development
Authority Industrial Development Revenue Bonds (Progressive American Insurance
Company Project), Series 1982, to be issued pursuant to Section 3.07 of the
Indenture.
"Code" means the Internal Revenue Code of 1954, as amended.
"Company" means Progressive American Insurance Company, a Florida
corporation, and its successors or assigns, including any surviving, resulting
or transferee corporation as provided in Section 7.3 hereof.
"Completion Date" means the date of completion of the acquisition and
construction of the Project as that date shall be certified as provided in
Section 4.5 hereof.
"Construction Fund" means the fund created by Section 6.01 of the
Indenture.
"Guarantor" means The Progressive Corporation, an Ohio corporation, the
indirect owner of the Company.
"Indenture" means the Indenture of Trust between the Issuer and the
Trustee, of even date herewith, pursuant to which (i) the Bonds are authorized
to be issued and (ii) the Issuer's interest in this Agreement and the Loan
Installments and other revenues received by the Issuer from
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the repayment of the Loan to the Company are to be pledged and assigned,
including any indenture supplemental thereto.
"Issuer" means Hillsborough County Industrial Development Authority, a
public body corporate and politic of the State of Florida.
"Loan" shall have the meaning ascribed thereto in Section 3.1 of this
Agreement.
"Loan Installments" means the payments described in Article V hereof
and required to be paid under the terms hereof and the terms of the Note.
"Mortgage" means the Mortgage and Security Agreement of even date
herewith between the Company, as mortgagor, and the Issuer, as mortgagee.
"Note" means the Promissory Note of even date herewith issued by the
Company to the Issuer pursuant to Section 3.1 hereof.
"Original Purchaser" means Sun Bank of Tampa Bay.
"Paying Agent" shall have the same meaning as provided in the
Indenture.
"Permitted Encumbrances" means and shall include the following:
(a) liens for taxes and special assessments not delinquent or
which are being contested in good faith by or on behalf of the Company
in accordance with the terms and provisions of Section 6.8 hereof;
(b) mechanics', workmen's, repairmen's or carriers' liens or
other similar liens, provided that the same shall be discharged by the
Company in the ordinary course of business and without undue delay or
the validity of the same shall be contested, with any pending execution
thereof appropriately stayed; and
(c) this Agreement and the documents contemplated hereby,
including the Mortgage and the Indenture.
"Plans and Specifications" means the plans and specifications for the
construction of the Project, including
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any supplements, amendments and additions thereto, which shall have been
approved by the Company.
"Prime Rate" means the rate of interest as charged from time to time by
Sun Bank, N.A., or its successors, for ninety-one day unsecured loans; provided
however, if Sun Bank, N.A., does not make ninety-one day unsecured loans, the
Prime Rate shall be such rate for such loans charged by Manufacturers Hanover
Trust Company, New York, New York.
"Project" means, collectively, the acquisition of the Project Site, and
the acquisition, construction and installation thereon, in accordance with the
Plans and Specifications, of structures, fixtures, facilities, equipment and
machinery constituting a headquarters facility for the regional headquarters
office for the Company and its related group of casualty insurers, all as more
particularly described in Exhibit "A" attached hereto and to the Indenture.
"Project Manager" means the project manager or managers who at the time
shall have been designated as such in or pursuant to the provisions of Section
4.7 hereof.
"Project Site" means the lands on which the Project is to be
constructed, as more particularly described in Exhibit "B" attached hereto and
to the Indenture, together with easements appurtenant thereto.
"Debt Service Fund" means the Hillsborough County Industrial
Development Revenue Bonds (Progressive American Insurance Company Project) Debt
Service Fund, created by Section 7.02 of the Indenture.
"Trustee" means Sun Bank, N.A., a duly organized national banking
association having the authority to exercise corporate trust powers, and having
its principal office in the City of Orlando, Florida, as the initial Trustee,
and such other duly appointed trustee at any time serving as such under the
Indenture.
"Yield" means the yield on a particular obligation computed in
accordance with Section 1.103-13(c) of the Treasury Regulations, as amended.
SECTION 1.2. Rules of Construction. Words of the masculine gender
shall be deemed and construed to include correlative words of the feminine and
neuter genders. Unless the context shall clearly indicate to the contrary:
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(a) The words "Bond," "coupon," "holder," and "person"
shall include the plural as well as the singular number;
(b) The word "person" shall include corporations and
associations, including public bodies, as well as natural persons;
(c) "Herein", "hereby", "hereunder", "hereof", "hereinbefore",
"hereinafter" and other equivalent words refer to this Agreement and
not solely to the particular portion thereof in which any such word is
used; and
(d) All references herein to particular Articles or
Sections are references to Articles or Sections of this Agreement.
ARTICLE II
Representations
SECTION 2.1. Representations by the Issuer. The Issuer makes the
following representations as the basis for the undertakings on its part herein
contained:
(a) The Issuer is duly authorized under the provisions of the
Act to enter into, execute and deliver this Agreement, to undertake the
transactions contemplated by this Agreement and to carry out its
obligations hereunder. The Project constitutes and will constitute a
"project" within the meaning of the Act. By duly adopted resolution the
Issuer has duly authorized the execution and delivery of this
Agreement.
(b) The Issuer, by a Resolution adopted on March 10, 1982,
took affirmative official action toward the issuance of the 1982 Bonds.
(c) The Company proposes to acquire, construct and install the
Project. The Issuer proposes to loan money to the Company for the
acquisition, construction and installation of the Project pursuant to
the terms and conditions expressed herein, all for the purposes of
fostering the industrial and business development of and im-
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proving living conditions in Hillsborough County, Florida, and
otherwise contributing to the welfare of the State of Florida and its
inhabitants.
(d) To finance the cost of the Project the Issuer proposes to
issue initially the 1982 Bonds in the principal amount of $4,000,000,
which 1982 Bonds will be designated "Hillsborough County Industrial
Development Authority Industrial Development Revenue Bonds (Progressive
American Insurance Company Project), Series 1982," and to loan the
proceeds of the 1982 Bonds to the Company. Thereafter, Additional Bonds
of the Issuer, for the purposes, under the conditions and in the
principal amounts provided in Section 4.2(b) hereof, may be issued by
the Issuer under the Indenture.
(e) All of the Bonds will be issued under the Indenture and
will mature, bear interest, be redeemable and have the other terms and
provisions set forth in the Indenture, pursuant to which the Issuer's
interest in this Agreement and the Note and the revenues receipts
including the Loan Installments derived by the Issuer will be pledged
and conveyed to the Trustee as security for payment of the principal
of, premium, if any, and interest on the Bonds.
SECTION 2.2. Representation by the Company. The Company makes the
following representations as the basis for the undertakings on its part
herein contained:
(a) The Company is a Florida corporation, duly created and
existing under the laws of the State of Florida, and has full power and
authority to enter into this Agreement and by proper corporate action
its officers have been duly authorized to execute and deliver this
Agreement
(b) The Company intends to operate the Project as a "project"
within the meaning of the Act.
(c) The execution and delivery of this Agreement and the
consummation of the transactions herein contemplated will not conflict
with or constitute a breach of or default under the Company's articles
of incorporation, bylaws or any bond, debenture, note or other evidence
of indebtedness,
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contract, agreement or lease to which the Company is a party or by
which the Company is bound, and this Agreement will be binding upon and
enforceable against the Company.
(d) The Project consists of property of a character subject to
the allowance for depreciation under Section 167 of the Code and all of
the net proceeds received from the sale of the 1982 Bonds (after
payment of the costs incurred in connection with the issuance of the
1982 Bonds) which are actually expended for the Project, will be used
to pay the cost of the acquisition, construction and installation of
the Project and will be or may be charged to the capital account of the
Company for federal income tax purposes.
(e) As of March 10, 1982, no contracts had been awarded or
entered into and no purchase orders had been issued with respect to any
components of the Project, none of said components or the Project Site
had been acquired and no installation or fabrication had commenced with
respect to any of said components.
(f) Based on current facts, estimates and circumstances, it is
presently expected that:
(1) the acquisition, construction and installation of the
Project and the expenditure of all the proceeds of the 1982
Bonds will be completed by July 1, 1983;
(2) work on the Project has commenced and it is expected
to proceed with due diligence to completion;
(3) the net proceeds from the issuance of the 1982 Bonds
are needed for the purpose of paying all or a part of the cost
of the acquisition, construction and installation of the
Project; and
(4) the Project will not be sold or disposed of in a
manner producing proceeds which, together with any accumulated
proceeds or earnings thereon, would be sufficient to enable
the Company to
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retire substantially all of the Bonds prior to the maturity
of the 1982 Bonds.
(g) The Company has entered into various contracts providing
for the acquisition, construction and installation of the Project and
the amounts required to be paid or already paid under said contracts
exceed $100,000.
(h) As of the date of execution and delivery of this
Agreement, there exists no event of default, as defined in Article IX
hereof, 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.
(i) The consolidated financial statements of the Guarantor,
the Company and all of the subsidiary and affiliate corporations of the
Guarantor, dated as of December 31, 1981, previously delivered to the
Original Purchaser, certified by Ernst & Whinney, fairly present the
financial position of the Company as of the end of such fiscal year and
the results of its operations for such fiscal year, and since the
closing of such fiscal year there has been no material adverse change
in the financial condition and results of the operations of the
Company.
(j) There are no pending, or to the knowledge of the Company,
threatened actions or proceedings before any court or administrative
agency which are likely in any case or in the aggregate to materially
adversely affect the financial condition or business or operations of
the Company, nor is the Company aware of any facts or circumstances
that would give rise to any such actions or proceedings.
(k) The information furnished by the Company and used by the
Issuer in preparing the election it filed with the Internal Revenue
Service pursuant to Section 103(d)(6)(D) of the Code was true and
complete as of the date of filing of said election.
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ARTICLE III
Loan; Assignment of Agreement and Note
SECTION 3.1. Loan. Concurrently with the sale and delivery of the 1982
Bonds, the Issuer will, upon the terms and conditions of this Agreement and the
Note, make a loan (the "Loan") to the Company in the amount of Four Million
dollars ($4,000,000). Such Loan will be made by the Issuer by depositing said
sum with the Trustee for disbursement by the Trustee as provided for in the
Indenture.
SECTION 3.2. Assignment of the Issuer's Rights. Concurrently with the
execution of this Agreement, the Issuer will, under the terms and to the extent
provided in the Indenture, assign the Issuer's rights under this Agreement, the
Note and the Mortgage to the Trustee as security for the payment of the 1982
Bonds.
ARTICLE IV
Commencement and Completion of the Project,
Issuance of the Bonds
SECTION 4.1. Agreement to Acquire and Construct the Project. The
Company agrees to acquire, construct and install, with the proceeds of the Note,
the Project, in accordance with the Plans and Specifications, now or hereafter
filed with the Trustee and in accordance with change orders approved in writing
by the Company and furnished to the Trustee from time to time prior to the
Completion Date; provided, however, that no supplement, amendment, addition or
change order relating to the Plans and Specifications for any component of the
Project shall change the nature of the Project as (i) property of a character
subject to depreciation under Section 167 of the Code and (ii) a "project"
within the meaning of the Act.
In addition to supplementing, amending and adding to the Plans and
Specifications and submitting change orders within the limits set forth in the
first paragraph of this Section, it is understood and agreed that the Company
shall also be authorized to omit major components of the Project or to add or
substitute major new components as an addition to the Project or in substitution
of major components so
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omitted, provided that in the opinion of the Project Manager, such major
omissions, additions or substitutions, will not materially alter or change the
general character of the Project and will, in the opinion of counsel nationally
recognized on the subject of municipal bonds, which opinion shall be in writing
and filed with the Trustee and the Issuer, not result in the interest on the
Bonds or any part thereof becoming subject to federal income taxes then in
effect. In the event of an omission, addition or substitution as provided in
this paragraph, the Company and the Issuer shall revise Exhibit A to this
Agreement to reflect such major omission, addition or substitution and mail a
copy of such revised Exhibit "A" to the Trustee.
It is understood and agreed that the Company will provide to the
Trustee at or prior to the delivery of the 1982 Bonds the following:
(a) A survey of the Project Site, dated a recent date and
satisfactory in substance and form to the Trustee, prepared and
certified by an independent registered Florida civil engineer or land
surveyor showing, with respect to the Project Site, (i) the location
and dimensions of such lands, (ii) all means of access to such lands,
and (iii) any easements, encroachments or other charges appearing with
respect to such lands customarily reflected on land surveys; and
(b) A mortgagee title insurance policy or a title insurance
commitment naming the Trustee as mortgagee, dated the closing date,
with a reputable title insuror authorized to write title insurance in
the state of Florida and acceptable to the Trustee, in such form as
shall be satisfactory to the Trustee, insuring the title to the real
estate interests mortgaged to the Trustee in an amount not less than
the value of the real estate interests, to be free and clear of all
liens and encumbrances, and containing no exclusions, stipulations,
exceptions or encumbrances not satisfactory to the Trustee.
The Trustee shall pay or reimburse the Company and its agents for all
legally permissible costs incurred in connection with the acquisition,
construction and installation of the Project incurred before the sale of the
1982 Bonds as promptly as practicable after receipt of the proceeds from the
sale of the 1982 Bonds. The Company shall acquire, construct and install the
Project with all reasona-
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ble dispatch and use best efforts to cause said acquisition, construction and
installation to be completed by the Completion Date or as otherwise provided in
Section 4.5 hereof, and if for any reason such acquisition, construction and
installation is not completed by said date there shall be no diminution in the
Loan Installments hereby required to be paid by the Company.
SECTION 4.2. Agreement to Issue Bonds; Application of Bond Proceeds;
Additional Bonds.
(a) In order to provide funds to loan to the Company for the
payment of the cost of the Project, the Issuer agrees that it will,
concurrently herewith, sell and cause to be delivered to the Original
Purchaser the 1982 Bonds in the principal amount of Four Million
Dollars ($4,000,000), bearing interest and maturing as provided in the
Indenture and it will thereupon (i) deposit in the Interest Account in
the Debt Service Fund created by Section 7.02 of the Indenture a sum
equal to the accrued interest on the 1982 Bonds paid by the Original
Purchaser of the 1982 Bonds, if any, and (ii) deposit in the
Construction Fund the balance of the proceeds received from the sale of
the 1982 Bonds.
(b) The Issuer may at the request of the Company authorize the
issuance of Additional Bonds upon the terms and conditions provided in
the Indenture. Additional Bonds may be authorized for the purpose of
financing the cost of completing the Project, or the cost of all or any
part of the cost of additions, extensions, improvements, relocations,
alterations, enlargements, modifications or changes (herein
collectively called "Improvements") in, to or on the Project Site or
other properties of the Company located in Hillsborough County,
Florida, or for any combination of such purposes, as the Company may
deem necessary or essential, in the manner provided in Section 3.08 of
the Indenture. If the Company is not in default hereunder, the Issuer
may, at the request of the Company but in the sole discretion of the
Issuer, from time to time, issue the amount of Additional Bonds
specified by the Company (within the limits and under the conditions
specified above and in the Indenture), provided that (i) the terms,
manner of issuance, purchase price and disposition of
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proceeds of the sale of such Additional Bonds shall have been approved
in writing by the Company, (ii) the Company and the Issuer shall have
entered into an amendment to this Agreement to provide for an increase
in the Loan hereunder and providing for Loan Payments in an amount at
least sufficient to pay the principal of, premium, if any, and interest
on the Additional Bonds as the same shall mature and become due, and to
make all other required payments under such amendment, and (iii) the
Issuer shall have otherwise complied with the provisions of the
Indenture with respect to the issuance of such Additional Bonds. Such
amendment will provide that any such Improvements shall become a part
of the Project and shall be included under this Agreement to the same
extent as if originally included hereunder.
(c) The Issuer's failure to issue Additional Bonds, whether or
not such failure is the result of the Issuer's breach of its
obligations under this Section, will not release the Company from the
obligation to pay the Loan Installments or from any of the Company's
other obligations under this Agreement.
SECTION 4.3. Disbursements from the Construction Fund. The Trustee will
use the moneys in the Construction Fund for the following purposes in connection
with the acquisition, construction and installation of the Project (but, subject
to the provisions of Section 4.9 hereof, only in accordance with the Act and for
no other purpose):
(a) Payment to the Company of such amounts, if any, as shall
be necessary to reimburse the Company in full for all legally
permissible advances and payments made or incurred by the Company at
any time after March 10, 1982, in connection with the acquisition,
construction and installation of the Project, including without
limitation, advances and payments made by the Company in connection
with the preparation of Plans and Specifications for the Project
(including any preliminary study or planning of the Project or any
aspect thereof), and all other advances or payments made in connection
with the acquisition, construction and installation of the Project;
provided that each such payment shall be made only upon receipt by the
Trustee of a statement therefor approved in
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writing by the Authorized Company Representative and the Project
Manager.
(b) Payment of the initial or acceptance fee of the Trustee,
legal, accounting and financial advisory fees and expenses, title
insurance premium, underwriting fees, filing fees and rating agencies'
fees and printing and engraving costs incurred in connection with the
authorization, validation, sale and issuance of the Bonds, the
execution and filing of the Indenture, this Agreement, the Note, the
Mortgage and all other documents in connection therewith, and payment
of all fees, costs and expenses for the preparation of this Agreement,
the Indenture, the Note, the Mortgage, the Bonds and all other
documents in connection therewith; provided, that each such payment
shall be made only upon receipt by the Trustee of a statement therefor
approved in writing by the Authorized Company Representative.
(c) Payment for labor, services, materials and supplies used
or furnished for on or off-site improvements and in the acquisition,
construction and installation of the Project, all as provided in the
Plans and Specifications therefor, payment for the cost of the
acquisition, construction and installation of utility services,
drainage, paving or other facilities, and all real and personal
property included in the Project and payment for the miscellaneous
expenses incidental to any of the foregoing items which relate to the
Project and are required to be deposited with the Trustee under any of
the provisions of the Indenture, including the premium on any surety
bond; provided, that each such payment shall be made only upon a
written order by the Project Manager, accompanied by a contractor's
estimate or bill in the amount specified in said order approved in
writing by the Project Manager.
(d) Payment of the fees, if any, for legal, architectural,
engineering and supervisory services with respect to the Project;
provided, that each such payment shall be made only upon a written
order of the Project Manager, accompanied by a bill in the amount
specified in said order approved in writing by the Project Manager;
provided, however, that the fees of the Project Manager shall be
approved by the Company.
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(e) Payment to the Trustee, as such payments become due, of
the fees and expenses of the Trustee, Bond Registrar and Paying Agent,
if Trustee is serving as same, properly incurred under the Indenture
that may become due until the Completion Date.
(f) To the extent not paid by a contractor with respect to any
part of the Project, payment of the premiums on all insurance required
to be taken out and maintained until the Completion Date under this
Agreement, or reimbursement thereof if paid by the Company under
Article VI hereof.
(g) Payment of expenses, including legal and expert witness
fees, incurred with approval of the Company in seeking to enforce any
remedy against any contractor or subcontractor in respect of any
default under a contract relating to the Project.
(h) Payment of any other costs and expenses relating to the
acquisition and construction of the Project or the authorization,
issuance and sale of the Bonds that may be approved in writing by the
Authorized Company Representative and the Project Manager.
(i) Payment of interest accruing on the 1982 Bonds from the
date of issuance thereof through _________ 198_, or the Completion
Date, whichever shall first occur, which amounts shall be deposited by
the Trustee into the Interest Account in the Debt Service Fund, on each
applicable interest payment date.
(j) The moneys remaining in the Construction Fund after the
Completion Date and after payment or provision for payment of all other
items provided for in the preceding subsections (a) through (i),
inclusive, of this Section, and after the Trustee with the approval of
the' Authorized Company Representative has retained amounts for payment
of items included in the cost of the Project but not then due and
payable, shall be segregated by Trustee and used by Trustee: (i) to
deposit such funds in the Redemption Account in the Debt Service Fund
to be used to redeem the 1982 Bonds at the earliest redemption date
permitted by the Indenture on which a premium or penalty for redemption
is not required; or (ii) for any other purpose provided
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that the Trustee is furnished with an opinion of nationally-recognized
municipal bond counsel to the effect that such use is lawful under the
Act and will not adversely affect the exclusion from federal income
taxes of interest on any of the Bonds. Until used to redeem the 1982
Bonds as provided in subsection (i) above, or until use under
subsection (ii) above is approved, such segregated amount may be
invested as permitted by this Agreement and the Indenture but may not
be invested (without an opinion of nationally-recognized municipal bond
counsel to the effect that such investment will not adversely affect
the exclusion from federal income taxes of interest on any of the
Bonds) to produce a Yield on such amount (computed from the Completion
Date and taking into account any investment of such amount from the
Completion Date) greater than the Yield on the 1982 Bonds, all in
accordance with Sections 103(b) and (c) of the Code. The Company and
the Issuer agree to cooperate with the Trustee and take all required
action necessary to redeem the 1982 Bonds or to accomplish any other
purpose contemplated by this Section.
Before any of the payments referred to in the preceding subsections
(a), (c), (d) and (h) of this Section may be made, the Project Manager shall
certify with respect to each such payment, and before any of the payments
specified in the preceding subsections (b), (e), (f), (g), (h), and (i) may be
made, the Authorized Company Representative shall certify with respect to each
such payment that: (i) none of the items for which the payment is proposed to be
made has formed the basis for any payment theretofore made from the Construction
Fund, (ii) the expenditure of such disbursements, when added to all other
disbursements under previous requisitions, will result in at least ninety
percent (90%) of the total of such disbursements, other than disbursements for
reasonable issuance expenses, having been used for payment of amounts paid or
incurred after March 10, 1982, for land or property of a character subject to
allowance for depreciation under Section 167 of the Code and will be or may be
charged to the capital account of the Project for federal income tax purposes,
(iii) each item for which the payment is proposed to be made is or was
appropriate in connection with the acquisition, construction and installation of
the Project; and (iv) the Company is not in default of any requirements,
conditions, or covenants of this Agreement.
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SECTION 4.4. Obligation of the Company to Cooperate In Furnishing
Documents to Trustee. The Company agrees to cooperate in furnishing to the
Trustee the documents referred to in Section 4.3 hereof that are required to
effect payments out of the Construction Fund. Such obligation of the Company is
subject to any provisions of the Indenture requiring additional documentation
with respect to payment.
SECTION 4.5. Establishment of Completion Date. The Completion Date
shall be evidenced to the Trustee by a certificate signed by the Project Manager
stating the cost of the Project and that, except for amounts retained by the
Trustee for the cost of the Project not then due and payable as provided in
Section 4.3(j) of this Article, (i) the acquisition, construction and
installation of the Project has been completed substantially in accordance with
the Plans and Specifications therefor and all labor, services, materials and
supplies used in such construction have been paid for, and (ii) all other
facilities necessary in connection with the Project have been acquired,
constructed and installed in accordance with the Plans and Specifications
therefor and all costs and expenses incurred in connection therewith have been
paid. Notwithstanding the foregoing, such certificate shall state that it is
given without prejudice to any rights against third parties which exist at the
date of such certificate or which may subsequently come into being. The Company
estimates that the Completion Date will be on or before July 1, 1983.
SECTION 4.6. The Company Required to Pay Cost of the Project in Event
Construction Fund Insufficient. If the moneys in the Construction Fund available
for the payment of the cost of the Project (including the proceeds of any
Additional Bonds issued for the purpose of paying the cost of completing the
Project and Improvements pursuant to Section 3.08 of the Indenture) should not
be sufficient to pay the cost of the Project, the Company agrees to complete the
Project and to pay all that portion of the cost of the Project as may be in
excess of the moneys available therefor in the Construction Fund. The Issuer
does not make any warranty, either express or implied, that the moneys which
will be paid into the Construction Fund and which, under the provisions of this
Agreement, will be available for payment of the cost of the Project will be
sufficient to pay all the costs which will be incurred in that connection. The
Company agrees that if, after exhaustion of the moneys in the Construction Fund,
the Company should pay any portion of
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the said cost of the Project pursuant to the provisions of this Section, the
Company shall not be entitled to any reimbursement therefor from the Issuer or
from the Trustee or from the holders of any of the Bonds, nor shall the Company
be entitled to any abatement or diminution of the Loan Installments payable
under Section 5.2 hereof.
SECTION 4.7. Project Manager. The Authorized Company Representative is
hereby designated as the Project Manager for the purpose of taking all actions
and making all certificates required to be taken and made by the Project Manager
under the provisions of this Agreement; and an alternate Project Manager to take
any such action or make any such certificate if the same is not taken nor made
by the Project Manager shall be hereafter designated by the Company and notice
of the identity of such alternate Project Manager shall be given to the Issuer
and the Trustee. In the event either of said persons should be removed by the
Company or should become unavailable or unable to take any action or make any
certificate provided for in this Agreement, another Project Manager or alternate
Project Manager shall upon notice to the Trustee thereupon be appointed by the
Company. If the Company fails to make such designation within fifteen (15) days
following the date when the then incumbent becomes unavailable or unable to take
any of said actions, the Trustee may then appoint as a successor any engineer
licensed under the laws of the State of Florida.
SECTION 4.8. Pursuit of Remedies Against Contractors and Subcontractors
and Their Sureties. In the event of material default of any contractor or
subcontractor under any contract made by it in connection with the Project, the
Company will promptly proceed, either separately or in conjunction with others,
to exhaust its remedies against the contractor or subcontractor so in default
and against each surety for the performance of such contract. The Company agrees
forthwith to take such actions as may be necessary or required to protect the
interests of all parties with respect to the Project unless directed to the
contrary by the Trustee. If for any reason the Company does not act promptly
with respect to any such remedies, the Trustee may take such actions as it shall
deem necessary or advisable with respect to such remedies. The Company agrees to
advise the Issuer and the Trustee of the steps it intends to take in connection
with any such default. The Company shall, in its own name or in the name of the
Issuer or the Trustee, if required, prosecute or defend any action or proceeding
or take any other action involving any such con-
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tractor, subcontractor or surety which shall be reasonably necessary, and in
such event the Issuer and the Trustee hereby agree to cooperate fully with the
Company in any such action or proceeding. Any amounts recovered by way of
damages, refunds, adjustments or otherwise in connection with the foregoing that
are needed to pay a portion of the cost of the Project shall be paid into the
Construction Fund and, if not so needed, shall be retained by or paid to the
Company as reimbursement for amounts expended for the construction of the
Project by the Company.
SECTION 4.9. Investment of Moneys in the Construction Fund and the Debt
Service Fund. Any moneys held in the Construction Fund or the Debt Service Fund
shall, upon oral instructions of the Authorized Company Representative to be
confirmed thereafter in writing, or if no such instructions are given in the
discretion of the Trustee, be invested or reinvested by the Trustee in
Investment Obligations as defined in the Indenture and otherwise as therein
permitted; provided, however, that after the Completion Date or the date three
years after the issuance of the 1982 Bonds, whichever shall first occur, the
Yield on the investment of moneys in the Construction Fund shall not exceed the
Yield on the 1982 Bonds, or such higher Yield as may be permitted under Section
103(c) of the Code and the regulations thereunder for the 1982 Bonds not to be
"arbitrage bonds".
ARTICLE V
Effective Date of This Agreement; Duration of
Agreement Term; Repayment Provisions
SECTION 5.1. Effective Date of this Agreement; Duration of Agreement
Term. This Agreement shall become effective upon its delivery, and, subject to
the provisions of this Agreement, shall expire on such date that all of the
Bonds have been fully paid and retired (or provision for such payment shall have
been made as provided in the Indenture), and all payments required to be made by
the Company under Sections 5.2, 7.1, 9.5 and 9.7 hereof have been paid in full.
SECTION 5.2. Loan Installments and Other Amounts Payable. The Company
agrees to pay the Loan Installments
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required by subsections (a), (b) and (c) of this Section and by the terms of the
Note as repayment of the Loan (including interest thereon).
(a) Commencing prior to the first interest payment date on the
Bonds, and continuing until the principal of and interest on the Bonds
shall have been fully paid or provision for the payment thereof shall
have been made in accordance with the Indenture, the Company shall pay
an amount equal to the sum of (i) the interest becoming due on the
Bonds in accordance with their terms on the next interest payment date
for which moneys have not been deposited from the Bond proceeds or
investment earnings as provided by Section 4.2(a)(i) or Section 4.3(i)
hereof, (ii) the principal, if any, becoming due on the Bonds in
accordance with their terms on the next interest payment date, and
(iii) the amounts required to be paid into the Redemption Account in
the Debt Service Fund, if any, for the mandatory redemption of the
Bonds in accordance with their terms. The payments mentioned in (i),
(ii) and (iii) above shall be made or shall be on deposit in
immediately available funds not later than the business day coinciding
with each such payment date.
If on any interest payment date or redemption date the balance
in the Debt Service Fund is less than the sum then required to be paid
therefrom pursuant to the provisions of the Indenture and the Bonds,
the Company will forthwith pay any such deficiency to the Trustee for
deposit in the Debt Service Fund. If at any time the amount held by the
Trustee in the Debt Service Fund shall be sufficient to pay at the
times required the principal of and interest on all of the Bonds then
remaining unpaid together with any amounts then or to become payable
under subsections (b) and (c) of this Section, the Company shall not be
obligated to pay any further Loan Installments.
(b) The Company agrees to pay to the Trustee (i) the
reasonable fees and charges of the Trustee for all services of the
Trustee and all expenses (including reasonable counsel and engineering
fees) incurred under or arising directly or indirectly from services
rendered pursuant to the Indenture, as and when the same become due and
(ii) the reasonable fees and charges of the Trustee, as Bond
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Registrar under the Indenture, and of any other bond registrars and
paying agents of the Bonds as and when the same become due.
(c) The Company agrees to pay to the Issuer at closing an
amount equal to the reasonable costs and expenses of the Issuer at
closing incurred in connection with the issuance of the Bonds,
including the reasonable fees of its counsel, and fees and expenses
incurred in the validation of the Bonds, and in the processing of the
Company's application for financing. Thereafter, the Company shall pay
to the Issuer, within 30 days of receipt of a written request for
payment, the reasonable costs and expenses of Issuer incurred in
administering the bond issue, including, but not limited to, the
reasonable fees and expenses of Issuer's legal counsel.
(d) The Company agrees to pay to the Original Purchaser at
closing a transaction fee equal to one percent of the principal amount
of the Bonds for the Original Purchaser's expenses incurred in
connection with the issuance of the Bonds.
SECTION 5.3. Payment of Loan Installments. That portion of the Loan
Installments provided for in Section 5.2(a) hereof shall be paid directly to the
Trustee in immediately available funds of the Trustee's locality for the account
of the Issuer and shall be deposited in the Debt Service Fund. That portion of
the Loan Installments to be paid to the Trustee under Section 5.2(b) hereof
shall be paid directly to the Trustee for its own use or for disbursement to the
Bond Registrar as provided in the Indenture. In the event such payments required
by the Note or Section 5.2 hereof shall not be paid when due, the amount so in
default shall bear interest from the date such payment became due until payment
thereof at the Prime Rate plus two percent per annum or the maximum lawful rate,
whichever shall be less.
SECTION 5.4. Obligations Unconditional. Until such time as the
principal of and interest on the Bonds and the other payments required hereunder
shall have been fully paid or provision for the payment thereof shall have been
made in accordance with the Indenture, the Company (i) will not suspend or
discontinue any Loan Installments, (ii) will perform and observe in all respects
all of its other
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agreements contained in this Agreement, and (iii) will not terminate this
Agreement prior to the expiration of the Agreement Term for any cause
including, without limiting the generality of the foregoing:
(a) any delay or failure of the Project to be completed,
operating or operable, or any defect in the title, quality, condition,
design, operation or fitness for use of, or any damage to, or loss of,
or loss of use of, or destruction or theft of, all or any part of the
Project from any cause whatsoever;
(b) any acts or circumstances that may constitute failure of
consideration;
(c) commercial frustration of purpose;
(d) any abatement, suspension, deferment, reduction, setoff,
defense, counterclaim or recoupment whatsoever, or any right to any
thereof, that the Company may now or hereafter have against the Issuer
or holder of the Bonds;
(e) any insolvency, composition, bankruptcy, reorganization,
arrangement, liquidation or similar proceedings relating to the Issuer
or the Company;
(f) any change in the tax or other laws of the United States
of America or of the State of Florida or any political subdivision of
either thereof 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 Agreement or the Note;
(g) any interruption or prohibition of the use or possession
by the Company of, or any ouster or dispossession by paramount title or
otherwise of the Company from, all or any part of the Project, or any
interference with such use or possession by any governmental agency or
authority or other person or otherwise;
(h) the invalidity or unenforceability or disaffirmance, in
whole or in part, of this Agreement or the Note or any failure,
omission, delay or inability of the Issuer to perform any of its
obligations contained in this Agreement or the Note;
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(i) any amendment, extension or other change of, or any
assignment or encumbrance of any rights or obligations under, this
Agreement or the Note, or any waiver or other action or inaction, or
any exercise or non-exercise of any right or remedy, under or in
respect of this Agreement or the Note;
(j) any sale, release, substitution, exchange or other action
or inaction with respect to the Mortgage or any security relating to
this Agreement or the Note; or
(k) any other circumstance, happening or event whatsoever,
whether foreseeable or unforeseeable and whether similar or dissimilar
to the foregoing, it being the intention of the parties hereto that all
amounts payable by the Company in respect of this Agreement or the Note
shall continue to be payable in all events in the manner and at the
time herein provided.
The Company hereby waives, to the extent permitted by applicable law,
any and all rights which it may now have or which may at any time hereafter be
conferred upon it, by statute or otherwise, to terminate, cancel, quit or
surrender any of its obligations under this Agreement or the Note and agrees
that if, for any reason whatsoever, this Agreement or the Note shall be
terminated in whole or in part by operation of law or otherwise, the Company
will nonetheless promptly pay to the Trustee amounts equal to all such amounts
which shall become due and payable in respect of this Agreement and the Note, to
the same extent as if this Agreement and the Note had not been terminated in
whole or in part. Nothing contained in this Section shall be construed to
release the Issuer from the performance of any of the agreements on its part
herein contained; and in the event the Issuer should fail to perform any such
agreement on its part, the Company may institute such action against the Issuer
as the Company may deem necessary to compel performance thereof (subject,
however, to the limitation as to source of revenues for damages noted in the
second paragraph of this Agreement) so long as such action shall not diminish
the amounts required to be paid by the Company pursuant to the Note and Section
5.2 hereof. The Company 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 proceeding
or take any other action involving third persons which the Company deems
reasonably necessary in order to secure or protect the Company's right of
possession, occupancy and use of the Project hereunder, and in such event
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the Issuer hereby agrees to cooperate fully with the Company and to take all
action necessary to effect the substitution of the Company for the Issuer in any
action or proceeding if the Company shall so request.
ARTICLE VI
Maintenance, Modifications, Operation,
Insurance and Other Covenants of the Company
SECTION 6.1. Maintenance of Project. The Issuer and the Company agree
that the Company will (i) maintain, repair and operate the Project; and (ii)
pay, as the same respectively become due, all taxes and governmental charges of
any kind whatsoever that may at any time be lawfully assessed or levied against
the Company or the Issuer with respect to the Project, the Project Site or any
portion thereof or with respect to the original issuance of the Bonds,
including, without limiting the generality of the foregoing, any taxes levied
against the Company or the Issuer upon or with respect to the income or profits
of the Issuer from the Project or any charge on the Loan Installments prior to
or on a parity with the charge under the Indenture thereon and the pledge or
assignment thereof to be created and made in the Indenture, and including all ad
valorem taxes lawfully assessed upon the Project, all utility and other charges
incurred in the operation, maintenance, use, occupancy and upkeep of the
Project, all assessments and charges lawfully made by any governmental body
against the Company or the Issuer for or on account of the Project and in
addition any excise tax levied against the Company or the Issuer on the Loan
Installments; provided, however, that nothing in this subsection (ii) shall
require the payment of any such tax or charge or require the Company to make
provision for the payment thereof, so long as the validity thereof shall be
contested in good faith by the Company by appropriate legal proceedings; further
provided, that with respect to special assessments or other governmental charges
that may lawfully be paid in installments over a period of years, the Company
shall be obligated to pay only such installments as are required to be paid
during the Agreement Term.
SECTION 6.2. Conditions to Changes in the Project. The right of the
Company to make any changes in the Project in the manner hereinafter provided in
this Article VI is ex-
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pressly subject to the conditions set forth in Paragraph 6 of the Mortgage.
SECTION 6.3. After-Acquired Property Not Part of the Project. All
buildings, structures, and improvements, acquired, constructed, or installed
with the proceeds of the Bonds, all substitutions and replacements of or for
such property, and all fixtures now or hereafter installed in or attached to the
Project or located above, upon or under the Project Site so as to preclude the
removal without material injury to the Project or the Project Site, shall be
deemed part of the Project and subject to the mortgage and security interest
granted by Section 8.6 hereof. Except as provided in paragraph 9 of the Mortgage
relating to substitutions and replacements of components of the Project, all
other property of every kind or nature, whether now owned or after-acquired,
shall be constructed, placed or installed in or on the Project or the Project
Site shall not be deemed part of the Project or subject to the security interest
granted hereunder, shall remain the property of the Company, and may be altered,
removed, replaced or otherwise used by the Company at any time so long as the
Company is not in default hereunder and the conditions of paragraph 6 of the
Mortgage are complied with.
SECTION 6.4. Removal or Disposition. The Company from time to time, at
its own cost and expense, may demolish, remove or dispose of any structure,
fixtures or other improvements now or hereafter existing as part of the Project
only in accordance with the terms of Paragraphs 6, 8 and 9 of the Mortgage.
SECTION 6.5. No Abatement of Loan Installments; Damages, The
demolition, substitution or removal of any property shall not result in any
abatement or diminution of Loan Installments payable under the Note or this
Agreement.
SECTION 6.6. Covenant Against Unauthorized Removal. Except as
otherwise provided in Article VI hereof, the Company shall not remove any of the
Project or any part thereof from the Project Site.
SECTION 6.7. Liens and Encumbrances. The Company represents and
warrants that, as of the date of execution of this Agreement, there exists no
lien, charge or encumbrance,
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other than Permitted Encumbrances, upon the Project or the Project Site, prior
to the mortgage and security interest of the Issuer and the Trustee therein, as
herein contemplated. Except as otherwise permitted by the provisions of this
Agreement, the Company will not create or suffer to be created any lien,
encumbrance or charge upon the Project Site other than Permitted Encumbrances,
and subject to the provisions of Section 6.8 hereof relating to permitted
contests, and the Company will satisfy or cause to be discharged, or will make
adequate provision to satisfy and discharge, within sixty (60) days after the
same shall occur, all lawful claims and demands (excepting such as may arise
from or in connection with the construction of the Project and as are payable
from the moneys on deposit in the Construction Fund) for labor, materials,
supplies or other items which, if not satisfied, might by law become a lien upon
the project as defined in the Mortgage or the Project Site. If any such lien
shall be filed or asserted against the Project as defined in the mortgage or the
Project Site by reason of work, labor, services or materials supplied or claimed
to have been supplied the Company shall, subject to the provisions of Section
6.8 hereof relating to permitted contests, within thirty (30) days after the
Company receives notice of the filing thereof or the assertion thereof, cause
the same to be discharged of record, or effectively prevent the enforcement or
foreclosure thereof against the Company by contest, payment, deposit, bond,
order of court or otherwise. Nothing contained in this Section 6.7 shall be
construed as prohibiting the Company from purchasing additional items of
machinery, equipment or other personal property that do not constitute part of
the Project under an installment purchase and security agreement, purchase money
mortgage agreement, lease-purchase agreement or similar contractual obligation
in which the seller retains a security interest.
SECTION 6.8. Permitted Contests. The Company shall not be required to
pay any tax, charge, assessment or imposition referred to in Section 6.1 hereof,
nor to remove any lien, charge or encumbrance required to be removed under
Section 6.7 hereof, so long as the Company shall contest or there shall be
contested on the Company's behalf, in good faith and at the Company's own cost
and expense, the amount or validity thereof, in an appropriate manner or by
appropriate proceedings which shall operate during the pendency thereof to
prevent the collection of or other realization upon the tax, assessment, levy,
fee, rent, charge, lien or encumbrance so contested, and the sale, forfeiture,
or loss of the Project or the Project Site or any part thereof or
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interest therein, to satisfy the same; provided, however, that no such contest
shall subject the Issuer or the Trustee to the risk of any liability. Each such
contest shall be promptly prosecuted to final conclusion (subject to the right
of the Company to settle any such contest), and in any event the Company will
save the Issuer and the Trustee harmless against all losses, judgments, decrees
and costs (including attorneys' fees and expenses in connection therewith) and
will, promptly after the final determination of such contest or settlement
thereof, pay and discharge the amounts which shall be levied, assessed or
imposed or determined to be payable therein, together with all penalties, fines,
interest, costs and expenses thereon or in connection therewith. The Company
shall give the Issuer and Trustee prompt written notice of any such contest.
If the Trustee shall notify the Company that, in the opinion of counsel
to the Trustee, by nonpayment of any of the foregoing items, the Project, the
Project Site or any substantial part thereof, will be subject to imminent loss
or forfeiture or the obligations of the Company under this Agreement shall be
materially impaired, then the Company shall promptly pay all such unpaid items
and cause them to be satisfied and discharged, or shall promptly provide a bond
sufficient to pay all such unpaid items and cause them to be satisfied and
discharged from such bond upon conclusion of any contest, challenge, or dispute
as to such items.
SECTION 6.9. Notice of Event of Default. Immediately upon becoming
aware of the existence of any condition or event which constitutes or with the
passage of time or the giving of notice, or both, would constitute an event of
default as defined in Section 9.1 of this Agreement, the Company shall cause to
be furnished to the Trustee and to each Bondholder a written notice specifying
the nature and period of existence thereof and what action the Company is taking
and proposes to take with respect thereto.
SECTION 6.10. Requested Information. The Company shall cause to be
furnished to the Trustee and to each Bondholder, with reasonable promptness,
such other data and information as the Trustee or such Bondholders may
reasonably request.
SECTION 6.11. Inspections, Reports and Financial Statements. The
Trustee, the Issuer and any holders of twenty-five percent (25%) or more in
aggregate principal
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amount of Bonds outstanding, through its or their officers, employees,
consultants, attorneys and other authorized representatives, shall have free and
unobstructed access at all reasonable times to the Project and records of the
Company with respect thereto for purposes of inspection. The Company will at any
and all times, upon the written request of the Trustee, the Issuer or the
holders of twenty-five percent (25%) or more in aggregate principal amount of
Bonds outstanding, permit the Trustee, the Issuer or such Bondholders, by its or
their officers, employees, consultants, attorneys or other authorized
representatives, to inspect the books of account, records, reports and other
papers of the Company with respect to the Project, and to take copies and
extracts therefrom, and will afford a reasonable opportunity to such persons to
make any such inspection and to discuss the affairs, finances and accounts of
the Company with respect to the Project with its employees and independent
accountants, and the Company will furnish to the Trustee any and all such other
information as the Trustee may reasonably request, with respect to the
performance by the Company of its covenants under this Agreement. The Company
will supply to the Trustee, within sixty (60) days after receipt by the Company,
a copy of all reports of inspections and accompanying recommendations of all
regulatory, licensing and permitting agencies which inspect the Project. The
Issuer, the Trustee and the Bondholders recognize that certain of the books,
papers and records on the premises of the Company or supplied to the Trustee may
contain confidential and proprietary information, and agree to keep all such
confidential and proprietary information obtained hereunder in strictest
confidence. The Company covenants that it will keep proper books of record and
account in which full, true and correct entries shall be made of all dealings or
transactions of or in relation to the Project, in accordance with generally
accepted accounting principles consistently applied, and will furnish to the
Trustee and to any requesting holder of twenty-five percent (25%) or more in
aggregate principal amount of Bonds outstanding:
(a) Annual Statements -- as soon as practicable after the end
of each fiscal year, and in any event within 120 days thereafter,
duplicate copies of:
(1) a consolidated balance sheet of the Guarantor, and
the Company, and
(2) consolidated statements of revenue and expenses and
changes in
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financial position of the Guarantor, and the Company for such
fiscal year,
setting forth in each case in comparative form the figures for the
previous fiscal year, all in reasonable detail and accompanied by an
opinion thereon of independent accountants of recognized standing
selected by the Company, which opinion shall state that such financial
statements have been prepared in accordance with generally accepted
accounting principles consistently applied (except for changes in
application in which such accountants concur) and that the examination
of such accountants in connection with such financial statements has
been made in accordance with generally accepted auditing standards and,
accordingly, included such tests of the accounting records and such
other auditing procedures as were considered necessary in the
circumstances.
(b) Quarterly Unaudited Statements -- within sixty (60) days
after the end of each fiscal quarter, except the last fiscal quarter of
each year, a consolidated balance sheet and statement of income of the
Guarantor, and the Company as of the end of and for such period in
reasonable detail, setting forth figures for that period and for the
corresponding period in the preceding fiscal year, certified, by the
Company or an accountant employed by it for that purpose, to have been
prepared in accordance with generally accepted accounting principles,
consistently applied;
(c) Other Reports -- promptly upon receipt thereof and in any
event within thirty (30) days thereafter any communication from any
governmental authority, commission or agency having power to license or
regulate the business and activities carried on with respect to the
Project regarding any termination or proposed termination of, or any
material adverse change or proposed change in, any license, permit or
authority under which the Project is owned, used or operated; and
(d) Requested Information -- with reasonable promptness, such
other data and information as the Trustee or the requesting holder of
twenty-five percent (25%) or more in aggregate principal amount of
Bonds outstanding may reasonably request.
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SECTION 6.12. Certificate of Compliance and No Default. So long as any
Bonds remain outstanding, the Company shall furnish to the Trustee and to each
Bondholder, as soon as practicable after the end of each calendar quarter, and
in any event within one hundred twenty (120) days thereafter, a certificate of
an executive officer of the Company certifying that:
(a) during said period the Company was in compliance with the
requirements of this Agreement and the documents contemplated hereby
and the covenants of the Company contained herein and therein; and
(b) the Company has reviewed the relevant terms of this
Agreement and has made, or caused to be made under the Company's
supervision, a review of the transactions and conditions with respect
to the Project from the beginning of the accounting period covered by
the statements being delivered therewith to the date of the certificate
and that such review has not disclosed the existence during such period
of any condition or event which constitutes, or with the passage of
time or giving of notice or both would constitute, an event of default
as defined in Section 9.1 of this Agreement, or, if any such condition
or event existed or exists, specifying the nature and period of
existence thereof and what action the Company has taken or proposes to
take with respect thereto.
SECTION 6.13. Insurance. The Company shall throughout the Agreement
Term keep the Project continuously insured in accordance with the provisions of
Paragraph 13 of the Mortgage. If the Company fails to do so, then the Trustee or
the Issuer may obtain such insurance for the protection of the Trustee and the
Issuer, and the Trustee and the Issuer shall be entitled to reimbursement for
any expense thus incurred in accordance with the provisions of Section 9.7
hereof.
SECTION 6.14. Insurance Proceeds; Condemnation Awards. If prior to the
payment in full of the Bonds (or provision for payment thereof having been made
in accordance with the provisions of the Indenture) the Project, or any part or
component thereof having a value in excess of $150,000, shall be damaged, lost
or destroyed, by whatever cause, or if any public authority or entity, in the
exercise
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of its power of eminent domain, takes or damages the Project, or any part or
component thereof having a value in excess of $150,000, all of the insurance
proceeds (whether payable from the policies of insurance described in Section
6.13 hereof, Paragraph 13 of the Mortgage, or from other policies of insurance
carried by the Company or third parties), and any award or compensation
resulting from such taking or damage by condemnation, shall be paid to the
Trustee and deposited by it in the Construction Fund established under the
Indenture, and such amounts shall then be applied in accordance with Paragraph
14 of the Mortgage.
SECTION 6.15. Approvals. Whenever under the provisions of this
Agreement the approval of the Company is required or the Issuer or the Trustee
is required to take some action at the request of the Company, such approval
shall be given or such request shall be made by the Authorized Company
Representative or the Project Manager unless otherwise specified in this
Agreement and the Issuer or the Trustee shall be authorized to act on any such
approval or request and the Company shall have no complaint or recourse against
the Issuer or the Trustee as a result of any such action taken.
SECTION 6.16. Covenants of Company and Issuer With Respect to Capital
Expenditures. The Issuer is issuing the 1982 Bonds pursuant to an election made
by it under Section 103(b)(6)(D) of the Code. It is the intention of the parties
hereto that the interest on the 1982 Bonds be and remain free from federal
income taxation and to that end the Issuer and the Company do hereby covenant
with each other, with the Trustee and with each of the future holders of any
1982 Bonds, as follows:
(a) The Company and the Issuer covenant and represent that
there have never been issued any bonds with respect to "facilities"
described in Section 103(b) (6) of the Code which are located in, are
contiguous to or are integrated with any "facilities" located in,
Hillsborough County, which bonds would be taken into account in
determining the aggregate face amount of the 1982 Bonds as provided in
Section 103(b)(6)(D)(ii) of the Code.
(b) The Company further covenants and represents that the
aggregate principal amount of 1982 Bonds being issued and capital
expenditures heretofore made (other than those mentioned in Section
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103(b)(6)(F) of the Code) with respect to "facilities" described in
Section 103(b)(6)(E) of the Code which are located in, are contiguous
to or are integrated with any "facilities" located in, Hillsborough
County, have not and will not exceed $l0,000,000 (or any such larger
amount as may be hereafter permitted by the Code without affecting the
tax-exempt status of the interest on the 1982 Bonds) during the
six-year period beginning three years before the date of issuance and
delivery of the 1982 Bonds.
(c) The Issuer and the Company further covenant and agree that
during the three-year period following the date of the issuance and
delivery of the 1982 Bonds, neither of them shall make or cause or
permit to be made any capital expenditures (other than those mentioned
in said Section 103(b)(6)(F) of the Code) with respect to "facilities"
described in said Section 103(b)(6)(E) of the Code which are located
in, are contiguous to or are integrated with any "facilities" located
in, Hillsborough County, which would cause the interest on the 1982
Bonds to be subject to federal income taxation.
(d) The Company further covenants and agrees that should the
capital expenditures limitation set forth in said Section 103(b)(6)(D)
and (E) be exceeded during the six-year period referred to therein,
either through the fault of the Company or through circumstances beyond
the Company's control, and there shall occur a Determination of
Taxability as defined in Section 8.3(b) hereof, the Company shall
promptly comply with the provisions of Section 8.3 hereof.
(e) The Company further covenants and agrees that it will
furnish to the Trustee a certificate of the Project Manager within
ninety (90) days of the first three anniversary dates of the closing of
the issuance and delivery of the 1982 Bonds stating that during the
period beginning three years immediately prior to the date of the
issuance and delivery of the 1982 Bonds and extending through the
applicable date such certificate is to cover, capital expenditures
(including as capital expenditures for this purpose the principal
amount of the 1982 Bonds) in excess of $10,000,000 (or any such larger
amount as may be hereafter permitted by law)
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have not been paid or incurred with respect to "facilities" described
in said Section 103(b)(6)(E) of the Code which are located in, are
contiguous to or are integrated with any "facilities" located in,
Hillsborough County, Florida.
(f) The Company further covenants and agrees that, in
connection with any lease, rental or other grant or use of part or all
of the Project, it shall require a covenant that any lessee or user of
a substantial portion of the Project such that such lessee or user will
be a principal user of the Project shall also comply with the same
covenants set forth in Section (a) through (e) and (g) hereof.
(g) The Company further covenants that it shall take such
further actions as are required of a principal user of property
financed by an issue of obligations which are subject to the
$10,000,000 limitation of Section 103(b)(6)(D) of the Code, which
actions are set forth in Section 103(b) (6) of the Code and the
regulations thereunder, whether said regulations are now or hereafter
adopted, proposed or temporary, including Section 1. 103-10(b) of said
regulations, including without limitation the following:
(1) the Company shall attach to its income tax return
for the current taxable year a copy of the statement of the
Issuer electing to have the provisions of Section 103(b)(6)(D)
of the Code apply to the 1982 Bonds; and
(2) for each applicable taxable year which includes
all or any portion of the three-year period following issuance
and delivery of the 1982 Bonds, the Company shall file a
supplemental statement listing by date and amount any capital
expenditures paid or incurred subsequent to the date of
issuance and delivery of the 1982 Bonds which are required to
be taken into account by Section 103(b)(6)(D) of the Code.
Each statement shall be filed with the respective Internal
Revenue Service district director or director of the regional
service center with whom the federal income tax
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return of the Company and of any other principal user of the
Project, as "principal user" is utilized in Section
103(b)(6)(D) of the Code, is required to be filed on the due
date prescribed for filing such return (without regard to any
extensions of time). A copy of each such statement shall also
be filed at the same time with the Trustee.
(h) The Issuer and the Company further covenant and agree to
fully comply, during the term of this Agreement, with all effective
rules, rulings or regulations promulgated by the Department of the
Treasury or the Internal Revenue Service, with respect to bonds issued
under Section 103(b)(6)(D) of the Code so as to maintain the tax-exempt
status of the interest on the 1982 Bonds.
SECTION 6.17. Covenant as to Use of Bond Proceeds; Payback Provision.
The Company covenants and agrees that:
(a) at all times ninety percent (90%) or more of the net
proceeds received from the sale of the 1982 Bonds (after payment of the
costs incurred in connection with the issuance thereof) actually
disbursed from the Construction Fund, will be used for the acquisition,
construction, reconstruction or improvement of land or property of a
character subject to the allowance for depreciation under the Code, and
will be expended for costs paid and incurred after March 10, 1982,
which amounts are chargeable to the Project's capital account or would
be chargeable either with a proper election by the Company (for
example, under Section 266 of the Code) or but for a proper election by
the Company to deduct such amounts;
(b) the Company will not submit to the Trustee any requisition
for a disbursement from the Construction Fund if the expenditure of
such disbursement, when added to all other disbursements under previous
requisitions, will result in less than ninety percent (90%) of the net
proceeds received from the sale of the 1982 Bonds actually disbursed to
that time being applied other than as required by subsection (a) above;
and
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(c) in the event a disbursement from the Construction Fund is
made which results in the covenant in subsection (a) above being
violated, the Company will promptly repay to the Trustee for deposit in
the Construction Fund such amount as may be necessary for the Company
to again be in compliance with subsection (a) above.
SECTION 6.18. Covenant as to Recordation. The Company covenants that it
will cause this Agreement and all supplements hereto or amendments hereof, the
Indenture and all supplements thereto, the Mortgage and the Issuer's assignment
of the Mortgage to the Trustee to be kept, and either recorded and filed, or
notices thereof or financing statements relating thereto recorded and filed, in
such manner and in such places as may be required by law in order to fully
preserve and protect the security of the Bondholders and the rights of the
Issuer and Trustee hereunder and under the Indenture.
ARTICLE VII
Special Covenants
SECTION 7.1. Indemnification by the Company. The Company agrees to
indemnify and hold harmless the Issuer and both the present and future members
of the Issuer, the Issuer's agents, employees and attorneys individually and
personally and the Trustee from any liability or loss resulting from the
construction or operation of the Project, from any cause whatsoever pertaining
to the Project or the use thereof, or from the issuance and sale of the Bonds,
provided that the indemnity provided by this sentence shall be effective only to
the extent of any loss that might be sustained in excess of the proceeds
recovered by the Issuer or the Trustee from any insurance, if any, carried by
the Company with respect to the loss sustained.
SECTION 7.2. Compliance with All Laws. The Company will comply with all
laws, ordinances, governmental rules and regulations pertaining to the
ownership, use and operation of the Project and all activities associated
therewith, and will not fail to obtain any licenses, permits, franchises or
other governmental authorizations necessary to the ownership of the Project or
the conduct of its
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activities with respect thereto, which violation or failure to obtain might
materially adversely affect the Project or the use and operation thereof.
SECTION 7.3. Maintenance of Corporate Existence. The Company agrees
that during the Agreement Term it will maintain its corporate existence, will
not dissolve or otherwise dispose of all or substantially all of its assets and
will not consolidate with or merge into another corporation or permit one or
more other corporations to consolidate with or merge into it; provided, however,
that the Company may, without violating the agreements contained in this
Section, consolidate with or merge into another corporation, or permit one or
more other corporations to consolidate with or merge into it, or transfer to
another corporation all or substantially all of its assets as an entirety if (a)
the corporation surviving such merger or resulting from such consolidation or to
which such transfer shall be made (such corporation being hereinafter called the
"Surviving Corporation"), expressly accepts, assumes and agrees in writing to
pay and perform all of the obligations of the Company and be bound by all of the
agreements of the Company contained in this Agreement to the same extent as if
the Surviving Corporation had originally executed this Agreement in place of the
Company, and the Surviving Corporation, if not a corporation organized pursuant
to the laws of the State of Florida, either files a consent to service of
process with the Secretary of State of the State of Florida or other appropriate
official of the State of Florida and with the Trustee, or qualifies to do
business in the State of Florida, (b) the Surviving Corporation is not in
default under any provision of this Agreement immediately following the
consummation of such merger, consolidation or transfer (the "Transaction"), (c)
the Company shall furnish to the Trustee an opinion of counsel nationally
recognized on the subject of municipal bonds reasonably acceptable to the
Trustee to the effect that as a result of such Transaction, the Bonds have not
and will not become taxable for federal income tax purposes, and (d) in
connection with any such consolidation, merger or transfer there shall be filed
with the Issuer and the Trustee a letter or certificate by a firm of nationally
known independent certified public accountants certifying that after the
consummation of such consolidation, merger or transfer the corporation resulting
from or surviving such consolidation or merger or the corporation to which such
transfer is made will have a net worth after giving effect to such merger,
consolidation or transfer at least equal to the net worth of the Company
immediately prior to such consolidation, merger or transfer.
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For purposes of this Section, the net worth of any corporation means,
at any date, the tangible assets, as defined below, of such corporation which
(after deducting depreciation, obsolescence, amortization, and any valuation or
other reserves on account of upward revaluation of assets and without reduction
for any unamortized debt discount or expense) would be shown, in accordance with
generally accepted accounting principles, on its balance sheet, minus
liabilities (other than capital stock and surplus but including all reserves for
contingencies and other potential liabilities) which would be shown, in
accordance with generally accepted accounting principles, on such balance sheet.
In computing such net worth, the term "tangible assets" means total assets
except: (i) that portion of deferred assets and prepaid expenses (other than
prepaid insurance, prepaid payments and prepaid taxes) which do not mature or,
in accordance with generally accepted accounting principles, are not amortizable
within one year from the date of calculation, and (ii) trademarks, trade names,
good will and other similar intangibles.
SECTION 7.4. Nonassignability. The Company may not assign its rights
under this Agreement without the express written consent of the holders of all
of the outstanding Bonds, which consent and assignment will not relieve the
Company of any obligation hereunder.
SECTION 7.5. Payment of Loan Installments. The Company covenants that
it will pay the Loan Installments as and when the same shall become due.
SECTION 7.6. No Warranty of Condition or Suitability by the Issuer. The
Issuer makes no warranty, either express or implied, as to the condition of the
Project or that it will be suitable for the Company's purposes or needs.
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ARTICLE VIII
Obligation Continues; Redemption;
Prepayment and Abatement;
Mortgage and Security Interest
SECTION 8.1. Redemption of Bonds. At the time the aggregate moneys in
the Redemption Account in the Debt Service Fund are sufficient to redeem all
Bonds or portions thereof, the Issuer has provided in the Indenture for the
Trustee to forthwith take all steps that may be necessary under the applicable
redemption provisions of the Indenture to effect redemption of all or such part
of the outstanding Bonds as may then be subject to redemption.
SECTION 8.2. Permissible Prepayment of Loan Installments. There is
expressly reserved to the Company the right, and the Company is authorized and
permitted, on any date, to prepay all or any part of the Loan Installments
payable under Section 5.2 hereof, without premium or penalty, and the Issuer
agrees that the Indenture shall require that the Trustee shall accept such
prepayments when the same are tendered by the Company. If less than all of the
Loan Installments are prepaid, such prepayments shall be applied in
chronological order of the due dates of the Loan Installments. All portions of
the Loan Installments so prepaid under Section 5.2(a) shall be deposited in the
Redemption Account and shall be used for the redemption or purchase of
outstanding Bonds in the manner and to the extent provided in the Indenture.
SECTION 8.3. Mandatory Prepayment of Loan Installments. The Bonds shall
be redeemed, in inverse order of maturity, from excess construction proceeds as
provided in Section 4.02 and 7.04(c) of the Indenture, and, except as
hereinafter provided, the Company shall prepay all of the Loan Installments and
other amounts payable under the Note and Section 5.2 hereof, and the Issuer
agrees that the Trustee may accept such prepayments of Loan Installments, when
the same are tendered by the Company, upon the occurrence of any of the
following events:
(a) As a result of any legislative or administrative action
(whether state or federal), or of any changes in the Constitution of
the State of Florida or the Constitution of the United States of
America, or of a final decree, judgment or order of
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any court or administrative body (whether state or federal), this
Agreement, the Note, the Indenture or the Bonds shall become void or
unenforceable or impossible of performance in accordance with the
intent and purposes of the Company and the Issuer expressed in this
Agreement or as otherwise expressed in the Indenture; or
(b) Final action shall have been taken by the Internal Revenue
Service, the Department of the Treasury or any other governmental
agency, authority or instrumentality, or an opinion of any court shall
have been rendered, or other event shall have occurred, or other
circumstances shall exist, any of which shall result in any part or all
of the interest payable with respect to the Bonds not to be exempt from
federal income taxes, other than those Bonds held by any person who,
within the meaning of Section 103(b) (10) of the Internal Revenue Code
of 1954, as amended (the "Code"), shall be deemed a "substantial user"
of the Project or a "related person" as defined in the Code. As used in
this Article VIII, the term "final action" shall mean either (i) action
taken by an administrative agency of the federal government which
cannot be appealed administratively or in a court of competent
jurisdiction as to which the time for administrative appeal or court
actions has expired; or (ii) action by any court of competent
jurisdiction as to which the time to appeal has expired or as to which
an appeal has been denied or dismissed without further right of appeal.
Any such final action shall be referred to herein as a "Determination
of Taxability"; or
(c) If the Project or the Mortgaged Property described in the
Mortgage, or any part thereof having a value in excess of $1,000,000,
shall be damaged, lost or destroyed, or taken or damaged by any public
authority in the exercise of its power of eminent domain and the
Company does not elect to repair, rebuild, replace or restore such
property within 120 days after the deposit of funds related thereto
with the Trustee, all as provided in Section 14 of the Mortgage.
Upon the occurrence of any condition described in (a), (b) or (c)
above, except as hereinafter provided, all remaining Loan Installments shall
immediately become due and payable in such manner as may be required by the
Indenture,
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and upon written notice to the Company by the Trustee. If as a consequence of
the occurrence of an event described in Section 8.3(b) above, it shall be
necessary for the owner of any Bond to include interest received on any prior
interest payment date in its gross income for federal income tax purposes, then
the Company shall be required to make payment of a Loan Installment in the
amount required by Section 4.02 of the Indenture.
Notwithstanding noncompliance with any covenant or agreement by the
Company to the contrary, the Company may, at its election, rather than prepay
the Loan Installments and other amounts payable under the Notes and Section 5.2
hereof (excluding the amounts required to be paid under the last sentence of the
immediately preceding paragraph, which amounts shall be paid, in any event, by
the Company), upon the occurrence of any Determination of Taxability, elect to
increase the Loan Installments payable under Section 5.2 hereof in the manner
provided in Section 4.03 of the Indenture by the amount necessary for the
payment of the alternative interest rate as provided in the Indenture; provided,
however, that if the Company makes such election, the Company shall be obligated
either to register the Bonds under the Securities Act of 1933, as amended, or to
obtain an opinion of counsel acceptable to the Trustee and the Issuer to the
effect that such registration is not required. Notwithstanding the foregoing, if
any legal or regulatory requirement applicable to any Bondholder shall prohibit
said Bondholder from receiving the increased interest payments contemplated by
this paragraph, Company, to the extent required by such legal or regulatory
requirement, shall increase the Loan Installments by the amount necessary to
redeem the Bonds held by such Bondholder.
SECTION 8.4. References to Bonds Ineffective After Bonds Paid. Upon
payment in full of the Bonds (or provision for payment thereof having been made
in accordance with the provisions of the Indenture) and all fees, charges and
expenses of the Trustee and the Issuer, all references in this Agreement to the
Bonds and the Trustee shall be ineffective and neither the Trustee nor the
Bondholders shall thereafter have any rights hereunder, excepting those that
shall have theretofore vested.
SECTION 8.5. Vesting of Interest in Issuer. The Company and the
Issuer agree and covenant that this Agreement, when executed and delivered, will
create in and vest in the Issuer such interests, estates, rights and title
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in the Project to enable the Issuer to issue the Bonds, secure the repayment of
the Bonds, cause the Project to be constructed by the Company, and loan funds
for the construction of the Project to the Company with repayment therefor to be
made by the Company in installments, in the manner provided by, and in full
compliance with, the Act.
SECTION 8.6. Mortgage and Security Interest. In order to secure its
performance under this Agreement and the Note, including without limitation its
obligation to pay the Loan Installments, and its obligations under Sections 9.5
and 9.7 hereof, the Company hereby mortgages, grants, conveys and assigns to the
Issuer or directly to the Trustee for and on behalf of the Issuer and grants the
Issuer and/or the Trustee a security interest for the benefit of the Trustee and
the Bondholders, equally and ratably without preference or priority as to lien
or source of payment of any one Bond over any other Bond, in:
(a) The Project as defined in the mortgage, and each and every
component thereof;
(b) The Company's fee simple interest in the Project Site
and all fixtures located thereon;
(c) All other property or collateral held by or assigned or
pledged to the Issuer or the Trustee under this Agreement, the
Indenture or the Mortgage; and
(d) All proceeds (including insurance proceeds) and products
of any of the foregoing.
To effectuate the foregoing and simultaneously with or prior to the
delivery of the Bonds, the Company will execute and deliver to the Issuer or
directly to the Trustee for and on behalf of the Issuer and cause to be
recorded, where appropriate, (i) appropriate UCC financing statements pertaining
to the collateral described in subparagraphs (a), (b), (c) and (d) above, (ii)
the Mortgage and (iii) an assignment of the Note.
The Company represents and warrants that all of the collateral
described above is, on the date hereof, free and clear of all liens, charges,
encumbrances and restrictions, except Permitted Encumbrances, and covenants to
preserve and protect the Issuer's and Trustee's rights therein against all
claims, liens, charges, encumbrances and restrictions,
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except Permitted Encumbrances, at all times during the Agreement Term.
The Company hereby agrees to pledge and assign to the Trustee, or to
authorize the Issuer to pledge and assign to the Trustee, for the benefit of the
Bondholders, all of its rights and interests in and to the collateral described
above and the documents contemplated hereby.
ARTICLE IX
Events of Default and Remedies
SECTION 9.1. Events of Default Defined. The following shall be
"events of default" under this Agreement, and the terms "event of default" or
"default" shall mean, whenever they are used in this Agreement, any one or more
of the following events:
(a) Failure by the Company to pay or cause to be paid when due
or within ten (10) days thereafter that portion of the Loan
Installments required to be paid under Section 5.2(a) hereof and under
the Note.
(b) Failure by the Company to pay or cause to be paid when due
or within ten (10) days thereafter that portion of the Loan
Installments required to be paid under Sections 5.2(b) and 5.2(c) and
its obligations under Sections 9.5 or 9.7 hereof.
(c) Failure by the Company to observe and perform in any
material respect any covenant, condition or agreement in this
Agreement, the Mortgage or any other document contemplated hereby on
the Company's part to be observed or performed or the conditions and
obligations which are imposed upon the Company as contemplated by the
Indenture or any other certificate or document contemplated hereby in
connection with the issuance or sale of the Bonds on the Company's part
to be observed or performed, other than as referred to in subsections
(a) and (b) of this Section, and such failure shall continue unremedied
for a period of thirty (30) days after written notice, specifying such
failure and requesting that it be remedied, given to the Company by the
Issuer or the Trustee, unless the
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Issuer and the Trustee (with any required consent of the Bondholders
under the provisions of the Indenture) shall agree in writing to an
extension of such time prior to its expiration.
(d) The filing by the Company or the Guarantor of a voluntary
petition in bankruptcy, or failure by the Company promptly to institute
judicial proceedings to lift any execution, garnishment or attachment
of such consequence as will materially impair the Company' s
obligations hereunder, or the adjudication of the Company as a
bankrupt, or assignment by the Company for the benefit of its
creditors, or the entry by the Company into an agreement of composition
with its creditors.
(e) The occurrence of an event of default under the Indenture,
the Mortgage or the Unconditional Guaranty dated the date hereof
between the Guarantor and the Trustee.
(f) The Company or the Guarantor shall fail to make any
payment on indebtedness for borrowed money (exclusive of the $6,500,000
principal amount of 10-5/8% senior notes due 1993 of the Guarantor) in
excess of $150,000; or an event of default shall exist under any
mortgage, indenture of trust or other agreement evidencing the
indebtedness of the Company or the Guarantor for borrowed money
(exclusive of the $6,500,000 principal amount of 10-5/8% senior notes
due 1993 of the Guarantor) in excess of $150,000, the effect of which
is to cause, or to permit any holder of such indebtedness to cause,
such indebtedness to become due prior to its stated maturity; and, in
either case, such conditions shall continue unremedied for a period of
sixty (60) days after the Company shall become aware of such
conditions.
(g) The entry of a final judgment or judgments for the payment
of money aggregating in excess of $150,000 against the Company or the
Guarantor, any one of which remains outstanding for more than sixty
(60) days from the date of its entry and has not been discharged in
full or stayed.
(h) Any material representation or warranty by the Company in
this Agreement, as contemplated by the Indenture, or as provided in any
other certificate, document or agreement given by the
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Company in connection with the issuance or sale of the Bonds shall have
been untrue in any material respect at the time such representation or
warranty was given or made, the result of which would have a material
adverse effect upon the ability of the Company to perform the Company's
obligations under such documents.
(i) In the good faith opinion of the Trustee, any material
adverse change in the financial status of the Company or the Guarantor.
SECTION 9.2. Remedies on Default. In the event any of the Bonds shall
at the time be outstanding and unpaid and provision for the payment thereof
shall not have been made in accordance with the provisions of the Indenture,
whenever any event of default referred to in Section 9.1 hereof shall have
happened and be subsisting, the Trustee, or the Issuer if the Trustee shall have
resigned and its successor shall not then have been appointed, may take any one
or more of the following remedial steps:
(a) Declare all Loan Installments payable under Section 5.2
hereof and all amounts payable under the Note for the remainder of the
Agreement Term to be immediately due and payable, whereupon the same
shall become immediately due and payable.
(b) Foreclose on the Mortgage and other collateral described
in Section 8.6 above, holding the Company liable for the difference
between the amounts received and the Loan Installments and other
amounts payable by the Company hereunder.
(c) Inspect, examine and make copies of the books and records
and any and all accounts and data of the Company relating to the use
and operation of the Project.
(d) Take all other actions and pursue all other remedies
available under any other contract or agreement or otherwise by
statute, at law or in equity, whether or not inconsistent with the
foregoing, that may appear necessary or appropriate to collect the sums
then due and thereafter to become due from the Company by reason of
this Agreement, or to enforce specific performance and observance of
any obligation, agreement or covenant of the Company under this
Agreement.
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Any amounts collected pursuant to action taken under this Section,
after subtracting all costs and expenses and other deductions herein
contemplated, shall be paid into the Debt Service Fund and applied in accordance
with the provisions of the Indenture.
SECTION 9.3. Authorization to Foreclose. In order to further and more
fully secure the payment of the principal of and interest on the Bonds upon the
happening of any event of default as herein provided, the Issuer and the Company
hereby authorize and permit the Trustee for and on behalf and in the name of the
Issuer to foreclose the Company's and the Issuer's interest in the Mortgage by
foreclosure in the manner provided by the Florida Statutes which remedy shall be
in addition to the other remedies provided in any other applicable provisions of
this Agreement.
SECTION 9.4. No Remedy Exclusive. No remedy herein conferred upon or
reserved to the Issuer or the Trustee is intended to be exclusive of any other
available remedy or remedies, but each and every such remedy shall be cumulative
and shall be in addition to every other remedy given under this 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
and power may be exercised from time to time and as often as may be deemed
expedient. In order to entitle the Issuer or the Trustee to exercise any remedy
reserved to either in this Article, it shall not be necessary to give any
notice, other than such notice as may be herein expressly required. Such rights
and remedies as are given the Issuer hereunder shall also extend to the Trustee,
and the Trustee and the holders of the Bonds issued under the Indenture shall be
deemed third party beneficiaries of all covenants and agreements herein
contained.
SECTION 9.5. Agreement to Pay Attorneys' Fees and Expenses. If the
Company defaults under any of the provisions of this Agreement and the Issuer
and the Trustee, or either of them, should employ attorneys or incur other
expenses for the collection of the Loan Installments or the enforcement of
performance or observance of any obligation or agreement of the Company in the
Note or herein contained, the Company agrees that the Company will on demand
therefor pay to the Issuer, the Trustee, or both, as the case may be, the
reasonable fees of such attorneys (including fees on ap-
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peal) and such other expenses so incurred by the Issuer and the Trustee,
together with interest thereon at the maximum lawful rate from the date of
demand to the date of payment.
SECTION 9.6. No Additional Waiver Implied by One Waiver. In the event
any agreement contained in this 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. No waiver granted by the Issuer with respect to the Project or the
rights or remedies hereunder or under the Indenture which would adversely affect
the rights and interests of the Trustee or the Bondholders shall be effective
without the written consent of the Trustee.
SECTION 9.7. Issuer's Right to Advance Funds upon Default;
Reimbursement of Same. Immediately upon either the Issuer's or the Trustee's
obtaining knowledge of the occurrence of any event of default it shall give
written notice of such occurrence to the other and to the Company. With respect
to any default by the Company of the type described in Section 9.1 of this
Agreement, the Issuer and the Trustee shall have the right (but may never be
required) to advance from any funds legally available for such purpose the sum
required to cure such default; and the Issuer and the Trustee shall be entitled
to receive from the Company reimbursement of such sum upon demand, together with
interest thereon from the date of such advance to the date of reimbursement at
the maximum lawful rate and expenses of collecting the same, including
reasonable attorneys' fees whether suit be brought or not.
ARTICLE X
Miscellaneous
SECTION 10.1. Notices. All notices, certificates or other
communications hereunder shall be sufficiently given and shall be deemed given
on the second day following the day on which the same has been mailed by
registered mail, postage prepaid, addressed as follows:
To the Bondholders, addressed to their addresses as they appear on the
registration books provided for in the Indenture.
45
52
If to the Issuer: Hillsborough County Industrial
Development Authority
c/o Mr. Warren M. Cason
Post Office Box 2150
Tampa, Florida 33601
If to the Company: Progressive American Insurance
Company
Suite 900
410 Ware Boulevard
Tampa, Florida 33619
Attention: Jerry Shroat
President
with copies to:
The Progressive Corporation
6300 Wilson Mills Road
Mayfield Village, Ohio 44143
Attention: Howard Zelikow
Treasurer
If to the Trustee: Sun Bank, N.A.
200 5. Orange Avenue
Orlando, Florida 32802
Attention: Corporate Trust
Department
A duplicate copy of each notice, certificate or other communication given
hereunder by either the Issuer or the Company to the other shall also be given
to the Trustee. The Issuer, the Company, and the Trustee may, by notice given
hereunder, designate any further or different addresses to which subsequent
notices, certificates or other communications shall be sent.
SECTION 10.2. Binding Effect; Controlling Law. This Agreement shall
inure to the benefit of and shall be binding upon the Issuer, the Company and
their respective successors and assigns, subject, however, to the limitations
contained in Section 7.3 hereof, and shall be governed by and construed in
accordance with the laws of the State of Florida.
46
53
SECTION 10.3. Severability. In the event any provision of this
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 10.4. Amounts Remaining in Funds. It is agreed by the parties
hereto that any amounts remaining in the Debt Service Fund or the Construction
Fund upon expiration or sooner termination of the Agreement Term, as provided in
this Agreement, after payment in full of the Bonds (or provision for payment
thereof having been made in accordance with the provisions of the Indenture),
and the fees, charges and expenses of the Trustee, the bond registrar, the
paying agents and the Issuer in accordance with the Indenture, shall belong to
and be paid to the Company by the Trustee as overpayment of the Loan.
SECTION 10.5. Complete Agreement; Supplements or Amendment. This
Agreement, along with the Note, represent the entire agreement between the
parties. This Agreement may be supplemented, modified or amended only in the
manner either as provided in this Agreement or as provided by Article XVI of the
Indenture, subsequent to the issuance of the Bonds and prior to the payment in
full of the Bonds (or provision for the payment thereof having been made in
accordance with the provisions of the Indenture), and this Agreement may not be
effectively amended, changed, modified, altered or terminated without the
concurring written consent of the Trustee, given in accordance with the
provisions of the Indenture or this Agreement.
SECTION 10.6. Net Contract. This Agreement shall be deemed and
construed to be a "net contract," and the Company shall pay absolutely net all
Loan Installments and all other payments required hereunder, during the
Agreement Term, free of any deductions, without abatement, diminution or
set-off.
SECTION 10.7. Arbitrage; Preservation of Tax Exemption. The Issuer
and the Company each agree and covenant that the proceeds of the Bonds and the
funds held by the Trustee under the Indenture will not be used in such manner as
to cause any Bond to be an "arbitrage bond" within the meaning of Section 103(c)
of the Code, as implemented by such proposed, temporary and permanent
regulations as have
47
54
been or may hereafter be adopted by the United States Treasury Department
thereunder. The Company further agrees and covenants not to take any action,
the result of which would cause or be likely to cause the interest payable with
respect to the Bonds not to be exempt from federal income taxes, other than
those Bonds held by any person who, within the meaning of Section 103(b) (10) of
the Code, shall be deemed a "substantial user" of the Project or a "related
person" as defined in the Code.
SECTION 10.8. Controlling Law; Members of Issuer Not Liable. All
covenants, stipulations, obligations and agreements of the Issuer contained in
this Agreement shall be deemed to be covenants, stipulations, obligations and
agreements of the Issuer to the full extent authorized by the Act and provided
by the Constitution and laws of the State of Florida. No covenant, stipulation,
obligation or agreement contained herein shall be deemed to be a covenant,
stipulation, obligation or agreement of any present or future member, agent or
employee of the Issuer in his individual capacity, and neither the members of
the Issuer nor any official executing this Agreement shall be subject to any
personal liability or accountability by reason of the execution by the Issuer or
such members thereof.
SECTION 10.9. Company Approval of Indenture. The Company has reviewed
the Indenture and the form of the 1982 Bonds and the Company hereby approves the
form of the Indenture and the 1982 Bonds and covenants that it will faithfully
perform at all times any and all covenants, undertakings, stipulations and
provisions contained in the Indenture, in the 1982 Bonds authenticated and
delivered thereunder and in all proceedings of the Issuer pertaining thereto, on
its part to be observed or performed, whether express or implied; provided
however that no amendment or revision to the Indenture or supplemental indenture
shall be effective unless approved by the Company.
SECTION 10.10. Further Assurances. The Company shall, at its expense,
promptly and duly execute, acknowledge and deliver to the Trustee and to the
Issuer, as appropriate, such further documents, instruments, financing and
similar statements and assurances and take such further action as may from time
to time be reasonably required or requested by the Trustee and/or the Issuer in
order more effectively to carry out the intent and purposes of this Agreement,
the Note, the Mortgage, the Indenture and the
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Bonds issued thereunder and other instruments contemplated thereby.
SECTION 10.11. Rights not Extinguished. Any right, interest or remedy
which shall have accrued during the Agreement Term shall not be terminated or
extinguished the expiration or termination of this Agreement but may be enforced
by the party for whose benefit such right, interest or remedy shall have accrued
and may be enforceable by such party in accordance with the terms of this
Agreement if it had not terminated or expired or otherwise in accordance with
law.
SECTION 10.12. Execution of Counterparts. This agreement may be
simultaneously executed in several counterparts, each of which shall be an
original and all of which shall constitute but one and the same instrument.
IN WITNESS WHEREOF, the Issuer has caused this Agreement to be executed
by its Chairman and the seal of the issuer to be hereunto affixed and attested
by its Assistant Secretary, and the Company has duly executed this Agreement,
all as of the date first above written.
HILLSBOROUGH COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY
(SEAL)
By /s/ Samuel I. Latimer
---------------------------
Samuel I. Latimer, Chairman
ATTEST:
/s/ Elsworth G. Simmons
- -----------------------
Elsworth G. Simmons,
Assistant Secretary
PROGRESSIVE AMERICAN INSURANCE COMPANY
(SEAL)
By /s/ Charlotte A. Jackson
-------------------------
Charlotte A. Jackson
Vice President
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ATTEST:
/s/ Robert J. Young
- -------------------
Robert J. Young
Assistant Secretary
STATE OF FLORIDA
COUNTY OF HILLSBOROUGH
The foregoing instrument was acknowledged before me this 16th day of
December, 1982, by Samuel I. Latimer and EIlsworth G. Simmons, Chairman and
Assistant Secretary, respectively, of HILLSBOROUGH COUNTY INDUSTRIAL DEVELOPMENT
AUTHORITY, a public body corporate and politic of the State of Florida.
/s/ Gertrude Eaton
----------------------------
Notary Public
My commission expires: Notary Public, State of Florida at Large
My Commission Expires Mar. 8, 1986
(Affix notarial seal)
50
57
STATE OF FLORIDA
COUNTY OF HILLSBOROUGH
The foregoing instrument was acknowledged before me this 16th day of
December, 1982, by CHARLOTTE A. JACKSON, and ROBERT L. YOUNG, as Vice
President and Assistant Secretary, respectively, of PROGRESSIVE AMERICAN
INSURANCE COMPANY, a Florida corporation, on behalf of the Corporation.
/s/ Gertrude Eaton
------------------
Notary Public
My commission expires: Notary Public, State of Florida at Large
My Commission Expires Mar. 8, 1986
(Affix notarial seal)
58
INDENTURE OF TRUST
HILLSBOROUGH COUNTY INDUSTRIAL
DEVELOPMENT AUTHORITY
as Issuer
AND
SUN BANK, N.A.
as Trustee
Dated as of December 16, 1982
59
INDENTURE OF TRUST
Table of Contents
(The Table of Contents is not a part of the Indenture of
Trust but is for convenience of reference only)
ARTICLE I
Definitions
Page
Definitions
Section 1.01. Definitions . . . . . . . . . . . . . . . . . . . . . . . 1
"Act" . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Additional Bonds" . . . . . . . . . . . . . . . . . . . . . . . 1
"Agreement" . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Assignment of Mortgage" . . . . . . . . . . . . . . . . . . . . 1
"Authorized Company Representative" . . . . . . . . . . . . . . 1
"Bondholder" . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Bond Registrar" . . . . . . . . . . . . . . . . . . . . . . . . 1
"Bonds" . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"1982 Bonds" . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Bond Year" . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Code" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Construction Fund" . . . . . . . . . . . . . . . . . . . . . . 2
"Cost" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Depository" . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Guarantor" . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Guaranty . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Investment Obligations" . . . . . . . . . . . . . . . . . . . . 2
"Issuer" . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Loan Installments" . . . . . . . . . . . . . . . . . . . . . . 3
"Mortgage" . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Note" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Original Purchaser" . . . . . . . . . . . . . . . . . . . . . . 3
"Paying Agent" . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Prime Rate" . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Project" . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Project Site" . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Resolution" . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Trustee" . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 1.02. Uses of Phrases . . . . . . . . . . . . . . . . . 4
60
ARTICLE II
Factual Recitals; Form of Bonds
Section 2.01. Issuer's Findings . . . . . . . . . . . . . . . . . . . . 5
Section 2.02. Form of 1982 Bonds . . . . . . . . . . . . . . . . . . . . 6
ARTICLE III
Execution, Authentication,
Delivery and Registration of Bonds
Section 3.01. Limitation on Issuance of Bonds . . . . . . . . . . . . . 14
Section 3.02. Details of Bonds . . . . . . . . . . . . . . . . . . . . . 14
Section 3.03. Authentication of Bonds . . . . . . . . . . . . . . . . . 15
Section 3.04. Registration and Exchange of Bonds . . . . . . . . . . . . 15
Section 3.05. Transfer of Bonds . . . . . . . . . . . . . . . . . . . . 16
Section 3.06. Ownership of Bonds . . . . . . . . . . . . . . . . . . . . 16
Section 3.07. Authorization of 1982 Bonds . . . . . . . . . . . . . . . 17
Section 3.08. Issuance of Additional Bonds . . . . . . . . . . . . . . . 19
Section 3.09. Mutilated, Destroyed or Lost Bonds . . . . . . . . . . . . 22
Section 3.10. Issuance of Refunding Bonds . . . . . . . . . . . . . . . 24
ARTICLE IV
Redemption of Bonds
Section 4.01. Optional Redemption Without Premium . . . . . . . . . . . 25
Section 4.02. Extraordinary Mandatory Redemption of Bonds
Without Premium . . . . . . . . . . . . . . . . . . . . . 25
Section 4.03. Election to Pay Additional Rate of Interest . . . . . . . 27
Section 4.04. Additional Bonds . . . . . . . . . . . . . . . . . . . . . 28
ARTICLE V
Requirements for Redemption
of Bonds
Section 5.01. Notice of Redemption of Bonds . . . . . . . . . . . . . . 28
Section 5.02. Effect of Notice of Redemption . . . . . . . . . . . . . . 28
Section 5.03. Redemption of Portion of Registered Bonds . . . . . . . . 29
Section 5.04. Cancellation of Redeemed Bonds . . . . . . . . . . . . . 29
Section 5.05. Bonds Called for Redemption Deemed Not Outstanding . . . . 29
ii
61
ARTICLE VI
Construction Fund
Section 6.01. Creation . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 6.02. Payments from Construction Fund . . . . . . . . . . . . . 30
Section 6.03. Cost of Project . . . . . . . . . . . . . . . . . . . . . 30
Section 6.04. Prerequisites to Payment . . . . . . . . . . . . . . . . . 31
Section 6.05. Reliance on Certificates . . . . . . . . . . . . . . . . . 31
Section 6.06. Establishment of Completion Date . . . . . . . . . . . . . 31
ARTICLE VII
Revenues and Funds
Section 7.01. Covenants of the Issuer and the Trustee . . . . . . . . . 31
Section 7.02. Creation of Debt Service Fund and Accounts Therein . . . . 32
Section 7.03. Provisions for Payment of Bonds from Interest and
Principal Account . . . . . . . . . . . . . . . . . . . . 33
Section 7.04. Application of Moneys in Redemption Account . . . . . . . 34
Section 7.05. Application of Pledged Moneys . . . . . . . . . . . . . . 35
Section 7.06. Unclaimed Funds . . . . . . . . . . . . . . . . . . . . . 36
Section 7.07. Cancellation of Bonds upon Payment . . . . . . . . . . . . 36
ARTICLE VIII
Depositories of Moneys, Security for Deposits
and Investment of Funds
Section 8.01. Deposits Constitute Trust Funds . . . . . . . . . . . . . 36
Section 8.02. Investment of Moneys . . . . . . . . . . . . . . . . . . . 37
ARTICLE IX
Grant of Mortgage and Security Interest
Section 9.01. Grant of Mortgage and Security Interest . . . . . . . . . 38
ARTICLE X
Particular Covenants
Section 10.01. Covenant of Issuer as to Performance of Obligations . . . 39
Section 10.02. Covenant to Perform Undertakings . . . . . . . . . . . . . 39
Section 10.03. Covenant to Perform Further Acts . . . . . . . . . . . . . 40
iii
62
Section 10.04. Covenant to Pay Taxes . . . . . . . . . . . . . . . . . . 40
Section 10.05. Covenant to Maintain and Operate . . . . . . . . . . . . . 40
Section 10.06. Covenant to Insure; Application of insurance Proceeds. . . 40
Section 10.07. Covenant as to Recordation . . . . . . . . . . . . . . . . 41
Section 10.08. Covenant to Enforce Rights . . . . . . . . . . . . . . . . 41
Section 10.09. Covenant as to Performance of Obligations . . . . . . . . 41
ARTICLE XI
Events of Default; Remedies
Section 11.01. Events of Default . . . . . . . . . . . . . . . . . . . . 42
Section 11.02. Acceleration of Maturities . . . . . . . . . . . . . . . . 43
Section 11.03. Enforcement of Remedies . . . . . . . . . . . . . . . . . 44
Section 11.04. Pro Rata Application of Funds . . . . . . . . . . . . . . 45
Section 11.05. Effect of Discontinuing Proceedings . . . . . . . . . . . 46
Section 11.06. Directions to Trustee as to Remedial Proceedings . . . . . 47
Section 11.07. Restrictions on Actions by Individual Bondholders . . . . 47
Section 11.08. Appointment of a Receiver . . . . . . . . . . . . . . . . 48
Section 11.09. Enforcement of Rights of Action . . . . . . . . . . . . . 48
Section 11.10. No Remedy Exclusive . . . . . . . . . . . . . . . . . . . 48
Section 11.11. Delay not a Waiver . . . . . . . . . . . . . . . . . . . . 48
Section 11.12. Notice of Default . . . . . . . . . . . . . . . . . . . . 49
Section 11.13. Additional Remedies . . . . . . . . . . . . . . . . . . . 49
ARTICLE XII
Concerning the Trustee, Paying
Agent and Bond Registrar
Section 12.01. Acceptance of Trusts; Performance of Duties . . . . . . . 49
Section 12.02. Trustee Entitled to Indemnity . . . . . . . . . . . . . . 50
Section 12.03. Limitation on Obligations and Responsibilities . . . . . . 50
Section 12.04. Limitation' on Liability . . . . . . . . . . . . . . . . . 50
Section 12.05. Compensation of Trustee . . . . . . . . . . . . . . . . . 51
Section 12.06. Annual Statement . . . . . . . . . . . . . . . . . . . . . 52
Section 12.07. Reliance on Certificates . . . . . . . . . . . . . . . . . 52
Section 12.08. Notice of Defaults . . . . . . . . . . . . . . . . . . . . 53
Section 12.09. Trustee as Bondholder . . . . . . . . . . . . . . . . . . 53
Section 12.10. Trustee not Responsible for Recitals . . . . . . . . . . . 53
Section 12.11. Reliance on Certain Documents . . . . . . . . . . . . . . 53
Section 12.12. Trustee Not Required to Give Bond . . . . . . . . . . . . 54
iv
63
Section 12.13. Resignation . . . . . . . . . . . . . . . . . . . . . . . 54
Section 12.14. Removal of Trustee . . . . . . . . . . . . . . . . . . . . 54
Section 12.15. Appointment and Qualification of Successor Trustee . . . . 55
Section 12.16. Vesting of Trusts in Successor . . . . . . . . . . . . . . 56
Section 12.17. Designation and Succession of Paying Agents . . . . . . . 56
ARTICLE XIII
Execution of Instruments by Bondholders
and Proof of Ownership of Bonds
Section 13.01. Execution of Instruments by Bondholders;
Proof of Ownership of Bonds . . . . . . . . . . . . . . . 57
ARTICLE XIV
Supplemental Indentures
Section 14.01. Supplemental Indentures without Bondholder Consent . . . . 58
Section 14.02. Modification of Indenture with Consent of Bondholders . . 59
Section 14.03. Supplemental Indenture Deemed Part of this Indenture . . . 61
Section 14.04. Discretion of Trustee in Executing Supplemental
Indentures . . . . . . . . . . . . . . . . . . . . . . . 61
ARTICLE XV
Defeasance
Section 15.01. Release of Indenture . . . . . . . . . . . . . . . . . . . 61
ARTICLE XVI
Supplemental Contracts
Section 16.01. Supplemental Contracts without Bondholders' Consent . . . 62
Section 16.02. Amendment of Contract with Consent of Bondholders . . . . 63
v
64
ARTICLE XVII
Miscellaneous Provisions
Section 17.01. Notices . . . . . . . . . . . . . . . . . . . . . . . . . 64
Section 17.02. No Third-Party Beneficiaries . . . . . . . . . . . . . . . 65
Section 17.03. Effect of Partial Invalidity . . . . . . . . . . . . . . . 65
Section 17.04. Controlling Law; Members of Issuer Not Liable . . . . . . 65
Section 17.05. Binding Effect; Controlling Law . . . . . . . . . . . . . 66
Section 17.06. Counterparts . . . . . . . . . . . . . . . . . . . . . . . 66
Section 17.07. Headings not Part of Indenture . . . . . . . . . . . . . . 66
Section 17.08. Payments Due on Saturdays, Sundays and Holidays . . . . . 66
vi
65
INDENTURE OF TRUST
THIS INDENTURE OF TRUST, dated as of the 16th day of December 1982, by and
between the HILLSBOROUGH COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY, a public
body corporate and politic of the State of Florida, as Issuer, and Sun Bank,
N.A., duly organized and existing under the laws of the United States and
having the authority to exercise corporate trust powers, and having its
principal office in the city of Orlando, Florida, as Trustee,
W I T N E S S E T H:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. As used herein unless some other meaning is
plainly intended:
"Act" means the Constitution of the State of Florida, Parts II and III
of Chapter 159, Florida Statutes, and other applicable provisions of law.
"Additional Bonds" means Bonds of the Issuer authenticated and
delivered under and pursuant to the provisions of Section 3.08 hereof.
"Agreement" means the Loan and Debt Obligation Agreement dated as of
the date hereof between the Issuer and the Company, as amended from time to
time.
"Assignment of Mortgage" means the Assignment of Mortgage dated as of
the date hereof from the Issuer to the trustee.
"Authorized Company Representative" means the person at the time
designated to act on behalf of the Company by written certificate furnished to
the Issuer and the Trustee containing the specimen signature of such person.
"Bondholder" means the registered owner (or authorized representatives)
of any Bonds at any time outstanding.
"Bond Registrar" means the registrar appointed by Issuer, from time to
time, under the provisions of Section 3.05 of this Indenture.
66
"Bonds" means the 1982 Bonds issued under this Indenture and any
Additional Bonds.
"1982 Bonds" means the Hillsborough County Industrial Development
Authority Industrial Development Revenue Bonds (Progressive American Insurance
Company Project), Series 1982, issued hereunder in the aggregate principal
amount of $4,000,000.
"Bond Year" means the period commencing on the 1st day of January of
any calendar year and ending on the 31st day of December of such calendar year.
"Code" means the Internal Revenue Code of 1954, as amended.
"Company" means Progressive American Insurance Company, a Florida
corporation, and its successors and assigns, including any surviving, resulting
or transferee corporation as provided in Section 7.3 of the Agreement.
"Construction Fund" means the Fund so designated in and established
under Section 6.01 of this Indenture.
"Cost" as applied to the Project, shall embrace, without intending
thereby to limit or restrict any proper definition of such word under the Act,
all costs of acquisition and construction and all obligations and expenses
incurred by or on behalf of the Issuer or the Company with respect to the
Project, as set forth in Section 6.03 of this Indenture and Section 4.3 of the
Agreement.
"Depository" means the Trustee or one or more other banks or trust
companies designated by the Issuer with approval of the Trustee that shall have
qualified with all state and federal requirements concerning the receipt of
Issuer funds.
"Guarantor" means The Progressive Corporation, an Ohio corporation, the
indirect owner of the Company.
"Guaranty" means the Unconditional Guaranty dated the date hereof
between the Guarantor, as guarantor, and the Trustee and the Issuer.
"Indenture" means this Indenture of Trust, together with all indentures
supplemental hereto as herein permitted.
"Investment Obligations" means: (i) negotiable direct obligations of,
or obligations the principal of and
2
67
interest on which are unconditionally guaranteed by, the United States of
America at the then prevailing market price for such securities, or (ii)
obligations of the Federal Farm Credit Banks, Federal Home Loan Mortgage
Corporation, or Federal Home Loan Bank or its district banks, including Federal
Home Loan Mortgage Corporation participation certificates, or obligations
guaranteed by the Government National Mortgage Association, or (iii)
interest-bearing time deposits or savings accounts in banks organized under the
laws of the State of Florida, in national banks organized under the laws of the
United States and doing business and situated in the State of Florida, in
savings and loan associations, which are under state supervision, or in federal
savings and loan associations located in the State of Florida and organized
under federal law and federal supervision, provided that any such deposits are
secured by collateral as may be prescribed by law; (iv) any investment to the
extent permitted by ss. 625.07 - 625.315, Fla. Stat. (1981), as amended by ch.
82-243, Laws of Florida; or (v) any other investment to the extent permitted by
the law of the State of Florida.
"Issuer" means the Hillsborough County Industrial Development
Authority, a public body corporate and politic of the State of Florida duly
created pursuant to the Act.
"Loan Installments" means the payments described in Section 5.2 of the
Agreement.
"Mortgage" means the Mortgage and Security Agreement dated the date
hereof between the Company, as mortgagor, and the Issuer, as mortgagee.
"Note" means the Promissory Note issued by the Company to the Issuer
and dated the date hereof.
"Original Purchaser" means Sun Bank of Tampa Bay.
"Paying Agent" means the Trustee and any bank or trust company
designated pursuant to this Indenture to serve in addition to Trustee as a
paying agent or place of payment for the Bonds, and any successors designated
pursuant to this Indenture.
"Prime Rate" means the prime rate of interest as charged from time to
time by Sun Bank, N.A., or its successors, for ninety-one day unsecured loans;
provided however, if Sun Bank, N.A., does not make ninety-one day unsecured
loans, the Prime Rate shall be such rate for such loans
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charged by Manufacturers Hanover Trust Company, New York, New York.
"Project" means, collectively, the acquisition of the Project Site, and
the acquisition, construction and installation thereon, in accordance with the
Plans and Specifications, of structures, fixtures, facilities, equipment and
machinery constituting a headquarters facility for the regional headquarters
office of the Company and its related group of casualty insurers, all as more
particularly described in Exhibit "A" attached hereto and to the Agreement.
"Project Site" means the lands on which the Project is to be
constructed, as more particularly described in Exhibit "B" attached hereto and
to the Agreement, together with easements appurtenant thereto.
"Resolution" means a resolution adopted by the Issuer on March 10,
1982, pertaining to the 1982 Bonds, as supplemented and amended by a resolution
adopted by the Issuer on September 22, 1982.
"Trustee" means Sun Bank, N.A., Orlando, Florida, or its successor or
successors hereafter appointed in the manner provided in this Indenture.
SECTION 1.02. Uses of Phrases. 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,"
"Bondholder," "registered owner" and "person" shall include the plural as well
as the singular number, and the word "person" shall include corporations and
associations, including public bodies, as well as persons. "Herein," "hereby,"
"hereunder," hereof," hereinbefore," "hereinafter" and other equivalent words
refer to this Indenture and not solely to the particular portion thereof in
which any such word is used. Any percentage of Bonds, specified herein for any
purpose, is to be figured on the unpaid principal amount thereof then
outstanding.
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ARTICLE II
FACTUAL RECITALS;
FORM OF BONDS
SECTION 2.01. Issuer's Findings. By its Resolution, the Issuer has
found and determined that:
(a) The Issuer is authorized and empowered by the Act to enter
into transactions such as those contemplated by the Act, and to fully
perform the obligations of the Issuer to be undertaken in connection
with the financing of the Project in order to promote the industrial
economy of Hillsborough County (the "County") and the State of Florida
(the "State"), increase opportunities for gainful employment and
purchasing power, and improve living conditions and otherwise
contribute to the prosperity and welfare of the County, the State and
the inhabitants thereof.
(b) The Project constitutes a "project" within the meaning and
contemplation of the Act, shall make a significant contribution to the
economic growth of the County, shall provide continued gainful
employment and shall serve a public purpose by advancing the economic
prosperity and the general welfare of the County and the State and the
inhabitants thereof.
(c) For the purpose of providing funds to pay the cost of the
Project, the Issuer by Resolution has duly authorized the issuance of
revenue bonds of the Issuer in the principal amount of Four Million
dollars ($4,000,000) designated "Hillsborough County Industrial
Development Authority Industrial Development Revenue Bonds (Progressive
American Insurance Company Project), Series 1982." The Agreement will
provide for payments by the Company to the Issuer of sums sufficient to
pay the 1982 Bonds together with the interest thereon and premiums, if
any, and costs and expenses related thereto as the same shall become
due and payable. The 1982 Bonds shall be paid from the Loan
Installments paid under the terms of the Agreement. The obligations of
the Issuer and the Company will be collateralized and secured by the
Mortgage and by the Guaranty.
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(d) Hillsborough County will be able to cope satisfactorily
with the impact of the Project and will be able to provide, or cause to
be provided when needed, the public facilities, including utilities and
public services, that will be necessary for the construction,
operation, repair and maintenance of the Project and on account of any
increases in population or other circumstances resulting therefrom.
(e) The Company is financially responsible and fully capable
of and willing to fulfill all of the obligations under the terms and
provisions of the Agreement, under which the Company will be obligated,
among other things, to pay amounts sufficient to timely discharge the
debt service on the Bonds, and to operate, repair and maintain the
Project at the Company's expense.
(f) The availability of financing by means of industrial
development revenue bonds is an important inducement to the Company for
the acquisition and construction of the Project.
SECTION 2.02. Form of 1982 Bonds. The form of the 1982 Bonds, the
Trustee's authentication certificate to be endorsed on the 1982 Bonds, the
provisions for registration and the statement of validation are to be
substantially in the following form with appropriate omissions and insertions or
variations permitted or authorized as hereinafter provided:
UNITED STATES OF AMERICA
STATE OF FLORIDA
HILLSBOROUGH COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY
INDUSTRIAL DEVELOPMENT REVENUE BOND
(Progressive American Insurance Company Project)
Series 1982
No. $
------- ---------
HILLSBOROUGH COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY (hereinafter
referred to as the "Issuer"), for value received, hereby promises to pay to Sun
Bank, N.A. (the "Original Purchaser"), or to registered assigns, but only from
the revenues hereinafter referred to, on the ____ day of _______, 19__ (or
earlier as hereinafter provided), upon
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presentation and surrender hereof at the principal office of the Trustee
(hereinafter mentioned), the principal sum of
DOLLARS
---------------------------------
in any coin or currency of the United States of America which on the date of
payment thereof is the legal tender for the payment of public and private debts,
and to pay solely from such special revenues, interest on the principal sum from
the date hereof, at the rate of interest per annum set forth below until the
payment of such principal sum.
Interest on the principal amount of this Bond from the date hereof
until this Bond is fully paid or redeemed shall be payable at an annual rate
equal to sixty-five percent (65%) of the prevailing prime rate of interest as
charged from time to time by Sun Bank, N.A., or its successors, for ninety-one
day unsecured loans; provided however, if Sun Bank, N.A., does not make
ninety-one day unsecured loans, the Prime Rate shall be such rate for such loans
charged by Manufacturers Hanover Trust Company, New York, New York (the "Prime
Rate"). Such interest shall be payable quarterly on the first day of each
quarter, commencing January 1, 1983. The rate of interest which shall accrue on
this Bond shall be adjusted daily on the basis of the Prime Rate then in effect.
Any change in the interest rate hereunder due to a change in the Prime Rate
shall be effective as of the opening day of business for Sun Bank, N.A., or
Manufacturers Hanover Trust Company if Sun Bank, N.A., is not charging a Prime
Rate, on the date of such change and the giving of written notice of a change in
the Prime Rate to Progressive American Insurance Company, a Florida corporation
(the "Company"), by Sun Bank, N.A., Orlando, Florida, as trustee (the "Trustee")
under an Indenture of Trust dated as of December 16, 1982 (the "Indenture"),
between the Issuer and the Trustee. If at any time after the date hereof there
should be a change (either up or down) in the maximum rate of federal income tax
applicable to corporations (currently 46%) imposed by Section II of the Internal
Revenue Code of 1954, as amended (the "Tax Rate"), then the effective interest
rate on the Bonds (as hereinafter defined) will be adjusted effective as of the
effective date of the change in the Tax Rate in accordance with the following
formula: the new interest rate shall be equal to 65/54ths of the Prime Rate
multiplied by 1 minus the new Tax Rate.
Any interest due hereon shall be calculated on the basis of a year
containing 365 days. Interest due on any date for payment of interest hereunder
shall be that in-
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terest to the extent accrued as of 11:59 pm., eastern time, on the last calendar
day immediately prior to that interest payment date. In no event shall the sum
of all interest and all other amounts deemed or treated as interest exceed the
maximum lawful interest rate allowed to be charged under applicable law, and in
the event any interest is received or charged by the holder hereof in excess of
that amount, the Company, through the Issuer, shall be entitled to an immediate
refund thereof.
Notwithstanding the foregoing, if interest on this Bond shall cease to
be exempt from federal income taxes under the conditions described in Section
4.02(b) of the Indenture, the Company may elect to pay, if permitted by
applicable legal or regulatory requirements applicable to any registered owner
of this Bond, and the Issuer shall thereupon pay, interest on this Bond in the
manner provided by Section 4.03 of the Indenture, at a rate per annum which
shall be equal to the Prime Rate. In no event, however, shall interest be
charged in an amount in excess of the maximum interest rate permitted to be paid
under applicable law.
All payments of principal and interest hereunder shall be made at the
address of the registered owner hereof as it appears on the bond registration
books to be kept by the registrar designated by the Issuer, or elsewhere as
shall be directed by the registered owner hereof.
This Bond is subject to redemption from excess construction proceeds as
provided in Section 7.04(c) of the Indenture and is also subject to mandatory
redemption prior to its stated date of maturity from the prepayment of the Loan
Installments payable by the Company under Sections 5.2 and 8.3 of the Loan and
Debt Obligation Agreement between the Issuer and the Company dated as of
December 16, 1982 (the "Agreement"), at par plus accrued interest to the date
fixed for redemption, upon sixty (60) days advance written notice to the Trustee
and the Issuer by the registered owner of this Bond (i) as a result of changes
in federal or state laws whereby the Agreement, the Indenture or this Bond shall
become void or unenforceable, or (ii) where the interest payable on this Bond
shall cease to be exempt from federal income tax (unless the Company shall elect
to pay an alternative non-tax exempt interest rate, in accordance with the
provisions of Section 4.03 of the Indenture). This Bond is also subject to
redemption upon the occurrence of an event of default as defined in Section
11.01 of the Indenture, and upon the Company's election not to rebuild, repair,
replace or restore the Project (hereinafter defined) upon the
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damage, loss or destruction thereof or the taking of or damage to the Project or
by condemnation, all as provided in Section 14 of the Mortgage and Security
Agreement (the "Mortgage"), dated the date hereof and executed by the Company as
Mortgagor.
This Bond is also redeemable prior to its stated date of maturity, at
the option of the Issuer, on any date, in whole or in part, at par plus accrued
interest to the date fixed for redemption, but without premium. In the event
this Bond is redeemed in part, the registered owner hereof shall surrender this
Bond for payment of the principal amount so called for redemption, and the
Issuer shall execute and the Trustee shall authenticate and deliver to or upon
the order of such registered owner, without charge therefor, for the unredeemed
portion of the Bond so surrendered, a Bond or Bonds registered as to principal
and interest.
A notice of redemption of this Bond shall be mailed to the registered
owner of this Bond at least thirty (30) days, but not more than sixty (60) days,
prior to the redemption date in the manner provided in the Indenture; provided,
however, that the failure to so notify the registered owner shall not affect the
validity of the proceedings for the redemption of any Bond or portion thereof
with respect to which no such failure has occurred. If this Bond is called for
redemption it shall become and be due and payable as provided in the Indenture,
and when the necessary moneys shall have been deposited with, or shall be held
by, the Trustee, interest on this Bond shall cease to accrue, and the registered
owner hereof shall not have any lien, rights, benefits or security under the
Indenture except to receive the payment of the redemption price on or after the
designated date of redemption from moneys deposited with or held by the Trustee
for such redemption.
This Bond shall not be deemed to constitute a general debt, liability
or obligation of the Issuer, or of the State of Florida, or of any political
subdivision or agency thereof, or a pledge of the faith and credit of the Issuer
or of the State of Florida or of any political subdivision thereof. The Issuer
shall not be obligated to pay this Bond or any interest hereon except from the
revenues and other collateral expressly provided therefor in the manner provided
for or contemplated by the Indenture, and neither the faith and credit nor the
taxing power of the Issuer or of the State of Florida or of any political
subdivision thereof is pledged to pay the principal of or the interest on the
Bond.
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This Bond is one of the duly authorized issue of Bonds of the Issuer
designated as "Hillsborough County Industrial Development Authority Industrial
Development Revenue Bonds (Progressive American Insurance Company Project),
Series 1982" (the "Bonds"), issued in the aggregate principal amount of
$4,000,000, issued by virtue of the authority contained in and conferred by the
Constitution and laws of the State of Florida, including particularly Sections
159.25 to 159.53, inclusive, Florida Statutes (collectively, the "Act"), and
certain resolutions of the Issuer pertaining to the issuance thereof, for the
purpose of paying the cost of acquiring certain land and acquiring, constructing
and installing thereon certain structures, fixtures, facilities, equipment and
machinery constituting a headquarters facility for the Company (collectively,
the "Project"). This Bond is also issued pursuant to and subject to the
provisions, terms and conditions of Resolutions adopted by the Issuer on March
10, 1982 and September 22, 1982, respectively (the "Resolutions"), and the
Indenture. Reference is hereby made to the Resolutions and 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 the revenues derived
from the Agreement relating to the loan of funds from the Issuer to the Company
to finance the acquisition, construction and installation of the Project, the
funds charged with and pledged to the payment of the principal and interest on
the Bonds and the nature and extent of such security, the terms and conditions
under which the Bonds may be issued, the rights, duties and obligations of the
Issuer, the rights of the registered owners of the Bonds and the provisions
regulating the manner in which the terms of this Bond and the rights of the
registered owner hereof may be modified, to all of which provisions the
registered owner hereby assents by acceptance hereof. In the event any payment
of interest or of interest and principal on this Bond shall not be paid when
due, the amount so in default shall continue to bear interest from the date such
payment became due until payment thereof at the Prime Rate per annum or the
maximum lawful rate, whichever shall be less.
This Bond is payable as to both principal and interest solely from and
is secured by a lien on certain revenues derived from the repayment of the loan
from the Issuer to the Company under and pursuant to the Agreement and other
monies pledged therefor (the "Pledged Funds"), a mortgage on and a security
interest in the project (as defined in the Mortgage), and certain other rights,
all as described in the Agreement and the Mortgage. Payment of the principal
of, premium, if any, and interest on this Bond has been uncondi-
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tionally guaranteed by The Progressive Corporation, an Ohio corporation,
pursuant to an Unconditional Guaranty dated December 16, 1982.
The Issuer agrees to pay, but only from the Pledged Funds, in addition
to all other sums payable hereunder, the reasonable costs and expenses incurred
by the registered owner of this Bond in connection with all actions taken to
enforce collection of this Bond upon default by the Issuer, whether by legal
proceedings or otherwise, including without limitation a reasonable attorney's
fee and court costs.
It is hereby certified, recited and declared that all acts, conditions
and things required to exist, to happen and to be performed precedent to and in
the issuance of this Bond exist, have happened and have been performed in
regular and due form and time as required by the Constitution and laws of the
State of Florida applicable thereto and that the issuance of this Bond is in
full compliance with all constitutional and statutory limitations, provisions
and restrictions.
This Bond shall bind the Issuer and its successors and assigns, and the
benefits hereof shall inure to the payee hereof and its successors and assigns.
This Bond is and has all the qualities and incidents of a negotiable
instrument under the law merchant and the Uniform Commercial Code-Investment
Securities Law of the State of Florida.
The Issuer does hereby covenant with the registered owner of this Bond
that it will make no use of the proceeds of the Bonds which would cause the
Bonds to be treated as "arbitrage bonds" under Section 103(c) of the Internal
Revenue Code of 1954, as amended, and the Regulations prescribed and proposed
thereunder.
The issuance of this Bond was approved under the provisions of the
Uniform Local Government Financial Management and Reporting Act, Part III,
Chapter 218, Florida Statutes.
This Bond shall not be valid or become obligatory for any purpose or be
entitled to any security or benefit under the Indenture until the certificate of
authentication endorsed hereon shall have been signed by the Trustee.
This Bond is one of a series of Bonds which were validated by judgment
of the Circuit Court, of the
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Thirteenth Judicial Circuit, in and for Hillsborough County, Florida, rendered
on October 22, 1982.
IN WITNESS WHEREOF, the Hillsborough County Industrial Development
Authority has issued this Bond and has caused the same to be signed by the
manual signature of its Chairman, and its seal to be affixed hereon and attested
and countersigned by the manual signature of its Assistant Secretary, all as of
the ____ day of _______, 1982.
HILLSBOROUGH COUNTY INDUSTRIAL
DEVELOPMENT AUTHORITY
By
------------------------------
(SEAL) Chairman
ATTESTED AND COUNTERSIGNED:
By
---------------------
Assistant Secretary
CERTIFICATE OF AUTHENTICATION
This Bond is one of the Hillsborough County Industrial Development
Authority Industrial Development Revenue Bonds (Progressive American Insurance
Company Project), Series 1982, designated in and executed under the provisions
of the within-mentioned Indenture.
Sun Bank, N.A.
as Trustee
By
--------------------------
Authorized Officer
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FOR VALUE RECEIVED
The undersigned hereby sells, assigns and transfers unto
(PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE)
- -----------------------------------
- --------------------------------------------------------------------------------
the within bond of HILLSBOROUGH COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY and does
hereby constitute and appoint the Trustee as the initially appointed Registrar
or _____________________________________ attorney to transfer the said Bond on
the books of the within named Issuer, with full power of substitution in the
premises.
Dated:
In the presence of:
- ------------------------------------ ---------------------------------------
Witness Registered Owner
PROVISIONS FOR REGISTRATION
This Bond shall be registered in the name of the initial owner as to
principal and interest on the books kept by the Registrar appointed by the
Issuer. Subsequent registration shall be made on the books kept by the
Registrar. No transfer shall be valid unless (i) made by written assignment,
(ii) noted on books of the Registrar and (iii) unless a new registered bond
shall be issued, noted in the blank below.
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(No writing in this blank except by the Registrar)
Date of Name of Signature of
Registration Registered Owner Bond Registrar
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(End of Bond Form)
ARTICLE III
EXECUTION, AUTHENTICATION,
DELIVERY AND REGISTRATION OF BONDS
SECTION 3.01. Limitation on Issuance of Bonds. No Bonds may be issued
under the provisions of this Indenture except in accordance with the provisions
of this Article.
SECTION 3.02. Details of Bonds. The 1982 Bonds shall be registered as
to principal and interest, shall be issued in the denominations as set forth in
Section 3.07 hereof, and shall be substantially in the form hereinabove set
forth, with such appropriate omissions and insertions or variations as are
permitted or required by this Indenture and with such additional changes as may
be necessary or appropriate to comply with the terms of the sale of the 1982
Bonds, and may have endorsed thereon such legends or text as may be necessary or
appropriate to conform to the rules and regulations of any governmental
authority or any usage or requirement of law with respect thereto.
The Bonds shall be executed by the duly qualified and authorized
Chairman of the Issuer, either manually or with his facsimile signature, and the
official seal of the Issuer, or a facsimile thereof, shall be impressed, affixed
or imprinted on the Bonds and attested by the manual or facsimile signature of
the Assistant Secretary or Assistant Secretary of the Issuer; provided, however,
that at least one of such signatures shall be a manual signature.
If any officer whose signature appears on the Bonds ceases to hold
office before the delivery of the Bonds, his signature shall nevertheless be
valid and sufficient for all
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purposes, and also any Bond may bear the signature of, or may be signed by, such
persons as at the actual time of the execution of such Bond shall be the proper
officers to sign such Bond although at the date of such Bond such persons may
not have been such officers.
Both the principal of and interest on the Bonds shall be payable in
lawful money of the United States of America on their respective dates of
payment. Payment of the interest on each Bond (except for final payment of such
interest which shall be made only upon surrender of each Bond) is payable by
check or draft drawn upon Sun Bank, N.A., or its successors, as Trustee, and
mailed to the registered owner at his address as it appears on the bond
registration books to be kept by the Bond Registrar designated by the Issuer, or
by bank wire or bank transfer as the registered owner of the Bond shall specify,
or as otherwise may be agreed upon by the registered owner and the Trustee.
SECTION 3.03. Authentication of Bonds. Only such of the Bonds as
shall have endorsed thereon a certificate of authentication substantially in the
form hereinabove set forth, duly executed by the Trustee, shall be entitled to
any right or benefit under this Indenture. No Bond shall be valid or obligatory
for any purpose unless and until such certificate of authentication shall have
been duly executed by the Trustee, and such certificate of the Trustee upon any
such Bond shall be conclusive evidence that such Bond has been duly
authenticated and delivered under this Indenture. The Trustee's certificate of
authentication on any Bond shall be deemed to have been duly executed if signed
by an authorized officer of the Trustee, but it shall not be necessary that the
same officer sign the certificate of authentication on all of the Bonds that may
be issued hereunder at any one time.
SECTION 3.04. Registration and Exchange of Bonds. The Bonds shall be
registered as to principal and interest in accordance with the provisions
endorsed thereon.
The 1982 Bonds are initially issued in typewritten form in the
denominations set forth in Section 3.07 hereof. At the request of an Original
Purchaser of the 1982 Bonds, the Issuer shall make provision for the exchange of
the 1982 Bonds held by such Original Purchaser for a 1982 Bond or Bonds of
different denominations but with the same maturity and interest rate, in an
aggregate principal amount not exceeding the principal amount of the 1982 Bond
or Bonds tend-
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ered for exchange, without cost to such Original Purchaser except for costs of
printing or engraving and for a sum sufficient to pay any tax, fee or
governmental charge that may be imposed with respect thereto; provided, however,
that with respect to any such request for an exchange of Bonds previously
exchanged by any such Original Purchaser, the Trustee may recover reasonable
expenses sufficient to reimburse it for expenses incurred in connection with the
issuance of such new 1982 Bond or Bonds, including costs of printing or
engraving and for a sum sufficient to pay any tax, fee or governmental charge
that may be imposed with respect thereto. Such charge or charges shall be paid
before any such new Bond or Bonds shall be delivered.
SECTION 3.05. Transfer of Bonds. The Bonds may be transferred, and
title thereto shall pass, only in the manner provided in the Provisions for
Registration set forth in the form of the Bond in Section 2.02 of this
Indenture. The Issuer has appointed the Trustee as initial Bond Registrar to
keep the books for the registration and for the transfer of Bonds as provided in
this Indenture. The Bond Registrar may be changed from time to time by
resolution duly adopted by the Issuer and upon due notice to the Trustee. All
fully registered Bonds presented for transfer, exchange, redemption or payment
(if so required by the Issuer or the Trustee), shall be accompanied by a written
instrument or instruments of transfer or authorization for exchange, in form and
with guaranty of signature satisfactory to the Trustee, duly executed by the
registered owner or by his attorney duly authorized in writing. No charge shall
be made for the transfer and registration of the 1982 Bonds except for a sum
sufficient to pay any tax, fee or governmental charge that may be imposed with
respect thereto.
Neither the Issuer nor the Trustee shall be required to register,
convert or transfer any Bond during the ten (10) days next preceding an interest
payment date on the Bonds or, in the case of any proposed redemption of Bonds,
after notice shall have been given in accordance with Section 5.01 of this
Indenture of any such proposed redemption.
SECTION 3.06. Ownership of Bonds. The persons in whose names the
Bonds shall be registered shall be deemed and regarded as the absolute owner
thereof for all purposes, and payment of or on account of the principal of any
such Bond and the interest on any such Bond shall be made only to or upon the
order of the registered owner thereof or his
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legal representative, but such registration may be changed as hereinabove
provided. All such payments shall be valid and effectual to satisfy and
discharge the liability upon such Bond, including the interest thereon to the
extent of the sum or sums so paid.
SECTION 3.07. Authorization of 1982 Bonds. There shall be initially
issued under and secured by this Indenture, 1982 Bonds of the Issuer in the
aggregate principal amount of Four Million dollars ($4,000,000) for the purpose
of paying the cost of the Project. The 1982 Bonds shall be designated
"Hillsborough County Industrial Development Authority Industrial Development
Revenue Bonds (Progressive American Insurance Company Project), Series 1982,"
and shall be dated the 16th day of December, 1982.
The 1982 Bonds shall bear interest from the date thereof at an annual
rate of interest equal to sixty-five percent (65%) of the Prime Rate. The rate
of interest which shall accrue on each 1982 Bond shall be adjusted daily on the
basis of the Prime Rate then in effect. Any change in the interest rate
hereunder due to a change in the Prime Rate shall be effective as of the opening
of business for Sun Bank, N.A., Orlando, Florida, or Manufacturers Hanover Trust
Company, New York, New York, if Sun Bank, N.A., is not charging a Prime Rate, on
the date of such change, and the giving of written notice by the Trustee to the
Company and the Issuer of a change in the Prime Rate. Such interest shall be
payable quarterly on the 1st day of each quarter, commencing on January 1, 1983.
The 1982 Bonds shall consist of one bond and shall be in the
denomination, bear the number and mature on the first day of January, 1998, as
follows: Bond No. 01 shall be initially issued in the principal amount of
$4,000,000. Payment of principal on Bond No. 01 shall be made in forty-eight
(48) quarterly installments on the first day of each January, April, July, and
October (the Payment Date), commencing April 1, 1986. The first eight (8)
quarterly installments shall each be in the amount of $40,000.00. The remaining
forty (40) quarterly installments shall each be in the amount of $90,000.00
In the event any payment of interest or of interest and principal on
the 1982 Bonds shall not be paid when due, the amount so in default shall
continue to bear interest from the date such payment became due until payment
thereof at the Prime Rate plus two percent per annum or the maximum lawful rate,
whichever shall be less.
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After execution, the 1982 Bonds shall be deposited with the Trustee for
authentication, but before authentication and delivery by the Trustee there
shall be filed with the Trustee the following:
(a) A copy of the Resolution adopted on September 22, 1982, by
the Issuer, certified by the Assistant Secretary of the Issuer,
authorizing the issuance of the 1982 Bonds;
(b) An executed counterpart of the Agreement, the Note, the
Mortgage, the Assignment of Mortgage, the Guaranty and this Indenture;
(c) An opinion of counsel of the Issuer stating that the
execution and delivery of the Agreement, the Assignment of Mortgage,
the 1982 Bonds and this Indenture has been duly authorized by the
Issuer, that the Agreement, the Assignment of Mortgage, the 1982 Bonds
and this Indenture are in the forms so authorized and have been duly
executed and delivered by the Issuer and that, assuming proper
authorization and the execution and delivery of the Agreement and this
Indenture by the Company and Trustee, respectively, and the proper
authentication of the 1982 Bonds by the Trustee, and with certain
qualifications, the Agreement, the Assignment of Mortgage, the 1982
Bonds and this Indenture, respectively, are valid and binding on the
Issuer in accordance with their respective terms;
(d) An opinion of counsel for the Company and the Guarantor
relating to the due organization and good standing of the Company and
the Guarantor, the due authorization, execution and delivery of the
Agreement, the Note, the Mortgage, the Guaranty and other documents
related thereto, the enforceability of such agreements, the absence to
the best of their knowledge of conflict with other documents to which
the Company or the Guarantor are subject, the absence to the best of
their knowledge of pending or threatened litigation; and such other
matters as the Issuer may require;
(e) An opinion of Holland & Knight, addressed to the Issuer,
the Trustee and the Original Purchaser, stating that such counsel is
of the opinion that the 1982 Bonds are valid and legally binding
obligations of the Issuer, and that the in-
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terest on the 1982 Bonds issued under the provisions of this Section is
exempt from present federal income taxes under existing law, except
that such counsel need not express an opinion as to the exemption from
such taxes for any period during which a 1982 Bond is held by a person
who, within the meaning of Section 103(b) (10) of the Code, is a
"substantial user" of the Project or a "related person"; and
(f) The survey of the Project Site and the mortgage title
insurance policy or binder required, respectively, by Sections 4.1(a)
and 4.1(b) of the Agreement.
Upon receipt of these documents, the Trustee shall
authenticate, register and deliver the 1982 Bonds to or upon the direction of
the Original Purchaser, but only upon payment to the Trustee of the purchase
price of the 1982 Bonds together with accrued interest thereon.
The proceeds from the 1982 Bonds, including accrued interest,
if any, shall be applied by the Trustee, simultaneously with the delivery of
said 1982 Bonds, as follows:
(a) The accrued interest on the 1982 Bonds shall be deposited
in the Interest Account in the Debt Service Fund hereinafter created.
(b) The balance of said proceeds shall be deposited to the
credit of the Construction Fund hereinafter created.
SECTION 3.08. Issuance of Additional Bonds. Additional Bonds of the
Issuer may be issued under and secured by this Indenture at one time or from
time to time, in addition to the 1982 Bonds issued under the provisions of
Section 3.07 of this Article and subject to the conditions hereinafter provided
in this Section, for the purpose of paying the costs of completing the Project
or additions to the Project, such total cost to be evidenced by a certificate
signed by the Project Manager (as defined in the Agreement), or for the purpose
of paying all or any part of the cost of any improvements thereto as described
in Section 4.2 of the Agreement, or for any combination of such purposes. Before
any Additional Bonds shall be issued under the provisions of this Section, the
company shall request such Additional Bonds and Issuer shall adopt a resolution
authorizing the issuance of such Bonds, fixing the amount
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thereof and describing in brief and general terms the purpose or purposes for
which such Bonds are being issued. Such Additional Bonds shall be dated, shall
have the same designation, except perhaps for an identifying series year, as the
1982 Bonds issued under Section 3.07 of this Article, shall be stated to mature
in such year or years, shall bear interest at such rate or rates not exceeding
the maximum rate permitted by law, and may be made redeemable at such times and
prices (subject to the provisions of Article IV of this Indenture), all as may
be provided by the resolution authorizing the issuance of such Additional Bonds.
Except as to any difference in the date, the maturity or maturities, the rate or
rates of interest or the provisions for redemption, such Additional Bonds shall
be on a parity with and shall be entitled to the same benefit and security of
this Indenture as the 1982 Bonds originally issued under the provisions of said
Section 3.07. Additional Bonds shall be issued only upon the written consent of
the registered owners of not less than fifty percent (50%) in aggregate
principal amount of the Bonds then outstanding, and in no event shall Additional
Bonds be issued during such time as the Company shall be in default under this
Indenture or the Agreement.
Such Additional Bonds shall be executed substantially in the form and
manner hereinabove set forth for the 1982 Bonds and shall be deposited with the
Trustee for authentication, but before such Bonds shall be authenticated and
delivered by the Trustee, there shall be filed with the Trustee the following:
(a) A copy, certified by the Assistant Secretary of the
Issuer, of the resolution adopted by the Issuer authorizing the
issuance of such Additional Bonds in the amount specified therein,
setting forth the description of the additions to the Project for which
such Additional Bonds are to be issued;
(b) A copy, certified by the Assistant Secretary of the
Issuer, of the resolution adopted by the Issuer awarding such Bonds,
specifying the interest rate of each of such Bonds and the other terms
and conditions and directing the authentication, registration and
delivery of such Bonds to or upon the direction of the purchasers
therein named upon payment of the purchase price therein set forth;
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(c) An opinion of counsel for the Issuer stating that the
issuance of such Bonds has been duly and validly authorized, and that
all conditions precedent to the delivery of such Bonds have been
fulfilled and that said Additional Bonds are valid and binding
obligations of the Issuer in accordance with their terms;
(d) A certificate, signed by the Authorized Company
Representative, stating that, in conformity with the provisions of the
Agreement, the Company has approved the issuance of such Additional
Bonds and the terms, manner of issuance, purchase price and disposition
of the proceeds thereof; and setting forth the revised amount of the
loan based on the issuance of such Additional Bonds and the additional
Loan Installments to be paid by the Company under the Agreement and the
respective dates on which said installments shall be payable in order
to provide for payment of the principal of and the interest on the
Additional Bonds then proposed to be issued under this Section;
(e) An executed counterpart of the amendment to the Agreement
and a new Note, providing for the revised amount of the loan based on
the issuance of such Additional Bonds and the additional Loan
Installments to be paid by the Company under the Agreement and the Note
and the respective dates on which said installments shall be payable in
order to provide for payment of the principal of, premium, if any, and
interest on such Additional Bonds and providing for the payment of all
other expenses and costs incurred or to be incurred by virtue of the
issuance of such Additional Bonds;
(f) An executed counterpart of the supplemental indenture, or
a copy thereof certified by the Assistant Secretary of the Issuer,
providing for the terms, sale, authentication and delivery, of
Additional Bonds and the disposition of the proceeds from the sale
thereof, in the manner authorized by Section 14.01(c) of this
Indenture;
(g) Opinion of counsel for the Issuer with respect to the
supplemental indenture and the amendment to the Agreement of similar
tenor to the opinion furnished pursuant to clause (c) of Section 3.07
of this Article;
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(h) Opinion of counsel for the Company with respect to the
amendments to the Agreement, and, if also amended, the Mortgage and the
Guaranty, of similar tenor to the opinion furnished with respect to the
Agreement pursuant to clause (d) of Section 3.07 of this Article;
(i) If desirable, an endorsement to the title insurance policy
increasing the face amount of said policy; and
(j) An opinion of nationally recognized bond counsel that the
issuance of such Additional Bonds and the application of the proceeds
of such Bonds to the purpose or purposes described in the resolution
mentioned in clause (a) of this Section will not result in the interest
on any Bonds theretofore issued under this Indenture and then
outstanding or any thereof becoming subject to federal income taxes
then in effect and that the interest on such Additional Bonds will be
exempt from federal income taxes then in effect, except that such
counsel shall not be required to opine with respect to those matters
excluded from his opinion under clause (e) of Section 3.07.
Upon receipt of these documents, the Trustee shall authenticate,
register and deliver the Additional Bonds to or upon the direction of the
purchasers named in the resolution mentioned in clause (b) of this Section, but
only upon payment to the Trustee of the purchase price of the Additional Bonds.
The Trustee shall be entitled to rely upon such resolution as to the names of
the purchasers, the amount of such purchase price and the amounts of capitalized
interest, if any.
The proceeds (excluding accrued interest, which shall be deposited in
the Interest Account in the Debt Service Fund) of all Additional Bonds issued
under the provisions of this Section shall be deposited with the Trustee to the
credit of the Construction Fund, and shall be used in the manner herein
provided, with such changes and modifications as may be contained in the
supplemental indenture applicable to such Additional Bonds.
SECTION 3.09. Mutilated, Destroyed or Lost Bonds. In case any Bonds
shall become mutilated or be improperly cancelled, or be destroyed, stolen or
lost, the Trustee may, in its discretion, authorize the issuance, registration
and
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delivery of a new Bond of like tenor as the Bond so mutilated, improperly
cancelled, destroyed, stolen or lost, in exchange and substitution for such
mutilated or improperly cancelled Bond or in lieu of and substitution for the
Bond destroyed, stolen or lost. The Issuer or the Trustee may require the
Bondholder to furnish the Issuer and the Trustee proof of his ownership thereof
and proof of such mutilation, improper cancellation, destruction, theft or loss
satisfactory to the Issuer and the Trustee, to give the Issuer and the Trustee
an indemnity bond in such amount as either of them may require (except that the
Original Purchaser may give its letter agreement of indemnity in lieu of an
indemnity bond), and to comply with such other reasonable regulations and
conditions as they prescribe and pay such expenses as they may incur, all as a
condition precedent to the issuance, registration and authentication of such
duplicate Bonds. All such Bonds shall be cancelled by the Trustee and held for
the account of the Issuer. If any Bond shall have matured or be about to mature,
instead of issuing a substitute Bond, the Issuer may cause the same to be paid
upon being indemnified as aforesaid, and if such Bond be lost, stolen or
destroyed, without surrender thereof.
Any such duplicate Bonds issued pursuant to this Section shall
constitute original, additional contractual obligations on the part of the
Issuer, whether or not the lost, stolen or destroyed Bonds be at any time found
by anyone. Such duplicate Bonds shall in all respects, except for the number,
be identical with those replaced except that they shall bear on their face the
following additional clause:
"This Bond is issued to replace a lost, stolen, mutilated, cancelled or
destroyed Bond."
Such duplicate Bonds shall be signed by the same officers who signed the
original Bonds, provided, however, that in the event the officers who executed
the original Bonds no longer hold office, then the new Bonds shall be signed by
the officers then in office. Such duplicate Bonds shall be entitled to equal
proportionate benefits and rights as provided herein with all other Bonds issued
hereunder, the obligations of the Issuer upon the new Bonds being identical with
its obligations upon the original Bonds and the rights of the registered owner
being the same as those conferred by the original Bonds.
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SECTION 3.10. Issuance of Refunding Bonds. Bonds of the Issuer may be
issued under and secured by this Indenture at one time or from time to time, in
addition to the 1982 Bonds and Additional Bonds, subject to the conditions
hereinafter provided, for the purpose of providing funds for refunding at or
prior to maturity all (but not less than all) of the Bonds of any series then
outstanding, including the payment of any interest to accrue to the earliest
redemption date and any expenses in connection with such refunding. Before any
Bonds shall be issued under the provisions of this Section, the Issuer shall
adopt a resolution authorizing the issuance of such Bonds, fixing the amount
thereof, describing the Bonds to be refunded and the cost thereof. Such
additional Bonds shall be dated, shall have the same designation as the 1982
Bonds issued under Section 3.07 of this Article except for an identifying series
year and the addition of the word "Refunding," shall be stated to mature in such
year or years, shall bear interest at such rate or rates not exceeding the
maximum rate permitted by law, and may be made redeemable at such times and
prices (subject to the provisions of Article IV of this Indenture), all as may
be provided by the resolution authorizing the issuance of such additional Bonds.
Except as to any difference in the date, the maturity or maturities, the rate or
rates of interest or the provisions for redemption, such additional Bonds shall
be on a parity with and shall be entitled to the same benefit and security of
this Indenture as the Bonds issued and outstanding under the provisions of said
Section 3.07 and Section 3.08.
Such additional Bonds shall be executed substantially in the form and
manner hereinabove set forth for Additional Bonds and shall be deposited with
the Trustee for authentication, but before such Bonds shall be authenticated,
registered and delivered by the Trustee, there shall be filed with the Trustee
documents, relating to the Bonds issued under this Section, similar to those
mentioned in clauses (a) through (j) of Section 3.08 of this Article and such
additional documents as shall be required by the Trustee to evidence that
provision has been duly made in accordance with the provisions of this Indenture
for the redemption of all of the Bonds to be refunded, including the sufficiency
of the proceeds of the refunding Bonds for the payment of all refunded Bonds and
all expenses incurred in connection therewith.
When the documents mentioned above in this Section shall have been
filed with the Trustee and when the Bonds described in the resolutions mentioned
in clauses (a) and (b) of Section 3.08 hereof, which are incorporated by ref-
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erence in the preceding paragraph, shall have been executed and authenticated as
required by this Indenture, the Trustee shall deliver such Bonds at one time to
or upon the direction of the purchasers named in the resolution mentioned in
said clause (b), but only upon payment to the Trustee of the purchase price of
such Bonds. The Trustee shall be entitled to rely upon such resolution as to
the names of the purchasers, the interest rate of such Bonds and the amount of
such purchase price.
The proceeds (excluding accrued interest) of all Bonds issued under the
provisions of this Section shall be deposited by the Trustee, after payment of
all expenses incident to such financing, to the credit of a special redemption
fund appropriately designated to be held in trust for the sole and exclusive
purpose of paying the principal of and the interest on the Bonds to be refunded.
Any balance of such proceeds shall be deposited to the credit of the Interest
Account in the Debt Service Fund.
ARTICLE IV
REDEMPTION OF BONDS
SECTION 4.01. Optional Redemption Without Premium. The 1982 Bonds are
redeemable by the Issuer prior to their stated date of maturity upon the
exercise by the Company of its election to prepay all or a part of the Loan
Installments under the Agreement, on any date, in whole or in part, at par plus
accrued interest to the date fixed for redemption, and without premium.
If less than all of the 1982 Bonds shall be called for redemption,
prepayments shall be applied in inverse order of maturity of the 1982 Bonds.
SECTION 4.02. Extraordinary Mandatory Redemption of Bonds Without
Premium. The Bonds shall be redeemed, in inverse order of maturity, from excess
construction proceeds as provided in Section 7.04 of this Indenture, and the
Bonds are also subject to mandatory redemption prior to their stated dates of
maturity, from the prepayment of the Loan Installments payable by the Company
under Section 8.3 of the Agreement, at par plus accrued interest to the date
fixed for redemption, but without premium, upon the occurrence of any of the
following conditions:
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(a) As a result of any legislative or administrative action
(whether state or federal), or of any changes in the Constitution of
the State of Florida or the Constitution of the United States of
America or of a final decree, judgment or order of any court or
administrative body (whether state or federal), the Agreement, the
Mortgage, this Indenture or the Bonds issued pursuant hereto, shall
become void or unenforceable or impossible of performance in accordance
with the intent and purposes of the Company and the Issuer expressed in
the Agreement and this Indenture; or
(b) Final action shall have been taken by the Internal Revenue
Service, the Department of the Treasury or any other governmental
agency, authority or instrumentality, or an opinion of any court shall
have been rendered, or other event shall have occurred, or other
circumstances shall exist, any of which shall result in any part or all
of the interest payable with respect to the Bonds issued pursuant to
this Indenture not to be exempt from federal income taxes, other than
those Bonds held by any person who, within the meaning of Section
103(b) (10) of the Code, shall be deemed a "substantial user" of the
Project or a "related person" as defined in the Code. As used in this
Article IV, the term "final action" shall mean either: (i) action taken
by an administrative agency of the federal government which cannot be
appealed administratively or to a court of competent jurisdiction or as
to which the time for administrative appeal or court action has
expired; or (ii) action by any court of competent jurisdiction as to
which the time to appeal has expired or as to which an appeal has been
denied or dismissed without further right of appeal; or
(c) If the Project or the Mortgaged Property described in the
Mortgage, or any part thereof having a value in excess of $1,000,000,
shall be damaged, lost or destroyed or taken or damaged by any public
authority in the exercise of its power of eminent domain, and the
Company does not elect to repair, rebuild, replace or restore such
property within 120 days after the deposit of funds related thereto
with the Trustee, all as provided in Section 14 of the Mortgage.
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If as a consequence of the occurrence of an event described in clause
(b) above, it shall be necessary for the holder of any Bond to include interest
received on any prior interest payment date in its gross income for federal
income tax purposes, then the Company shall be required to pay under the
provisions of the Agreement on the first interest payment date following the
occurrence of such event and notice thereof to the Company, or on the date of
redemption of the Bonds by reason of such occurrence, whichever shall first
occur, and the Issuer shall thereupon pay, additional interest on such Bond for
the period during which such interest shall have been subject to federal income
taxes, in an amount equal to the difference between the Prime Rate as adjusted
pursuant to the provisions hereof and the interest actually paid on the Bond for
such period; provided, however, that interest shall never be required to be paid
on the Bonds in excess of the maximum interest rate permitted to be paid under
applicable law. The Company's obligations under this paragraph shall survive
the release of this Indenture pursuant to Section 15.01 below.
Upon the occurrence of any condition described in this Section 4.02,
except as hereinafter provided in Section 4.03, all of the Bonds remaining
outstanding shall be redeemed by the Trustee upon notice as provided below.
Such redemption shall take place as soon as possible after the occurrence of any
such action or condition, and in any event within sixty (60) days following
written notice from any Bondholder to the Trustee and the Issuer, or from the
Company or the Issuer to the Trustee that any such action or condition has
occurred.
SECTION 4.03. Election to Pay Additional Rate of Interest.
Notwithstanding the noncompliance with any covenant or agreement by the Company
to the contrary, at the written direction of the Company to the Trustee within
thirty (30) days after receipt by the Company from the Trustee of notice by any
Bondholder of the occurrence of a condition described in Section 4.02(b) above,
the Company may elect, on behalf of the Issuer, to increase the rate of interest
payable on such Bonds to a rate which shall be equal to the Prime Rate adjusted
daily as provided in Section 3.07 of this Indenture, and in such event the Bonds
shall not be redeemed; provided, however, that the Company shall never be
required to pay interest on the Bonds in excess of the maximum interest rate
permitted to be paid under applicable law, and further provided that if the
Company shall make such election, the Company shall be obligated either to
register the Bonds under the Securities Act of 1933, as amended, or to obtain an
opinion of counsel accept-
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able to the Trustee and the Issuer to the effect that such registration is not
required. Notwithstanding the foregoing, if any legal or regulatory requirement
applicable to any Bondholder shall prohibit said Bondholder from receiving the
increased interest payment contemplated by this Section 4.03, Bonds held by such
Bondholder shall be redeemed, to the extent required by such legal or regulatory
requirement, as provided in Section 4.02 above.
SECTION 4.04. Additional Bonds. Any Additional Bonds hereafter issued
pursuant to Section 3.08 hereof may be redeemed prior to their stated dates of
maturity at such price or prices and under such terms and conditions as shall be
provided in the proceedings which authorize the issuance of such Additional
Bonds.
ARTICLE V
REQUIREMENTS FOR REDEMPTION
OF BONDS
SECTION 5.01. Notice of Redemption of Bonds. A notice of any
redemption of Bonds, either in whole or in part, signed by the Trustee shall be
mailed, postage prepaid, at least thirty (30) days, but not more than sixty (60)
days, before the redemption date, to all registered owners of Bonds or portions
of Bonds to be redeemed, at their addresses as they appear on the registration
books hereinabove provided for; but failure to so mail any such notice shall not
affect the validity of the proceedings for the redemption of any Bond or portion
thereof with respect to which no such failure has occurred. Each such notice
shall set forth the date fixed for redemption, the redemption price to be paid
and, if less than all of the Bonds then outstanding shall be called for
redemption, the distinctive numbers and letters, if any, of such Bonds to be
redeemed and, in the case of Bonds to be redeemed in part only, the portion of
the principal amount thereof to be redeemed. In case any Bond is to be redeemed
in part only, the notice of redemption which relates to such Bond shall state
also that on or after the redemption date, upon surrender of such Bond, a new
Bond or Bonds in a principal amount equal to the unredeemed portion of such Bond
will be issued.
SECTION 5.02. Effect of Notice of Redemption. Notice having been
given in the manner and under the condi-
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tions hereinabove provided, the Bonds or portions of Bonds so called for
redemption shall, on the redemption date designated in such notice, become and
be due and payable at the redemption price provided for redemption of such Bonds
or portions of Bonds on such date. On the date so designated for redemption,
moneys for payment of the redemption price being held in separate accounts by
the Trustee in trust for the holders of the Bonds or portions thereof to be
redeemed, all as provided in this Indenture, interest on the Bonds or portions
of Bonds so called for redemption shall cease to accrue, such Bonds and portions
of Bonds shall cease to be entitled to any lien, benefit or security under this
Indenture, and the registered owners of such Bonds or portions of Bonds shall
have no rights in respect thereof except to receive payment of the redemption
price thereof and, to the extent provided in Section 5.03 of this Article, to
receive Bonds for any unredeemed portions of the Bonds.
SECTION 5.03. Redemption of Portion of Registered Bonds. In case part
but not all of an outstanding Bond shall be selected for redemption, the
registered owner(s) thereof shall present and surrender such Bond to the Trustee
for payment of the principal amount thereof so called for redemption, and the
Issuer shall execute and the Trustee shall authenticate and deliver to or upon
the order of such registered owner(s), without charge therefor, for the
unredeemed balance of the principal amount of the Bond so surrendered, a Bond or
Bonds registered as to principal and interest.
SECTION 5.04. Cancellation of Redeemed Bonds. All Bonds redeemed or
purchased by the Trustee under the terms of this Indenture, and all Bonds
delivered to the Trustee by the Company for cancellation, shall be cancelled by
the Trustee upon the surrender thereof.
SECTION 5.05. Bonds Called for Redemption Deemed Not Outstanding.
Bonds or portions of Bonds that have been duly called for redemption under the
provisions of this Article V, or with respect to which irrevocable instructions
(in form satisfactory to the Trustee) have been given to the Trustee to call
such Bonds for redemption, and with respect to which amounts sufficient to pay
the principal of and interest on the Bonds to the date fixed for redemption,
shall be delivered to and held in separate accounts by the Trustee, in trust for
the registered owners of the Bonds or a portion thereof to be redeemed, as
provided in this
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Indenture, shall not be deemed to be outstanding under the provisions of this
Indenture and shall cease to be entitled to any lien, benefit or security under
this Indenture, except to receive the payment of the redemption price on or
after the designated date of redemption from moneys deposited with or held by
the Trustee for such redemption of the Bonds and, to the extent provided in
Section 5.03 of this Article, to receive Bonds for any unredeemed portions of
the Bonds.
ARTICLE VI
CONSTRUCTION FUND
SECTION 6.01. Creation. A special fund is hereby created and
designated "Hillsborough County Industrial Development Revenue Bonds
(Progressive American Insurance Company Project) Construction Fund" (the
"Construction Fund"), to the credit of which such deposits shall be made as are
required by the provisions of Sections 3.07 and 3.08 of this Indenture and any
payments made by the Company pursuant to Section 6.17(c) of the Agreement. Any
moneys received by the Trustee from any other source for the acquisition,
construction and installation of the Project or additions to the Project shall
be deposited to the credit of the Construction Fund. The moneys in the
Construction Fund shall be held by the Trustee in trust and, subject to the
provisions of Section 6.04 of this Indenture, shall be applied to the payment of
the cost of the Project and, pending such application, shall be subject to a
lien and charge in favor of the registered owners of the Bonds issued and
outstanding under this Indenture and in favor of the Trustee for the further
security of such Bondholders and the Trustee until paid out or transferred as
herein provided. All income earned from the investment of funds held in the
Construction Fund shall be retained in the Construction Fund and expended as set
forth in this Article VI.
SECTION 6.02. Payments from Construction Fund. Payment of the cost of
the Project shall be made from the Construction Fund. All payments from the
Construction Fund shall be subject to the provisions and restrictions set forth
in this Article.
SECTION 6.03. Cost of Project. For the purposes of this Indenture the
Cost of the Project shall include the
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cost of acquiring, constructing and installing the same, and, without intending
thereby to limit or restrict any proper definition of such cost under the Act,
shall include all payments and disbursements from the Construction Fund
permitted under Section 4.3 of the Agreement.
SECTION 6.04. Prerequisites to Payment. Payments from the
Construction Fund shall be made only in accordance with the provisions of the
Agreement, and the Trustee is authorized and directed to apply the moneys in the
Construction Fund in accordance therewith but only upon receipt of the
statements, orders, certifications and other approvals required by the Agreement
duly executed by the persons and in the manner provided for therein.
SECTION 6.05. Reliance on Certificates. All statements, orders,
certificates and other approvals received by the Trustee, as required in this
Article as conditions of payment from the Construction Fund, may be relied upon
by the Trustee, and shall be retained by the Trustee, subject at all reasonable
times to examination by the Company, the Issuer, any Bondholder and the agents
and representatives thereof, during the term of the Agreement.
SECTION 6.06. Establishment of Completion Date. The establishment of
the Completion Date and the disposition of moneys then held for the credit of
the Construction Fund shall be in accordance with the Agreement.
ARTICLE VII
REVENUES AND FUNDS
SECTION 7.01. Covenants of the Issuer and the Trustee.
(a) 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 result in the termination of the
Agreement so long as any Bond is outstanding; that it will fulfill its
obligations and will require the Company to perform punctually the
Company's duties and obligations under the Agreement and will otherwise
administer the Agreement in accordance
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with its terms to assure the continued ownership, operation,
management, repair and maintenance of the Project by the Company and
the Company's payment of the Loan Installments thereunder and the costs
and expenses of ownership, operation, management, repair and
maintenance of the Project, all in accordance with the terms of the
Agreement; that it will not terminate the Agreement or cause it to be
terminated except in strict accordance with the terms thereof and with
the concurrence of the Trustee; that it will promptly notify the
Trustee of any actual or alleged event of default under or breach of
the 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 thereof of any proposed termination or amendment of
the Agreement; that it will not execute or agree to any change,
amendment or modification of or supplement to the Agreement except by
supplemental contract duly executed by the Company and the Issuer with
the approval of the Trustee and upon the further terms and conditions
set forth in Article XVI of this Indenture; and 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 or any successor under the Agreement to pay
the Loan Installments and to meet its other obligations as provided in
the Agreement.
(b) The Trustee covenants and agrees that it will undertake to
enforce to the extent reasonably practicable and necessary for and on
behalf of the Issuer the obligations of the Company to the Issuer and
the Trustee under the Agreement.
In the event of a termination of the Agreement while any Bonds are
outstanding, the Issuer shall use its best efforts to enter into new contracts
or other agreements with respect to the Project in order to produce the maximum
possible amount of revenues therefrom.
SECTION 7.02. Creation of Debt Service Fund and Accounts Therein. A
special fund is hereby created by the Trustee and designated "Hillsborough
County Industrial Development Revenue Bonds (Progressive American Insurance
Company Project) Debt Service Fund" (the "Debt Service Fund"). There are hereby
created three separate accounts in the Debt Service Fund designated "Interest
Account," "Principal Account" and "Redemption Account," respectively.
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The moneys in each of the said Accounts in the Debt Service Fund shall be held
by the Trustee in trust and applied as hereinafter provided with respect to each
said Account and, pending such application, shall be subject to a lien and
charge in favor of the holders of the Bonds issued and outstanding under this
Indenture and the Trustee and for the further security of such registered owners
and the Trustee until paid out or transferred as herein provided.
The Issuer covenants that it will cause to be paid by the Company
directly to the Trustee for deposit to the credit of the Debt Service Fund all
Loan Installments payable by the Company to the Issuer in accordance with the
Agreement and the Note. All moneys received by the Trustee hereunder, either
from the Company or the Issuer (but only to the extent of the amounts required
to make the then due payments as set forth in (a), (b) and (c) below), shall be
deposited to the credit of the following Accounts in the following order:
(a) To the credit of the Interest Account, such amount of the
moneys so received by the Trustee (or all such moneys if less than the
required amount) as may be required to make the total amount then held
to the credit of the Interest Account equal to the total of the
interest which is then or will be or become due and payable on the next
ensuing interest payment date on all Bonds then outstanding;
(b) Then to the credit of the Principal Account, such amount
of the moneys so received as may be required to make the total amount
then held to the credit of the Principal Account equal to the
principal, if any, which is then or will be or become due and payable
on the next ensuing principal payment date on all Bonds then
outstanding, if any; and
(c) Then to the credit of the Redemption Account, the balance,
if any, of such moneys remaining after making the deposits under
clauses (a) and (b) above.
SECTION 7.03. Provisions for Payment of Bonds from Interest and
Principal Account. The Trustee shall, on each interest and principal payment
date, withdraw from the Interest and Principal Accounts and remit to the
registered owner of the Bonds, the respective amounts required for pay-
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ing the interest and principal on such Bonds as such payments become due and
payable.
SECTION 7.04. Application of Moneys in Redemption Account. Moneys
held for the credit of the Redemption Account in the Debt Service Fund shall
with reasonable diligence be applied to the payment of costs and expenses
referred to in Section 5.2(b) and (c) of the Agreement and then to the
retirement of Bonds issued under the provisions of this Indenture and then
outstanding in the following order:
(a) The Trustee shall first endeavor to purchase Bonds or
portions of Bonds secured hereby and then outstanding, whether or not
such Bonds or portions of Bonds shall then be subject to redemption, at
the most advantageous price obtainable with reasonable diligence, such
price not to exceed the principal of such Bonds. The Trustee shall pay
the interest accrued on such Bonds or portions of Bonds to the date of
redemption thereof from the Interest Account, the purchase price from
the Redemption Account and all expenses in connection with such
purchase from moneys deposited with it by the Company for that purpose
under Section 5.2 of the Agreement or from the Redemption Account, but
no such purchase shall be made by the Trustee within the period of
thirty (30) days next preceding any interest payment date on which such
Bonds are subject to call for redemption under the provisions of this
Indenture.
(b) To the extent moneys remain on deposit in the Redemption
Account in the Debt Service Fund, the Trustee shall call for redemption
on each interest payment date on which Bonds are subject to redemption
from moneys in the Debt Service Fund such amount of Bonds or portions
of Bonds then subject to redemption as will as nearly as may be
possible exhaust the money then held for the credit of the Redemption
Account in the Debt Service Fund. Such redemption shall be made
pursuant to the provisions of Article V of this Indenture. Prior to
the redemption date, the Trustee shall withdraw from the Interest
Account and from the Redemption Account in the Debt Service Fund and
set aside in separate accounts the respective amounts required for
paying the interest on, and the principal of, the Bonds or portions of
Bonds so called for
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redemption, and shall pay from moneys deposited with it by the Company
for that purpose under Section 5.2 of the Agreement or from the
Redemption Account in the Debt Service Fund all expenses in connection
with such redemption.
(c) If the Bonds shall not then be subject to redemption from
moneys in the Redemption Account in the Debt Service Fund and if the
Trustee shall at any time be unable to exhaust the moneys in the
purchase of Bonds under the provisions of paragraph (a) of this
Section, such moneys or the balance of such moneys, as the case may be,
shall be retained in the Redemption Account in the Debt Service Fund
and, as soon as it is feasible, applied to the retirement of Bonds.
Notwithstanding anything to the contrary in this Section 7.04,
funds held in the Redemption Account pursuant to the provisions of Section
4.3(j) of the Agreement shall only be applied and invested as provided in said
Section 4.3(j).
SECTION 7.05. Application of Pledged Moneys. Subject to the terms and
conditions set forth in this Indenture, moneys held for the credit of the Debt
Service Fund shall be held in trust and disbursed by the Trustee for (a) the
payment of interest on the Bonds issued hereunder as such interest becomes due
and payable; (b) the payment of the principal of such Bonds at such time as such
principal becomes due and payable; (c) the payment of the purchase or redemption
price of such Bonds before their maturity in the manner and to the extent
provided in Section 7.04 hereof; and (d) for the payment of all costs and
expenses as described in Section 5.2(b) and (c) and Sections 9.5 and 9.7 of the
Agreement, and such moneys are hereby pledged to and charged with the payments
mentioned in this Article.
Whenever the moneys held for the credit of the Debt Service Fund shall
be sufficient for paying the principal of and the interest accrued on all Bonds
then outstanding under the provisions of this Indenture, and all costs and
expenses as herein described, such moneys shall be applied by the Trustee, for
such payments and then to the payment, purchase or redemption of such Bonds in
the manner and to the extent provided in Section 7.04 hereof.
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SECTION 7.06. Unclaimed Funds. All moneys which the Trustee shall
have withdrawn from the Debt Service Fund or shall have received from any other
source and set aside for the purpose of paying any of the Bonds hereby secured,
either at the maturity thereof or upon call for redemption, shall be held in
trust for the respective registered owners of such Bonds. Any moneys which
shall be so set aside or deposited by the Trustee, as Paying Agent, and which
shall remain unclaimed by the registered owners of such Bonds for a period of
six (6) years after the date on which such Bonds shall have become due and
payable shall upon request in writing be paid to the Company or to the extent
required by law, to such officer, board or body as may then be entitled by law
to receive the same, and thereafter the registered owner(s) of such Bonds shall
look only to the Company or to such officer, board or body, as the case may be,
for payment and then only to the extent of the amount so received without any
interest thereon, and the Trustee and any such party not receiving such funds
shall have no responsibility with respect to such moneys.
SECTION 7.07. Cancellation of Bonds upon Payment. All Bonds paid,
redeemed or purchased, either at or before maturity, shall be cancelled upon the
payment, redemption or purchase of such Bonds. All Bonds cancelled under any of
the provisions of this Indenture shall be cremated or otherwise destroyed by
shredding by the Trustee. The Trustee effecting such cremation or shredding
shall execute a certificate in triplicate describing the Bonds so cremated or
shredded. One executed certificate shall be filed with the Issuer, one executed
certificate shall be filed with the Company and the other executed certificate
shall be retained by or filed with the Trustee.
ARTICLE VIII
DEPOSITORIES OF MONEYS, SECURITY FOR DEPOSITS
AND INVESTMENT OF FUNDS
SECTION 8.01. Deposits Constitute Trust Funds. All funds or other
property which at any time may be owned or held in the possession of or
deposited with the Issuer 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 or attachment by any creditor of the Issuer.
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All funds or other property which at any time may be owned or held in
the possession of or deposited with the Trustee under this Indenture and the
Agreement shall be continuously secured, for the benefit of the Issuer and the
registered owners of the Bonds either (a) by lodging with a bank or trust
company approved by the Issuer and the Trustee, as custodian, with collateral
security consisting of obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States of
America having a market value (exclusive of accrued interest) not less than the
amount of such deposit, or (b) in such other manner as may then be required or
permitted by applicable state or federal laws and regulations regarding the
security for, or granting a preference in the case of, the deposit of trust
funds. But it shall not be necessary for the Trustee to lodge such collateral
security with any other bank or trust company, if it lodges such collateral
security with its Trust Department as custodian, nor shall it be necessary for
the Trustee to give security for any moneys which shall be represented by
investments in the obligations referred to in Section 8.02 hereof, purchased
under the provisions of this Article as an investment of such moneys.
All moneys deposited with each Depositary shall be credited to the
particular Fund or Account to which such moneys belong.
SECTION 8.02. Investment of Moneys. Moneys held for the
credit of the Construction Fund and the Redemption Account in the Debt Service
Fund, shall be invested and reinvested at the oral request of the Authorized
Company Representative, to be confirmed thereafter in writing, or if there shall
be no such request, at the sole discretion of the Trustee, by the Trustee in
Investment Obligations. Such investments or reinvestments shall mature not
later than the respective dates, as estimated by the Trustee, that the moneys
held for the credit of said Funds or Accounts will be needed for the purposes of
such Funds or Accounts. The written request of the Authorized Company
Representative shall specify the issuer or obligor, the type, principal amount,
interest rate and maturity of each such requested investment of moneys. Moneys
held for more than five (5) days for the credit of the Interest Account in the
Debt Service Fund shall be invested and reinvested in the same manner as
provided above for the investment of funds.
Obligations so purchased as an investment of moneys in any such Fund or
Account shall be deemed at all times to
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be a part of such Fund or Account, and shall at all times, for the purposes of
this Indenture, be valued at the cost thereof at the time of purchase, without
regard to fluctuation in market value. The Trustee, at the direction of the
Authorized Company Representative or when required to pay debt service on the
Bonds, shall sell at the best price obtainable any obligations so purchased
whenever it shall be necessary so to do in order to provide moneys to meet any
payment or transfer from such Funds or Accounts. Neither the Trustee nor the
Issuer shall be liable or responsible for any loss resulting from any such
investments or reinvestments.
All income derived from the investment of moneys in such Funds and
Accounts, shall be retained in such Funds or Accounts to the extent necessary to
make the amount then on deposit therein equal to the maximum amount required to
be on deposit in such Funds or Accounts, and any remaining balance shall be
deposited in the Redemption Account in the Debt Service Fund and used as
provided herein for said Account.
ARTICLE IX
GRANT OF MORTGAGE AND SECURITY INTEREST
SECTION 9.01. Grant of Mortgage and Security Interest. The
Issuer hereby pledges and assigns to the Trustee, and grants the Trustee a
mortgage on and security interest in, all of the Issuer's right, title and
interest in and under the Note, the Agreement (including the Trustee's rights,
but excluding the Issuer's rights under Sections 5.2(c), 7.1, 9.5 and 9.7 of the
Agreement), the Loan Installments, and other money, and the Mortgage, as
security for the payment of the Bonds, the interest thereon and for the
satisfaction of any other obligation assumed by it in connection with such
Bonds. It is mutually agreed and covenanted by and between the parties hereto,
that such rights and security interests are for the equal and proportionate
benefit and security of all and singular, present and future owners of Bonds
issued and to be issued under the Indenture, without preference, priority or
distinction as to lien or otherwise, except as provided herein, of any one Bond
over any other Bond, by reason of priority in the issue, sale or negotiation
thereof or otherwise.
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ARTICLE X
PARTICULAR COVENANTS
SECTION 10.01. Covenant of Issuer as to Performance of Obligations.
The Issuer covenants that it will promptly pay the principal of and the interest
on every Bond issued under the provisions of this Indenture at the places, on
the dates and in the manner provided herein and in said Bonds according to the
true intent and meaning thereof. The principal and interest on the Bonds are
payable solely from the Loan Installments and any other income and other moneys
to the extent provided herein, which are hereby pledged to the payment thereof
in the manner and to the extent hereinabove specified.
The Bonds and the interest thereon shall not be deemed to constitute a
general debt, liability or obligation of the Issuer or of the State of Florida
or of any political subdivision thereof, or a pledge of the faith and credit of
the Issuer or of the State of Florida or of any political subdivision thereof,
but the Bonds shall be payable solely from the revenues provided therefor and
from the collateral pledged as security therefor, and the Issuer is not
obligated to pay the Bonds or the interest thereon except from the revenues and
proceeds pledged therefor and neither the faith and credit nor the taxing power
of the Issuer or of the State of Florida or of any political subdivision thereof
is pledged to the payment of the principal of or the interest on the Bonds.
SECTION 10.02. Covenant to Perform Undertakings. The Issuer covenants
that it will faithfully perform at all times any and all covenants,
undertakings, stipulations and provisions contained in this Indenture, in any
and every Bond executed, authenticated and delivered hereunder 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 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 of Florida, including particularly and without limitation the Act, to
issue the Bonds authorized hereby and to enter into this Indenture, to pledge
funds or other property which at any time may be owned or held in the possession
of the Issuer, including without limitation, the Loan Installments and any other
income and other moneys in the manner and to the extent herein
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set forth; that all action on its part for the issuance of the Bonds initially
issued hereunder and the execution and delivery of this Indenture has been duly
and effectively taken; and that such Bonds in the hands of the holders and
owners thereof are and will be valid and enforceable obligations of the Issuer
according to the tenor and import thereof.
SECTION 10.03. Covenant to Perform Further Acts. The Issuer covenants
that it will do, execute, acknowledge and deliver or cause to be done, executed,
acknowledged and delivered, such indentures supplemental hereto and such further
acts, instruments and transfers as the Trustee may reasonably require for the
better pledging unto the Trustee all and singular the Loan Installments and any
other income, moneys, rights and properties pledged hereby to the payment of the
principal of and interest and premium, if any, on the Bonds.
SECTION 10.04. Covenant to Pay Taxes. Pursuant to the provisions of
Article VI of the Agreement, the Company has agreed to pay all taxes,
assessments and governmental charges at any time lawfully levied or assessed
upon or against the Project and the Project Site or any part thereof; provided,
however, that nothing contained in this Indenture shall require the payment of
any such taxes, assessments or governmental charges if the same are not required
to be paid under the provisions of Article VI of the Agreement.
SECTION 10.05. Covenant to Maintain and Operate. Pursuant to the
provisions of Article VI of the Agreement, the Company has agreed at its own
expense to pay or cause to be paid all costs of maintaining, repairing and
operating the Project.
SECTION 10.06. Covenant to Insure; Application of Insurance Proceeds.
Pursuant to Article VI of the Agreement and Section 13 of the Mortgage, the
Company has agreed to keep the Project continuously insured throughout the
Agreement Term (as defined in the Agreement) against such risks as are
customarily insured against in connection with the operation of facilities of
like size, type and location, paying as the same become due and payable all
premiums in respect thereto; and the Trustee hereby agrees to apply the
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proceeds of said insurance in accordance with Section 14 of the Mortgage.
SECTION 10.07. Covenant as to Recordation. Pursuant to Article VI of
the Agreement, the Company has agreed that it will cause this Indenture and all
supplements hereto, the Agreement and all supplements thereto or amendments
thereof, the Mortgage and the Assignment of Mortgage to be kept, and either
recorded and filed, or notices thereof or financing statements relating thereto
recorded and filed, in such manner and in such places as may be required by law
in order fully to preserve and protect the security of the registered owners of
the Bonds and the rights of the Issuer and Trustee hereunder.
SECTION 10.08. Covenant to Enforce Rights. The Agreement sets forth
the covenants and obligations of the Issuer and the Company, including a
provision in Section 10.5 thereof that subsequent to the issuance of the Bonds
and prior to their payment in full or provision for the payment thereof having
been made in accordance with the provisions hereof, the Agreement may not be
amended, changed, modified, altered or terminated (other than as provided
therein) without the concurring written consent of the Trustee and otherwise as
provided in Article XVI of this Indenture and reference is hereby made to the
Agreement for a detailed statement of said covenants and obligations of the
Company under the Agreement, and the Issuer agrees that 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 Agreement for and on behalf
of the Bondholders, whether or not the Issuer is in default hereunder.
SECTION 10.09. Covenant as to Performance of Obligations. The Issuer
covenants that it will faithfully perform each covenant, stipulation, obligation
and agreement contained in the Agreement which is to be performed by it, and
that it will diligently enforce the performance of each covenant, stipulation,
obligation and agreement contained in the Agreement which is to be performed by
the Company.
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ARTICLE XI
EVENTS OF DEFAULT; REMEDIES
SECTION 11.01. Events of Default. Each of the following events is
hereby declared an "event of default," provided, however, that in any case in
which such event of default shall be occasioned by the action or inaction of the
Issuer, such action or inaction may be cured by the Company within the time and
in the manner as contemplated by the provisions of this Article XI:
(a) payment of the principal or the making of any deposits
into the Redemption Account in the Debt Service Fund, of or for any of
the Bonds shall not be made when the same shall become due and payable,
either at maturity (whether by acceleration or otherwise) or on
required payment dates by proceedings for redemption or otherwise, or
within ten (10) days thereafter; or
(b) payment of any installment of interest shall not be made
when the same shall become due and payable or within ten (10) days
thereafter; or
(c) the Issuer shall for any reason be rendered incapable of
fulfilling its obligations hereunder to the extent that the payment of,
security for, or tax exempt status of the Bonds would be materially
adversely affected, and such conditions shall continue unremedied for a
period of thirty (30) days after the Issuer becomes aware of such
conditions; or
(d) an order or decree shall be entered, with the consent or
acquiescence of the Issuer, appointing a receiver or receivers of the
Issuer and of the Loan Installments or any other income to be derived
by the Issuer under the Agreement or such order or decree, having been
entered without the consent or acquiescence of the Issuer, shall not be
vacated or discharged or stayed on appeal within ninety (90) days after
the entry thereof; or
(e) any proceedings shall be instituted, with the consent or
acquiescence of the Issuer, for the purpose of effecting a composition
between the Issuer and its creditors or for the purpose of adjusting
the claims of such creditors, pursuant to any federal or state statutes
now or hereafter
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enacted, if the claims of such creditors are under any circumstances
payable from the Loan Installments or any other income to be derived
from the sale of the Project; or
(f) an event of default under the Agreement as defined in
Section 9.1 thereof shall have occurred; or
(g) an "Event of Default" as defined under the terms of the
Mortgage or the Guaranty shall have occurred; or
(h) the Issuer shall default in the due and punctual
performance of any other of the covenants, conditions, agreements and
provisions contained in the Bonds or in this Indenture on the part of
the Issuer to be performed, or the Company shall default in connection
with the matters referred to in Sections 10.04, 10.05 or 10.06 of this
Indenture, and such default shall continue for thirty (30) days after
written notice specifying such default and requiring the same to be
remedied shall have been given to the Issuer and the Company by the
Trustee, which may give such notice in its discretion and shall give
such notice at the written request of the registered owners of not less
than twenty-five percent (25%) in aggregate principal amount of the
Bonds then outstanding.
(i) in the good faith opinion of the Trustee, there has been
any material adverse change in the financial status of the Company or
the Guarantor.
SECTION 11.02. Acceleration of Maturities. Upon the happening and
continuance of any event of default specified in Section 11.01 of this Article,
then and in every such case the Trustee may, and upon the written request of the
registered owners of not less than twenty-five percent (25%) in aggregate
principal amount of the Bonds then outstanding shall, by a notice in writing to
the Issuer, declare the principal of all of the Bonds then outstanding (if not
then due and payable) to be due and payable immediately, without premium, and
upon such declaration the same shall become and be immediately due and payable,
anything contained in the Bonds or in this Indenture to the contrary
notwithstanding; provided, however, that if at any time after the principal of
the Bonds shall have been so declared to be due and payable, and before the
entry of final judg-
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ment or decree in any suit, action or proceeding instituted on account of such
default, or before the completion of the enforcement of any other remedy under
this Indenture, moneys shall have accumulated in the appropriate Accounts in the
Debt Service Fund sufficient to pay the principal of all matured Bonds and all
arrears of interest, if any, upon all Bonds then outstanding (except the
principal of any Bonds not then due and payable by their terms and the interest
accrued on such Bonds since the last interest payment date), and the charges,
compensation, expenses, disbursements, advances and liabilities of the Trustee
and all other amounts then payable by the Issuer hereunder shall have been paid
or a sum sufficient to pay the same shall have been deposited with the Trustee,
and every other default known to the Trustee in the observance or performance of
any covenant, condition, agreement or provision contained in the Bonds or in
this Indenture (other than a default in the payment of the principal of such
Bonds then due and payable only because of declaration under this Section) shall
have been remedied to the satisfaction of the Trustee, then and in every such
case the Trustee may, and upon the written request of the registered owners of
not less than seventy-five percent (75%) in aggregate principal amount of the
Bonds not then due and payable by their terms and then outstanding shall, by
written notice to the Issuer, rescind and annul such declaration and its
consequences, but no such rescission or annulment shall extend to or affect any
subsequent default or impair any right consequent thereon.
SECTION 11.03. Enforcement of Remedies. Upon the happening and
continuance of any event of default specified in Section 11.01 of this Article,
then and in every such case the Trustee may proceed, and upon the written
request of the registered owners of not less than twenty-five percent (25%) in
principal amount of the Bonds then outstanding hereunder shall proceed, subject
to the provisions of Sections 11.02 and 12.02 of this Indenture, to protect and
enforce its rights and the rights of the Bondholders under the laws of the State
of Florida, including the Act, or under this Indenture, the Mortgage or the
Guaranty, by such suits, actions or special proceedings in equity or at law, or
by proceedings in the office of any board, body or officer having jurisdiction,
either for the specific performance of any covenant or agreement contained
herein or in aid of execution of any power herein granted or for the enforcement
of any proper legal or equitable remedy, as the Trustee, being advised by
counsel, shall deem most effectual to protect and enforce such rights.
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In the enforcement of any remedy against the Issuer under this
Indenture the Trustee shall be entitled to institute such action against the
Issuer necessary to compel performance of any agreement of the Issuer hereunder
and otherwise, with respect to any action against the Issuer, to recover solely
from moneys in the Debt Service Fund and any other moneys available for such
purposes but in no other manner shall the Issuer be deemed liable for any other
damages of whatsoever kind or nature.
SECTION 11.04. Pro Rata Application of Funds. Anything in this
Indenture to the contrary notwithstanding, if at any time the moneys in the Debt
Service Fund shall not be sufficient to pay the principal of or the interest on
the Bonds as the same become due and payable (either by their terms or by
acceleration of maturities under Section 11.02), such moneys, together with any
moneys then available or thereafter becoming available for such purpose, whether
through the exercise of the remedies provided for in this Article or otherwise,
shall, subject to the provisions of Section 12.05 hereof, be applied as follows:
(a) Unless the principal of all the Bonds shall have become
due and payable, all such moneys shall be applied (1) to the payment of
all installments of interest then due, in the order of the maturity of
the installments of such interest, to the persons entitled thereto,
ratably, without any discrimination or preference, and (2) to the
payment of all installments into the Principal Account in the Debt
Service Fund then due.
(b) If the principal of all the Bonds shall have become due
and payable, all such moneys shall be applied to the payment of the
principal and interest then due and unpaid upon the Bonds, without
preference or priority of principal over interest or of interest over
principal, or of any installment of interest over any other installment
of interest, or of any Bond over any other Bond, ratably, according to
the amounts due, respectively, for principal and interest, to the
persons entitled thereto without any discrimination or preference
except as to any difference in the respective rates of interest
specified in the Bonds.
(c) If the principal of all such Bonds shall have been
declared due and payable and if such declaration shall thereafter have
been rescinded and
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annulled under the provisions of Section 11.02 of this Article, then,
subject to the provisions of paragraph (b) of this Section in the event
that the principal of all such Bonds shall later become due and payable
or be declared due and payable, the moneys remaining in and thereafter
accruing to the Debt Service Fund for such Bonds shall be applied in
accordance with the provisions of paragraph (a) of this Section.
Whenever moneys are to be applied by the Trustee pursuant to the
provisions of this Section, such moneys shall be applied by the Trustee at such
times, and from time to time, as the Trustee in its sole discretion shall
determine, having due regard to the amount of such moneys available for
application and the likelihood of additional moneys becoming available for such
application in the future; the setting aside of such moneys, in trust for the
proper purpose, shall constitute proper application by the Trustee; and the
Trustee shall incur no liability whatsoever to the Issuer, to any Bondholder or
to any other person for any delay in applying any such moneys, so long as the
Trustee acts with reasonable diligence, having due regard to the circumstances
and ultimately applies the same in accordance with such provisions of this
Indenture as may be applicable at the time of application by the Trustee.
Whenever the Trustee shall exercise such discretion in applying such moneys, it
shall fix the date (which shall be an interest payment date unless the Trustee
shall deem another date more suitable) upon which such application is to be made
and upon such date interest on the amounts of principal to be paid on such date
shall cease to accrue. The Trustee shall give such notice as it may deem
appropriate of the fixing of any such date, and shall not be required to make
payment to the owner of any Bond unless such Bond shall be presented to the
Trustee for appropriate endorsement or for cancellation if fully paid.
SECTION 11.05. Effect of Discontinuing Proceedings. In case any
proceeding taken by the Trustee on account of any default shall have been
discontinued or abandoned for any reason or shall have been determined adversely
to the Trustee, then and in every such case the Issuer, the Trustee and the
Bondholders shall be restored to their former positions and rights hereunder,
respectively, and all rights, remedies, powers and duties of the Trustee shall
continue as though no such proceeding had been taken.
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SECTION 11.06. Directions to Trustee as to Remedial Proceedings.
Anything in this Indenture to the contrary notwithstanding, the registered
owners of a majority in principal amount of the Bonds then outstanding hereunder
shall have the right, subject to the provisions of Section 12.02 of this
Indenture, by an instrument or concurrent instruments in writing executed and
delivered to the Trustee, to direct the method and place of conducting all
remedial proceedings to be taken by the Trustee hereunder, provided that such
direction shall not be otherwise than in accordance with law or the provisions
of this Indenture, and that the Trustee shall have the right to decline to
follow any such direction which in the opinion of counsel to the Trustee would
be unjustly prejudicial to Bondholders not parties to such direction.
SECTION 11.07. Restrictions on Actions by Individual Bondholders. No
Bondholder shall have any right to institute any suit, action or proceeding in
equity or at law for the execution of any trust hereunder or for any other
remedy hereunder unless such Bondholder previously shall have given to the
Trustee written notice of the event of default on account of which such suit,
action or proceeding is to be taken, and unless the holders of not less than
twenty-five percent (25%) in principal amount of the Bonds then outstanding
shall have made written request of the Trustee after the right to exercise such
powers or right of action, as the case may be, shall have accrued, and shall
have afforded the Trustee a reasonable opportunity either to proceed to exercise
the powers hereinabove granted or to institute such action, suit or proceeding
in its or their name, and unless, also, there shall have been offered to the
Trustee reasonable security and indemnity against the costs, expenses and
liabilities to be incurred therein or thereby, including the reasonable fees of
its attorneys (including fees on appeal), and the Trustee shall have refused or
neglected to comply with such request within a reasonable time; and such
notification, request and offer of indemnity are hereby declared in every such
case, at the option of the Trustee, to be conditions precedent to the execution
of the powers and trusts of this Indenture or for any other remedy hereunder. It
is understood and intended that no one or more registered owners of the Bonds
hereby secured shall have any right in any manner whatever by his or their
action to affect, disturb or prejudice the security of this Indenture, or to
enforce any right hereunder, except in the manner herein provided, and that all
proceedings at law or in equity shall be instituted, had and maintained in the
manner herein provided and for the benefit of all registered
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owners of the outstanding Bonds, and that any individual rights of action or any
other right given to one or more of such owners by law are restricted by this
Indenture to the rights and remedies herein provided.
SECTION 11.08. Appointment of a 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 Bondholders
under this Indenture, the Trustee shall be entitled, as a matter of right,
without notice, and without regard to the value of the Project or the solvency
of the Company or the Issuer, to the appointment of a receiver or receivers of
the Loan Installments, pending such proceedings, with such powers as the court
making such appointments shall confer, whether or not said Loan Installments
shall be deemed sufficient ultimately to satisfy the Bonds outstanding
hereunder.
SECTION 11.09. Enforcement of Rights of Action. All rights of action
under this Indenture or under any of the Bonds secured hereby, enforceable by
the Trustee, may be enforced by it without the possession of any of the Bonds or
the production thereof at the trial or other proceeding relative thereto, and
any such suit, action or proceeding instituted by the Trustee shall be brought
in its name or in the name of the Issuer, as appropriate, for the benefit of all
the registered owners of such Bonds subject to the provisions of this Indenture.
SECTION 11.10. No Remedy Exclusive. No remedy herein conferred upon
or reserved to the Trustee or to the Bondholders is intended to be exclusive of
any other remedy or remedies, and each and every such remedy shall be cumulative
and shall be in addition to every other remedy given hereunder or now or
hereafter existing at law or equity or by statute.
SECTION 11.11. Delay not a Waiver. No delay or omission of the
Trustee or of any registered owner of the Bonds 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 of any such default or an acquiescence therein; and
every power and remedy given by this Indenture to the Trustee and Bondholders,
respectively, may be exercised from time to time and as often as may be deemed
expedient; provided, however, that no such power or remedy
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may be exercised in the case of a default where such particular default has
later been cured with or without the exercise of such power or remedy.
Before the entry of final judgment or decree in any suit, action or
proceeding instituted by the Trustee under the provisions of this Indenture or
before the completion of the enforcement of any other remedy under this
Indenture, the Trustee shall be permitted to discontinue such suit, action,
proceeding, or enforcement of any remedy if in its opinion any default forming
the basis of such suit, action, proceeding or enforcement of any remedy shall
have been remedied.
SECTION 11.12. Notice of Default. The Trustee shall mail to all
Bondholders written notice of the occurrence of any event of default set forth
in Section 11.01 of this Article within thirty (30) days after the Trustee shall
have notice, pursuant to Section 12.08, that any such event of default shall
have occurred.
SECTION 11.13. Additional Remedies. The remedies conferred in this
Article shall be in addition to all remedies provided for in the Agreement,
which remedies are hereby incorporated herein by reference, and may be enforced
by the Trustee in accordance with the terms of this Indenture.
ARTICLE XII
CONCERNING THE TRUSTEE, PAYING
AGENT AND BOND REGISTRAR
SECTION 12.01. Acceptance of Trusts; Performance of Duties. The
Trustee accepts and agrees to execute the trusts imposed upon it by the express
terms of this Indenture, and the obligations of the Issuer expressly assumed by
the Trustee under this Indenture, but only upon the terms and conditions set
forth in this Article and subject to the provisions of this Indenture, to all of
which the parties hereto and the respective Bondholders agree. All funds created
under this Indenture shall be held by the Trustee (except as otherwise herein
provided) and administered as trust funds as herein provided.
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SECTION 12.02. Trustee Entitled to Indemnity. The Trustee shall be
under no obligation to institute any suit, or to take any remedial proceeding
under this Indenture or under the Agreement, or to enter any appearance or in
any way defend in any suit in which it may be made defendant, or to take any
steps in the execution of the trust hereby created or in the enforcement of any
rights and powers hereunder or under the Agreement, until it shall be
indemnified to its satisfaction against any and all costs and expenses, outlays
and counsel fees and other reasonable disbursements, and against all liability;
the Trustee may, nevertheless, begin suit, or appear in and defend suit, or do
anything else in its judgment reasonably proper to be done by it as such
Trustee, without indemnity, and in any such case the Issuer shall reimburse the
Trustee from the Loan Installments, and from funds available therefor under the
Agreement for all costs and expenses, outlays and attorney's fees and other
reasonable disbursements properly incurred in connection therewith. The Trustee
shall have a lien upon and security interest in all moneys or other assets which
shall secure the payment of the Bonds, to secure repayment of such
disbursements, and if the Issuer shall fail to make such reimbursement, the
Trustee may reimburse itself from such moneys or other assets and shall be
entitled to a preference therefor over any of the Bonds outstanding hereunder.
SECTION 12.03. Limitation on Obligations and Responsibilities. 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 Issuer or the Company, or to report, or make or file
claim 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 with respect to the validity or sufficiency of this Indenture
or the due execution or acknowledgment thereof, or the validity or sufficiency
of the security provided hereunder, or, except as to the authentication thereof
by the Trustee, with respect to the validity of the Bonds or the due execution
or issuance thereof or any recital therein. Trustee shall not be accountable for
the use of any proceeds of Bonds authenticated or delivered hereunder.
SECTION 12.04. Limitation on Liability. The Trustee shall not be
liable or responsible because of the
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failure of the Issuer or any of its employees or agents to make any collections
or deposits or to perform any act herein required of them or because of the loss
of any moneys arising through the insolvency or the act or default or omission
of any other Depository other than itself 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 the Bonds or any other
moneys deposited with it and paid out, withdrawn or transferred 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. The Trustee may perform the duties required of it under
this Indenture by or through officers, agents, employees or attorneys.
None of the provisions of this Indenture shall be construed to relieve
the Trustee from liability for its own gross negligence, or willful misconduct,
except that
(a) the Trustee shall not be liable for any error of judgment
made in good faith by any one of its officers, agents or employees,
unless it shall be established that the Trustee was grossly negligent
in ascertaining the pertinent facts;
(b) 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 registered owners of not less than twenty-five percent
(25%) in principal amount of the Bonds then outstanding relating to the
time, method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power conferred
upon the Trustee under the provisions of this Indenture; and
(c) The Trustee shall not be liable for anything done,
suffered or omitted in good faith by it in accordance with the advice
or opinion of any counsel, accountants or skilled persons of generally
accepted competence selected by it with reasonable care.
SECTION 12.05. Compensation of Trustee. Subject to the provisions of
any contract between the Issuer and the Trustee, the Issuer shall cause the
Company to pay to the Trustee fees and charges in accordance with Sections
5.2(b), 9.5 and 9.7 of the Agreement. The Trustee shall have a lien
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upon and security interest in all moneys or other assets which shall secure the
payment of the Bonds, to secure the payment of such fees and charges, and if the
Issuer shall fail to make such payments, the Trustee may reimburse itself from
such moneys or other assets and shall be entitled to a preference therefor over
any of the Bonds outstanding hereunder.
SECTION 12.06. Annual Statement. Not later than 45 days after the end
of each Bond Year, the Trustee shall file with the Issuer and the Company a
statement setting forth with respect to the preceding Bond Year:
(a) the amount withdrawn or transferred by the Trustee and the
amount deposited with it on account of each Fund and Account held by it
under the provisions of this Indenture,
(b) the amount on deposit with it at the end of such Bond Year
to the credit of such Fund and Account,
(c) a brief description of all obligations held by it as an
investment of moneys in each such Fund and Account,
(d) the amount applied to the purchase or redemption of Bonds
under the provisions of Section 7.04 of this Indenture and a
description of the Bonds or portions of Bonds so purchased or redeemed,
and
(e) any other information which the Issuer or the Company may
reasonably request.
All records and files pertaining to the Project in the custody of the
Trustee shall be open at all reasonable times to the inspection of the Issuer,
the Company, the Bondholders, and their agents and representatives.
SECTION 12.07. Reliance on Certificates. In case at any time it shall
be necessary or desirable for the Trustee to make an investigation respecting
any fact preparatory to taking or not taking any action or doing or not doing
anything as such Trustee, and in any case in which this Indenture permits the
taking of any action, the Trustee may rely upon any certificate required or
permitted to be filed with it under the provisions of this Indenture, and
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any such certificate shall be evidence of such fact to protect the Trustee in
any action that it may or may not take or in respect of anything it may or may
not do, in good faith, by reason of the supposed existence of such fact. Except
as otherwise provided in this Indenture, any request, notice or other instrument
from the Issuer to the Trustee shall be deemed to have been signed by the proper
party or parties if signed by the Chairman or Vice Chairman and Assistant
Secretary of the Issuer and the Trustee may accept a certificate signed by said
Chairman or Vice Chairman and Assistant Secretary as to any action taken by the
Issuer or any resolution adopted by the Issuer.
SECTION 12.08. Notice of Defaults. Except as otherwise provided in
this Indenture, the Trustee shall not be deemed to have notice of any event of
default hereunder except failure by the Issuer or the Company to cause to be
made any of the payments required hereunder unless specifically notified in
writing of such event of default by the Issuer or by the holders of at least
twenty-five percent (25%) in principal amount of the Bonds.
SECTION 12.09. Trustee as Bondholder. The bank or trust company
acting as Trustee under this Indenture, and its directors, officers, employees
or agents, may in good faith buy, sell, own, hold and deal in any of the Bonds
issued under and secured by this Indenture and may join in any action that any
Bondholder may be entitled to take with like effect as if such bank or trust
company were not the Trustee under this Indenture and each Bondholder, by the
purchase of any of the Bonds, shall be deemed to have expressly assented to the
provisions hereof.
SECTION 12.10. Trustee not Responsible for Recitals. The recitals,
statements and representations contained herein and in the Bonds (excluding the
Trustee's certificate on the Bonds) shall be taken and construed as made by and
on the part of the Issuer and not by the Trustee, and the Trustee assumes, and
shall be under no responsibility for, the correctness of the same.
SECTION 12.11. Reliance on Certain Documents. The Trustee shall be
protected and shall incur no liability in acting or proceeding, or in not acting
or not proceeding, in good faith, reasonably and in accordance with the terms of
this Indenture, upon any resolution, order, notice, request,
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consent, waiver, certificate, statement, affidavit, requisition, bond or other
paper or document that it shall in good faith reasonably 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, consultant or accountant
believed by the Trustee to be qualified in relation to the subject matter, and
the Trustee shall be under no duty to make any investigation or inquiry as to
any statements contained or matter referred to therein, but may accept and rely
upon the same as conclusive evidence of the truth and accuracy of such
statements. The Trustee shall not be bound to recognize any person as an owner
of any Bond or to take any action at his request unless proof of ownership of
such Bond satisfactory to the Trustee has been exhibited to or deposited with
the Trustee. The Trustee shall not be under any obligation to see to the
recording or filing of this Indenture or the Agreement or any other instrument
or otherwise to the giving to any person of notice of the provisions hereof or
thereof.
SECTION 12.12. Trustee Not Required to Give Bond. The Trustee shall
not be required to give any bond or surety in respect to the execution of the
said trusts and powers or otherwise in respect of the premises.
SECTION 12.13. Resignation. The Trustee or the Bond Registrar may
resign and thereby become discharged from the trusts and duties hereby created,
by giving sixty (60) days prior written notice to the Issuer, and in the case of
the Trustee only, by giving written notice to the Bondholders in the manner
provided in this Indenture, not less than sixty (60) days before such
resignation is to take effect, but such resignation shall take effect
immediately upon the appointment of a new Trustee or Bond Registrar hereunder,
if such Trustee or Bond Registrar shall be appointed before the time limited by
such notice and shall then accept the trusts and duties hereof.
SECTION 12.14. Removal of Trustee. The Trustee may be removed at any
time by an instrument or concurrent instruments in writing, executed by the
registered owners of not less than a majority in aggregate principal amount of
the Bonds hereby secured and then outstanding and filed with the Issuer, and
notice given in the manner provided in this Indenture not less than sixty (60)
days before such removal is to take effect as stated in said instrument or
instru-
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ments; provided, however, that if there shall be filed with the Issuer prior to
the date on which such removal is so stated to take effect an instrument or
concurrent instruments in writing, executed by the registered owners of a
greater aggregate principal amount of the Bonds hereby secured and then
outstanding than the amount of such Bonds held by the owners signing such
removal instrument or instruments, objecting to the removal of the Trustee, then
such removal instrument or instruments shall be ineffective and the Trustee
shall not be removed. A photographic copy of any instrument filed with the
Issuer under the provisions of this paragraph shall be delivered by the Issuer
to the Trustee and shall be certified to be a true and correct copy of the
original. The Trustee may also be removed at any time for any breach of trust
or for acting or proceeding in violation of, or for failing to act or proceed in
accordance with, any provisions of this Indenture with respect to the duties and
obligations of the Trustee, by any court of competent jurisdiction upon the
application of the Issuer or the registered owners of not less than twenty-five
percent (25%) in aggregate principal amount of the Bonds then outstanding under
this Indenture.
SECTION 12.15. Appointment and Qualification of Successor Trustee. If
at any time hereafter the Trustee shall resign, be removed, be dissolved or
otherwise become incapable of acting, or the bank or trust company acting as
Trustee shall be taken over by any governmental official, agency, department or
board, the position of Trustee shall thereupon become vacant. If at any time
moneys on deposit with the Trustee shall not be secured as required in Section
8.01 of this Indenture and the Trustee shall have been given thirty (30) days
advance written notice thereof without having cured the same, a vacancy in the
position of Trustee may be declared by a resolution duly passed by the Issuer.
If the position of Trustee shall become vacant for any of the foregoing reasons
or for any other reason, the Issuer shall appoint a Trustee to fill such
vacancy; provided, however, that the resignation or removal of the Trustee shall
not affect the rights of the Trustee under Sections 12.02 and 12.05 of this
Indenture.
If no appointment of a successor Trustee shall be made pursuant to the
foregoing provisions of this Article, the registered owner of any Bond
outstanding hereunder or any retiring Trustee may apply to any court of
competent jurisdiction to appoint a successor Trustee. Such court may
thereupon, after such notice, if any, as such court may deem proper and
prescribe, appoint a successor Trustee.
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Any Trustee hereafter appointed shall be a bank or trust company duly
and legally authorized and empowered to exercise the corporate trust powers
provided herein, and subject to examination by federal or state authority, of
good standing and having a combined capital and surplus aggregating not less
than five million dollars ($5,000,000).
SECTION 12.16. Vesting of Trusts in Successor. Every successor
Trustee appointed hereunder shall execute, acknowledge and deliver to its
predecessor and also to the Issuer an instrument in writing accepting such
appointment hereunder, and thereupon such successor 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 compensation, expenses, charges and other
disbursements of such predecessor that are payable pursuant to the provisions of
Sections 12.02 and 12.05 of this Article, 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 upon
payment to the resigning or removed Trustee of all compensation, expenses and
disbursements due and owing to such Trustee under the provisions of this
Indenture, deliver all property and moneys held by it hereunder to its
successor. 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 12.17. Designation and Succession of Paying Agents. Trustee
and any other banks or trust companies, if any, designated as Paying Agent or
Paying Agents in any supplemental indenture providing for the issuance of
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Additional Bonds as provided in Section 3.08 hereof, or refunding Bonds as
provided in Section 3.10 hereof, shall be the Paying Agent or Paying Agents for
the applicable series of Bonds.
Any bank or trust company with or into which any Paying Agent may be
merged or consolidated, or to which the assets and business of such Paying Agent
may be sold, shall be deemed the successor of such Paying Agent for the purposes
of this Indenture. If the position of Paying Agent shall become vacant for any
reason, Issuer shall, within thirty (30) days thereafter, appoint such bank or
trust company as shall be specified by the Company and located in the same state
as such Paying Agent to fill such vacancy; provided, however, that if Issuer
shall fail to appoint such Paying Agent within said period, Trustee shall make
such appointment.
The Paying Agents shall enjoy the same protective provisions in the
performance of their duties hereunder as are specified in this Article XII with
respect to Trustee insofar as such provisions may be applicable.
ARTICLE XIII
EXECUTION OF INSTRUMENTS BY BONDHOLDERS
AND PROOF OF OWNERSHIP OF BONDS
SECTION 13.01. Execution of Instruments by Bondholders; 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
Bondholders may be in any number of concurrent instruments of similar tenor and
may be signed or executed by such Bondholders in person or by agent appointed by
an instrument in writing. Proof of the execution of any such instrument and of
the ownership of 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:
(a) 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
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him, or by an affidavit of a witness to such execution.
(b) The ownership of the Bonds shall be proved by the
registration books kept by the Bond Registrar under the provisions of
this Indenture.
None of the provisions contained in this Article, however, 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 to it
may seem sufficient. Any request or consent of the registered owner of any Bond
shall bind every future owner of the same Bond in respect of anything done by
the Trustee in pursuance of such request or consent.
ARTICLE XIV
SUPPLEMENTAL INDENTURES
SECTION 14.01. Supplemental Indentures without Bondholder Consent.
The Issuer and the Trustee may, from time to time and at any time, with the
consent of the Company, but without the consent of the Bondholders, enter into
such supplemental indentures as shall not be inconsistent with the terms and
provisions hereof (which supplemental indentures shall thereafter form a part
hereof):
(a) To cure any ambiguity, inconsistency or formal defect or
omission in this Indenture or in any supplemental indenture, or
(b) To grant to or confer upon the Trustee for the benefit of
the Bondholders any additional rights, remedies, powers, authority or
security that may lawfully be granted to or conferred upon the
Bondholders or the Trustee, or
(c) To provide for the sale, authentication and delivery of
Additional Bonds or refunding Bonds and the disposition of the proceeds
from the sale thereof, in the manner and to the extent authorized by
Sections 3.08 and 3.10 above, or
(d) To modify, amend or supplement this Indenture or any
indenture supplemental hereto in such manner as to permit the
qualification hereof
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and thereof under the Trust Indenture Act of 1939 or any similar
federal statute hereafter in effect or to permit the qualification, of
the Bonds for sale under the securities laws of any of the states of
the United States of America, and, if they so determine, to add to this
Indenture or any indenture supplemental hereto such other terms,
conditions and provisions as may be permitted by said Trust Indenture
Act of 1939 or similar federal statute, or
(e) To provide for the designation of a cotrustee who shall
have the same qualifications as provided for a successor Trustee in
Section 12.15 of this Indenture.
SECTION 14.02. Modification of Indenture with Consent of Bondholders.
Subject to the terms and provisions contained in this Section and not otherwise,
the registered owners of not less than two-thirds (2/3) in aggregate principal
amount of the Bonds then outstanding shall have the right, from time to time,
anything contained in this Indenture to the contrary notwithstanding, to consent
to and approve the execution by the Issuer and the Trustee, as the case may be,
of such supplemental indentures as shall be deemed necessary or desirable by the
Issuer and the Company for the purpose of modifying, altering, amending, adding
to or rescinding, in any particular, any of the terms or provisions contained in
this Indenture or in any supplemental indenture; provided, however, that nothing
contained herein shall permit, or be construed as permitting (a) an extension of
the maturity of principal of or the interest on any Bond issued hereunder, or
(b) a reduction in the principal amount of any Bond or the rate of interest
thereon, or (c) the creation of a lien upon or pledge of the Issuer's rights
under the Agreement or other moneys pledged herein ranking prior to the lien or
pledge created by this Indenture or the Agreement for the Bonds, or (d) a
preference or priority of any Bond or Bonds over any other Bond or Bonds, or (e)
a reduction in the aggregate principal amount of the Bonds required for consent
to such supplemental indenture. Nothing herein contained, however, shall be
construed as making necessary the approval by Bondholders of the execution of
any supplemental indenture as authorized in Section 14.01 of this Article.
If at any time the Issuer shall request the Trustee to enter into any
supplemental indenture for any of the purposes of this Section 14.02, the
Trustee shall cause notice
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of the proposed execution of such supplemental indenture to be mailed, postage
prepaid, to the Company and to all registered owners of Bonds then outstanding
at their addresses as they appear on the registration books. Such notice shall
briefly set forth the nature of the proposed supplemental indenture, such notice
to the Original Purchaser shall be accompanied by a copy thereof, and such
notice to any other Bondholder shall state that a copy thereof is on file at the
office of the Trustee for inspection by all Bondholders.
Whenever, at any time within one (1) year after the date such notice
shall have been given, the Issuer shall deliver to the Trustee an instrument or
instruments purporting to be executed by the Company and the registered owners
of not less than two-thirds (2/3) in aggregate principal amount of the Bonds
then outstanding, which instrument or instruments shall refer to the proposed
supplemental indenture described in such notice and shall specifically consent
to and approve the execution thereof in substantially the form which accompanied
such notice to the Original Purchaser, or otherwise referred to in such notice
as on file with the Trustee, thereupon, but not otherwise, the Trustee may
execute such supplemental indenture in substantially such form, without
liability or responsibility to any Bondholder, whether or not such Bondholder
shall have consented thereto.
If the registered owners of not less than two-thirds (2/3) in aggregate
principal amount of the Bonds outstanding at the time of the execution of such
supplemental indenture shall have consented to and approved the execution
thereof as herein provided, no Bondholder shall have any right to object to the
execution of such supplemental indenture or to object to any of the terms and
provisions contained therein or in the operation thereof, or in any manner to
question the propriety of the execution thereof, or to enjoin or restrain the
Trustee or the Issuer from executing the same or from taking any action pursuant
to the provisions thereof.
Upon the execution of any supplemental indenture pursuant to the
provisions of this Section 14.02, this Indenture shall be deemed to be modified
and amended in accordance therewith, and the respective rights, duties and
obligations under this Indenture of the Issuer and the Trustee and the
registered owners of all Bonds then outstanding, shall thereafter be determined,
exercised and enforced hereunder, subject in all respects to such modifications
and amendments.
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SECTION 14.03. Supplemental Indenture Deemed Part of this Indenture.
The Trustee is authorized to join with the Issuer in the execution of any such
supplemental indenture and to make the further agreements and stipulations which
may be contained therein. Any supplemental indenture executed in accordance with
the provisions of this Article shall thereafter form a part of this Indenture
and all of the terms and conditions contained in any such supplemental indenture
as to any provisions authorized to be contained therein shall be and shall be
deemed to be part of the terms and conditions of this Indenture for any and all
purposes. In case of the execution and delivery of any supplemental indenture,
express reference may be made thereto in the text of any Bonds issued
thereafter, if deemed necessary or desirable by the Trustee or the Issuer.
SECTION 14.04. Discretion of Trustee in Executing Supplemental
Indentures. The Trustee shall be entitled to receive, and shall be fully
protected in relying upon, the opinion of counsel nationally recognized on the
subject of municipal bonds as conclusive evidence that any such proposed
supplemental indenture does or does not comply with the provisions of this
Indenture, and that it is or is not proper for the Trustee, under the provisions
of this Article, to join in the execution of such supplemental indenture.
Subject to the foregoing, the Trustee shall enter into such supplemental
indentures provided that its duties and obligations thereunder are no greater
than its duties and obligations which already exist under this Indenture, unless
it shall consent to such supplemental indenture.
ARTICLE XV
DEFEASANCE
SECTION 15.01. Release of Indenture. If, at any time after the date
of this Indenture (a) the Bonds secured hereby shall have become due and payable
in accordance with their terms or otherwise as provided in this Indenture, or
such Bonds shall have been duly called for redemption, or the Issuer gives the
Trustee irrevocable instructions concerning the payment of the principal and
interest on the Bonds at maturity or at any earlier redemption date scheduled by
the Issuer, or any combination thereof, (b) the
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whole amount of the principal and the interest so due and payable upon all of
the Bonds then outstanding, at maturity or upon redemption, shall be paid, or
sufficient moneys shall be held by the Trustee under this Indenture (whether or
not in any accounts created hereby) which, when invested in direct obligations
of the United States of America maturing not later than the maturity dates of
such principal and interest will, together with the income realized on such
investments, be sufficient to pay all such principal and interest on said Bonds
at the maturity thereof or the date upon which such Bonds are to be called for
redemption prior to maturity, and (c) provisions shall also be made for paying
all other sums payable hereunder by the Issuer, then and in that case the right,
title and interest of the Trustee hereunder and the pledge of and lien on the
Issuer's interests under the Agreement, and all other pledges and liens created
hereby and thereby or pursuant thereto, including the Mortgage, shall thereupon
cease, determine and become void, and the Trustee in such case, on 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 or the
Company, and shall turn over to the Company, any surplus in any account in the
Debt Service Fund and all balances remaining in any other funds or accounts
created by this Indenture other than moneys held for redemption or payment of
Bonds and to pay all other sums payable by the Issuer; otherwise this Indenture,
shall be, continue and remain in full force and effect.
ARTICLE XVI
SUPPLEMENTAL CONTRACTS
SECTION 16.01. Supplemental Contracts without Bondholders' Consent.
The Issuer, the Company, and the Trustee may, from time to time and at any time,
consent to such contracts supplemental to the Agreement as shall not be
inconsistent with the terms and provisions thereof and, in the opinion of the
Issuer, Company, and the Trustee, shall not be detrimental to the interests of
the Bondholders (which supplemental contracts shall thereafter form a part
thereof),
(a) to cure any ambiguity or formal defect or omission in the
Agreement or in any supplemental contract, or
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(b) to amend the Agreement for the purposes of Section 4.2(b)
thereof, or
(c) to grant to or confer upon the Trustee for the benefit of
the Bondholders any additional rights, remedies, powers, authority or
security that may lawfully be granted to or conferred upon the
Bondholders or the Trustee, or
(d) to amend the Agreement for the purposes of changing
components of the Project as permitted by Section 4.1 thereof.
At least thirty (30) days prior to the execution of any
supplemental contract for any of the purposes of this Section, the Trustee shall
cause a notice of the proposed execution of such supplemental contract to be
mailed, postage prepaid, to all owners of registered Bonds at their addresses as
they appear on the registration books. Such notice shall briefly set forth the
nature of the proposed supplemental contract and shall state that a copy thereof
is on file at the office of the Trustee for inspection by all Bondholders. A
failure on the part of the Trustee to mail the notice and provide the copy
required by this Section shall not affect the validity of such supplemental
contract.
SECTION 16.02. Amendment of Contract with Consent of Bondholders.
Except for supplemental contracts provided for in Section 16.01 of this Article
or amendments to the Agreement as therein provided for or as provided for in
Section 3.08 of this Indenture, neither the Issuer nor the Trustee shall consent
to any supplemental contract or amendment to the Agreement unless notice of the
proposed execution of such supplemental contract or amendment shall have been
given and the Company and the registered owners of not less than two-thirds
(2/3) in aggregate principal amount of the Bonds then outstanding shall have
consented to and approved the execution thereof all as provided for in Section
14.02 of this Indenture in the case of supplemental trust indentures; provided
that the Trustee shall be entitled to exercise its discretion in consenting or
not consenting to any such supplemental contract or amendment and to rely on an
opinion of counsel in the same manner as provided for in Section 14.04 of this
Indenture in the case of supplemental trust indentures.
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ARTICLE XVII
MISCELLANEOUS PROVISIONS
SECTION 17.01. Notices. Any notice, demand, direction, request or
other instrument authorized or required by this Indenture to be given to or
filed with the Bondholders, the Issuer, the Company or the Trustee shall be
deemed to have been sufficiently given or filed for all purposes of this
Indenture if and when sent by registered mail, return receipt requested:
To the Bondholders, addressed to their addresses as they appear on the
registration books provided for in this Indenture.
To the Issuer, addressed to:
Hillsborough County Industrial
Development Authority
c/o Warren M. Cason, Esquire
P. O. Box 2150
Tampa, Florida 33601
To the Company addressed to:
Progressive American Insurance
Company
Suite 900
410 Ware Boulevard
Tampa, Florida 33619
Attention: Jerry Shroat
President
with copies to:
The Progressive Corporation
6300 Wilson Mills Road
Mayfield Village, Ohio 44143
Attention: Howard Zelikow
Treasurer
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To the Trustee, addressed to or at its then principal office:
Sun Bank, N.A.
200 S. Orange Avenue
Orlando, Florida 32802
Attention: Corporate Trust Department
All documents received by the Trustee under the provisions of this
Indenture shall be retained in its possession, subject at all reasonable times
to the inspection by the Issuer, the Company and any Bondholder, and the agents
and representatives thereof.
SECTION 17.02. No Third-Party Beneficiaries. 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 and the registered owners of the Bonds issued
under and secured by this Indenture, and, to the extent provided for or
contemplated herein, the Company, 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 and the registered owners from time to
time of the Bonds issued hereunder.
SECTION 17.03. Effect of Partial Invalidity. 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 provisions of this Indenture or of said Bonds, but this
Indenture and said Bonds shall be construed and enforced as if such illegal and
invalid provision had not been contained therein. In case any covenant,
stipulation, obligation or agreement 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 parties thereto to the extent
permitted by law.
SECTION 17.04. Controlling Law; Members of Issuer Not Liable. All
covenants, stipulations, obligations and
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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 authorized by the Act and provided by the Constitution and laws of the
State of Florida. No covenant, stipulation, obligation or agreement contained
herein shall be deemed to be a covenant, stipulation, obligation or agreement of
any present or future member, agent or employee of the Issuer in his individual
capacity, and neither the members of the Issuer nor any official executing the
Bonds shall be liable personally on the Bonds, the Agreement or this Indenture
or shall be subject to any personal liability or accountability by reason of the
issuance or the execution by the Issuer or such members thereof.
SECTION 17.05. Binding Effect; Controlling Law. This Indenture shall
inure to the benefit of and shall be binding upon the Issuer, the Trustee, the
Bondholders and to the extent provided for or contemplated herein, the Company,
and each of their respective successors and assigns, and shall be governed by
and construed in accordance with the laws of the State of Florida.
SECTION 17.06. Counterparts. This Indenture may be executed in
multiple counterparts, each of which shall be regarded for all purposes as an
original; and all such counterparts shall constitute but one and the same
instrument.
SECTION 17.07. Headings Not Part of Indenture. Any heading preceding
the text of the several Articles hereof shall be solely for convenience of
reference and shall not constitute a part of this Indenture, nor shall they
affect its meaning, construction or effect.
SECTION 17.08. Payments Due on Saturdays, Sundays and Holidays. In
any case where the date of maturity of principal of and/or interest on the Bonds
or the date filed for redemption of any Bonds shall be, in the city of payment,
a Saturday, a Sunday, a legal holiday or a day on which banking institutions are
authorized by law to close, then payment of principal and/or interest need not
be made on such date in such city but may be made on the next succeeding
business day not a Saturday, a Sunday, a legal holiday or a day on which banking
institutions are authorized by law to close with the same force and effect as if
made on
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the date of maturity or the date fixed for redemption, and interest shall accrue
for the period after such date.
SECTION 17.09. Trustee Approval of Loan and Debt Obligation Agreement.
The Trustee has reviewed the Agreement and the form of the 1982 Bonds and the
Trustee hereby approves the form of the Agreement and the 1982 Bonds and
covenants that it will faithfully perform at all times any and all covenants,
undertakings, stipulations and provisions contained in the Agreement, in the
1982 Bonds authenticated and delivered thereunder nand in all proceedings of the
Issuer pertaining thereto, on its part to be observed or performed, whether
express or implied; provided however that to amendment or revision to the
Agreement or supplemental Agreement shall be effective unless approved by the
Trustee.
IN WITNESS WHEREOF, HILLSBOROUGH COUNTY INDUSTRIAL DEVELOPMENT
AUTHORITY has caused this Indenture to be executed by the Chairman, and the seal
of said Authority to be impressed hereon and attested by the Assistant Secretary
of the Authority, and Sun Bank, N.A. has caused this Indenture to be executed in
its behalf, as Trustee, by its Corporate Trust Officer thereof, and its seal to
be impressed hereon and attested by a Trust Officer thereof, all as of the day
and year first above written.
HILLSBOROUGH COUNTY INDUSTRIAL
DEVELOPMENT AUTHORITY
(Seal) By /s/ Samuel I. Latimer
----------------------------------------
Chairman
ATTEST:
/s/ Ellsworth G. Simmons
- --------------------------------
Assistant Secretary
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Sun Bank, N.A.
as Trustee as aforesaid
(Seal) By /s/ Geraldine P. Kail
--------------------------------------
Corporate Trust Officer
ATTEST:
By Robert W. Andrews, Jr.
-----------------------------------
____________________, Trust Officer
STATE OF FLORIDA
COUNTY OF Hillsborough
The foregoing instrument was acknowledged before me by Samuel I.
Latimer and Ellsworth G. Simmons, Chairman and Assistant Secretary,
respectively, of the HILLSBOROUGH COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY, a
public body corporate and politic of the State of Florida, this 16th day of
December, 1982.
/s/ Gertrude Eaton
-------------------------------------------------
Notary Public
My commission expires: Notary Public, State of Florida at Large
My Commission Expires Mar. 8, 1986
(Affix notarial seal)
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STATE OF FLORIDA
COUNTY OF HILLSBOROUGH
The foregoing instrument was acknowledged before me this 16th day of
December, 1982, by G. P. Kail and R. W. Andrews, as Trustee and Trust Officer,
respectively, of Sun Bank, N.A., a national banking corporation, on behalf of
the corporation.
/s/ Gertrude Eaton
-------------------------------------
Notary Public
My commission expires: Notary Public State of Florida at Large
My commission expires Mar. 8, 1986
(Affix notarial seal)
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MORTGAGE AND SECURITY AGREEMENT
This is a Mortgage and Security Agreement dated as of this ____ day of
_______, 1982, executed by PROGRESSIVE AMERICAN INSURANCE COMPANY, as Mortgagor,
and delivered to the HILLSBOROUGH COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY,
HILLSBOROUGH COUNTY, FLORIDA, as Mortgagee.
1. Definitions. The following capitalized terms shall be used in this
Mortgage and Security Agreement (the "Mortgage") for the meanings set forth
adjacent to such terms:
"Mortgagor" means PROGRESSIVE AMERICAN INSURANCE COMPANY, a Florida
corporation. Mortgagor's address is 416 Ware Boulevard, Suite 900, Tampa,
Florida 33619.
"Mortgagee" means the Hillsborough County Industrial Development
Authority, a public body corporate and politic of the State of Florida, and
after the assignment of this Mortgage shall mean the Trustee.
"Trustee" means Sun Bank, N.A., Orlando, Florida, as Trustee for the
holders of the 1982 Bonds as described hereunder under the Indenture of Trust
(therein and herein designated as the "Indenture") dated as of December 16,
1982, by and between the Trustee and the Hillsborough County Industrial
Development Authority (therein and herein designated as the "Issuer"), and any
successor trustee under the Indenture. The terms and provisions of the
Indenture are hereby incorporated by reference herein.
"Agreement" means the Loan and Debt Obligation Agreement dated as of
December 16, 1982, between the Mortgagor (therein designated as the "Company")
and the Hillsborough County Industrial Development Authority (therein and herein
designated as the "Issuer"). The terms and provisions of the Agreement are
hereby incorporated by reference herein.
"Indebtedness" means the Indebtedness secured by this Mortgage
consisting of all of the obligations of the Mortgagor pursuant to that certain
Promissory Note, dated as of December 16, 1982, between the Mortgagor and the
Issuer,
- --------------------------------------------------------------------------------
No intangible taxes or documentary stamp taxes are due hereon, pursuant to
Sections 159.31 and 159.50, Florida Statutes (1981).
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and pursuant to the Agreement, as such Note and Agreement may be subsequently
extended, renewed, supplemented, modified or amended, including without
limitation, the loan repayment installments ("Loan Installments") required under
the Note and under Section 5.2 of the Agreement, and the obligations under
Sections 7.1, 9.5 and 9.7 thereof; and all of the Issuer's obligations under and
pursuant to the Indenture, including without limitation, the Issuer's
obligations for the payment of the interest, principal and redemption payments,
if any, required for the payment of the $4,000,000 Hillsborough County
Industrial Development Authority Industrial Development Revenue Bonds
(Progressive American Insurance Company Project), Series 1982 (designated in the
Indenture and herein as the "1982 Bonds"), and for any "Additional Bonds" issued
under the Indenture, and its obligation to pay the fees, charges and expenses of
the Trustee under the Indenture.
"Bonds" means the 1982 Bonds and any Additional Bonds issued under the
Indenture.
"Issuer" means the Hillsborough County Industrial Development
Authority, a public body corporate and politic of the State of Florida.
"Maximum Principal Indebtedness" means the principal Indebtedness
required to pay the principal amount of the 1982 Bonds in the amount of
$4,000,000, together with future advances that may be secured hereby that shall
not exceed the aggregate principal sum of $10,000,000.
"Mortgaged Property" means the fee simple interest of the Mortgagor in
the lands on which the Project is located or is to be constructed, said lands
being more particularly described in Exhibit "B" attached hereto, the Project as
herein described, and all other property described in Section 2 below.
"Project" means, the structures, fixtures, and improvements to be
located in or on the lands and easements described in Exhibit A attached hereto.
2. Mortgage and Security Interest. In consideration of ten dollars and
other valuable considerations received by the Mortgagor, the Mortgagor hereby,
on the effective date of this Mortgage as stated above, mortgages to the
Mortgagee and grants the Mortgagee a security interest in the following
described real property, rights, titles, interests and estates:
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(a) The Mortgaged Property, including, but not limited to, the
Project, all fixtures, and all components and parts thereof, the electrical,
heating, cooling, ventilating, gas distribution, compressed air, water and
sewer, and sprinkler systems incorporated into the Project.
(b) Any and all rights and appurtenances belonging, incident or
appertaining to said real property, improvements, and fixtures or any part
thereof.
(c) All leases of the real property described in Exhibit "A" hereto
now or hereafter entered into and all right, title and interest of the Mortgagor
thereunder, including without limitation, cash or securities deposited
thereunder pursuant to said leases, and all rents, issues, proceeds, and profits
accruing from said real property and together with all proceeds of the
conversion, voluntary or involuntary of any of the foregoing into cash or
liquidated claims, including without limitation, proceeds of insurance and
condemnation awards.
3. Secured Indebtedness; Future Advances; Maximum Amount and Time.
This Mortgage shall secure (a) the Indebtedness as specified above, and (b) the
total amount of indebtedness secured hereby may decrease or increase from time
to time, but the total unpaid balance so secured at any one time shall not
exceed the Maximum Principal Indebtedness, plus interest thereon, and any
disbursements made for the payment of taxes, levies or insurance on the
Mortgaged Property and for maintenance, repair, protection and preservation of
the Mortgaged Property with interest on such disbursements, all as provided in
this Mortgage and the Indenture and Agreement described herein. This Mortgage
shall not secure any future advances made more than twenty (20) years from the
date hereof.
4. Payment of Indebtedness. The Mortgagor shall pay all Indebtedness
and perform all obligations secured hereby promptly when due.
5. Title Covenants. The Mortgagor covenants that the Mortgaged
Property is free from all encumbrances (other than this Mortgage) except as may
be specifically stated herein, other than Permitted Encumbrances described in
Exhibit "B" hereto, that lawful seisin of and good right to encumber the
Mortgaged Property are vested in the Mortgagor, and that the Mortgagor hereby
fully warrants the title to
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the Mortgaged Property and will defend the same against the lawful claims of all
persons whomsoever.
6. Conditions to Changes in the Mortgaged Property. The right of the
Mortgagor to make any changes to the Mortgaged Property in the manner
hereinafter provided is expressly subject to the conditions that (i) such
changes will not, in the opinion of counsel nationally recognized on the subject
of municipal bonds or other counsel acceptable to the Issuer and the Trustee,
result in the interest on the 1982 Bonds or any Additional Bonds becoming
subject to federal income taxes then in effect; and (ii) such changes will not
impair the structural soundness, usefulness or market value of the Mortgaged
Property or significantly alter the character or purpose or detract from the
operating efficiency of the Mortgaged Property, impair its revenue producing
capacity, or otherwise affect its operation as a headquarters facility or
otherwise adversely affect the purposes of this Mortgage.
7. After-Acquired Property Not Part of Mortgaged Property. All
buildings, structures, improvements, and all fixtures now or hereafter installed
in or attached to the Project or located above, upon or under the Mortgaged
Property so as to preclude the removal without material injury to the Project or
the Mortgaged Property, are subject to the terms and conditions of this Mortgage
and the security interest created hereby. Except as provided in paragraph 9
below, all other property of every kind or nature, whether now owned or
after-acquired, which shall be constructed, placed or installed in or on the
Project or the Mortgaged Property, shall not become subject to this Mortgage or
the security interest created hereby, shall remain the property of the Mortgagor
and may be altered, removed, replaced or otherwise used by the Mortgage at any
time so long as the Mortgagor is not in default hereunder and the conditions of
paragraph 6 are complied with.
8. Removal Free of Notice. The Mortgagor may, from time to time at
its own cost and expense, without notice to and without obtaining the approval
of the Mortgagee and free of any obligation to make any replacement thereof,
demolish, remove or dispose of any structure, fixtures, or other improvements
constituting part of the Mortgaged Property, provided the fair market value
thereof at the time of its demolition or removal does not exceed One Hundred
Thousand Dollars ($100,000) in any one fiscal year or Three
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Hundred Thousand Dollars ($300,000) in the aggregate during the term of this
Mortgage, and the conditions of paragraph 6 hereof are complied with, and such
property thereafter shall not constitute a part of the Mortgaged Property. The
Mortgagee shall, at the Mortgagor's request, join in the execution of any
instruments necessary to release the lien on such property created by this
Mortgage.
9. Removal with Notice; Replacements and Substitutions Subject to
Mortgage. If the Mortgagor in its sole discretion determines that any real
property, structure, fixtures or other improvements constituting a part of the
Mortgaged Property has become inadequate, obsolete, worn out, unsuitable,
undesirable or unnecessary, and if the conditions of paragraph 6 hereof are
complied with and the value of said property exceeds the limits contained in
paragraph 8 above, the Mortgagor, after giving written notice of its proposed
action to the Mortgagee, may then demolish or remove such property from the
Mortgaged Property and may, to the extent permitted by law, sell, trade in,
exchange or otherwise dispose of same, in whole or in part, provided that the
Mortgagor shall, at its own cost and expense, acquire, construct or install
replacement or substitute real property, structures, fixtures or other
improvements having an economic value and usefulness to the operations of the
Mortgaged Property (but not necessarily the same function) at least equal to the
economic value and usefulness, prior to demolition, removal or disposal, of the
property demolished, removed or disposed of, and provided further, however, that
all such real property, structures, fixtures or other improvements constructed
or installed in replacement or substitution thereof shall be free of all liens
and encumbrances, other than Permitted Encumbrances, and shall become a part of
the Mortgaged Property.
10. Covenant Against Unauthorized Removal. Except as expressly
authorized above, the Mortgagor shall not remove any of the Project, or any part
thereof, from the Mortgaged Property.
11. No Abatement of Obligations. The demolition, substitution or
removal of any property shall not result in any abatement or diminution of Loan
Installments or other Indebtedness secured by this Mortgage. The Mortgagor
shall pay all costs incurred or damages resulting from any demolition,
substitution or removal of any property pursuant to the provisions of this
Mortgage.
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12. Maintenance and Repair. The Mortgagor shall permit, commit or
suffer no waste, impairment or deterioration of the Mortgaged Property. The
Mortgagor shall, during the term of this Mortgage at its sole cost and expense,
keep and maintain the Mortgaged Property in a good state of repair and
preservation, ordinary wear and tear, obsolescence in spite of repair and acts
of God excepted. If the Mortgagor fails to do so, then the Mortgagee, without
waiving the option to foreclose, may take some or all measures that the
Mortgagee reasonably deems necessary or desirable for the maintenance, repair,
preservation or protection of the Mortgaged Property, and any expenses
reasonably incurred by the Mortgagee in so doing shall become part of the
Indebtedness secured hereby, shall become immediately due and payable, and shall
bear interest at a rate equal to the maximum lawful rate. The Mortgagee shall
have no obligation to care for and maintain the Mortgaged Property or, having
taken some measures therefor, to continue the same or take other measures.
13. Casualty Insurance. The Mortgagor shall, during the construction
period and throughout the term of this Mortgage, keep the Mortgaged Property
continuously insured against such risks as are customarily insured against in
connection with the operation of similar facilities of like size, type and
location, paying as the same become due and payable all premiums with respect
thereto. Such insurance shall include, without intending to limit the
foregoing, insurance against damage by fire and lightning with a uniform
standard extended coverage endorsement on a repair or replacement basis in an
amount not less than one hundred percent (100%) of the then actual cost of
replacement (excluding costs of replacing excavations and foundations, but
without deduction for depreciation) of the Mortgaged Property. Each insurance
policy required by this section: (i) shall be issued or written by such insurer
(or insurers) as is financially responsible, (ii) shall be in such form and with
such provisions (including, without limitation and where applicable, loss
payable clauses payable to the Mortgagee, waiver of subrogation clauses,
provisions relieving the insurer of liability to the extent of minor claims and
designation of the named insureds) as are generally considered standard for the
type of insurance involved, and (iii) shall prohibit cancellation or substantial
modification without at least thirty (30) days prior written notice to the
Mortgagee and the Issuer. All insurance policies carried pursuant to the
foregoing shall name the Mortgagor, the Issuer and the Mortgagee as parties
insured thereunder as the respective interest of each such party may appear,
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and proceeds thereunder shall be made payable and shall be applied as provided
in paragraph 14 below. Copies of each such policy shall upon request be filed
with the Mortgagee.
The Mortgagor shall pay all premiums and charges for the maintenance
and renewal of the insurance and shall furnish the Mortgagee with receipts and
proofs thereof not less than ten (10) days before the expiration thereof,
without notice or demand from the Mortgagee. If the Mortgagor fails to do so,
then the Mortgagee, without waiving the option to foreclose or exercise any
other remedy hereunder, may obtain such insurance for the protection of the
Mortgagee, and any expenses reasonably incurred by the Mortgagee in so doing
shall become part of the Indebtedness secured hereby, shall become immediately
due and payable, and shall bear interest at the maximum lawful rate. In the
event of foreclosure of this Mortgage or transfer of the Mortgaged Property in
full or partial satisfaction of the Indebtedness secured hereby, all interest of
the Mortgagor in the policy or policies of insurance (including any claim to
proceeds attributable to losses theretofore occurring but not yet paid to
Mortgagor) shall pass to the purchaser, grantee or transferee, subject, however,
to the terms and provisions of this Mortgage.
14. Insurance Proceeds and Condemnation Awards. If, prior to the
payment in full or satisfaction of the Indebtedness (or provisions for payment
thereof having been made in accordance with the provisions of the Agreement or
the Indenture) the Mortgaged Property, or any part or component thereof having a
value in excess of $150,000, shall be damaged, lost or destroyed, by whatever
cause, except as provided in Sections 8 and 9 hereof, or if any public authority
or entity, in the exercise of its power of eminent domain, takes or damages the
Mortgaged Property, or any part or component thereof having a value in excess of
$150,000, there shall be no abatement or reduction in the Loan Installments
payable by the Mortgagor under the Agreement, and all of the insurance proceeds
(whether payable from the policies of insurance described in paragraph 13 above
or from other policies of insurance carried by the Mortgagor or third parties),
and any award or compensation resulting from such taking or damage by
condemnation shall be paid to the Mortgagee and deposited by it in the
Construction Fund, as that term is defined in the Indenture (the "Construction
Fund"), held by the Mortgagee under the Indenture. The Mortgagor may then elect
to repair, rebuild, restore or replace the Mortgaged Property or the portion
thereof so taken or damaged, by delivering, within one hundred twenty
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(120) days after the deposit of such funds with the Mortgagee, to the Mortgagee:
(i) written notice of its election to repair, rebuild, replace or restore such
property, and (ii) a certificate or opinion from an independent engineer of
recognized standing and acceptable to the Mortgagee that, in the opinion of such
engineer, the proceeds of insurance or condemnation awards deposited in the
Construction Fund will be sufficient to repair, rebuild, replace or restore such
property to substantially the same condition as it was in prior to condemnation
or destruction, which election shall be subject to the approval of the
Mortgagee, which shall not be unreasonably withheld. After delivery of the
foregoing to the Mortgagee, the Mortgagor may make withdrawals from such fund
held by the Mortgagee for the purpose of repairing, rebuilding, replacing or
restoring such property in accordance with the conditions and procedures for
withdrawals from such fund held by the Mortgagee, which conditions and
procedures are contained in Section 4.3 of the Agreement. If a certificate as
described in subparagraph (ii) above is not rendered, the Mortgagor may
nevertheless use the moneys deposited in the Construction Fund held by the
Mortgagee for such purposes if it unconditionally agrees to complete the repair,
rebuilding, replacement or restoration of the Mortgaged Property substantially
to its former condition at its own expense. If the Mortgagor does not elect to
rebuild, repair, replace or restore such property or is unable or unwilling to
comply with the other requirements set forth above within one hundred twenty
(120) days after the deposit of such funds with the Mortgagee, the Mortgagee
shall forthwith deposit such funds in the Redemption Account in the Debt Service
Fund, as that phrase is defined in the Indenture, and shall use such funds to
pay the Indebtedness secured by this Mortgage and the Mortgagor agrees to
deposit into the Redemption Account in the Debt Service Fund additional funds as
may be required for the payment of all principal and interest represented by the
Bonds then outstanding and all costs and expenses incurred in the redemption and
payment thereof and the unpaid portion of the Indebtedness. This Mortgage
extends to and shall encumber any insurance proceeds payable on account of the
Mortgaged Property and any judgments, awards, damages and settlements hereafter
rendered or paid and resulting from condemnation proceedings with respect to the
Mortgaged Property or the taking of the Mortgaged Property under the power of
eminent domain, and the Mortgagee may require that any sums payable to the
Mortgagor and arising out of the power of eminent domain with respect to the
property and any proceeds of casualty insurance on the Mortgaged Property shall
be applied to the Indebtedness secured hereby.
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15. Taxes, Assessments and Liens. Subject to the provisions of this
Mortgage, the Mortgagor shall pay or cause to be paid, as the same respectively
come due, all fees, taxes, charges and assessments of any kind or nature
whatsoever that may at any time become due or be lawfully assessed or levied
against the Mortgaged Property, the Mortgagor, the Issuer or the Mortgagee, with
respect to the ownership, use or operation of the Mortgaged Property or any
portion thereof, or with respect to the original issuance of the Bonds, or with
respect to the income or profits of the Issuer or the Mortgagee from sale of the
Project or the receipt of the Loan Installments, or with respect to the
mortgaging, pledging and assigning of the collateral referred to in Section 8.5
of the Agreement, pursuant to the terms of the Agreement and the Indenture,
including without limitation all ad valorem taxes lawfully assessed thereon, all
utility and other charges incurred in the operation, maintenance, use, occupancy
and upkeep thereof, all assessments and charges lawfully made by any
governmental body against the Mortgagor, the Issuer or the Mortgagee for or on
account of the Mortgaged Property, all excise taxes, sales and use taxes,
documentary stamp taxes, and intangible taxes levied against the Mortgagor, the
Issuer or the Mortgagee on or with respect to the Agreement or the Indenture and
the amounts payable by the Mortgagor hereunder or thereunder, the original
issuance and delivery of the Bonds, and the assignment of and the granting of
the mortgages and security interests in the aforementioned collateral, and all
other lawful taxes, impositions, fees, assessments and charges of every kind or
nature, ordinary or extraordinary, general or special, foreseen or unforeseen,
whether similar or dissimilar to any of the foregoing, and all applicable
interest and penalties thereon, if any, that shall be or become due and payable
and that shall be lawfully levied, assessed or imposed, provided that with
respect to special assessments or other governmental charges that may be
lawfully paid in installments over a period of years, the Mortgagor shall be
obligated to pay only such installments as are required to be paid during the
term of this Mortgage. Nothing contained herein shall be deemed to constitute
an admission by the Mortgagor to any third party other than the Issuer and the
Mortgagee that the Mortgagor is liable for, or its properties are subject to,
any tax, charge, fee, rate, imposition or assessment. Nothing in this section
shall require the payment of any tax, fee, charge, or other obligation
identified herein or require the Company to make provision for payment thereof,
so long as the validity thereof shall be contested in good faith by the Company
by appropriate legal proceedings.
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16. Inspection. Mortgagee and Mortgagee's representatives may enter
upon the Mortgaged Property for inspection at all reasonable times and in a
reasonable manner, both before and after default.
17. Events of Default. Each of the following events is hereby
declared an "event of default," provided, however, that in any case in which
such event of default shall be occasioned by the action or inaction of the
Issuer, such action or inaction may be cured by the Mortgagor within the time
and in the manner as contemplated by the provisions of this Mortgage, the
Agreement or the Indenture.
(a) The Mortgagor shall fail to make full and punctual payment
or to fully perform any of its obligations in a manner constituting an
"Event of Default" as defined in Section 9.1 of the Agreement;
(b) The Mortgagor shall fail to make full and punctual payment
of any sum due under this Mortgage when due or within ten (10) days
thereafter or the Mortgagor shall fail to fully perform any of its
obligations under this Mortgage and such failure shall continue for
thirty (30) days after written notice specifying such default and
requiring the same to be remedied shall have been given to the Issuer
and the Mortgagor by the Mortgagee; or
(c) The Issuer shall default in the due and punctual
performance of any other of the covenants, conditions, agreements and
provisions contained in the Bonds or in the Indenture on the part of
the Issuer to be performed, or the Mortgagor shall default in
connection with the matters referred to in Sections 10.04, 10.05 or
10.06 of the Indenture, and such default shall continue for thirty (30)
days after written notice specifying such default and requiring the
same to be remedied shall have been given to the Issuer and the
Mortgagor by the Mortgagee.
(d) In the good faith opinion of the Trustee, there has been
any material adverse change in the financial status of the Mortgagor or
the Guarantor.
Before the entry of final judgment or decree in any suit,
action or proceeding instituted by the Mortgagee under the provisions of this
Mortgage or the Indenture or before
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the completion of the enforcement of any other remedy under this Mortgage or the
Indenture, the Mortgagee shall be permitted to discontinue such suit, action,
proceeding or enforcement of any remedy if, in its opinion, any default forming
the basis of such suit, action, proceeding or enforcement of any remedy shall
have been remedied.
18. Remedies on Default. In the event any of the Indebtedness shall
at the time be outstanding and unpaid and provision for the payment thereof
shall not have been made in accordance with the provisions of the Indenture and
the Agreement, whenever any event of default referred to in paragraph 17 above
shall have happened and be subsisting, the Mortgagee may take any one or more of
the following remedial steps:
(a) Declare all Loan Installments and other amounts payable
under the Note and Section 5.2 of the Agreement for the remainder of
the term of this Mortgage to be immediately due and payable, whereupon
the same shall become immediately due and payable;
(b) Foreclose on this Mortgage, enter into possession of the
Mortgaged Property or any part thereof without notice or demand,
perform any acts the Mortgagee deems necessary or proper to preserve
the security and to collect and receive all rents, issues and profits
thereof, including those past due as well as those accruing thereafter,
and sell or lease the Mortgaged Property or any part thereof for the
account of the Mortgagor, holding the Mortgagor liable for the
difference between the amounts received and the Loan Installments and
other amounts payable by the Mortgagor hereunder;
(c) Seek the appointment of a receiver to enter upon and take
possession of the Mortgaged Property or any part thereof, as a matter
of strict right, without notice and ex parte, and without regard to the
value or occupancy of the security, or the solvency of the Mortgagor,
or the adequacy of the Mortgaged Property as security for the
obligations secured hereby, and to collect the rents, issues and
profits therefrom and apply the same as the Court may direct, such
receiver to have all the rights and powers permitted under the laws of
Florida;
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(d) Inspect, examine and make copies of the books and records
and any and all accounts and data of the Mortgagor relating to the use
and operation of the Mortgaged Property; and
(e) Take all other actions and pursue all other remedies
available under any other contract or agreement or otherwise by
statute, at law or in equity, whether or not inconsistent with the
foregoing, that may appear necessary or appropriate to collect the sums
then due and thereafter to become due from the Mortgagor by reason of
this Mortgage, the Note or the Agreement, or to enforce specific
performance and observance of any obligation, agreement or covenant of
the Mortgagor thereunder.
19. Power and Authority. In order to further and more fully secure
the payment of the principal of and interest on the Indebtedness upon the
happening of any event of default as herein provided, the Mortgagor hereby
authorizes and permits the Mortgagee for and on its behalf and on behalf of and
in the name of the Bondholders and the Issuer, to foreclose the Mortgagor's
interest in the Mortgaged Property by foreclosure in the manner provided by the
Florida Statutes, which remedy shall be in addition to the other remedies
provided in any other applicable provisions of this Mortgage, the Note, the
Agreement and the Indenture. The Mortgagee shall have full power and authority
to deal in and with the Mortgaged Property, including the power and authority to
protect, to conserve and to sell or to lease or to encumber or otherwise to
manage and dispose of the Mortgaged Property, it being the intent to vest in the
Mortgagee full rights of ownership in the Mortgaged Property as authorized and
contemplated by Section 689.071, Florida Statutes.
20. No Remedy Exclusive; etc. No remedy herein conferred upon or
reserved to the Mortgagee 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 Mortgage, the Note, the
Agreement or the Indenture 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 and power may be exercised from time to time
and as often as may be deemed expedient. In order to entitle the Mortgagee to
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exercise any remedy reserved to it, it shall not be necessary to give any
notice, other than such notice as may be herein expressly required. Such rights
and remedies given hereunder shall extend fully to the Mortgagee, and the owners
of the Bonds issued under the Indenture shall be deemed third party
beneficiaries of all covenants and agreements herein contained, the enforcement
of which is subject, however, to all of the terms and conditions set forth in
this Mortgage and the Indenture. In the event any agreement contained in this
Mortgage 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.
21. Agreement to Pay Attorneys' Fees and Expenses. If the Mortgagor
defaults under any of the provisions of this Mortgage and the Mortgagee should
employ attorneys or incur other expenses for the collection of the Loan
Installments or the enforcement of performance or observance of any obligation
or agreement of the Mortgagor herein contained, or enforcement of the
Mortgagee's rights hereunder (including foreclosure or other litigation
expenses), the amount thereof shall become part of the Indebtedness secured
hereby, shall become immediately due and payable, and shall bear interest at the
maximum lawful rate, and the Mortgagor agrees that it will on demand therefor
pay to the Mortgagee the reasonable fees of such attorneys (including fees on
appeal) and such other expenses so incurred by the Issuer, and the interest
accrued thereon.
22. Extension, Leniencies and Releases. The Mortgagee may grant
extensions of time for payment and other leniencies with respect to any
Indebtedness secured hereby, and may waive or fail to enforce any of the
Mortgagee's rights hereunder, and may release a portion or portions of the
Mortgaged Property from the lien hereof, without releasing or diminishing the
obligation or liability of the Mortgagor.
23. Subrogation. The Mortgagee shall be subrogated to the lien
(notwithstanding its release of record) of any vendor, mortgagee or other
lienholder paid or discharged by the proceeds of the Bonds or any loan or
advance made by the Mortgagee to the Mortgagor and secured hereby.
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24. Release or Satisfaction. Whenever there is no outstanding
obligation secured hereby and no commitment to make advances, the Mortgagee
shall on written demand by the Mortgagor, give a release or satisfaction hereof
in recordable form.
25. Further Assurances. The Mortgagor shall, at its expense, promptly
and duly execute, acknowledge and deliver to the Mortgagee such further
documents, instruments, financing and similar statements and assurances and take
such further action as may from time to time be reasonably required or requested
by the Mortgagee in order more effectively to carry out the intent and purposes
of this Mortgage, the Note, the Agreement, the Indenture and the Bonds issued
thereunder and other instruments contemplated thereby or hereby.
26. General Provisions. The singular shall include the plural and any
gender shall be applicable to all genders when the context permits or implies.
If the Mortgagor sells or transfers the Mortgaged Property, the Mortgagee may
deal with the successor or successors in interest without in any way discharging
or reducing the Mortgagor's liability for the Mortgagor's obligations secured
hereby. The terms Mortgagor and Mortgagee shall extend to and include their
respective legal representatives, successors and assigns. Any agreement
hereafter made by the Mortgagor and the Mortgagee pursuant to this Mortgage
shall be superior to the rights of the holder of any intervening lien or
encumbrance. Time is of the essence.
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IN WITNESS WHEREOF, the Mortgagor has executed this Mortgage as of the
16th day of December, 1982.
PROGRESSIVE AMERICAN INSURANCE
COMPANY
By /s/ Charlotte A. Jackson
------------------------------------------
Charlotte A. Jackson
Vice President
ATTEST:
(SEAL)
/s/ Robert J. Young
- ---------------------------------------
Robert J. Young
Assistant Secretary
STATE OF FLORIDA
COUNTY OF HILLSBOROUGH
The foregoing instrument was acknowledged before me this 16th day of
December, 1982, by CHARLOTTE A. JACKSON, Vice President, and ROBERT J. YOUNG,
Assistant Secretary, respectively of PROGRESSIVE AMERICAN INSURANCE COMPANY, a
Florida corporation, on behalf of the corporation.
/s/ Gertrude Eaton
-----------------------------------
Notary Public
Notary Public State of Florida at Large
My Commission Expires Mar. 8, 1986
(Affix notarial seal)
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UNCONDITIONAL GUARANTY
THIS UNCONDITIONAL GUARANTY, dated as of _____ __ 1982, by and between
THE PROGRESSIVE CORPORATION, an Ohio corporation (the "Guarantor"), Sun Bank,
N.A., Orlando, Florida, (herein, together with any successors, called the
"Trustee"), and the Hillsborough County Industrial Development Authority,
Hillsborough County, Florida (the "Issuer").
WITNESSETH:
WHEREAS, the Issuer has agreed by adoption of a Resolution dated March
10, 1982, as supplemented and amended by a Resolution dated September 22, 1982
(collectively, the "Resolutions"), with PROGRESSIVE AMERICAN INSURANCE COMPANY,
a Florida corporation (the "Company"), to issue its Hillsborough County
Industrial Development Authority Industrial Development Revenue Bonds
(Progressive American Insurance Company Project), Series 1982, in the aggregate
principal amount of $4,000,000 (the "Bonds"); and
WHEREAS, the proceeds from the sale of the Bonds are to be deposited
with the Trustee and disbursed to the Company pursuant to the terms of that
certain Indenture of Trust (the "Indenture") between the Issuer and the Trustee
dated as of the date hereof, for the purpose of constructing the Company's
headquarters office in Hillsborough County, Florida (the "Project"); and
WHEREAS, the Company has agreed to pay the principal of, interest on
and redemption premium, if any, with respect to the Bonds, as and when the same
become due, under and pursuant to the terms of that certain Promissory Note (the
"Note") issued by the Company to the Issuer and under that certain Loan and Debt
Obligation Agreement (the "Agreement") between the Issuer and the Company, both
dated as of the date hereof; and
WHEREAS, the Trustee has agreed in the Indenture to act for the benefit
of the holders of the Bonds, and the Issuer has assigned to the Trustee under
the terms of the Indenture its right, title and interest in the payments to be
made by the Company under the Note and the Agreement; and
WHEREAS, Guarantor is the indirect owner of all of the issued and
outstanding stock of the Company and wishes to provide additional security for
the payment of the Bonds as and when the same shall become due, and wishes to
enter
150
into this Unconditional Guaranty for the benefit of the Issuer and for the
benefit of the holders of the Bonds as represented by the Trustee;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Guarantor does hereby covenant and agree with the Issuer and the
Trustee as follows:
SECTION 1. All terms used herein in capitalized form and not otherwise
herein defined shall have the same meaning as ascribed to them in the
Resolutions or in the Agreement.
SECTION 2. Guarantor hereby absolutely and unconditionally guarantees
to the Issuer and to the Trustee for the benefit of the holders of the Bonds (a)
the full and prompt payment of the principal of, interest on and any redemption
premium with respect to the Bonds as and when the same shall become due, whether
at the stated date of maturity, by acceleration or otherwise, and (b) the full
and complete payment and performance by the Company of all of the provisions,
conditions, covenants and agreements to be performed by the Company under the
Agreement, the Note and the Mortgage and Security Agreement (the "Mortgage"),
dated as of the date hereof, between the Company and the Issuer (the Bonds, the
Agreement, the Note and the Mortgage sometimes being referred to herein
collectively as the "Operative Documents"), without regard to the validity of
the Operative Documents or the enforceability of the Operative Documents against
the Company or the Issuer.
Guarantor further unconditionally agrees to pay all reasonable expenses
and charges, legal or otherwise (including court costs and attorneys' fees) paid
or incurred by the Issuer or the Trustee in realizing upon any of the payments
or enforcing any of the covenants hereby guaranteed or in enforcing this
Unconditional Guaranty. Guarantor shall make all payments due hereunder in
lawful money of the United States of America in federal or other immediately
available funds.
Guarantor further agrees that if the Issuer or the Company does not or
is not able to pay or perform in accordance with the terms of the Operative
Documents for any reason (including without limitation the failure of the
validity of the Operative Documents or the enforceability
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thereof whether by reason of waiver or otherwise, the liquidation, dissolution,
receivership, insolvency, bankruptcy, assignment for the benefit of creditors,
reorganization, arrangement, composition or readjustment of, or similar
proceedings affecting the status, existence, assets or obligations of the Issuer
or the Company or the limitation of damages for the breach, or the disaffirmance
of any of, the Operative Documents, or any other circumstance that might
otherwise constitute a legal or equitable discharge or defense), it will pay
such amounts or cause or pay for such performance, it being the intention hereof
that Guarantor pay to the Issuer or the Trustee, as appropriate, as a payment
obligation directly from Guarantor to the Issuer or the Trustee, as appropriate,
amounts equal to all amounts which the Issuer or the Company shall fail to
faithfully and properly pay when due under the Operative Documents, and
Guarantor shall otherwise provide for and bring about properly when due such
payments of the Issuer or the Company under the Operative Documents. Guarantor
hereby covenants that this Unconditional Guaranty will not be discharged except
by complete performance of the obligations contained herein.
SECTION 3. Guarantor hereby agrees to indemnify and hold harmless the
Issuer from any loss suffered or occasioned by the failure of the Company to
satisfy its obligations under the Operative Documents and agrees to indemnify
and hold harmless the Trustee and the holders of the Bonds from any loss
suffered or occasioned by the failure of the Company or the Issuer to satisfy
their respective obligations under the Indenture and the Operative Documents.
The obligations of Guarantor under this Section 3 shall be independent primary
obligations of Guarantor hereunder. The agreement to indemnify the Issuer, the
Trustee and the holders of the Bonds contained in this section shall be
enforceable notwithstanding the invalidity or unenforceability of any other
section or sections contained herein.
SECTION 4. Guarantor further agrees to indemnify and hold harmless the
Issuer and both the present and future members of the Issuer, the Issuer's
agents, employees and attorneys individually and personally and the Trustee from
any liability or loss resulting from the construction or operation of the
Project, from any cause whatsoever pertaining to the Project or the use thereof,
or from the issuance and sale of the Bonds, provided that the indemnity provided
by this sentence shall be effective only to the extent of any loss that might be
sustained in excess of the proceeds
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recovered by the Issuer or the Trustee from any insurance, if any, carried by
the Company with respect to the loss sustained.
SECTION 5. Each and every default by the Issuer or the Company under
the terms of the Operative Documents shall give rise to a separate cause of
action hereunder against Guarantor.
SECTION 6. This Unconditional Guaranty shall be a continuing, absolute
and unconditional guaranty according to its terms and shall remain in full force
and effect until the Issuer and the Company shall have fully satisfied and
discharged all of their respective obligations under the Operative Documents,
including all payments under the Operative Documents, irrespective of the lack
of genuineness, invalidity, irregularity or unenforceability of the Operative
Documents or any assignment, modification or termination thereof, whether with
or without notice to or the consent of Guarantor, or the bankruptcy, insolvency,
reorganization or dissolution of the Issuer or the Company or the assignment for
the benefit of creditors of any assets by the Issuer or the Company.
SECTION 7. This Unconditional Guaranty and the liability hereunder
shall in no way be affected or impaired by any redelivery, repossession,
surrender or destruction of the Project, in whole or in part, or by any failure,
neglect or omission on the part of the Issuer, its successors or assigns or the
Trustee, to realize upon any obligations or liabilities of the Company. The
Issuer or the Trustee, to the extent either has knowledge thereof, shall give
Guarantor prompt written notice of the occurrence of any default under the
Operative Documents, specifying such default, but the failure of either or both
of them to give such notice shall in no way diminish, reduce or otherwise affect
Guarantor's obligations hereunder.
SECTION 8. The obligations, covenants, agreements and duties of
Guarantor under this Unconditional Guaranty shall not be affected or impaired by
reason of the happening from time to time of any of the following with respect
to the Operative Documents, this Unconditional Guaranty, or the assignment
thereof, although done without notice to or the consent of Guarantor: (a) any
assignment or mortgaging or the purported assignment or mortgaging of all or any
part of
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the interest of the Company in the Operative Documents or in the Project; (b)
any assignment or purported assignment of all or any part of the interest of the
Trustee in the Mortgage; (c) the waiver by the Issuer or the Trustee of the
performance or observance by the Company of any of the agreements, covenants,
terms or conditions contained in any of such instruments; (d) the extension of
the time for payment by the Company of sums or any part thereof owing or payable
under any of such instruments or of the time for performance by the Company of
any other obligations under or arising out of any such instruments or the
extension or the renewal of any thereof; (e) the modification or amendment
(whether material or otherwise) of any duty, agreement or obligation of the
Company set forth in any of such instruments; (f) the taking or the omission of
any of the actions referred to in any of such instruments; (g) any failure,
omission, delay or lack on the part of the Issuer or the Trustee to enforce,
assert or exercise any right, power or remedy conferred on the Issuer or the
Trustee in any of such instruments, or any action on the part of the Issuer or
the Trustee granting indulgence or extension in any form; (h) the voluntary or
involuntary liquidation, dissolution, sale or other disposition of all or
substantially all the assets, marshalling of assets and liabilities,
receivership, insolvency, bankruptcy, assignment for the benefit of creditors,
reorganization, arrangement, composition or readjustment of, or other similar
proceeding affecting the Company or any of its assets, or the disaffirmance of
either the Agreement or the Mortgage in any such proceedings; (i) the release or
discharge of the Company from the performance or observance of any agreement,
covenant, term or condition contained in any of such instruments by operation of
law; (j) the release, substitution or replacement in accordance with the terms
of the Operative Documents of any property subject thereto; (k) the receipt and
acceptance by the Issuer or the Trustee of notes, checks or other instruments
for the payment of money made by the Company and extensions and renewals
thereof; or (I) any other cause, whether similar or dissimilar to the foregoing.
SECTION 9. Without limiting the foregoing, it is specifically
understood that any modification, limitation, or discharge of the Issuer's or
the Company's liability under the Operative Documents arising out of or by
virtue of any bankruptcy arrangement, reorganization or similar proceeding for
relief of debtors under federal or state law hereinafter initiated by or against
the Issuer or the Company shall not affect, modify, limit, or discharge the
liability of Guarantor in any manner whatsoever and this
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Unconditional Guaranty shall remain and continue in full force and effect and
shall be enforceable against Guarantor to the same extent and with the same
force and effect as if any such proceedings had to be instituted. Guarantor
does hereby waive all rights and benefits which might accrue to it by reason of
any such proceeding, and it shall be liable for the full amount of the sums,
including all damages imposed, payable under the terms of the Operative
Documents, irrespective and without regard to any modification, limitation, or
discharge of the liability of the Issuer or the Company that may result from any
such proceeding.
SECTION 10. This Unconditional Guaranty and every part hereof shall be
binding upon Guarantor and its successors and assigns and shall inure to the
benefit of the Trustee and its successors and assigns. So long as any of the
obligations of the Issuer or the Company under the Operative Documents have not
been satisfied or discharged, all rights against Guarantor arising under this
Unconditional Guaranty shall be for the benefit of the Trustee and the Issuer;
and the Trustee, in its name and for the benefit of the Issuer and the holders
of the Bonds, shall be entitled to bring any suit, action or proceeding against
Guarantor for the enforcement of any provision of this Unconditional Guaranty
and, unless requested in writing by the Issuer, it shall not be necessary in any
such suit, action or proceeding brought by the Trustee to make the Issuer a
party thereto. The terms of this Unconditional Guaranty may be enforced as to
any one or more breaches either separately or cumulatively. Notice of execution
and delivery of this Unconditional Guaranty by the Issuer and the Trustee and
notice of the execution and delivery of the Operative Documents by the Company
and of the assignment thereof to the Trustee and of the execution and delivery
of the Bonds are hereby waived by Guarantor.
SECTION 11. The following shall be "Events of Default" under this
Unconditional Guaranty, and the terms "Event of Default" or "Default" mean,
whenever they are used in this Unconditional Guaranty, any one or more of the
following events: (a) failure by Guarantor to observe and perform any covenant,
condition or agreement on its part to be observed or performed pursuant to this
Unconditional Guaranty, or (b) the filing by Guarantor of a voluntary petition
in bankruptcy, or failure by Guarantor promptly to lift any execution,
garnishment or attachment of such consequence as will materially impair its
ability to carry out its obligations under this Unconditional Guaranty, or adju-
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155
dication of Guarantor as bankrupt, or an assignment by Guarantor for the benefit
of its creditors, or the entry by Guarantor for the benefit of its creditors
into an agreement of composition with its creditors, or under any similar act
which may hereafter be enacted, and such adjudication or approval shall not be
vacated or set aside or dismissed within ninety (90) days of the date of entry
thereof, or (c) in the opinion of the Trustee, any material adverse change in
the financial status of the Company or the Guarantor, or (d) an event of
default, as defined in any bond, debenture, note, mortgage, indenture, contract
or instrument, under which there may be issued, or by which there may be secured
or evidenced, any indebtedness of Guarantor in excess of $150,000, whether such
indebtedness now exists or shall hereafter be created, shall happen and shall
result in such indebtedness becoming or being declared due and payable prior to
the date on which it would otherwise become due and payable. Guarantor shall
give immediate notice to the Trustee, the Issuer, the Original Purchaser, and
the successors or assigns thereof, of any failure by Guarantor to perform any
obligation under any instrument described in this subsection (d), whether or not
such failure has ripened into a default under such instrument, and of any
default by the Company.
SECTION 12. In the event of any default in payment by the Issuer or
the Company under the Operative Documents or in the event of any Default
described in Section 11 hereof, the Trustee and the Issuer, or either of them,
may proceed first directly against Guarantor under this Unconditional Guaranty
without proceeding against or exhausting any other remedies which it may have
against the Company and without resorting to any other security held by the
Issuer or the Trustee. In the collection or enforcement of the rights
hereunder, the Trustee and the Issuer shall have all the remedies of a creditor
and a secured party under applicable law. Without limiting the generality of
the foregoing, the Trustee and the Issuer, or either of them, may, at their or
its option and without notice or demand: (a) declare any liability accelerated
and due and payable at once; and (b) take possession of any collateral security
wherever located, and sell, resell, assign, transfer and deliver all or any part
of said property of the Company, at any broker's board or exchange or at any
public or probate sale, for cash or on credit or for future delivery, and in
connection therewith the Trustee and the Issuer, or either of them, may grant
options and may impose reasonable conditions, and the Trustee and the Issuer, or
either of them, unless prohibited by law the provisions of which cannot be
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156
waived, may purchase all or any part of said property to be sold, free from and
discharged of all trusts, claims, rights of redemption and equities of Guarantor
whatsoever.
SECTION 13. So long as any Bonds remain outstanding, the Guarantor
shall furnish to the Trustee and to each Bondholder, as soon as practicable
after the end of each calendar quarter and, in any event within one hundred
twenty (120) days thereafter, a certificate of an executive officer of the
Guarantor certifying that:
(a) during said period the Company was in compliance with the
requirements of the Agreement and the documents contemplated thereby and the
covenants of the Company contained therein; and
(b) the Company has reviewed the relevant terms of the Agreement and
has made, or caused to be made under the Company's supervision, a review of the
transactions and conditions with respect to the Project from the beginning of
the accounting period covered by the statements being delivered therewith to the
date of the certificate and that such review has not disclosed the existence
during such period of any condition or event which constitutes, or with the
passage of time or giving of notice or both would constitute, an event of
default as defined in Section 9.1 of the Agreement, or, if any such condition or
event existed or exists, specifying the nature and period of existence thereof
and what action the Company has taken or proposes to take with respect thereto.
SECTION 14. This Unconditional Guaranty is made under and shall be
construed and enforced in accordance with the laws of the State of Florida. If
any provisions of this Unconditional Guaranty shall be held to be invalid by any
court of competent jurisdiction, the invalidity of such provision shall not
affect any of the remaining provisions.
SECTION 15. Guarantor represents and warrants that:
(a) It is a corporation duly organized and in good standing under the
laws of the State of Ohio, is not in violation of any provision of its Articles
of Incorporation, its Bylaws or any law in any manner material to its ability to
perform its obligations under this Unconditional Guaranty, has full corporate
power to enter into this Unconditional Guaranty and has duly authorized the
execution
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and delivery of this Unconditional Guaranty by proper corporate action; and
neither this Unconditional Guaranty, the execution and delivery hereof nor the
performance of the agreements herein contained is prohibited by, contravenes or
constitutes a default under any agreement, instrument or indenture (which
default is, individually or in the aggregate, materially adverse to the
consolidated financial condition of Guarantor and its consolidated subsidiaries)
or under any provision of its Articles of Incorporation or any other requirement
of law;
(b) The Operative Documents constitute legal, valid and binding
obligations of the Company, enforceable in accordance with their respective
terms, and the representations of the Company contained therein are true and
correct in all material respects;
(c) There is no action, suit or proceeding pending or, to the
knowledge of Guarantor, threatened against Guarantor, at law or in equity or
before or by any federal, state, municipal or other governmental department,
commission, board, bureau, agency or instrumentality which might substantially
adversely affect the ability of Guarantor to perform its obligations under this
Unconditional Guaranty or the ability of the Company to perform its obligations
under the Operative Documents;
(d) All authorizations, consents and approvals of governmental bodies
or agencies, if any, required in connection with the execution and delivery of
this Unconditional Guaranty or in connection with the execution, delivery and
performance by Guarantor of its obligations hereunder have been obtained; and
(e) The assumption by Guarantor of its obligations hereunder will
result in a financial benefit to Guarantor.
SECTION 16. All notices hereunder shall be sufficiently given and
shall be deemed given on the second day following the day on which the same has
been mailed by certified mail, return receipt requested, postage prepaid,
addressed as follows:
If to the Trustee: Sun Bank, N.A.
200 S. Orange Avenue
Orlando, Florida 32802
Attn.: Corporate Trust Department
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158
If to the Issuer: Hillsborough County Industrial
Development Authority
c/o Warren M. Cason, Esq.
Post Office Box 2150
Tampa, Florida 33601
If to Guarantor: The Progressive Corporation
6300 Wilson Mills Road
Mayfield Village, Ohio 44143
Attn.: Howard Zelikow
IN WITNESS WHEREOF, Guarantor has executed this instrument and the
Trustee has caused this instrument to be executed and attested to by persons
thereunto duly authorized, all as of the day and year first written above.
THE PROGRESSIVE CORPORATION
(SEAL)
By /s/ Richard M. Haverland
-------------------------------------
Richard M. Haverland,
President
ATTEST:
/s/ David M. Schneider
- ---------------------------
David Schneider,
Secretary
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SUN BANK, N.A., as Trustee
(SEAL)
By /s/ Geraldine P. Kail
----------------------------------
ATTEST:
/s/ Robert W. Andrews, Jr.
- -------------------------------
Trust Officer
HILLSBOROUGH COUNTY
INDUSTRIAL DEVELOPMENT
AUTHORITY
(SEAL)
By /s/ Samuel I. Latimer
----------------------------------
Chairman
ATTEST:
/s/ Ellsworth G. Simmons
- -------------------------------
Assistant Secretary
11