Item U2
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BOARD OF COUNTY COMMISSIONERS
Agenda Item Summary
IDA
Time Certain - 2:30 PM
Meeting Date
June 18, 2003
Division
County Attorney
AGENDA ITEM WORDING
Public hearing for the approval of an IDA Resolution to issue an IDA Health Care Facilities
Revenue 80nd for $2,500,000.
ITEM BACKGROUND
PREVIOUS RELEVANT BOCC ACTION
CONTRACT/AGREEMENT CHANGES
N/A
STAFF RECOMMENDATIONS
Approval.
TOTAL COST
BUDGETED Yes No
COST TO COUNTY
SOURCE OF FUNDS
APPROVED BY:
County Attorney _ OMB/Purchasing C Risk Management C
DIVISION DIRECTOR APPROVA :
DOCUMENTATION:
Included C
TO FOJJQw 0
Not Required [J
AGENDA ITEM #
LA2
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RESOLUTION NO. 2003
A RESOLUTION BY THE MONROE COUNTY INDUSTRIAL
DEVELOPMENT AUTHORITY, PROVIDING FOR THE
ISSUANCE BY THE AUTHORITY OF NOT EXCEEDING
$2,500,000 INITIAL AGGREGATE PRINCIPAL AMOUNT OF
HEALTH CARE FACIUTIES REVENUE BOND (THE
GUIDANCE CUNIC OF THE MIDDLE KEYS, INC. PROJECT),
SERIES 2003 AND FOR A LOAN BY THE AUTHORITY TO
THE GUIDANCE CLINIC OF THE MIDDLE KEYS, INC. IN AN
AMOUNT EQUAL TO THE PRINCIPAL AMOUNT OF SUCH
BOND TO REFINANCE CERTAIN OUTSTANDING
INDEBTEDNESS OF SUCH CORPORATION AND TO
fINANCE CERTAIN CAPITAL IMPROVEMENTS TO THE
CORPORAnON'S HEALTH CARE FACILITIES; PROVIDING
FOR THE RIGHTS OF THE OWNER OF SUCH BOND AND
FOR THE PAYMENT THEREOF; MAKING CERTAIN OTHER
COVENANTS AND AGRE!MENTS IN CONNECTION WITH
THE ISSUANCE OF SUCH BOND; DELEGATING TO THE
CHAIRMAN OF THE AUTHORITY THE RIGHT TO APPROVE
A NEGOnATED SALE OF SUCH BOND UPON
SATISFACTION OF THE CONDmONS TO SUCH SALE SET
FORTH HER!IN; AUTHORIZING THE EXECUTION AND
DEUVERY OF A MEMORANDUM OF AGREEMENT AND LOAN
AGREEMENT; AUTHORIZING THE EXECUnON AND
DELIVERY OF THE BOND AND ALL OTHER RELATED
INSTRUMENTS AND CERTIFICATES; PROVIDING FOR
OTHER MISCELLANEOUS MATTERS IN CONNECTION
THEREWITH; AND PROVIDING FOR AN EFFECTIVE DATE.
/
WHEREAS, The Guidance Clinic of the Middle Keys, Inc. (the
"Company"), a Florida notforprofit corporation, has applied to the Monroe
County Industrial Development Authority (the hAuthority") to issue its private
activity tax-exempt revenue bond in an Initial aggregate principal amount not
to exceed $2,500,000 (as more particularly described herein, the "Series
2003 Bond") for the principal purposes of (i) refinancing certain outstanding
indebtedness of the Company (as more particularly described herein, the
"Prior Indebtedness"), the proceeds of which were used to finance the
aCQuisition, construction and equipping of a mental health and substance
abuse treatment center (collectively and as more particularly described
herein, the "Facilities"), (ii) financing certain capital improvements to the
Facilities (as more particularly described herein, the "Improvements"), and
eiii) paying certain costs and expenses associated with the issuance of the
Series 2003 Bond; and
WHEREAS, the Company has requested that the Authority loan the
proceeds of the Series 2003 Bond to said Company pursuant to Chapter 159,
Parts II and III, Florida Statutes or such other proviSion or provisions of
JUN-08-03 15,10 FROM,MONROE COUNTY ATTV OFFICE 10,3052923518
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Florida law as the Authority may determine advisable (the "Act") in order to
accomplish the foregoing; and
WHEREAS, the issuance of the Series 2003 Bond under the Act in an
aggregate principal amount of not exceeding $2,500,000 and the loaning of
the proceeds thereof to the Company for the purposes stated herein under
the hereinafter defined Loan Agreement which will provide that payments
thereunder be at least sufficient to fully pay the principal of and interest and
redemption premium, if any, on such Series 2003 Bond and such other costs
in connection therewith as may be incurred by the Authority, will assist the
Company and promote the public purposes provided in the Act; and
WHEREAS, the Company has submitted the Memorandum of
Agreement (the "Memorandum of Agreement") relating to the issuance of the
Series 2003 Bond, attached hereto as Exhibit A; and
WHEREAS, in order to satisfy certain of the requirements of Section
147(f) of the Internal Revenue Code of 1986, as amended (the "Code"), the
Authority held a public hearing on the date hereof prior to the adoption of
this resolution on the proposed issuance of the Series 2003 Bond for the
purposes herein stated, which date was more than 14 days following the first
publication of notice of such public hearing in a newspaper of general
circulation in Monroe County, Florida (a true and accurate copy of the proof
of publication of such notice is attached hereto as Exhibit C), which public
hearing was conducted in a manner that provided a reasonable opportunity
for persons with differing views to be heard, both orally and in writing, on the
issuance of such Series 2003 Bond and the location and nature of the
Facilities; and
WH EREAS, the Company has finalized the structure of its proposed
financing and has requested the Authority's approval for the issuance of the
Series 2003 Bond, including the terms thereof, upon fuJl satisfaction of the
terms hereof; and
WHEREAS, it is intended that this Resolution shall constitute official
action toward the issuance of the Series 2003 Bond within the meaning of
the applicable United States Treasury Regulations in addition to any other
action that may have heretofore been taken by the Company;
WHEREAS, it is not reasonably anticipated that more than
$10,000,000 of tax-exempt obligations as defined under Section 26S(b)(3) of
the Internal Revenue Code of 1986, as amended (the "Code"), will be issued
by the Authority in calendar year 2003; now, therefore
BE IT RESOLVED BY THE MONROE COUNTY INDUSTRIAL
DEVELOPMENT AUTHORITY:
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SECTION 1. AUTHORITY FOR THIS RESOLUTION. This Resolution
is adopted pursuant to the provisions of the Act.
SEcnON 2. DEFINITIONS. Unless the context otherwise requires,
the terms used in this Resolution shall have the meanings specified in this
section. Words importing the singular shall include the plural, words
importing the plural shall include the singular, and words importing persons
shall include corporations and other entitles or associations.
"Act" means the Florida Industrial Development Financing Act, Parts II and
III, Chapter 159, Florida Statutes, and other applicable provisions of law.
"Authority" means the Monroe County Industrial Development Authority, a
public body corporate and politic and an industrial development authority
organized and existing under the Constitution and laws of the State
including, particularly, the Act, its successors and assigns.
"Bank" means Orion Bank, a state of Florida banking corporation, its
successors and assigns.
"Bond Counsel" means the law firm of Nabors, Giblin & Nickerson, P.A.,
Tampa, Florida.
"Chairman" shall mean the Chairman of the Authority, or such other person
or persons who are authorized to act on his or her behalf.
"Company" means The Guidance Clinic of the Middle Keys, Inc., a Florida
not-for-profit corporation, and any successor, surviving, resulting or
transferee entity as provided in the Loan Agreement.
"County" means Monroe County, Florida, a political subdivision of the State.
"Facilities" means the Facilities of the Company described in subsection E(l)
of Section 3 of this Resolution and in the Loan Agreement which were
acquired, constructed and equipped in the County and were financed, in part,
with proceeds of the Prior Indebtedness. The Facilities shall include the
Improvements.
'"Improvements" means a new telephone system and air conditioning units
to be acquired by the Company and installed in the Facilities.
'"Loan Agreement" means the Loan Agreement, to be executed by and
among the Authority, the Company and the Bank, substantially in the form
attached hereto as Exhibit B and incorporated herein by reference.
"Prior Indebtedness" means, collectively, (i) that certain promissory note,
number 1744593-3002, dated March 31, 2003, issued by the Company to
the Bank, and (Ii) that certain Joan from the Osceola County Industrial
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Development Authority to the Company pursuant to the Loan Agreement and
Mortgage dated as of March 15, 1993, between the Company and the
Osceola County Industrial Development Authority.
"Secretary" means the ex-officio secretary to the Authority, or such other
person or persons who are authorized to act on his or her behalf.
"Series 2003 Bond" means the Authority's Health Care Facilities Revenue
Bond (The Guidance Clinic of the Middle Keys, Inc. ProJect), Series 2003, to
be issued pursuant to the Loan Agreement in accordance with the terms
hereof and thereof In an aggregate initial principal amount of not exceeding
$2,500,000.
"State" means the State of Florida.
SECTION 3. FINDINGS. It is hereby ascertained, determined and
declared as follows:
A. The Authority is a public body corporate and politic, a public
instrumentality and an industrial development authority, and is duly
authorized and empowered by the Act to finance or refinance the acquisition,
construction, reconstruction, improvement, rehabilitation, renovation,
expansion and enlargement, or additions to, furnishing and equipping of any
capital projects, including any "projects" comprising any "health care facility"
(as the quoted terms are described in the Act), including land, rights in land,
buildings and other structures, machinery, equipment, appurtenances and
facilities incidental thereto, and other improvements necessary or convenient
therefor.
B. The Company previously incurred the Prior Indebtedness to finance
a portion of the costs of acquiring, constructing and equipping the Facilities,
which Facilities constitute a "health care facility," as defined under the Act.
The Company has requested that the Authority issue the Series 2003 Bond in
order to allow the Company to refinance the Prior Indebtedness and achieve
certain debt service savings.
C. The Company has additional capital improvement needs in the form
of the Improvements, which Improvements will be installed at the Facilities.
The Company has requested that the Authority issue the Series 2003 Bond in
order to allow the Company to finance a portion of the costs of the
Improvements.
D. The refinancing of the Prior Indebtedness and the financing of the
Improvements by the Authority through the issuance of the Series 2003
Bond, pursuant to the Act, will promote and preserve the economic
development and health, welfare and safety of the citizens of Monroe County,
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will provide and maintain the residents of the County with jobs, will promote
the general economic structure of the County, and will otherwise serve the
public purposes of the Act.
E. Upon consideration of the documents described herein and the
information presented to the Authority at or prior to the adoption of this
Resolution, the Authority has made and does hereby make the following
findings and determinations:
(i) The Facilities consist of a mental health and substance abuse
treatment center which include two buildings, one of which is one-
story and approximately 15,488 square feet and the other is one-story
and approximately 2,880 square feet. The Improvements include a
new telephone system and air conditioning units that will become a
part of the Facilities. The Facilities are located in the County and are
owned and operated by the Company in its business of providing
mental health care and substance abuse treatment in the County.
(ii) The Company has shown that the Facilities will enhance and
improve the health, safety and welfare of the County and the State,
and it will serve other predominantly public purposes as set forth in
the Act. It is desirable and will further the public purposes of the Act,
and it will most effectively serve the purposes of the Act, for the
Authority to issue and sell the Series 2003 Bond for the purpose of
providing funds to refinance the Prior Indebtedness and finance the
Improvements, all as provided in the loan Agreement, which contains
such provisions as are necessary or convenient to effectuate the
purposes of the Act.
(iii) The Facilities are appropriate to the needs and
Circumstances of, and will make a Significant contribution to, the
economic growth of the County; shall provide or preserve gainful
employment; and shall serve a public purpose by advancing the
economic prosperity, the public health, or the general welfare of the
State and the County and their people as stated in Section 159.26,
Florida Statutes.
(iv) Based solely on representations made by the Company and
information provided to this Authority by the Company in compliance
with the criteria established by the Act, the Company is fully capable
and willing (a) to fulfill its obligations under the Loan Agreement and
any other agreements to be made in connection with the issuance of
the Series 2003 Bond and the use of the Series 2003 Bond proceeds
for refinancing the Prior Indebtedness and financing all or a portion of
the costs of the Improvements, including the obligation to make loan
payments or other payments in amounts sufficient in the aggregate to
pay all of the interest, principal, and redemption premiums, if any, on
the Series 2003 Bond, in the amounts and at the times required, (b) to
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operate, repair and maintain at their own expense the Facilities and all
other health care facilities of the Company, if any, and (c) to serve the
purposes of the Act and such other responsibilities as may be imposed
under such agreements.
(v) The County and other local agencies will be able to cope
satisfactorily with the impact of the Facilities 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 Facilities and
on account of any increase in population or other circumstances
resulting therefrom.
(Vi) Adequate provision is made under the Loan Agreement for
the operation, repair and maintenance of the Facilities at the expense
of the Company, for the payment of the principal of, premium, jf any,
and interest on the Series 2003 Bond when and as the same become
due, and payment by the Company of all other costs in connection
with the refinancing and financing, or the operation, maintenance and
administration of the Facilities which are not paid out of the proceeds
from the sale of the Series 2003 Bond or otherwise.
(vii) The costs of the Facilities to be refinanced and the costs of
the Improvements to be financed from the proceeds of the Series
2003 Bond shall be "costs" of a "project" within the meaning of the
Act.
(viii) The principal of, premium, if any, and interest on the
Series 2003 Bond and all other pecuniary obligations under the Loan
Agreement or otherwise, in connection with the issuance of the Series
2003 Bond, shall be payable solely from the loan payments and other
revenues and proceeds received under the Loan Agreement or
otherwise from the operation, sale, lease or other disposition of the
Facilities and other operations of the Company, including proceeds
from insurance condemnation awards and proceeds of any foreclosure
or other realization upon the liens or security interests under the Loan
Agreement and all other related security documents, the proceeds of
the Series 2003 Bond and income from the temporary investment of
the proceeds of the Series 2003 Bond or of such other revenues and
proceeds, as pledged for such payment under the Loan Agreement.
Neither the faith and credit nor the taxing power of the County, the
State, the Authority or of any political subdivision or agency thereof is
pledged to the payment of the Series 2003 Bond or of such other
pecuniary obligations and neither the County, the State, the Authority
nor any political subdivision or agency thereof shall ever be required or
obligated to levy ad valorem taxes on any property within their
territorial limits to pay the principal of, premium, jf any, or interest on
such Series 2003 Bond or other pecuniary obligations or to pay the
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same from any funds thereof other than such revenues, receipts and
proceeds so pledged, and the Series 2003 Bond shall not constitute a
lien upon any property owned by the County, the Authority or the
State or any political subdivision or agency thereof, other than the
Authority's interest in the Loan Agreement and the property rights,
receipts, revenues and proceeds pledged therefor under and as
provided in the Loan Agreement and any other agreements securing
the Series 2003 Bond.
(ix) A delegated negotiated sale of the Series 2003 Bond is
desirable, and is in the best interest of the Authority and the
Company, for the following reasons: the Series 2003 Bond will be
special and limited obligations of the Authority payable solely out of
revenues and proceeds derived by the Authority pursuant to the Loan
Agreement and the other related security documents, and the
Company will be obligated for the payment of all costs of the Authority
in connection with the refinancing of the Prior Indebtedness and the
financing of the Improvements which are not paid out of the Series
2003 Bond proceeds or otherwise; the cost of Issuance of the Series
2003 Bond, which will be borne directly or indirectly by the Company
could be greater if the Series 2003 Bond is sold at a publiC sale by
competitive bids than if the Series 2003 Bond is sold on a negotiated
basis, and a public sale by competitive bids would cause undue delay
in the refinancing and financing; private activity revenue bonds having
the characteristics of the Series 2003 Bond are typically and usually
sold at negotiated sale or privately placed; and authorization of a
delegated negotiated sale of the Series 2003 Bond is necessary in
order to serve the purposes of the Act.
(x) The Company has, after consulting with the Bank,
determined that market and other conditions are now conducive to
proceed with the refinancing of the Prior Indebtedness and the
financing of the Improvements with the proceeds of the Series 2003
Bond.
(xi) All requirements precedent to the adoption of this
Resolution, of the Constitution and other laws of the State of Florida,
including the Act, have been complied with.
SECTION 4. DELEGATED NEGOTIATED SALE OF SERIES 2003
BOND AUTHORIZED AND DESCRIPTION OF THE SERIES 2003 BOND.
(A) Subject in all respects to the satisfaction of the conditions set forth
in Section 4( C) hereof, the Authority hereby authorizes the issuance of a
Series of Bonds to be known as the "Monroe County Industrial Development
Authority Health Care Facilities Revenue Bond (The Guidance Clinic of the
Middle Keys, Inc. Project), Series 2003" in the initial aggregate principal
amount of not exceeding $2,500,000 for the principal purpose of providing
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moneys to the Company to refinance the Prior Indebtedness, to finance a
portion of the costs of the Improvements and to pay a portion of the costs
and expenses related to the issuance of the Series 2003 Bond. The Series
2003 Bond shall be issued only in accordance with the provisions hereof and
of the loan Agreement and all the provisions hereof and of the loan
Agreement shall be applicable thereto.
(B) The Series 2003 Bond shall be dated the date of issuance, shall be
issued in the form of one fully registered Bond without coupons in a
denomination equal to the principal amount of the Series 2003 Bond and not
exceeding $2,500,000, shall bear interest from its dated date payable on the
dates and at the rates and at the times and subject to redemption and
purchase as to be set forth in the Loan Agreement.
(C) Subject in all respects to the satisfaction of the conditions set forth
below, the Authority hereby finds and determines that the sale of the Series
2003 Bond on the basis of a negotiated sale rather than a publiC sale by
competitive bid, pursuant to the terms and provisions hereof and of the loan
Agreement, is in the best interest of the Authority and the Company; and the
Authority hereby further finds and determines that the reasons set forth in
Section 3(E)(ix) hereof necessitate the sale of the Series 2003 Bond through
a negotiated sale. A negotiated sale of the Series 2003 Bond with the Bank in
accordance with the terms hereof and of the Loan Agreement is hereby in all
respects authorized, approved, ratified and confirmed, and there shall be
executed on behalf of the Authority and in furtherance thereof the Loan
Agreement with the Bank and the Company. The Loan Agreement shall be
executed on behalf of the Authority by its Chairman and attested by its
Secretary in the form attached hereto as Exhibit B only upon satisfaction of
all of the following conditions:
(1) Receipt by the Chairman of the Loan Agreement, executed by the
Bank and the Company, substantially in the form of the Loan Agreement,
providing for, among other things, (i) the issuance of not exceeding
$2,500,000 initial aggregate principal amount of Series 2003 Bond, (ii) an
initial interest rate of not more than 6.00% per annum, and (iv) the maturity
of the Series 2003 Bond not being later than January 1, 2019.
(2) Receipt by the Chairman from the Bank of a disclosure statement
and truth-inbonding information complying with Section 218.385, Florida
Statutes.
SECTION 5. AUTHORIZATION OF EXECUTION AND DELIVERY OF
THE LOAN AGREEMENT. The Loan Agreement, substantially in the form
attached hereto as Exhibit B with such corrections, insertions and deletions
as may be approved by the Chairman of the Authority, such approval to be
evidenced conclusively by his or her execution thereof, is hereby approved
and authorized. Subject in all respects to the satisfaction of the conditions
set forth in Section 4(C) hereof, the Authority hereby authorizes and directs
8
JUN-08-03 15,13 FROM,MONROE COUNTY ATTY OFFICE 10,3052923518
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the Chairman to date and execute and the Secretary to attest the Loan
Agreement, and to deliver the Loan Agreement to the Company and the
Bank. All of the provisions of the Loan Agreement, when executed and
delivered by the Authority as authorized herein and by the Company and the
Bank, shall be deemed to be a part of this Resolution as fully and to the
same extent as if incorporated verbatim herein.
SECTION 6. AUTHORIZATION OF EXECUTION AND DELIVERY OF
MEMORANDUM OF AGREEMENT. The Memorandum of Agreement,
substantially in the form attached hereto as Exhibit A with such corrections,
insertions and deletions as may be approved by the Chairman of the
Authority, such approval to be evidenced conclusively by his or her execution
thereof, is hereby approved and authorized. The Authority hereby authorizes
and directs the Chairman to date and execute and the Secretary to attest the
Memorandum of Agreement, and to deliver the Memorandum of Agreement
to the Company. All of the provisions of the Memorandum of Agreement,
when executed and delivered by the Authority as authorized herein and by
the Company shall be deemed to be a part of this Resolution as fully and to
the same extent as if incorporated verbatim herein.
SECTION 7. PAYMENT OF THE SERIES 2003 BOND. The Series
2003 Bond shall be payable as to principal and interest in lawful money of
the United States of America at the designated office of the Bank in
accordance with the Loan Agreement.
SECTION 8. DESIGNATION OF THE SERIES 2003 BOND AS A
QUAUFIED TAX-EXEMPT OBUGAnON. To the extent determined to be
lawfully allowed by Bond Counsel to the Authority, the Authority hereby
designates the Series 2003 Bond as a "qualified tax-exempt obligation" under
Section 265(b)(3) of the Code. This designation is based upon the findings of
the Authority set forth in the final recital clause hereof.
SECTION 9. AUTHORIZATION OF EXECUnON OF OTHER
CERTIFICATES AND OTHER INSTRUMENTS. Subject in all respects to the
satisfaction of the conditions set forth in Section 4(C) hereof, the Chairman
and the Secretary are hereby authorized and directed, either alone or jointly,
to execute and deliver certificates of the Authority certifying such facts as the
County Attorney or Bond Counsel shall require in connection with the
issuance, sale and delivery of the Series 2003 Bond, and to execute and
deliver such other instruments, including but not limited to, deeds,
assignments, bills of sale, tax agreements and financing statements, as shall
be necessary or desirable to perform the Authority's obligations under the
Loan Agreement and to consummate the transactions hereby authorized.
SECTION 10. NO PERSONAL UABIUTY. No representation,
statement, covenant, warranty, stipulation, obligation or agreement herein
contained, or contained in the Series 2003 Bond, the Loan Agreement or any
assignment thereof, or any certificate or other instrument to be executed on
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behalf of the Authority in connection with the issuance of the Series 2003
Bond, shall be deemed to be a representation, statement, covenant,
warranty, stipulation, obligation or agreement of any elected official, officer,
employee or agent of the Authority in his or her individual capacity, and none
of the foregoing persons nor any elected or appointed official of the Authority
executing the Series 2003 Bond, the Loan Agreement or any certificate or
other instrument to be executed in connection with the issuance of the Series
2003 Bond shall be liable personally thereon or be subject to any personal
liability of or accountability by reason of the execution or delivery thereof.
SECTION 11. NO THIRD PARTY BENEFICIARIES. Except as
otherwise expressly provided herein or in the Series 2003 Bond and the Loan
Agreement nothing in this Resolution, or in the Series 2003 Bond or the Loan
Agreement, express or implied, is intended or shall be construed to confer
upon any person, firm, corporation or other organization, other than the
Authority, the Company and the Bank any right, remedy or claim, legal or
equitable, under and by reason of this Resolution or any provision hereof, or
of the Series 2003 Bond and the Loan Agreement, all provisions hereof and
thereof being intended to be and being for the sole and exclusive benefit of
the Authority, the Company and the Bank.
SECTION 12. PREREQUISITES PERFORMED. Subject in all respect
to the satisfaction of the conditions set forth in Section 4(C) hereof, all acts,
conditions and things relating to the passage of this Resolution, to the
issuance, sale and delivery of the Series 2003 Bond, to the execution and
delivery of the Loan Agreement, required by the Constitution or other laws of
the State, to happen, exist and be performed precedent to the passage
hereof, and precedent to the issuance, sale and delivery of the Series 2003
Bond, to the execution and delivery of the Loan Agreement, have either
happened, exist and have been performed as so required or will have
happened, will exist and will have been performed prior to such execution
and delivery thereof.
SECTION 13. RECOMMENDATION FOR APPROVAL TO BOARD OF
COUNTY COMMISSIONERS. The Authority hereby recommends the
issuance of the Series 2003 Bond and the refinancing of the Prior
Indebtedness and the financing of the Improvements for approval to the
Board of County Commissioners of Monroe County (the "Board"). The
Authority hereby directs the Chairman, at the expense of the Company, to
cooperate in seeking approval for the issuance of the Series 2003 Bond and
the refinancing of the Prior Indebtedness and the financing of the
Improvements by the Board as the applicable elected representatives of
Monroe County under and pursuant to the Act and Section 147(f) of the
Internal Revenue Code of 1986, as amended.
SECTION 14. GENERAL AUTHORITY. The members of the Authority
and its directors, officers, attorneys, engineers or other agents or employees
are hereby authorized to do all acts and things required of them by this
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Resolution, the Series 2003 Bond, the Memorandum of Agreement and the
Loan Agreement, and to do all acts and things which are desirable and
consistent with the requirements hereof or of the Series 2003 Bond, the
Memorandum of Agreement and the Loan Agreement, for the full, punctual
and complete performance of all the terms, covenants and agreements
contained herein and in the Series 2003 Bond, the Memorandum of
Agreement and the Loan Agreement.
SECTION 15. THIS RESOLUnON CON5nTUT!S A CONTRACT.
The Authority covenants and agrees that this Resolution shall constitute a
contract between the Authority and the Bank and that all covenants and
agreements set forth herein and in the Series 2003 Bond and the Loan
Agreement, to be performed by the Authority shall be for the benefit and
security of the Bank.
SECTION 16. SEV!RABIUTY OF INVAUD PROVISIONS. If any
one or more of the covenants, agreements or provisions herein contained
shall be held contrary to any express provisions of law or contrary to the
policy of express law, though not expressly prohibited, or against public
policy, or shall for any reason whatsoever be held invalid, then such
covenants, agreements or provisions shall be null and void and shall be
deemed separable from the remaining covenants, agreements or provisions,
and shall in no way affect the validity of any of the other provisions hereof or
of the Series 2003 Bond issued under the Loan Agreement.
SECTION 17. REPEAUNG CLAUSE. All resolutions or parts thereof in
conflict with the provisions herein c9ntalned are, to the extent of such
conflict, hereby superseded and repealed.
SECTION 18. EFFECTIVE DATE. This Resolution shall take effect
immediately upon its adoption.
PASSED AND ADOPTED by the Monroe County Industrial
Development Authority at a meeting of the Authority on this 18th day of
June, 2003.
Mayor Spehar
Mayor Pro Tem Nelson
Commissioner McCoy
Commissioner Neugent
Commissioner Rice
(SEAL)
Attest: DANNY L. KOLHAGE. Clerk
MONROE COUNlY INDUSTRIAL
DEVELOPMENT AUTHORITY
By
By
Deputy Clerk
Chairperson
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EXHIBIT A
FORM OF MEMORANDUM OF AGREEMENT
12
DRAFI' #1: 5/22/03
083-00013.H
MEMORANDUM OF AGREEMENT FOR ISSUANCE OF
PRIVATE ACTIVITY REVENUE BONDS
This Agreement between the Monroe County Industrial Development Authority, a public
body corporate and politic and an industrial development authority under the laws of the State of
Florida (the "Authority") and The Guidance Clinic of the Middle Keys, Inc. (the "Company"), a
Florida not-for-profit Company.
WIT N E SSE T H:
1. Preliminary Statement. Among the matters of mutual understanding and inducement
which have resulted in the execution of this Agreement are the following:
(a) Whereas Chapter 159, Parts II and III, Florida Statutes, (the "Act") provides that the
Authority may issue tax-exempt revenue bonds and loan the proceeds thereofto one or more persons,
firms or private corporations, for the acquisition, construction, equipping and installation of certain
qualifying health care facilities and/or to refinance the costs related thereto.
(b) The Company is considering refinancing certain outstanding indebtedness (the "Prior
Indebtedness"), the proceeds of which were used to acquire, construct and equip a mental health and
substance abuse treatment center (the "Facilities") and to finance a portion of the costs of the
acquisition and installation of a telephone system and air conditioning units for the Facilities (the
"Improvements"), all of which is more fully described in Exhibit A attached hereto.
(c) The Authority intends this Agreement to constitute its official binding commitment,
subject to the terms hereof, to issue its bond (the "Bond") in one or more series or issues pursuant
to the Act in an amount to be agreed upon by the Authority and the Company and to loan the
proceeds thereof to the Company to refinance the Prior Indebtedness and to finance a portion of the
costs of the Improvements, including a portion of the costs and expenses incurred in connection with
the issuance of the Bond, up to an amount not to exceed $2,500,000.
(d) The Authority considers the issuance and sale of the Bond, for the purposes
hereinabove set forth, consistent with the objectives ofthe Act. This commitment is an affirmative
official action ofthe Authority toward the issuance ofthe Bond as herein contemplated in accordance
with the purposes of both the Act and the applicable United States Treasury Regulations.
2. Undertakings on the Part ofthe Authority. Subject to the terms hereof, the Authority
agrees as follows:
(a) The Authority will cooperate with the Company, Orion Bank (the "Bank") and
Nabors, Giblin & Nickerson, P.A., bond counsel to the Authority with respect to the issuance and
sale of the Bond ("Bond Counsel "), and will take such further action as shall be mutually satisfactory
to the Authority and the Company for the authorization, issuance and sale of such Bond and the use
of the proceeds thereof to refinance the Prior Indebtedness and finance a portion of the cost ofthe
Improvements.
(b) Such actions and documents may permit the issuance from time to time in the future
of additional Bond on terms which shall be set forth therein, whether pari passu with the Bond or
otherwise, for the purpose of defraying the cost of completion, enlargements, improvements and
expansions of the Facilities, or any segment thereof, or refunding of the Bond.
(c) The loan agreement and other financing documents (collectively, the "Financing
Agreements") executed in connection with the issuance of the Bond shall, under terms agreed upon
by the parties, provide for payments to be made by the Company in such sums as shall be necessary
to pay the amounts required under the Act, including the principal of and interest and redemption
premium, if any, on the Bond, as and when the same shall become due and payable.
(d) In authorizing the issuance ofthe Bond pursuant to this Agreement, the Authority will
make no warranty, either expressed or implied, that the proceeds ofthe Bond will be sufficient to
pay all costs of refinancing the Prior Indebtedness and financing the Improvements or that the
Facilities or the Improvements are or will be suitable for the Company's purposes or needs.
(e) The Bond shall specifically provide that they are payable solely from the revenues
derived from the Financing Agreements, except to the extent payable out of amounts attributable to
Bond proceeds. The Bond and the interest thereon shall not constitute an indebtedness or pledge of
the general credit of Monroe County, the State of Florida or any political subdivision or agency
thereof, and such fact shall be plainly stated on the face of the Bond.
(f) Issuance of the Bond by the Authority shall be contingent upon compliance with all
provisions of the Internal Revenue Code of 1986, as amended (the "Code"), and the regulations
promulgated thereunder, including the approval thereof by the Board of County Commissioners of
Monroe County in accordance with the provisions of Section 147(f) of the Code.
3. Undertakings on the Part of the Company. Subject to the terms hereof, the Company
agrees as follows:
(a) The Company will use reasonable efforts to insure that the Bond in the aggregate
principal amount as stated above is privately placed with the Bank; provided, however, that the terms
2
of such Bond and of the sale and delivery thereof shall be in compliance with the Authority's
approving resolution adopted on June 18,2003 (the "Resolution").
(b) Prior to the issuance of the Bond in the principal amount stated above, in one or more
series or issues from time to time, the Company will enter into the Financing Agreements for the
loan or use of the proceeds of the Bond to refinance the Prior Indebtedness and finance a portion of
the costs of the Improvements. Such Financing Agreements will provide that the Company will be
obligated to pay the Authority (or the holder ofthe Bond on behalf ofthe Authority, as the case may
be) sums sufficient in the aggregate to enable the Authority to pay the principal of and interest and
redemption premium, if any, on the Bond, as and when the same shall become due and payable, and
all other expenses related to the issuance and delivery of the Bond.
(c) The Company shall, in addition to paying the amounts set forth in the Financing
Agreements, pay all costs of operation, maintenance, taxes, governmental and other charges which
may be assessed or levied against or with respect to the Facilities.
(d) To the extent not otherwise paid from Bond proceeds, the Company hereby agrees
to pay all ofthe out of pocket expenses of officials and representatives ofthe Authority incurred in
connection with the issuance of the Bond and will pay all fees and expenses of the Authority in
accordance with its guidelines and of Bond Counsel.
(e) The Company will hold the Authority and Monroe County free and harmless from
any loss or damage and from any taxes or other charges levied or assessed by reason of any
mortgaging or other disposition of the Facilities.
(f) The Company agrees to indemnify and defend the Authority and Monroe County and
hold the Authority and Monroe County harmless against any and all claims, losses, liabilities or
damages to property or any injury or death of any person or persons occurring in connection with the
Facilities or the issuance ofthe Bond and the Company's undertaking thereof, or in any way growing
out of or resulting from this Agreement including, without limitation, all costs and expenses of the
Authority and Monroe County and reasonable attorneys' fees incurred in the enforcement of any
agreement of the Company contained herein. In the event that the Bond is not issued and delivered,
this indemnity shall survive the termination of this Agreement.
(g) The Company will take such further action as may be required to implement its
aforesaid undertakings and as it may deem appropriate in pursuance thereof.
4. General Provisions. All commitments of the Authority under Section 2 hereof and
of the Company under Section 3 hereof are subj ect to the conditions that all of the following events
shall have occurred not later than December 31, 2003, or such other date as shall be mutually
satisfactory to the Authority and Company:
(a) The Authority shall be lawfully entitled to issue the Bond as herein contemplated.
3
(b) Rulings satisfactory to the Company, the Authority and Bond Counsel as to such
matters with respect to the Bond, the Facilities, the Financing Agreements and any other instrument
or document, if specified by the Authority, Bond Counselor the Company, shall have been obtained
from the Internal Revenue Service and/or the United States Treasury Department and shall be in full
force and effect at the time of issuance of the Bond.
(c) Such other rulings, approvals, consents, certificates of compliance, opinions of
counsel and other instruments and proceedings satisfactory to the Company, the Authority and Bond
Counsel as to such matters with respect to the Bond, the Facilities, the Financing Agreements and
any other instrument or document, as shall be specified by the Company, the Authority or Bond
Counsel, shall have been obtained from such governmental, as well as non-governmental, agencies
and entities as may have or assert competent jurisdiction over or interest in matters pertinent thereto
and shall be in full force and effect at the time of issuance of the Bond.
(d) Compliance with all applicable provisions of Chapters 159, 189,215 and 218, Florida
Statutes, relating to the issuance of the Bond, the interest rate thereon, the type of purchasers of the
Bond and the terms on which the Bond may otherwise be issued.
(e) The Bond shall be sold in a private placement to the Bank in an increment of not less
than the principal amount of the Bond.
If the events set forth in this Section 4 do not take place within the time set forth or any
extension thereof, the Company agrees that it will reimburse the Authority for all the reasonable and
necessary direct or indirect expenses which the Authority may incur at the Company's request arising
from the execution of this Agreement and the performance by the Authority of its obligations
hereunder, including legal fees and expenses for counsel to the Authority and Bond Counsel.
5. Binding Effect. All covenants and agreements herein contained by or on behalf of
the Authority and the Company shall bind and inure to the benefit of the respective successors and
assigns of the Authority and the Company whether so expressed or not.
[Remainder of page intentionally left blank]
4
JUN-08-03 18,55 FROH,HONROE COUNTY ATTY OFFICE 10,3052923518
PAGE
1/1
IN WITNESS WHEREOF, the parties hereto have entered into this Agreement by their
officers thereunder duly authorized as of the 18th day of June, 2003.
MONROE COVNTY INDUSTRIAL
DEVELOPMENT AUTHORITY
Chainnan
ATTEST:
Secretary
THE GUIDANCE CLINIC OF THE MIDDLE
KEYS, INC.
(SEAL)
President
A TrEST:
Secretary
5
EXHIBIT A TO MEMORANDUM OF AGREEMENT
DESCRIPTION OF FACILITIES AND IMPROVEMENTS
The Prior Indebtedness consists of (i) that certain promissory note, number 1744593-3002,
dated March 31, 2003, issued by the Company to the Bank, and (ii) that certain loan from the
Osceola County Industrial Development Authority to the Company pursuant to the Loan Agreement
and Mortgage dated as of March 15, 1993, between the Company and the Osceola County Industrial
Development Authority.
The Facilities include a mental health and substance abuse treatment center which generally
consist of two buildings, one of which is one-story and approximately 15,488 square feet and the
other is one-story and approximately 2,880 square feet.
The Improvements include new telephone system and air conditioning units that will become
a part of the Facilities.
A-I
JUN-08-03 15,14 FROM,MONROE COUNTY ATTY OFFICE 10,3052923518
PAGE 13/14
EXHIBIT 8
FORM OF LOAN AGREEMENT
13
LOAN AGREEMENT
...
Among
ORION BANK,
as Lender,
and
MONROE COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY,
as Issuer,
and
THE GUIDANCE CLINIC OF THE MIDDLE KEYS, INC.,
as Borrower
Dated as of July 31, 2003
TABLE OF CONTENTS
Paee
ARTICLE I
DEFINITIONS AND EXHIBITS
SECTION 1.0 1. DEFINITIONS. .................................................................................3 ...
SECTION 1.02. RULES OF CONSTRUCTION. ......................................................6
ARTICLE II
REFUNDING OF PRIOR INDEBTEDNESS;TERMS OF THE SERIES 2003
BOND AND THE LOAN
SECTION 2.01.
SECTION 2.02.
SECTION 2.03.
SECTION 2.04.
SECTION 2.05.
SECTION 2.06
SECTION 2.07
REFUNDING OF PRIOR INDEBTEDNESS. ............................... 7
ISSUANCE OF SERIES 2003 BOND; EXECUTION OF
SERIES 2003 BOND; LOAN TO THE BORROWER ...... 7
ADJUSTMENTS TO INTEREST RA TE.......................................8
SECURITY AND SOURCE OF PAYMENTS; ASSIGNMENT. 9
NO PERSONAL LIABILITY OF THE ISSUER........................I0
LOAN PAYMENTS TO BE UNCONDITIONAL.......................I0
o PTI 0 N AL PREPAYMENT. .......................................................1 0
ARTICLE III
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE ISSUER
ARTICLE IV
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE
BORROWER
ARTICLE V
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE LENDER
ARTICLE VI
AFFIRMATIVE AND NEGATIVE COVENANTS OF THE BORROWER
SECTION 6.01 REPORTING REQUIREMENTS. ...............................................20
SECTION 6.02 BOOKS AND RECORDS; INSPECTION AND
EXAMIN A TI ON ..................................................................21
SECTION 6.03 COMPLIANCE WITH LA WS......................................................21
SECTION 6.04 PRESERVATION OF CORPORATE EXISTENCE..................21
SECTION 6.05
SECTION 6.06
SECTION 6.07
SECTION 6.08
SECTION 6.09
SECTION 6.10
SECTION 6.11
LIMIT A TI 0 NS OF LIABILITY. .................................................21
THE BORROWER'S OBLIGATIONS UNCONDITIONAL. ...22
INDEMNITY BY THE BORROWER..........................................22
ATTORNEYS' FEES AND EXPENSES ......................................23
Ace 0 UNTIN G ...............................................................................24
OTHER D EF A UL TS ...................................................................... 24
FINANCIAL COVENANTS .................................. ................. ....... 24
ARTICLE VII
EVENTS OF DEFAULT AND REMEDIES
SECTION 7.01 EVENTS OF DEFAULT ................................................................25
SECTION 7 .04 WAIVERS, ETC. ............................................................................27
ARTICLE VIII
MISCELLANEOUS
S E CTI 0 N 8.01 N OTI CE s......................................................................................... 28
SECTION 8.02 FURTHER ASSURANCE AND CORRECTIVE
IN S TR UMENT S .. ........... ............ ......... ................................29
SECT"ION 8.03 BINDING EFFECT ........................................................................29
S ECTI 0 N 8.04 SE VERABILITY. ........................................................................... 29
SE CTI 0 N 8.0 5 AMENDMENTS. ................................................................... ......... 2 9
SECTION 8.06 EXECUTION IN COUNTERPARTS...........................................29
SECTION 8.07 APPLI CABLE LAW. .....................................................................29
SECTION 8.08 CAPTIONS ......................................................................................29
SECTION 8.09 ENTIRE AGREEMENT ................................................................29
S E CTI 0 N 8.10 US UR Y .......................................................................................... ... 29
SECTION 8.11 NO PERSONAL LIABILITY OF THE BORROWER. .............30
SECTION 8.12 INCORPORATION BY REFERENCE .......................................30
11
Schedule 1 -
Exhibit A
Payment Schedule
Form of Series 2003 Bond
III
LOAN AGREEMENT
THIS LOAN AGREEMENT dated as of July 31,2003 (this "Agreement") among
Orion Bank, a State of Florida banking corporation, as lender (with its successors and
assigns, the "Lender"), Monroe County Industrial Development Authority, a public
body corporate and politic, a public instrumentality and industrial development
authority created and existing under the laws of the State of Florida (the "State"), as
issuer (the "Issuer"), and The Guidance Clinic ofthe Middle Keys, Inc., a not-for-profit
corporation duly incorporated and validly existing under the laws of the State of
Florida (the "Borrower").
WHEREAS, the Issuer is authorized and empowered under the laws ofthe State,
including the Constitution of the State of Florida and Parts II and III of Chapter 159,
Florida Statutes, as amended and supplemented (the "Act"), to issue tax-exempt
industrial development revenue bonds and to enter into loan agreements, contracts and
other instruments and documents necessary or convenient to obtain loans for the
purpose of facilitating the financing of certain projects as described in the Act; and
WHEREAS, in furtherance of the purposes of the Act, the Issuer proposes to
refinance the Prior Indebtedness (as hereinafter defined) ofthe Borrower, the proceeds
of which were used to finance a portion ofthe costs of the acquisition, construction and
equipping of the Facilities (as hereinafter defined), pursuant to this Agreement by
issuing $ aggregate principal amount of its Monroe County Industrial
Development Authority Health Care Facilities Revenue Bond (The Guidance Clinic of
the Middle Keys, Inc. Project), Series 2003 (the "Series 2003 Bond") and lending the
proceeds thereof to the Borrower; and
WHEREAS, the Borrower proposes to borrow the proceeds ofthe Bond upon the
terms and conditions set forth herein to provide for the refinancing of the Prior
Indebtedness and to pay a portion ofthe costs and expenses incurred in connection with
the issuance of the Series 2003 Bond; and
WHEREAS, the Borrower shall make Loan Payments (as hereinafter defined)
directly to the Lender as holder of the Series 2003 Bonds and assignee of the Issuer
pursuant to the terms set forth in this Agreement; and
WHEREAS, this Agreement and the Series 2003 Bond shall not be deemed to
constitute a debt or liability of the State, Monroe County, Florida (the "County"), the
Issuer or any political subdivision or agency thereof, or a pledge ofthe faith and credit
or taxing power ofthe State, the County, the Issuer (which has no taxing power) or any
~-""'''-'~::~.~''kftl:''''.:'.:q;~'."."....,..,~,- -
-~'~~~;"':-'1':r/.'"'-"
....
political subdivision or agency thereof, but shall be a special obligation payable solely
from the Loan Payments payable hereunder by the Borrower to the Lender as holder of
the Series 2003 Bond and assignee of the Issuer;
NOW, THEREFORE, for good and valuable consideration, receipt of which is
hereby acknowledged, and in consideration of the premises contained in this
Agreement, the Lender, the Issuer and the Borrower agree as follows:
2
ARTICLE I
DEFINITIONS AND EXHIBITS
SECTION 1.01. DEFINITIONS. The following terms used herein will have
the meanings indicated below unless the context clearly requires otherwise:
"Accredited Investor" shall mean prospective purchasers of the Series 2003
Bond who qualify as "accredited investors" under any of the following categories at the
time of the sale of the Series 2003 Bond to that person or entity: (a) a bank, as defined
in Section 3(a)(2) of the Securities Act of 1933, as amended (the "Securities Act"), or
any savings and loan association or other institution as defined in Section 3(a)(5)(A) of
the Securities Act, whether acting in its individual or fiduciary capacity; (b) a broker or
dealer registered pursuant to Section 15 of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"); (c) an insurance company, as defined in Section 2(13)
of the Securities Act; (d) an investment company registered under the Investment
Company Act of1940; (e) an organization described in Section 501(c)(3) of the Internal
Revenue Code, corporation, Massachusetts or similar business trust, or partnership not
formed for the specific purpose of acquiring the Series 2003 Bond, with total assets in
excess of $5,000,000; (f) a natural person whose individual net worth, or joint net worth
with that person's spouse at the time of his or her purchase exceeds $1,000,000; (g) a
natural person who had an individual income in excess of $200,000 in each of the two
most recent years or joint income with that person's spouse in excess of $300,000 in
each of those years and who has a reasonable expectation of reaching the same income
level in the current year; and (h) a trust with total assets in excess of $5,000,000, not
formed for the specific purpose of acquiring the Series 2003 Bond, whose purchase is
directed by a sophisticated person as described in 17 C.F.R. ~230.506(b)(2)(ii)
promulgated under the Securities Act.
"Act" means the Constitution of the State and Parts II and III, Chapter 159,
Florida Statutes, as amended from time to time, and other applicable provisions oflaw.
"Agreement" means this Agreement, including all exhibits hereto, as any of the
same may be supplemented or amended from time to time in accordance with the terms
hereof.
"Bond Counsel" means the law firm of Nabors, Giblin & Nickerson, P.A., Tampa,
Florida.
3
. -.- .,---.''''\--.w....Jr.'ll-!''.~t.'''':;>":":'....'::'~~-''
"Borrower" means The Guidance Clinic ofthe Middle Keys, Inc., a Florida not-
for-profit corporation, and any successor, surviving, resulting or transferee entity.
"Business Day" means a day other than a Saturday or Sunday or a day on which
banks are generally open for business in New York, New York.
"Chairman" means the Chairman of the Issuer, or such other person or persons
who are authorized to act on his or her behalf.
"Closing Date" means July 31, 2003.
"Code" means the Internal Revenue Code of 1986, as amended, and the
applicable United States Treasury regulations promulgated thereunder.
"County" means Monroe County, Florida, a political subdivision of the State.
"Default" means an event that, with giving of notice or passage oftime or both,
would constitute an Event of Default as provided in Article VII hereof.
"Determination of Taxability" means the circumstance of interest paid or payable
on the Series 2003 Bond becoming includable for federal income tax purposes in the gross
income of the Lender as a consequence of any act, omission or event whatsoever, including
but not limited to the matters described in the immediately succeeding sentence, and
regardless of whether the same was within or beyond the control of the Borrower or the
Issuer. A Determination of Taxability will be deemed to have occurred upon (a) the receipt
by the Issuer, the Borrower or the Lender of an original or a copy of an Internal Revenue
Service Technical Advice Memorandum or Statutory Notice of Deficiency which holds that
any interest payable on the Series 2003 Bond is includable in the gross income ofthe Lender;
(b) the issuance of any public or private ruling of the Internal Revenue Service that any
interest payable on the Series 2003 Bond is includable in the gross income of the Lender; or
(c) receipt by the Issuer, the Borrower or the Bank of an opinion of a Bond Counsel that any
interest on the Series 2003 Bond has become includable in the gross income of the Lender for
federal income tax purposes. For all purposes of this definition, a Determination of
Taxability will be deemed to occur on the date as of which the interest on the Series 2003
Bond is deemed includable in the gross income of the Lender. A Determination of
Taxability shall not occur based solely upon the fact that such interest is taken into account in
determining adjusted current earnings for the purpose of the alternative minimum income tax
imposed on corporations.
"Event of Default" has the meaning assigned to such term in Section 7.01 hereof.
4
"Facilities" means the mental health and substance abuse treatment center that is
owned and operated by the Borrower, including but not limited to, two buildings, one of
which is one-story and approximately 15,488 square feet and the other is one-story and
approximately 2,880 square feet, the land upon which such center is situated and all
improvements thereon and thereto.
"Interest Rate" means the fixed rate per annum equal to 5.125%.
"Issuer" means the Monroe County Industrial Development Authority, a public
body corporate and politic, a public instrumentality and industrial development
authority created and existing under the laws of the State of Florida, and its successors
and assigns.
"Lender" means (a) Orion Bank, a State of Florida banking corporation, acting
as lender under this Agreement, (b) any surviving, resulting or transferee corporation
of Orion Bank, and (c) except where the context requires otherwise, any assignee(s) of
Lender.
"Loan" means the loan of the proceeds of the Series 2003 Bond from the Issuer
to the Borrower pursuant to this Agreement.
"Loan Payments" means the payments required to be made by the Borrower for
repayment of the Loan pursuant to the provisions of this Agreement and the Series
2003 Bond. As provided in Article II hereof, Loan Payments shall be payable by the
Borrower directly to the Lender as holder of the Series 2003 Bonds and assignee ofthe
Issuer. The Schedule for Loan Payments is attached hereto as Schedule 1.
"Mortgage" means the Mortgage and Security Agreement, dated as of July 31,
2003, between the Lender and the Borrower.
"Payment Date" means, with respect to the Series 2003 Bond and the Loan, the
first day of each month, commencing on September 1, 2003 and ending on August 1,
2018.
"Prepayment Price" means the amount which the Borrower may from time to
time payor cause to be paid to the Lender as holder of the Series 2003 Bond and
assignee of the Issuer in order to prepay the Loan and the Series 2003 Bond, as
provided in Section 2.07 hereof, together with accrued interest and all other amounts
due hereunder at the time of such prepayment.
5
"'"--'1J";"","\._:.,-,"':":;~h""';..',"',';_~"~-,,,,:>:,""":,-,_:"~~~~'i."''''':I-.JI'''--;''',~,--C';;",,,,-,,
"Prior Indebtedness" means, collectively, (i) that certain promissory note, number
1744593-3002, dated March 31, 2003, issued by the Company to the Bank, and (ii) that
certain loan from the Osceola County Industrial Development Authority to the
Company pursuant to the Loan Agreement and Mortgage dated as of March 15, 1993,
between the Company and the Osceola County Industrial Development Authority.
"Secretary" means the ex-officio secretary to the Issuer, or such other person or
persons who are authorized to act on his or her behalf.
"Series 2003 Bond" means the Issuer's $ aggregate principal
amount of Health Care Facilities Revenue Bond (The Guidance Clinic of the Middle Keys,
Inc. Project), Series 2003, in the form attached hereto as Exhibit A.
"State" means the State of Florida.
"Taxable Rate" means the fixed rate per annum equal to %.
"Tax Exemption Agreement" means a Tax Exemption Agreement and
Certificate of even date herewith executed by the Borrower and/or the Issuer, as the
case may be.
"UCC" means the Uniform Commercial Code as adopted and in effect in the
State.
SECTION 1.02. RULES OF CONSTRUCTION. (a) The singular form of any
word used herein, including the terms defined in Section 1.01 hereof, shall include the
plural, and vice versa. The use herein of a word of any gender shall include correlative
words of all genders.
(b) Unless otherwise specified, references to Articles, Sections and other
subdivisions of this Agreement are to the designated Articles, Sections and other
subdivision of this Agreement as originally executed. The words "hereof," "herein,"
"hereunder" and words of similar import refer to this Agreement as a whole.
(c) The headings or titles of the several articles and sections shall be solely for
convenience of reference and shall not affect the meaning, construction or effect of the
provisions hereof.
6
ARTICLE II
REFUNDING OF PRIOR INDEBTEDNESS;
TERMS OF THE SERIES 2003 BOND AND THE LOAN
SECTION 2.01. REFUNDING OF PRIOR INDEBTEDNESS. The Borrower
is entering into this Agreement to obtain the Loan and receive the proceeds thereof to
provide for the current refunding of the Prior Indebtedness and to pay a portion ofthe
costs and expenses related to the issuance ofthe Series 2003 Bonds and the procurement
of the Loan. Proceeds of the Prior Indebtedness were used to finance a portion of the
costs of the acquisition, construction and equipping of the Facilities. The Borrower
shall bear the risk of loss with respect to any loss or claim relating to any of the
Facilities, and neither Lender nor the Issuer shall assume any such liability or risk of
loss. The Borrower covenants and agrees to payor cause to be paid such amounts as
may be necessary to pay the Prior Indebtedness in full as ofthe date hereof to the extent
that the proceeds of the Loan are insufficient to cause such complete repayment.
SECTION 2.02. ISSUANCE OF SERIES 2003 BOND; EXECUTION OF
SERIES 2003 BOND; LOAN TO THE BORROWER. (a) This Agreement creates an
issue of bonds of the Issuer to be designated as "Monroe County Industrial Development
Authority Health Care Facilities Revenue Bond (The Guidance Clinic of the Middle Keys,
Inc. Project), Series 2003" to be issued in the aggregate principal amount of $
_. The Bond is being issued for the purposes of refunding the Prior Indebtedness
and paying certain costs and expenses related to the issuance ofthe Bond and the loan
of the proceeds thereof to the Borrower.
The Bond shall be dated as of July 31, 2003, shall be issued as a fully registered
Bond, shall be numbered R-l, shall be in the single denomination of$
and shall bear interest at the Interest Rate (computed on the basis of a 360-day year of
12 equal30-day months), subject to adjustment as provided in Section _ hereof, shall
be payable on each Payment Date in the principal and interest amounts set forth in
Schedule 1 hereto, shall have a final maturity of August 1,2018, shall be payable to the
Lender by check, draft, bank wire transfer or automatic debit ofthe Issuer; provided,
however, the Issuer's obligations to make such payments to the Lender are limited
solely to the amounts received by or on account of the Issuer from the Borrower with
respect to the Loan, as provided in Section _ hereof. All payments of principal of or
Prepayment Price, if applicable, and interest on the Bond shall be payable in any coin
or currency ofthe United States of America which at the time of payment is legal tender
for the payment of public and private debts. The Series 2003 Bond shall be executed in
7
the name of the Issuer with the manual signature ofthe Chairman and shall be attested
with the manual signature of the Secretary.
(b) The Issuer hereby agrees, subject to the terms and conditions of this
Agreement, to issue the Series 2003 Bond and to lend all of the proceeds thereof to the
Borrower. The Borrower hereby agrees to apply such proceeds to the refunding ofthe
Prior Indebtedness as of the date hereof and pay a portion of the costs and expenses
related to the issuance of the Bond and the incurrence of the Loan, all in accordance
with the terms of this Agreement and the Tax Exemption Agreement; provided,
however, the Borrower agrees not to apply more than 20/0 of the proceeds of the Loan
($ ) to pay for "issuance costs" (as defined in Treasury Regulations Section
1.150-1(b )).
The Loan shall be dated as of July 31, 2003, shall be in the aggregate principal
amount of $ and shall bear interest at the Interest Rate (computed on
the basis of a 360-day year of 12 equal 30-day months), subject to adjustment as
provided in Section _ hereof, shall be payable on each Payment Date in the principal
and interest amounts set forth in Schedule 1 hereto, shall have a final maturity of
August 1, 2018, shall be payable to the Issuer by check, draft, bank wire transfer or
automatic debit ofthe Borrower; provided, however, pursuant to Section _ hereof, the
Issuer has assigned its rights to receive such payments to the Lender, and, accordingly,
the Borrower shall make all such payments directly to the Lender. All payments of
principal of or Prepayment Price, if applicable, and interest on the Bond shall be
payable in any coin or currency of the United States of America which at the time of
payment is legal tender for the payment of public and private debts.
(c) The Lender agrees to purchase the Bond from the Issuer and the Issuer
agrees to sell the Bond to the Lender for a purchase price equal to 1000/0 of the
principal amount of the Bond ($ ). The Lender represents that its purchase
of the Series 2003 Bond is (a) for the Lender's own account, (b) not being undertaken
with a view for distribution to the public, and (c) based upon the Lender's own
investigation into matters relating to the business affairs or conditions ofthe Borrower
(and not the Issuer) and the Facilities. The Lender represents that it is an Accredited
Investor.
SECTION 2.03. ADJUSTMENTS TO INTEREST RATE. (a) Intheeventofa
Determination of Taxability, the Interest Rate on the Series 2003 Bond and the Loan shall be
changed to the Taxable Rate effective retroactively to the date on which such Determination
of Taxability was made. Immediately upon a Determination of Taxability, the Borrower
agrees to pay to the Lender (as holder of the Series 2003 Bond and assignee of the Issuer) the
8
Additional Amount. "Additional Amount" means (i) the difference between (A) interest on
the Series 2003 Bond for the period commencing on the date on which the interest on the
Series 2003 Bond (or portion thereof) loses its tax-exempt status and ending on the earlier of
the date the Series 2003 Bond ceased to be outstanding or such adjustment is no longer
applicable to the Series 2003 Bond (the "Taxable Period") at a rate per annum equal to the
Taxable Rate, and (B) the aggregate amount of interest that was originally payable on the
Series 2003 Bond for the Taxable Period under the original provisions of the Series 2003
Bond plus (ii) any penalties and interest paid or payable by the Lender to the Internal
Revenue Service by reason of such Determination of Taxability.
(b) The Lender shall promptly notify the City in writing of any adjustments
pursuant to this Section 2.03. The Lender shall certify to the Borrower in writing the
Additional Amount, if any, due to the Lender as a result of an adjustment pursuant to this
Section 2.03. Notwithstanding any provision of this Section 2.03 to the contrary, in no event
shall the Interest Rate on the Series 2003 Bond or the Loan exceed the maximum rate
permitted by law.
(c) The provisions set forth in this Section 2.03 shall survive payment ofthe Series
2003 Bond and the Loan until such time as the federal statute oflimitations under which the
interest on the Series 2003 Bond and the Loan could be declared taxable under the Code shall
have expired.
SECTION 2.04. SECURITY AND SOURCE OF PAYMENTS;
ASSIGNMENT. (a) The principal of and interest on the Series 2003 Bond shall be
payable solely out of the moneys received by or on account of the Issuer from the
Borrower pursuant to this Agreement and the Mortgage. The Issuer shall not be
obligated to make any payments on the Series 2003 Bond except from moneys received
by or on account of the Issuer from the Borrower pursuant to this Agreement and the
Mortgage.
(b) As security for payment of the principal of and interest on the Series 2003
Bond, the Issuer hereby assigns to the Lender all of the Issuer's rights hereunder
(except as to indemnification rights and notice rights), including but not limited to the
Issuer's right to receive Loan Payments from the Borrower hereunder and the Issuer
irrevocably constitutes and appoints the Lender and any present or future officer or
agent of the Lender as its lawful attorney, with full power of substitution and
resubstitution, and in the name of the Issuer or otherwise, to collect the Loan Payments
and any other payments due hereunder and under the Series 2003 Bond and to sue in
any court for such Loan Payments or other payments and to withdraw or settle any
claims, suits or proceedings pertaining to or arising out of this Agreement upon any
9
terms. Accordingly, the Borrower shall pay directly to the Lender, as holder of the
Series 2003 Bonds and assignee of the Issuer, all Loan Payments when due. The
obligations of the Borrower hereunder and under the Bond shall be secured by the
Mortgage which shall be given by the Borrower to the Lender.
(c) No provision, covenant or agreement contained in this Agreement or in the
Series 2003 Bond or any obligation imposed on the Issuer herein or in the Series 2003
Bond, or the breach thereof, shall constitute or give rise to or impose upon the Issuer or
the County a pecuniary liability, a charge upon its general credit or taxing powers or a
pledge of its general revenues. The Series 2003 Bond shall not be or constitute a general
obligation or indebtedness of the Issuer or the County as "bonds" within the meaning
of any constitutional or statutory provision, but shall be special obligations of the
Issuer, payable solely from moneys received by or on account of the Issuer from the
Borrower pursuant to this Agreement or the Mortgage. Neither the Lender nor any
subsequent holder of the Series 2003 Bond shall ever have the right to compel the
exercise of any ad valorem taxing power to pay such Series 2003 Bond, or be entitled to
payment of such Bond from any moneys of the Issuer, except from the Loan Payments
made by the Borrower.
SECTION 2.05. NO PERSONAL LIABILITY OF THE ISSUER. No
representation, statement, covenant, warranty, stipulation, obligation or agreement herein
contained, or contained in the Series 2003 Bond, or any certificate or other instrument to be
executed on behalf of the Issuer in connection with the issuance of the Series 2003 Bond,
shall be deemed to be a representation, statement, covenant, warranty, stipulation, obligation
or agreement of any elected official, officer, employee or agent of the Issuer or the County in
his or her individual capacity, and none of the foregoing persons nor any elected or appointed
official of the Issuer executing the Series 2003 Bond, the Loan Agreement or any certificate
or other instrument to be executed in connection with the issuance of the Series 2003 Bond
shall be liable personally thereon or be subject to any personal liability of or accountability by
reason of the execution or delivery thereof.
SECTION 2.06 LOAN PAYMENTS TO BE UNCONDITIONAL. The
obligations of the Borrower to make the Loan Payments required under this Article II
and to make other payments hereunder and to perform and observe the covenants and
agreements contained herein shall be absolute and unconditional in all events, without
abatement, diminution, deduction, setoff or defense for any reason, including (without
limitation) any accident, condemnation, destruction or unforeseen circumstances.
Notwithstanding any dispute between the Borrower and any of the Issuer, the Lender
or any other person, the Borrower shall make all Loan Payments when due and shall
not withhold any Loan Payments pending final resolution of such dispute, nor shall the
10
Borrower assert any right of set-off or counterclaim against its obligation to make such
payments required under this Agreement.
SECTION 2.07 OPTIONAL PREPAYMENT. (a) The Borrower may prepay
the Loan, in whole or in part, at any time or from time to time, by paying to the Lender (as
holer of the Series 2003 Bonds and assignee of the Issuer) all or part of the principal amount
of the Loan to be prepaid, together with the unpaid interest accrued on the amount of
principal so prepaid to the date of such prepayment, without premium or penalty. Each
prepayment of the Loan shall be made on such date and in such principal amount as shall be
specified by the Borrower in a written notice delivered to the Lender not less than ten (10)
days prior thereto specifying the principal amount of the Loan to be prepaid and the date of
such prepayment. Notice having been given as aforesaid, the principal amount of the Loan
stated in such notice or the whole thereof, as the case may be, shall become due and payable
on the prepayment date stated in such notice, together with interest accrued and unpaid to the
prepayment date on the principal amount then being paid, without premium or penalty. If on
the prepayment date moneys for the payment of the Loan or portion thereof to be prepaid,
together with interest to the prepayment date on such amount, shall have been paid to the
Lender as above provided and if notice of prepayment shall have been given to the Lender as
above provided, then from and after the prepayment date interest on such Loan or portion
thereof shall cease to accrue and the principal amount paid shall be deemed cancelled and no
longer outstanding hereunder. If said moneys shall not have been so paid on the prepayment
date, such principal amount of such Loan or portion thereof shall continue to bear interest
until payment thereof at the rate or rates provided for in this Agreement.
(b) In the event of a partial prepayment of the Loan pursuant to this Section 2.07,
the amount so prepaid shall be applied on a ratable basis to the then remaining principal
installments as set forth in the Payment Schedule set forth in Schedule I attached hereto.
Upon such a partial prepayment, the Lender shall provide the Borrower with a revised
Payment Schedule.
(c) In the event the Loan or any portion thereof is prepaid as provided in this
Section 2.07, the Series 2003 Bond shall automatically be deemed to be prepaid in an
identical manner without any required action by the Issuer or the Borrower.
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ARTICLE III
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE ISSUER
The Issuer represents, warrants and covenants for the benefit ofthe Lender and
the Borrower, as follows:
(a) The Issuer is a public body corporate and politic, a public instrumentality
and industrial development authority created and existing under the laws of the State.
(b) The Issuer is authorized under the Act to issue the Series 2003 Bond and to
enter into this Agreement and the transactions contemplated hereby and to perform all
of its obligations hereunder.
(c) The Issuer has duly authorized the issuance of the Series 2003 Bond and
the execution and delivery ofthis Agreement and the Tax Exemption Agreement under
the terms and provisions of the resolution ofits governing body or by other appropriate
official approval, and further represents, covenants and warrants that all requirements
have been met and procedures have occurred in order to ensure the enforceability of
the Series 2003 Bond and this Agreement against the Issuer. The Issuer has taken all
necessary action and has complied with all provisions of the Act, including but not
limited to the making of the findings required by the Act, required to make the Series
2003 Bond and this Agreement the valid and binding obligation of the Issuer.
(d) The Series 2003 Bond and, assuming the due authorization and execution
ofthis Agreement by the Lender and the Borrower, this Agreement are legal, valid and
binding obligations ofthe Issuer, enforceable in accordance with their respective terms,
except to the extent limited by bankruptcy, reorganization or other laws of general
application relating to or affecting the enforcement of creditors' rights.
(e) The Issuer has assigned to Lender all of the Issuer's rights in this
Agreement (except any indemnification rights pursuant to Section _ hereof and the
right to receive notice pursuant to Section _ hereof); the Issuer will not pledge,
mortgage or assign this Agreement or its duties and obligations hereunder to any
person, firm or corporation, except as provided under the terms hereof.
(t) None ofthe issuance ofthe Series 2003 Bond or the execution and delivery
of this Agreement, the consummation of the transactions contemplated hereby or the
fulfillment of or compliance with the terms and conditions of the Series 2003 Bond or
12
this Agreement violates any law, rule, regulation or order, conflicts with or results in a
breach of any of the terms, conditions or provisions of any restriction or any agreement
or instrument to which the Issuer is now a party or by which it is bound or constitutes a
default under any of the foregoing or results in the creation or imposition of any
prohibited lien, charge or encumbrance of any nature whatsoever upon any of the
property or assets of the Issuer under the terms of any instrument or agreement.
(g) There is no action, suit, proceeding, claim, inquiry or investigation, at law
or in equity, before or by any court, regulatory agency, public board or body pending
or, to the best of the Issuer's knowledge, threatened against or affecting the Issuer,
challenging the Issuer's authority to issue the Series 2003 Bond or to enter into this
Agreement or any other action wherein an unfavorable ruling or finding would
adversely affect the enforceability of the Series 2003 Bond or this Agreement or any
other transaction of the Issuer which is similar hereto, or the exclusion ofinterest from
gross income for federal tax purposes under the Code, or would materially and
adversely affect any of the transactions contemplated by this Agreement.
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ARTICLE IV
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE BORROWER
The Borrower represents, warrants and covenants for the benefit of Lender and
the Issuer, as follows:
(a) The Borrower is a State of Florida not-for-profit corporation duly
organized, validly existing and in good standing under the laws of the State of Florida,
has power to enter into this Agreement and by proper corporate action has duly
authorized the execution and delivery of this Agreement and the Tax Exemption
Agreement. The Borrower is in good standing and is duly licensed or qualified to
transact business in the State and in all jurisdictions where the character of the
property owned or leased or the nature of the business transacted by it makes such
licensing or qualification necessary.
(b) The Borrower has been fully authorized to execute and deliver this
Agreement and the Tax Exemption Agreement and to perform the transactions
contemplated thereby under the terms and provisions of the resolution of its board of
directors, or by other appropriate official approval, and further represents, covenants
and warrants that all requirements have been met, and procedures have occurred in
order to ensure the enforceability of this Agreement and the Tax Exemption Agreement
and this Agreement and the Tax Exemption Agreement have been duly authorized,
executed and delivered.
(c) The officer(s) of the Borrower executing this Agreement and the Tax
Exemption Agreement and any related documents has been duly authorized to execute
and deliver this Agreement and the Tax Exemption Agreement and such related
documents under the terms and provisions of a resolution of the Borrower's board of
directors.
(d) This Agreement and the Tax Exemption Agreement constitute valid and
legally binding obligations of the Borrower, enforceable against the Borrower in
accordance with their respective terms, except to the extent limited by bankruptcy,
reorganization or other laws of general application relating to or affecting the
enforcement of creditors' rights.
(e) The execution and delivery of this Agreement and the Tax Exemption
Agreement, the consummation of the transactions contemplated hereby and the
14
fulfillment of the terms and conditions hereof do not and will not violate any law, rule,
regulation or order, conflict with or result in a breach of any of the terms or conditions
of the articles of incorporation or bylaws of the Borrower or of any corporate
restriction or of any agreement or instrument to which the Borrower is now a party
and do not and will not constitute a default under any of the foregoing or result in the
creation or imposition of any liens, charges or encumbrances of any nature upon any of
the property or assets of the Borrower contrary to the terms of any instrument or
agreement.
(t) The authorization, execution, delivery and performance ofthis Agreement
by the Borrower do not require submission to, approval of, or other action by any
governmental authority or agency, which action with respect to this Agreement has not
been taken and which is final and nonappealable.
(g) There is no action, suit, proceeding, claim, inquiry or investigation, at law
or in equity, before or by any court, regulatory agency, public board or body pending
or, to the best of the Borrower's knowledge, threatened against or affecting the
Borrower, challenging the Borrower's authority to refinance the Prior Indebtedness,
enter into this Agreement or the Tax Exemption Agreement or any other action
wherein an unfavorable ruling or finding would adversely affect the enforceability of
this Agreement or the Tax Exemption Agreement or any other transaction of the
Borrower which is similar hereto, or the exclusion ofthe Interest from gross income for
federal tax purposes under the Code, or would materially and adversely affect any of
the transactions contemplated by this Agreement.
(h) The Borrower, to the best of its knowledge, information and belief, is in
compliance with applicable zoning, land use, environmental or similar law or
restriction (collectively, "Environmental Laws"), provided that the Borrower is subject
to certain requirements set forth in consent orders settling past environmental
compliance matters. The Borrower has made and filed reports or filings with the
Environmental Protection Agency and/or any other applicable state or local agencies
that are required of it pursuant to the Environmental Laws and any other laws,
regulations, ordinances, etc. governing companies that are active in the business ofthe
the Borrower.
(i) The Facilities are of the type authorized and permitted to be financed or
refinanced with the proceeds of the Series 2003 Bond pursuant to the Act and is a
"health care facility" within the meaning of the Act.
15
(j) The Borrower has been designated as a tax-exempt organization under
Section 501(c)(3) of the Code.
(k) The Borrower will not take any action that would cause interest on the
Series 2003 Bond to become includable in gross income ofthe holder thereof for federal
income tax purposes under the Code, and the Borrower will take and will cause its
officers, employees and agents to take all affirmative actions legally within its power
necessary to ensure that such interest does not become includable in gross income ofthe
recipient for federal income tax purposes under the Code (including, without limitation,
the calculation and payment of any rebate required to preserve such exclusion).
(I) The Borrower has heretofore furnished to the Lender its audited financial
statements for its fiscal years ended , 2000, 2001 and 2002, and those
statements fairly present the financial condition of the Borrower on the dates thereof
and the results of its operations and cash flows for the periods then ended. Since the
date ofthe most recent financial statements, there has been no material adverse change
in the business, properties or condition (financial or otherwise) of the Borrower.
(m) The Borrower has paid or caused to be paid to the proper authorities
when due all federal, state and local taxes required to be withheld by it. The Borrower
has filed all federal, state and local tax returns which are required to be filed, and the
Borrower has paid or caused to be paid to the respective taxing authorities all taxes as
shown on said returns or on any assessment received by it to the extent such taxes have
become due.
(n) All financial and other information provided to the Lender or the Issuer
by or on behalf ofthe Borrower in connection with the Borrower's request for the Loan
contemplated hereby is true and correct in all material respects.
(0) The Borrower will aid and assist the Issuer in connection with preparing
and submitting to the Internal Revenue Service a Form 8038 (or other applicable
information reporting statement) at the time and in the form required by the Code.
(p) The Borrower will comply fully at all times with the Tax Exemption
Agreement, and the Borrower will not take any action, or omit to take any action,
which, if taken or omitted, respectively, would violate the Tax Exemption Agreement,
and the representations and warranties in the Tax Exemption Agreement are true and
correct.
16
(q) No representation, warranty or other statement of the Borrower in this
Agreement, the Tax Exemption Agreement or any other document executed in
connection with the Loan contains any false or misleading statement of a material fact
or omits the statement of a fact necessary to make the statements made, in light of the
circumstances under which they were made, not misleading.
(r) The Borrower has obtained all necessary permits and agreements required
for the operation of the Facilities as a mental health and substance abuse center within
the State and the County and maintains such permits in good standing.
(s) The Borrower will maintain or cause to be maintained the Facilities and
all portions thereofin good condition and will operate or cause to be operated the same
in an efficient and economical manner, making or causing to be made such
expenditures for equipment and for renewals, repairs or replacements as may be
proper for the economical operation and maintenance thereof.
17
ARTICLE V
REPRESENT A TIONS, WARRANTIES AND COVENANTS OF THE LENDER
The Lender represents, warrants and covenants for the benefit of Borrower and
the Issuer, as follows:
(a) The Lender is a State of Florida banking corporation duly organized,
vaJidly existing and in good standing under the laws of the State of Florida, has power
to enter into this Agreement and to purchase the Series 2003 Bonds by proper
corporate action has duly authorized the execution and delivery of this Agreement. The
Lender is in good standing and is duly licensed or qualified to transact banking business
in the State.
(b) The Lender has been fully authorized to execute and deliver this
Agreement and to perform the transactions contemplated thereby under the terms and
provisions of the resolution of its board of directors, or by other appropriate official
approval, and further represents, covenants and warrants that all requirements have
been met, and procedures have occurred in order to ensure the enforceability of this
Agreement and this Agreement has been duly authorized, executed and delivered by the
Bank.
(c) The officer(s) of the Lender executing this Agreement and any related
documents has been duly authorized to execute and deliver this Agreement and such
related documents.
(d) This Agreement constitutes a valid and legally binding obligation of the
Lender, enforceable against the Lender in accordance with its terms, except to the
extent limited by bankruptcy, reorganization or other laws of general application
relating to or affecting the enforcement of creditors' rights.
(e) The execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby and the fulfillment ofthe terms and conditions hereof
do not and will not violate any law, rule, regulation or order, conflict with or result in a
breach of any of the terms or conditions ofthe articles ofincorporation or bylaws ofthe
Lender or of any corporate restriction or of any agreement or instrument to which the
Lender is now a party and do not and will not constitute a default under any of the
foregoing or result in the creation or imposition of any liens, charges or encumbrances
18
of any nature upon any of the property or assets of the Lender contrary to the terms of
any instrument or agreement.
(t) The authorization, execution, delivery and performance ofthis Agreement
by the Lender do not require submission to, approval of, or other action by any
governmental authority or agency, which action with respect to this Agreement has not
been taken and which is final and nonappealable.
(g) There is no action, suit, proceeding, claim, inquiry or investigation, at law
or in equity, before or by any court, regulatory agency, public board or body pending
or, to the best of the Lender's knowledge, threatened against or affecting the Lender,
challenging the Lender's authority to make the Loan, enter into this Agreement or any
other action wherein an unfavorable ruling or finding would adversely affect the
enforceability of this Agreement or any other transaction ofthe Lender which is similar
hereto, or would materially and adversely affect any of the transactions contemplated
by this Agreement.
19
ARTICLE VI
AFFIRMATIVE AND NEGATIVE COVENANTS OF THE BORROWER
So long as the Loan and the Series 2003 Bond shall remain unpaid and
outstanding hereunder, the Borrower will comply with the following requirements:
SECTION 6.01 REPORTING REQUIREMENTS. The Borrower will
deliver, or cause to be delivered, to the Lender each of the following, which shall be in
form and detail acceptable to the Lender:
(a) as soon as available, and in any event within 90 days after the end of each
fiscal year of the Borrower, audited financial statements of the Borrower, which
audited annual financial statements shall include the balance sheet of the Borrower as
at the end of such fiscal year and the related statements of income, retained earnings
and cash flows of the Borrower for the fiscal year then ended, all in reasonable detail,
together with an opinion of independent certified public accountants stating that such
financial statements are fairly presented on a consistent basis and whether or not such
officer has knowledge of the occurrence of any Default or Event of Default hereunder
and, if so, stating in reasonable detail the.facts with respect thereto;
(b) such additional information and statements, lists of assets and liabilities,
agings of receivables and payables, inventory schedules, budgets, forecasts, tax returns,
and other reports with respect to the Borrower's financial condition and business
operations as the Lender may reasonably request from time to time;
( c) promptly after the commencement thereof, notice in writing of all
litigation and of all proceedings before any governmental or regulatory agency affecting
the Borrower or the Facilities;
(d) as promptly as practicable (but in any event not later than five Business
Days) after an officer of the Borrower obtains knowledge ofthe occurrence of any event
that constitutes a Default or an Event of Default hereunder, notice of such occurrence,
together with a detailed statement by a responsible officer of the Borrower ofthe steps
being taken by the Borrower to cure the effect of such Default or Event of Default;
(e) promptly upon knowledge thereof, notice of any loss or destruction of or
damage to the Facilities;
(t) promptly after the amending thereof, copies of any and all amendments to
its certificate of incorporation, articles of incorporation or bylaws;
20
(g) promptly upon knowledge thereof, notice ofthe violation by the Borrower
of any material law , rule or regulation; and
(h) promptly upon knowledge thereof, notice of any material adverse change
in the financial or operating condition of the Borrower.
SECTION 6.02 BOOKS AND RECORDS; INSPECTION AND
EXAMINATION. The Borrower will keep accurate books of record and account for
itself pertaining to the Facilities and pertaining to the Borrower's business and financial
condition and such other matters as the Lender may from time to time request in which
true and complete entries will be made in accordance with generally accepted
accounting principles consistently applied and, upon request ofthe Lender, will permit
any officer, employee, attorney or accountant for the Lender to audit, review, make
extracts from, or copy any and all corporate and financial books, records and
properties of the Borrower at all times during ordinary business hours, and to discuss
the affairs of the Borrower with any ofits directors, officers, employees or agents. The
Borrower will permit the Lender, or its employees, accountants, attorneys or agents, to
examine and copy any or all of its records and to examine and inspect the Facilities at
any time during the Borrower's business hours.
SECTION 6.03 COMPLIANCE WITH LAWS. The Borrower will (a)
comply with the requirements of applicable laws and regulations, the noncompliance
with which would materially and adversely affect its business or its financial condition,
and (b) use and keep the Facilities, and will require that others use and keep the
Facilities, only for lawful purposes, without violation of any federal, state or local law ,
statute or ordinance. The Borrower shall secure and maintain all permits and licenses,
if any, necessary for the operation of the Facilities. The Borrower shall comply in all
respects with all laws of the jurisdictions in which its operations involving any
component of Facilities may extend and of any legislative, executive, administrative or
judicial body exercising any power or jurisdiction over the items ofthe Facilities or its
interest or rights under this Agreement.
SECTION 6.04 PRESERVATION OF CORPORATE EXISTENCE. The
Borrower will preserve and maintain its corporate existence and all of its rights,
privileges and franchises necessary or desirable in the normal conduct of its business;
and shall conduct its business in an orderly, efficient and regular manner.
SECTION 6.05 LIMITATIONS OF LIABILITY. In no event, whether as a
result of breach of contract, warranty, tort (including negligence or strict liability),
indemnity or otherwise, shall the Lender, its assignees, if any, or the Issuer be liable for
any special, consequential, incidental, punitive or penal damages, including, but not
limited to, loss of profit or revenue as a result of the transactions contemplated hereby.
21
SECTION 6.06 THE BORROWER'S OBLIGATIONS UNCONDmONAL.
All payments required of the Borrower hereunder shall be paid without notice or
demand and without set off, counterclaim, or defense for any reason and without
abatement or deduction or defense. The Borrower will not suspend or discontinue any
such payments, and will perform and observe all of its other agreements in this
Agreement, and, except as expressly permitted in Section 2.07, will not terminate this
Agreement for any cause, including but not limited to any acts or circumstances that
may constitute failure of consideration, destruction or damage to the Facilities, or the
Borrower's business, or the Borrower's business by condemnation or otherwise, the
lawful prohibition of the Borrower's use of the Facilities, or the Borrower's business,
the interference with such use by any private person or corporation, the invalidity or
unenforceability or lack of due authorization or other infirmity of this Agreement, or
lack of right, power or authority of the Issuer to enter into this Agreement, eviction by
paramount title, commercial frustration of purpose, bankruptcy or insolvency of the
Issuer, change in the tax or other laws or administrative rulings or actions of the United
States of America or of the State of Florida or any municipal corporation thereof, or
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
for any other cause whether similar or dissimilar to the foregoing, any present or future
law to the contrary notwithstanding, it being the intention of the parties hereto that the
amounts payable by the Borrower hereunder shall be paid in full when due without any
delay or diminution whatever.
SECTION 6.07 INDEMNITY BY THE BORROWER. The Borrower will, to
the fullest extent permitted by law, protect, indemnify and save the Lender, the Issuer
and their officers, agents, employees and any person who controls the Lender or the
Issuer within the meaning of the Securities Act of 1933, harmless from and against all
liabilities, losses, damages, costs, expenses (including attorneys' fees and expenses ofthe
Lender and the Issuer), causes of action, suits, claims, demands and judgments of any
nature arising from the transactions contemplated by this Agreement including but not
limited to:
(a) any injury to or death of any person or damage to property in or upon the
Facilities or its premises or growing out of or connected with the use, non-use, condition
or occupancy of the premises or any other location of the Facilities or any part thereof
including any and all acts or operations relating to the construction or installation of
property or improvements. The foregoing indemnification obligations shall not be
limited in any way by any limitation on the amount or type of damages, compensation
or benefits payable by or for the Borrower, customers, suppliers or affiliated
organizations under any Workers' Compensation Acts, Disability Benefit Acts or other
employee benefit Acts;
22
(b) violation of any agreement, provision or condition ofthis Agreement or the
Tax Exemption Agreement, except by the Lender or the Issuer;
( c) violation of any contract, agreement or restriction applicable to the
Borrower which shall have existed at the commencement of the term ofthis Agreement
or shall have been approved by the Borrower;
(d) violation of any law, ordinance, court order or regulation affecting the
Facilities, or a part thereof or the ownership, occupancy or use thereof; and
( e) any statement or information relating to the expenditure of the proceeds of
the Series 2003 Bond contained in the Tax Exemption Agreement or similar document
furnished by the Borrower which, at the time made, is misleading, untrue or incorrect
in any material respect.
Promptly after receipt by Lender or the Issuer or any such other indemnified
person of notice of the commencement of any action in respect of which indemnity may
be sought against the Borrower under this Section, such person will notify the
Borrower in writing of the commencement thereof, and, subject to the provisions
hereinafter stated, the Borrower shall assume the defense of such action (including the
employment of counsel who shall be satisfactory to the Lender and the Issuer, as
applicable, or such other person as the case may be, and the payment of expenses).
Insofar as such action shall relate to any alleged liability in respect of which indemnity
may be sought against the Borrower, the Lender and the Issuer, as applicable, or any
such other indemnified person shall have the right to employ separate counsel in any
such action and to participate in the defense thereof, but the fees and expenses of such
counsel shall not be at the expense of the Borrower unless the Issuer, reasonably
determines that the employment of such separate counsel is necessary to protect the
interests of the Issuer. The Borrower shall not be liable to indemnify any person for
any settlement of any such action effected without its consent. The Borrower shall not
be required to indemnify the Lender or the Issuer for any damages, losses, causes of
actions, lawsuits, or claims which are caused directly and solely by the gross negligence,
willful misconduct, or fraudulent acts of the Lender or the Issuer.
The provisions ofthis Section 6.07 shall survive the payment and discharge ofthe
Series 2003 Bond.
SECTION 6.08 ATTORNEYS' FEES AND EXPENSES. If an Event of
Default shall exist under this Agreement and the Lender or the Issuer should employ
attorneys or incur other expenses for the collection of any amounts due hereunder, or
the enforcement of performance of any obligation or agreement on the part of the
23
Borrower, the Borrower will upon demand pay to the Lender or the Issuer, as
applicable, the reasonable fees of such attorneys and such other expenses so incurred.
The Borrower shall also be responsible to pay fees and expenses of Bond Counsel to the
extent any issues arise regarding the Series 2003 Bond subsequent to the issuance
thereof.
SECTION 6.09 ACCOUNTING. The Borrower will not adopt, permit or
consent to any material change in accounting principles other than as required by
generally accepted accounting principles, without the prior written consent of the
Lender.
SECTION 6.10 OTHER DEFAULTS. The Borrower will not permit any
breach, default or event of default to occur under any note, loan agreement, indenture,
lease, mortgage, contract for deed, security agreement or other contractual obligation
binding upon the Borrower or any judgment, decree, order or determination applicable
to the Borrower.
SECTION 6.11
FINANCIAL COVENANTS. [to come]
24
,...;......... "'<0")
ARTICLE VII
EVENTS OF DEFAULT AND REMEDIES
SECTION 7.01 EVENTS OF DEFAULT. The following constitute "Events
of Default" under this Agreement:
(a) failure by the Borrower to pay to Lender, as holder of the Series 2003
Bond and assignee of the Issuer, when due any Loan Payment or to pay any other
payment required to be paid hereunder and the continuation of such failure for a
period of 10 days;
(b) failure by the Borrower to observe and perform any other covenant,
condition or agreement contained herein, in the Tax Exemption Agreement or in any
other document or agreement executed in connection herewith on its part to be
observed or performed for a period of 30 days after written notice is given to the
Borrower from the Lender or the Issuer, as the case may be, specifying such failure and
directing that it be remedied; provided, however, that, if the failure stated in such notice
cannot be corrected within such 30-day period, neither the Lender nor the Issuer will
unreasonably withhold its consent to an extension of such time if corrective action is
instituted by the Borrower, within the applicable period and diligently pursued until
the default is corrected;
(c) initiation by the Issuer of a proceeding under any federal or state
bankruptcy or insolvency law seeking relief under such laws concerning the
indebtedness of the Issuer;
(d) The Borrower shall be or become insolvent, or admit in writing its
inability to pay its debts as they mature, or make an assignment for the benefit of
creditors; or the Borrower shall apply for or consent to the appointment of any
receiver, trustee or similar officer for it or for all or any substantial part ofits property;
or such receiver, trustee or similar officer shall be appointed without the application or
consent of the Borrower, as the case may be; or the Borrower shall institute (by
petition, application, answer, consent or otherwise) any bankruptcy, insolvency,
reorganization, arrangement, readjustment of debt, dissolution, liquidation or similar
proceeding relating to it under the laws of any jurisdiction; or any such proceeding
shall be instituted (by petition, application or otherwise) against the Borrower; or any
judgment, writ, warrant of attachment or execution or similar process shall be issued or
levied against a substantial part of the property of the Borrower;
25
(e) determination by the Lender that any representation or warranty made by
the Borrower herein, in the Tax Exemption Agreement or in any other document
executed in connection herewith was untrue in any material respect when made;
(f) the occurrence of a default or an event of default under any instrument,
agreement or other document evidencing or relating to or securing any indebtedness or
other monetary obligation of the Borrower in excess of $100,000; and
(g) the occurrence of a default or an event of default under any other material
agreement between or among the Lender or any of its affiliates and the Borrower.
SECTION 7.02 REMEDIES ON DEFAULT. Whenever any Event of Default
shall have occurred and be continuing, the Lender, as holder of the Series 2003 Bonds
and assignee of the Issuer, shall have the right, at its sole option without any further
demand or notice, to take anyone or any combination of the following remedial steps
and such other steps which are otherwise accorded to the Lender, as assignee of the
Issuer, by applicable law:
(a) by notice to the Issuer and the Borrower, declare the entire unpaid
principal amount of the Loan and the Series 2003 Bond then outstanding, all interest
accrued and unpaid thereon and all amounts payable under this Agreement to be
forthwith due and payable, whereupon the Loan and the Series 2003 Bonds, all such
accrued interest and all such amounts shall become and be forthwith due and payable,
without presentment, notice of dishonor, protest or further notice of any kind, all of
which are hereby expressly waived by the Borrower;
(b) proceed to protect and enforce its rights under the laws of the State
(including without limitation, the DCC) or under this Agreement or the Mortgage by
such suits, actions or special proceedings in equity or at law, or by proceedings in the
office of any board or officer having jurisdiction, either for the specific performance of
any covenant or agreement contained herein or in aid or execution of any power herein
granted or for the enforcement of any proper legal or equitable remedy, as the the
Lender shall deem most effective to protect and enforce such rights. Without limiting
the generality of the foregoing, the Lender shall have the right to bring a mandamus
action to require the Borrower to perform its obligations under this Agreement.
(c) sue for, enforce payment of and receive any and all amounts then or
during any default becoming, and at any time remaining, due from the Borrower for
principal, interest or otherwise under any ofthe provisions ofthis Agreement or ofthe
Loan then unpaid, together with any and all costs and expenses of collection and of all
proceedings hereunder (including, without limitation, reasonable legal fees in all
26
~. '".'_-'''cl'''',:;o'!''/!i/':'('''
'''(f~W'.-'>:''''''-''f--''. ..
proceedings, including administrative, appellate and bankruptcy proceedings), without
prejudice to any other right or remedy of the Lender, and to recover and enforce any
judgment or decree against the Borrower for any portion of such amounts remaining
unpaid and interest, costs, and expenses as above provided, and to collect in any
manner provided by law, the monies adjudged or decreed to be payable.
SECTION 7.03 NO REMEDY EXCLUSIVE. No remedy herein conferred
upon or reserved to the Lender or the Issuer is intended to be exclusive 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. No delay or omission to
exercise any right or power accruing upon any Event of Default shall impair any such
right or power or shall be construed to be a waiver thereof, but any such right or power
may be exercised from time to time and as often as may be deemed expedient. In order
to entitle the Lender or the Issuer to exercise any remedy reserved to it in this Article, it
shall not be necessary to give any notice other than such notice as may be required by
this Article. All remedies herein conferred upon or reserved to the Lender or the Issuer
shall survive the termination of this Agreement.
SECTION 7 .04 WAIVERS, ETC. No delay or omission of the Issuer or the
Lender 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 any
acquiescence therein; and every power and remedy given by this Agreement to the
Issuer and the Lender may be exercised from time to time and as often as may be
deemed expedient.
The Issuer or the Lender may waive any default which in its opinion shall have
been remedied before the entry of final judgment or decree in any suit, action or
proceeding instituted by it under the provisions of this Agreement or before the
completion of the enforcement of any other remedy under this Agreement, but no such
waiver shall be effective unless in writing and no such waiver shall extend to or affect
any other existing or any subsequent default or defaults or impair any rights or
remedies consequent thereon.
27
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01 NOTICES. All notices, certificates, requests, demands and
other communications provided for hereunder or under the Tax Exemption Agreement
shall be in writing and shall be (a) personally delivered, (b) sent by first class United
States mail, (c) sent by overnight courier of national reputation, or (d) transmitted by
telecopy, in each case addressed to the party to whom notice is being given at its address
as set forth below and, iftelecopied, transmitted to that party at its telecopier number
set forth below or, as to each party, at such other address or telecopier number as may
hereafter be designated by such party in a written notice to the other parties complying
as to delivery with the terms of this Section. All such notices, requests, demands and
other communications shall be deemed to have been given on (a) the date received if
personally delivered, (b) two Business Days after deposited in the mail if delivered by
mail, (c) the date sent if sent by overnight courier, or (d) the date of transmission if
delivered by telecopy.
Lender:
Orion Bank
Attention: Commercial Banking
12640 Overseas Highway
Marathon, Florida 33050
Telephone: 305/289-5817
Telecopier: 305/743-9984
Issuer:
Monroe County Industrial Development Authority
Attention: Monroe County Administrator
The Historic Gato Cigar Factory
1100 Simonton Street, Suite 2-205
Key West, Florida 33040
Telephone: 305/292-4441
Telecopier: 305/292-4544
Borrower:
The Guidance Clinic of the Middle Keys, Inc.
Attention: Marianne K. Benvenuti, Chief Financial Officer
3000 41st Street Ocean
Marathon, Florida 33050
Telephone: 305/289-6150, ext. 264
Telecopier: 305/289-6158
28
:'.~-' ,..-,-.' ~'X'j~.,''''~.h~>-'..,;...,,~..:....''
"'~"."'~'" "'.'i"',-"'_:fI!-.~'~""-~:~ ,,-
SECTION 8.02 FURTHER ASSURANCE AND CORRECTIVE
INSTRUMENTS. The Issuer and the Borrower hereby agree that they will, from time
to time, execute, acknowledge and deliver, or cause to be executed, acknowledged and
delivered, such further acts, instruments, conveyances, transfers and assurances, as the
Lender reasonably deems necessary or advisable for the implementation, correction,
confirmation or perfection ofthis Agreement or the Tax Exemption Agreement and any
rights of the Lender hereunder or thereunder.
SECTION 8.03 BINDING EFFECT. This Agreement shall inure to the
benefit of and shall be binding upon the Lender, the Issuer, the Borrower and their
respective successors and assigns.
SECTION 8.04 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 8.05 AMENDMENTS. To the extent permitted by law, the terms
of this Agreement shall not be waived, altered, modified, supplemented or amended in
any manner whatsoever except by written instrument signed by the parties hereto, and
then such waiver, consent, modification or change shall be effective only in the specific
instance and for the specific purpose given.
SECTION 8.06 EXECUTION IN COUNTERPARTS. This Agreement may
be executed in several counterparts, each of which shall be an original and all of which
shall constitute one and the same instrument, and any ofthe parties hereto may execute
this Agreement by signing any such counterpart.
SECTION 8.07 APPLICABLE LAW. This Agreement shall be governed by
and construed in accordance with the laws of the State.
SECTION 8.08 CAPTIONS. The captions or headings in this Agreement are
for convenience only and in no way define, limit or describe the scope or intent of any
provisions or sections of this Agreement.
SECTION 8.09 ENTIRE AGREEMENT. This Agreement and the exhibit
and schedule hereto constitute the entire agreement among Lender, the Issuer and the
Borrower. There are no understandings, agreements, representations or warranties,
express or implied, not specified herein or in such documents regarding this Agreement
or the Facilities financed hereby.
29
SECTION 8.10 USURY. It is the intention of the parties hereto to comply
with any applicable usury laws; accordingly, it is agreed that, notwithstanding any
provisions to the contrary in this Agreement, in no event shall this Agreement require
the payment or permit the collection of interest or any amount in the nature ofinterest
or fees in excess of the maximum permitted by applicable law.
SECTION 8.11 NO PERSONAL LIABILITY OF THE BORROWER.
Notwithstanding anything to the contrary contained herein or in the Series 2003 Bond,
or in any other instrument or document executed by or on behalf of the Borrower in
connection herewith, no stipulation, covenant, agreement or obligation contained herein
or therein shall be deemed or construed to be a stipulation, covenant, agreement or
obligation of any present or future member of the Borrower's board of directors,
officer, employee or agent ofthe Borrower, officer, employee or agent ofa successor to
the Borrower, in any such person's individual capacity, and no such person, in his or
her individual capacity, shall be liable personally for any breach or non-observance of
or for any failure to perform, fulfill or comply with any such stipulations, covenants,
agreements or obligations, nor shall any recourse be had for the payment of the
principal of or interest on the Series 2003 Bond or for any claim based thereon or on
any such stipulation, covenant, agreement or obligation, against any such person, in his
or her individual capacity, either directly or through the Borrower or any successor to
the Borrower, under any rule of law or equity, statute or constitution or by the
enforcement of any assessment or penalty or otherwise and all such liability of any such
person, in his or her individual capacity, is hereby expressly waived and released.
SECTION 8.12 INCORPORATION BY REFERENCE. All ofthe terms and
obligations of the exhibit and schedule hereto are hereby incorporated herein by
reference as if all of the foregoing were fully set forth in this Agreement. All recitals
appearing at the beginning of this Agreement are hereby incorporated herein by
reference. All provisions ofthe Tax Exemption Agreement are incorporated herein by
reference.
30
JUN-06-03 16,15 FROH,HONROE COUNTY ATTY OFFICE ID,3052923516
PAGE
1/1
IN WITNESS WHEREOF, the parties hereto have executed this Agreement in their
respective corporate names by their duly authorized officers, all as of the date rust written
above.
ORION BANK
Vice President
MONROE COUNTY INDUSTRIAL
DEVELOPMENT AUTHORITY
Chairman
Attest:
Title: Secretary
THE GUIDANCE CLINIC OF THE
MIDDLE KEYS, INC.
President
Attest:
Title: Secretary
31
SCHEDULE 1
PAYMENT SCHEDULE
--.' .~'
EXHIBIT A
FORM OF SERIES 2003 BOND
JUN-06-03 15,14 FROH,HONROE COUNTY ATTY OFFICE 10,3052923516
EXHIBIT C
AfFIDAVIT OF PUBUCATION OF NOTICE OF PUBUC HEARING
14
PACE 14/14
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Florida Keys
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STATE OF FLORIDA
COUNTY OF MONROE
Before the undersigned authority personally appeared Randy G. Erickso.l. who
on oath says that he is Vice-President of Advertising Operations of the J:ey
West Citizen, a daily newspaper published in Key West, in Monroe County,
Florida; that e a he copy of adv iFftrent, eing a legal notic in 1 hI 0
matter of LAn--
In the
issues of
Court. was published in said newspaper in the
Affi~t" er says 1hatthc KeyW~tClii~n is'anewspaperpublishcCl in Key
West, in said Monroe County, Florida. and that the said newspa)cr has
heretofore been continuously published in said Monroe County. Florka every
and has been entered as second-class mail matter at the post office in KfY West.
in said Monroe County, Florida, for a period of 1 year next preceding the first
publ icalion of the attached copy of advertisement; and affiant further 5 ays that
he has neither paid nor promised any pC%son, flml or corporation any discount,
rebate, commissioD or refund for the purpose of securing thi s advertisel nent for
publication in the said newspaper.
~
. Signature of Affiant
Sworn and subscribed before me this~ day oC:!fJ 1 /':fl )
,2003
Expires: January 15, 2007
Notar f Seal
.. . 'I MARY NTH a ~ITANO
" . '\.Nobv PublIC. sto .. ot flollda
~: eo 0 . ~C".anmiIIic:ln~ ;Jcrll5.2a)7
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Personally Known x Produced Identification
Type of Identification Produced
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.:~neE OF PU8ll~ HEARING
1Il0NROE COUNn IMDUIiTRIAl
.' PEVELOP!lAENT . \~O,RITY
. t' ,I, ."
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1/1!)n'. florida.to cons dar lldoptlon of
. a.i.sQlution ~uU1.b&il.g.tI'Ie"lssuangj
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PUDL.IC HE
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DRAFT #1: 5/22/03
083-00013.F
NOTICE OF PUBLIC HEARING
MONROE COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY
The Monroe County Industrial Development Authority (the "Authority") will hold a public
hearing on Thursday, June 18,2003, at _.m. or as soon thereafter as practicable, in the
meeting room of the Marathon Government Center, 2795 Overseas Highway, Mile Marker 47.5,
Marathon, Florida, to consider adoption of a resolution authorizing the issuance of not exceeding
$2,500,000 initial aggregate principal amount of its Health Care Facilities Revenue Bond (The
Guidance Clinic ofthe Middle Keys, Inc. Project), Series 2003 in one or more series (the "Bond").
Proceeds of the Bond will be issued for the principal purposes of (i) refinancing certain indebtedness
of the hereinafter defined Company, the proceeds of which were used to finance the acquisition,
construction and equipping of a mental health and substance abuse treatment center (collectively,
the "Facilities"), (ii) financing the acquisition and installation of a telephone system and air
conditioning units, (iii) funding a debt service reserve fund, if required, and (iv) paying certain costs
associated with the issuance ofthe Bonds. The Facilities include two buildings, one of which is one-
story and approximately 15,488 square feet and the other is one-story and approximately 2,880
square feet. The Facilities are located at 3000 41st Street Ocean, Marathon, Florida and are owned
and operated by The Guidance Clinic of the Middle Keys, Inc. (the "Company") whose mailing
address is the same as the address of the Facilities. The Bond shall be payable solely from the
moneys derived by the Authority from a loan agreement and other financing documents executed
between the Authority and the Company. Such Bond and the interest thereon shall not constitute an
indebtedness or pledge of the general credit or taxing power ofthe Authority, Monroe County, the
State of Florida or any political subdivision or agency thereof. Issuance ofthe Bond shall be subject
to several conditions including satisfactory documentation, the approval by bond counsel as to the
tax-exempt status of the interest on all or a portion of the Bond and receipt of necessary approvals
for the fmancing. The aforementioned hearing shall be a public hearing and all persons who may
be interested will be given an opportunity to be heard concerning the same. Written cornments may
also be submitted prior to the hearing at the Office of the County Attorney, 500 Whitehead Street,
Key West, Florida 33040, Attention: Rob Wolfe, Assistant County Attorney.
ALL PERSONS FOR OR AGAINST SAID APPROVAL CAN BE HEARD AT SAID TIME
AND PLACE. IF A PERSON DECIDES TO APPEAL ANY DECISION MADE BY THE
COUNTY OR THE AUTHORITY WITH RESPECT TO SUCH HEARING OR MEETING, (S)HE
WILL NEED TO ENSURE THAT A VERBATIM RECORD OF SUCH HEARING OR MEETING
IS MADE, WHICH RECORD INCLUDES THE TESTIMONY AND EVIDENCE UPON WHICH
THE APPEAL IS BASED.
In accordance with the Americans with Disabilities Act persons needing a special
accommodation to participate in this proceeding should contact the individual or agency publishing
this notice no later than seven days prior to the proceeding at the address given in this notice.
Telephone: (305) 292-4441
By order of the Monroe County Industrial Development Authority.