Resolution 206A-2022 MONROE COUNTY, FLORIDA
AIRPORT REVENUE BOND RESOLUTION
(KEY WEST INTERNATIONAL AIRPORT)
ADOPTED AUGUST 17, 2022
TABLE OF CONTENTS
PAGE
ARTICLE I
GENERAL
SECTION 1.01. DEFINITIONS ........................................................................... I
SECTION 1.02. AUTHORITY FOR RESOLUTION........................................ 14
SECTION 1.03. RESOLUTION TO CONSTITUTE CONTRACT .................. 14
SECTION 1.04. FINDINGS ............................................................................... 14
ARTICLE 11
AUTHORIZATION,TERMS,EXECUTION AND REGISTRATION OF BONDS
SECTION 2.01. AUTHORIZATION OF BONDS ............................................ 16
SECTION 2.02. EXECUTION OF BONDS ...................................................... 16
SECTION 2.03. AUTHENTICATION............................................................... 17
SECTION 2.04. TEMPORARY BONDS........................................................... 17
SECTION 2.05. BONDS MUTILATED, DESTROYED, STOLEN OR
LOST........................................................................................ 17
SECTION 2.06. INTERCHANGEABILITY,NEGOTIABILITY AND
TRANSFER............................................................................. 18
SECTION 2.07. FORM OF BONDS.................................... ............................. 19
ARTICLE III
REDEMPTION OF BONDS
SECTION 3.01. PRIVILEGE OF REDEMPTION ............................................28
SECTION 3.02. SELECTION OF BONDS TO BE REDEEMED ....................28
SECTION 3.03. NOTICE OF REDEMPTION ..................................................28
SECTION 3.04. REDEMPTION OF PORTIONS OF BONDS.........................29
SECTION 3.05. PAYMENT OF REDEEMED BONDS ................................... 30
SECTION 3.06. PURCHASE IN LIEU OF OPTIONAL REDEMPTION........30
ARTICLE IV
SECURITY, SPECIAL FUNDS AND APPLICATION THEREOF
SECTION 4.01. BONDS NOT TO BE INDEBTEDNESS OF ISSUER....,......31
SECTION 4.02. SECURITY FOR BONDS.......................................................31
SECTION 4.03. CONSTRUCTION FUND.......................................................31
SECTION 4.04. CREATION OF FUNDS AND ACCOUNTS .........................33
SECTION 4.05. DISPOSITION OF GROSS REVENUES AND ELIGIBLE
PFCREVENUES................... .................................................34
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SECTION 4.06. PFC CAPITAL IMPROVEMENT FUND...............................43
SECTION 4.07 REBATE FUND.......................................................................43
SECTION 4.08 INVESTMENTS ......................................................................44
SECTION 4.09 SEPARATE ACCOUNTS .......................................................45
ARTICLE V
COVENANTS
SECTION 5.41. GENERAL ...............................................................................46
SECTION 5.02. ANNUAL BUDGET................................................................46
SECTION 5.03. RATES .....................................................................................46
SECTION 5.04 BOOKS AND RECORDS .......................................................47
SECTION 5.05 ANNUAL AUDIT....................................................................47
SECTION 5.06 NO MORTGAGE OR SALE OF THE AIRPORT..................48
SECTION 5.07 INSURANCE...........................................................................49
SECTION 5.08 ENFORCEMENT OF COLLECTIONS..................................50
SECTION 5.09 NO COMPETING FACILITIES.............................................. 50
SECTION 5.10 CONSULTANTS.....................................................................50
SECTION 5.11. MAINTENANCE OF PFC REVENUES ................................50
SECTION 5.12. COMPLIANCE WITH PFC ACT, PFC REGULATIONS
AND PFC AUTHORITY ........................................................50
SECTION 5.13. MANAGEMENT OF AIRPORT.............................................51
SECTION 5.14. OPERATION OF THE AIRPORT ..........................................52
SECTION 5.15. COVENANTS WITH CREDIT BANKS AND INSURERS..52
SECTION 5.16 GOVERNMENT GRANTS.....................................................52
SECTION 5.17. FEDERAL INCOME TAXATION COVENANTS;
TAXABLE BONDS ................................................................ 52
SECTION 5.18. HEDGE AGREEMENTS.........................................................53
SECTION 5.19. COVENANTS RELATING TO FEDERAL SUBSIDY
BONDS. ................................................................................... 53
ARTICLE VI
SUBORDINATED INDEBTEDNESS,ADDITIONAL BONDS AND SPECIAL
PURPOSE FACILITIES BONDS
SECTION 6.01. SUBORDINATED INDEBTEDNESS.................................... 55
SECTION 6.02. ISSUANCE OF ADDITIONAL BONDS................................ 55
SECTION 6.03. BOND ANTICIPATION NOTES............................................57
SECTION 6.04 ISSUANCE OF OBLIGATIONS NOT SECURED
HEREUNDER- SPECIAL PURPOSE FACILITIES
BONDS....................................................................................57
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ARTICLE VII
DEFAULTS AND REMEDIES
SECTION 7.01. EVENTS OF DEFAULT ............................ .....................--... 58
SECTION 7.02. REMEDIES.................................................................................. 58
SECTION 7.03. DIRECTIONS TO TRUSTEE AS TO REMEDIAL
PROCEEDINGS...................................................................... 59
SECTION 7.04. REMEDIES CUMULATIVE................................................... 59
SECTION 7.05. WAIVER CIF DEFAULT.......................................................-59
SECTION 7.06. APPLICATION OF MONEYS AFTER DEFAULT ............... 59
SECTION 7.07 CONTROL BY INSURER......... ................ .................................. 61
ARTICLE VIII
SUPPLE-MENTAL RESOLUTIONS
SECTION 8.01. SUPPLEMENTAL RESOLUTION WITHOUT
BONDHOLDERS' coNsEN'r., .............................. ..............62
SECTION 8.02. SUPPLEMENTAL RESOLUTION WITH
BONDHOLDERS'AND INSURER AND CREDIT BANK.
CONSENT..... ...... .................................................. ..............63
SECTION 8.03. AMENDMENT WITH CONSENT OF INSURER AND
CREDIT BANK ONLY.......... ..................................... ..........64
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. DEFEASANCE................. ......................................................66
SECTION 9.02. CAPITALAPPRECIATION BONDS....................... .............67
SECTION 9.03. SALE OF BONDS ................................................................... 68
SECTION 9.04. SIEVE ILITY OF INVALID PROVISIONS..................... 68
SECTION 9.05. VALIDATION AUTHORIZED .............................................. 68
SECTION 9.06. REPEAL OF INCONSISTENT RESOLUTIONS................... 68
SECTION 9.07. EFFECTIVE DATE............................................ ...........--.... 68
RESOLUTION NO. 2SIIg-2022
A RESOLUTION OF THE BOARD OF COUNTY
COMMISSIONERS OF MONROE COUNTY, FLORIDA,
AUTHORIZING THE ISSUANCE OF MONROE
COUNTY, FLORIDA AIRPORT REVENUE BONDS
FROM TIME TO TIME TO FINANCE AND REFINANCE
VARIOUS COSTS OF CAPITAL IMPROVEMENTS TO
THE KEY WEST INTERNATIONAL AIRPORT;
PROVIDING A PLEDGE OF THE NET REVENUES
DERIVED FROM THE OPERATION OF THE KEY WEST
INTERNATIONAL AIRPORT AND CERTAIN ELIGIBLE
PFC REVENUES TO SECURE PAYMENT OF THE
PRINCIPAL OF AND INTEREST ON SAID BONDS;
PROVIDING FOR THE RIGHTS OF THE HOLDERS OF
SAID BONDS; AND PROVIDING FOR AN EFFECTIVE
DATE FOR THIS RESOLUTION.
BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF
MONROE COUNTY, FLORIDA:
ARTICLE I
GENERAL
SECTION 1.01. DEFINITIONS. When used in this Resolution, the
following terms shall have the following meanings, unless the context clearly otherwise
requires:
"Accreted Value" shall mean, as of any date of computation with respect to any
Capital Appreciation Bond, an amount equal to the principal amount of such Capital
Appreciation Bond (the principal amount at its initial offering) plus the interest accrued
on such Capital Appreciation Bond from the date of delivery to the original purchasers
thereof to the Interest Date next preceding the date of computation or the date of
computation if an Interest Date, such interest to accrue at a rate not exceeding the legal
rate, compounded semiannually, plus, with respect to matters related to the payment of
the Capital Appreciation Bonds prior to maturity thereof, if such date of computation
shall not be an Interest Date, a portion of the difference between the Accreted Value as of
the immediately preceding Interest Date and the Accreted Value as of the immediately
succeeding Interest Date, calculated based on the assumption that Accreted Value accrues
during any semi-annual period in equal daily amounts on the basis of a 360-day year.
"Act" shall mean Chapter 125, Part 1, and Chapter 332, Florida Statutes, and other
applicable provisions of law.
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"Additional Bonds" shall can the obligations issued at any time under the
provisions of Section 6.02 hereof
"Airport" shall mean the real property and airport and aviation facilities
constituting the existing Key West International Airport and all Projects and all
Improvements to the Airport.
"Airport Consultant" means any engineer, engineering firm, firm of certified
public accountants, airport consulting firm or corporation, or other qualified Person of
favorable repute for skill and experience in performing the duties for which it is
employed by the Issuer under Section 5.1 of this Resolution.
"Airport Surplus Fund" shall can the fund created pursuant to Section 4.04(D)
hereof
"Annual Audit" shall can the annual audit prepared pursuant to the
requirements of Section 5.05 hereof
"Annual Budget" shall mean the annual budget prepared pursuant to the
requirements of Section 5..02 hereof.
"Authorized Investments" shall mean any investment allowable under
applicable law that is approved by the Governing Body of the Issuer.
"Authorized Issuer Officer" shall can the Mayor, the Clerk, the County
Administrator or the Airport Director, and when -used in reference to any act or
document, also means any other person authorized by resolution of the Issuer to perform
such act or sign such document.
"Airport Director" shall. can the Senior Director of Airports of the Issuer or his
or her designee.
"Bond Counsel" shall can Nabors, Giblin & Nickerson, P.A., or any other
attorney at law or firm of attorneys, of nationally recognized standing in matters
pertaining to the federal tax exemption of interest on obligations issued by states and
political subdivisions, and duly admitted to practice law before the highest court of any
state of the United States of America.
"Bondholder" or "Holder" or "holder" or any similar term, when used with
reference to a Bond or Bonds, shall mean any person who shall be the registered owner of
any Outstanding Bond or Bonds as provided in the registration books of the Issuer.
"Bond Insurance Policy" shall can the municipal bond new issue insurance
policy or policies issued by an Insurer guaranteeing the payment of the principal of and
interest on any portion of the Bonds.
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"Bonds" shall mean the Monroe County, Florida Airport Revenue Bonds (Key
West International Airport), Series 2022, together with any Additional Bonds issued
pursuant to this Resolution.
"Bond Year" shall mean the period commencing on October 2 of each year and
continuing through the next succeeding October 1, or such other period as may be
provided by Supplemental Resolution of the Issuer.
"Capital Appreciation Bonds" shall can those Bonds which may be either
Serial Bonds or Term Bonds and which shall. bear interest payable only at maturity or
redemption. In the case of Bonds that convert to or from Capital Appreciation Bonds
with interest payable prior to maturity or mandatory redemption of such Bonds, such
Bonds shall be considered Capital Appreciation Bonds only during the period of time
interest accrues and is not payable to the Holder thereof.
"Clerk" shall can the Clerk of the Circuit Court and Comptroller in and for
Monroe County, Florida, and ex-officio Clerk to the Board of County Commissioners of
Monroe County, Florida, and such other person as may be duly authorized to act on his or
her behalf.
"Code" shall mean the Internal Revenue Code of 1986, as amended, and the
regulations and rules thereunder in effect or proposed.
"Construction Fund" shall can the fund established pursuant to Section 4.03
hereof
"Cost," when used in connection with a Project, shall mean. all expenses incurred
by or on behalf of the Issuer in connection with the acquisition, construction, installation,
reconstruction, renewal or replacement thereof, including without limitation: (1) costs of
physical construction; (2) costs of acquisition by or for the Issuer of such Project;
(3) costs of land and interests therein and the cost of the Issuer incidental to such
acquisition; (4) costs of any indemnity and surety bonds and premiums for insurance
during construction; (5) all interest due to be paid on the Bonds and other obligations
relating to the Airport during the period of acquisition, construction and equipping of
such Project and for such period subsequent to completion as the Issuer shall detennine
and shall be allowable under applicable provisions of the Code; (6) engineering, legal and
other consultant fees and expenses; (7) costs and expenses of the financing, including
audits, fees and expenses of any Paying Agent, Registrar, escrow agent or depository;
(8) amounts, if any, required by this Resolution to be paid into the Interest Account, upon
the issuance of any Series of Bonds; (9) payments, when due (whether at the maturity of
principal or the due date of interest or upon redemption) on any indebtedness of the
Issuer (other than Bonds) incurred for a Project for the System; (10) costs of machinery,
equipment and supplies and reserves required by the Issuer for the commencement of
operation of such Project; and (11) any other costs properly attributable to such
3
construction or acquisition, as determined by generally accepted accounting principles
applicable to public airports similar to the Airport, and shall include reimbursement to the
Issuer for any such items of Cost heretofore paid by the Issuer and interest on any
inter fund loan related thereto. A Supplemental Resolution may provide for additional
items to be included in the aforesaid Costs.
"Coun ter party" shall mean the entity entering into a Hedge Agreement with the
Issuer. Counterparty would also include any guarantor of such entity's obligations under
such Hedge Agreement.
"County Administrator" shall can the County Administrator of the County, or
his or her authorized designee.
"Credit Bank" shall can as to any particular Series of Bonds, the Person (other
than an Insurer) providing a letter of credit, a line of credit or other credit or liquidity
facility, as designated in the Supplemental Resolution providing for the issuance of such
Bonds.
"Credit Facility" shall mean as to any particular Series of Bonds, an irrevocable
letter of credit, a line of credit or other credit or legal liquidity facility (other than a Bond
Insurance Policy issued by an Insurer), as approved in the Supplemental Resolution
providing for the issuance of such Bonds.
"Debt Service" shall mean, at any time, the aggregate amount in the then
applicable period of time of (1) interest required to be paid on the Outstanding Bonds
during such period of time, except to the extent that such interest is to be paid fTom
deposits in the Interest Account or Construction Fund made from Bond proceeds, (2)
principal of Outstanding Serial Bonds maturing in such period of time, and (3) the
Sinking Fund Installments herein. designated with respect to such period of time. For
purposes of this definition., (A) all amounts payable on a Capital Appreciation Bond shall
be considered a principal payment in the year it becomes due, (B) subject to the
provisions of Section 5.18 hereof, with respect to debt service on any Bonds which are
subject to a Qualified Hedge Agreement, interest on such Bonds during the term of such
Qualified fledge Agreement shall be deemed to be the Hedge Payments coming due
during such period of time, (C) if any Series of Bonds has 25% or more of the aggregate
principal amount of such Series coming due in any one year, Debt Service shall be
determined on such Series during such period of time as if the principal of and interest on
such Series were being paid from the date of incurrence thereof in substantially equal
annual amounts over a period of 30 years from the date of calculation, (D) the amount on
deposit in the Reserve Account (or any subaccount thereof) on any date of calculation of
Debt Service shall be deducted from the amount of principal due at the final maturity of
the Bonds which are secured by such Reserve Account (or subaccount thereof) and in
each preceding year until such amount is exhausted, and (E) with respect to debt service
on any Federal Subsidy Bonds, when determining the interest on such Bonds for any
4
particular Interest Date the amount of the corresponding Federal Subsidy Payment shall
be deducted from the amount of interest which is due and payable to the holders of such
Bonds on the Interest Date, but only to the extent that the Issuer reasonably believes that
it will be in receipt of such Federal Subsidy Payment on or prior to such Interest T.
"Eligible PFC Revenues" shall mean PFC Revenues which shall be legally
available to pay the principal of and interest on the Bonds in accordance with the PFC
Act, the PFC Regulations and PFC Authority. The Issuer may identify Eligible PFC
Revenues with respect to any particular Series of Bonds in a Supplemental Resolution.
"FAA" shall can the Federal Aviation Administration, or the successor to its
power and authority.
"Federal Securities" shall mean non-callable direct obligations of the United
States of America (including obligations issued or held in book-entry form on the books
of the Department of Treasury) or non-callable obligations the principal of and interest on
which are unconditionally guaranteed by the United States of America. All such
obligations shall not permit redemption prior to maturity at the option of the obligor.
"Federal Subsidy Bonds" shall can Bonds issued under Section 54AA of the
Code, Section 140OU-2 of the Code or any other applicable provision of the Code, the
interest on which is not exempt from federal income taxation, with respect to which the
Issuer elects to receive, or is otherwise entitled to receive, Federal Subsidy Payments
fro m the United States Department of Treasury.
"Federal Subsidy Payments" shall can the direct payments made by the United
States Department of Treasury to the Issuer with respect to any Federal Subsidy Bonds
pursuant to Sections 54AA(g), 6431 and 14001.J-2 of the Code, or any other applicable
provision of the Code.
"Fiscal Year" shall can the period commencing on October I of each year and
continuing through the next succeeding September 30, or such other period as may be
prescribed by law.
"Fitch" shall mean Fitch Ratings and any assigns and successors thereto.
"Governing Body" shall can the Board of County Commissioners of Monroe
County, Florida, or its successor in function.
"Government Grant," when used with respect to the Airport, shall can any
sum of money heretofore or hereafter received by the Issuer from the United States of
America or any agency thereof or from the State of Florida or any agency or political
subdivision thereof as or on account of a grant or contribution, not repayable by the
Issuer, for or with respect to the construction, acquisition or other development of an
addition, extension or improvement to any part of the Airport or any costs of any such
5
construction, acquisition or development. Government Grant shall not include any grants
or contributions received by the Issuer which are not intended for the payment or
reimbursement of capital expenditures and are provided for purposes of, or which may be
used, without violating any obligation of the Issuer or condition of such grant, for (1)
funding Operation and Maintenance Costs or(2)paying debt service on obligations of the
Issuer. Any grants or contributions described in the immediately preceding sentence
shall be considered "Gross Revenues."
"Gross Revenues" or "Revenues" shall mean for any period all moneys paid or
accrued for the use of and for services and facilities furnished by, or in connection with
the ownership or operation of, the Airport, or any part thereof or the leasing or use
thereof calculated in accordance with generally accepted accounting principles applicable
to publicly owned airports similar to the Airport, including, but not limited to (1) rentals,
(2) concession fees, (3) use charges, (4) landing fees, (5) license and permit fees, (6)
service fees and charges, (7) moneys from the sale of fuel, and or other merchandise, and
(8) Investment Earnings; provided, however, that Gross Revenues shall not include (A)
proceeds received from the sale of Bonds, Subordinated Indebtedness or Special Purpose
Facilities Bonds, (B) proceeds from the sale or taking by eminent domain of any part of
the Airport, (C) gifts or Government Grants, (D) ad valorem tax revenues, (E) any
insurance proceeds received by the Issuer (other than insurance proceeds paid as
compensation for business interruption), (F) amounts received which are required to be
paid to any other governmental body, including, but not limited to taxes and impact fees,
(G) PFC Revenues, and (H) any noise abatement charges received for disbursement to
others.
"Hedge Agreement" shall mean an agreement in writing between the Issuer and
the Counterparty pursuant to which (1) the Issuer agrees to pay to the Counterparty an
amount, either at one time or periodically, which may, but is not required to, be
determined by reference to the amount of interest (which may be at a fixed or variable
rate) payable on a notional amount related to the debt of the Counterparty specified in
such agreement in the period specified in such agreement and (2) the Counterparty agrees
to pay to the Issuer an amount, either at one time or periodically, which may, but is not
required to, be determined by reference to the amount of interest (which may be at a fixed
or variable rate) payable on a notional amount equal to the principal amount of all or a
portion of a Series of Bonds specified in such agreement during the period specified in
such agreement. Hedge Agreement shall include any financial product or agreement
which is used by the Issuer as a hedging device with respect to its obligation to pay
interest on the Bonds, or any portion thereof, which is designated by the Issuer as a
"Hedge Agreement."
"Hedge Payments" shall mean any amounts payable by the Issuer as interest on
the related notional amount under a Qualified Hedge Agreement; excluding, however,
6
any payments due as a penalty or a fee or by virtue of termination of a Qualified Hedge
Agreement or any obligation of the Issuer to provide collateral.
"Hedge Receipts" shall mean any amounts receivable by the Issuer calculated as
interest on the related notional amount under a Qualified Hedge Agreement.
"Improvement" or "Capital Improvement" shall mean such buildings,
structures, equipment, and land or interests in land and such renewals, replacements,
additions, extensions and betterments, other than ordinary maintenance and repairs, as
may be deemed necessary or desirable by the Issuer to develop or maintain the safe,
secure, competitive, efficient operation of the Airport.
"Initial Rating Requirement" shall mean, with respect to Counterparties to
Qualified Hedge Agreements, "A-" or better by Standard & Poor's and "AY or better by
Moody's.
"Insurance Consultant" shall mean such Person recognized and qualified in
surveying risks and recommending insurance coverage for such facilities as the Airport
facilities and for organizations engaged in such operations as those to be conducted by
the Issuer at the Airport, at the time retained by the Issuer to perform the acts and carry
out the duties as herein provided for such Insurance Consultant or the risk management
department or officer of the Issuer if the Issuer determines by resolution that such
department or officer meets the criteria set forth above, which resolution shall remain in
effect until repealed.
"Insurer" shall mean as to any particular Series of Bonds, the Person (other than
a Credit Bank) providing a municipal bond insurance or guaranty policy, as designated in
the Supplemental Resolution providing for the issuance of such Bonds.
"Interest Account" shall mean the separate account in the Sinking Fund
established pursuant to Section 4.04(C) hereof.
"Interest Date" or "interest payment date" shall be such date or dates as shall
be provided by Supplemental Resolution of the Issuer with respect to a Series of Bonds.
"Investment Earnings" shall mean all income and earnings derived from the
investment of moneys in the funds and accounts established hereunder, other than the
Construction Fund, the PFC Account, the PFC Capital Improvement Fund and the Rebate
Fund.
"Issuer" or "County" shall mean Monroe County, Florida.
"Kroll" shall mean Kroll Bond Rating Agency, LLC, and any assigns and
successors.
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"Maximum Annual Debt Service" shall mean the largest aggregate amount of
the Debt Service becoming due in any Bond Year in which Bonds are Outstanding.
"Maximum Interest Rate" shall mean, with respect to any particular Variable
Rate Bonds, a numerical rate of interest, which shall be set forth in the Supplemental
Resolution of the Issuer delineating the details of such. Bonds, that shall be the maximum
rate of interest such Bonds may at any particular time bear.
"Mayor" shall mean the Mayor of the Governing Body, or, in his or her absence
or unavailability, the Mayor ProTem of the Governing Body.
"Moody's" shall mean Moody's Investors Service, and any assigns and successors
thereto.
"Net Revenues" shall can Gross Revenues less Operation and Maintenance
Costs.
"Operation and Maintenance Costs" shall can any and all costs incurred by
the Issuer in operating, maintaining and administering the Airport, including, but not
limited to, the general administrative and legal costs of the Issuer related to operation,
maintenance, management, security and development of the Airport; costs associated
with equipment, vehicles, supplies, materials, services and support for the operation,
maintenance, management, security and development of the Airport, any costs of
litigation or a legal judgment against the Issuer-, all costs incurred in planning or applying
for, obtaining, maintaining and defending permits; accounting, legal. and engineering
expenses; ordinary and current rentals of equipment or other property; refunds of moneys
lawfully due to others; payments to pension, retirement, health and hospitalization funds-,
payments in lieu of taxes or franchise fees or impact fees; and fees for management of the
Airport or any portion thereof, all to the extent properly attributable to the Airport in
accordance with generally accepted accounting principles applicable to publicly owned
airports similar to the Airport; but does not include any costs or expenses, in respect of
original construction or improvement other than expenditures necessary to prevent an
interruption or continuance of an interruption of service or of Gross Revenues or minor
capital expenditures necessary for the proper and economical. operation. or maintenance of
the Airport, or any accruals required to be recognized with respect to pension, retirement,
health and hospitalization funds that do not require or result in the expenditure of cash, or
any provision for interest, depreciation, amortization or similar charges, or any loss
resulting from the valuation of investment securities, Hedge Agreements at market value
and any other loss that does not require or result in the expenditure of cash.
"Operation and Maintenance Fund" shall can the fund created pursuant to
Section 4.04(B) hereof.
"Operation and Maintenance Payment Account" shall mean the separate
account in the Operation and Maintenance Fund established pursuant to Section 4.04(1 )
hereof
"Operation and Maintenance Reserve Account" shall mean the separate
account in the Operation and Maintenance Fund established pursuant to Section 4.04(B)
hereof
"Operation and Maintenance Reserve Requirement" shall mean ail amount
equal to 25% of the Operation Maintenance Costs for the then current Fiscal Year as set
forth in the corresponding Annual Budget.
"Outstanding," when used with reference to Bonds and as of any particular date,
shall describe all Bonds theretofore and thereupon being authenticated and delivered
except, (1) any Bond in lieu of which other Bond or Bonds have been issued under
agreement to replace lost, mutilated or destroyed Bonds, (2) any Bond surrendered by the
Holder thereof in exchange for other Bond or Bonds under Sections 2.04 and 2.06 hereof,
(3) Bonds deemed to have been paid pursuant to Section 9.01 hereof and (4) Bonds
canceled after purchase in the open market or because of payment at or redemption prior
to maturity.
"Passenger Facility Charges" or "PFCs" shall mean the passenger facility
charges relating to the .Airport authorized to be charged by the Issuer from time to time
-under the PFC Act and the PFC Regulations.
"Paying Agent" shall mean any paying agent for Bonds appointed by or pursuant
to Supplemental Resolution and its successor or assigns, and any other Person which may
at any time be substituted in its place pursuant to Supplemental Resolution.
"Person" shall mean an individual, a corporation, a partnership, an association, a
joint stock company, a trust, any unincorporated organization, governmental entity or
other legal entity.
"PFC Account" shall can the separate account established in the Revenue Fund
established pursuant to Section 4.04(A)hereof
"PFC Act" shall mean the Aviation Safety and Capacity Expansion Act of 1990
(now codified as 49 U.S. §40117), as amended or replaced from time to time.
11PFC Authority" shall mean the FAA's Records of Decision, as the same may be
amended from time to time, issued by the FAA relating to Passenger Facility Charges
imposed or to be imposed by the Issuer at the Airport.
"PFC Capital Improvement Fund" shall mean the fund established pursuant to
Section 4.04(E) of this Resolution.
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"PFC Improvements" shall mean Improvements made to the Airport for which
PFCs may be used under the PFC Act, the PFC Regulations and PFC Authority to fund
such Improvements or related indebtedness.
"PFC Regulations" shall mean Part 158 of the Federal Aviation Regulations (14
C.F.R. Part 158), as amended from time to time, and any other regulation(s) issued with
respect to the PFC Act.
"PFC Revenues" shall mean all revenues received by the Issuer from time to
time from the Passenger Facility Charges imposed by the Issuer at the Airport pursuant to
the PFC Act, PFC Regulations and PFC Authority, including any investment income with
respect thereto, and including proceeds thereof and gains from sales of investments after
such revenues have been remitted to the Issuer as provided in the PFC Regulations.
"Pledged Funds" shall mean, (1) the Net Revenues, (2) Eligible PFC Revenues,
(3) any Hedge Receipts, and (4) until applied in accordance with the provisions of this
Resolution, all moneys, including investments thereof, in the funds and accounts
established hereunder, except (A) moneys in the PFC Account and the PFC Capital
Improvement Fund (but only to the extent not legally available to pay debt service on the
Bonds) and the Rebate Fund, (B) moneys in any fund or account to the extent such
moneys shall be required to pay the Operation and Maintenance Costs in accordance with
the terms of the Resolution, and (C) moneys on deposit in a subaccount of the Reserve
Account to the extent moneys on deposit therein shall be pledged solely for the payment
of the Series of Bonds for which it was established in accordance with the provisions
hereof. A Supplemental Resolution may provide for additional items to be included as
Pledged Funds for any Series of Bonds.
"Policy Costs" shall mean, collectively, the repayment of draws, reasonable
expenses and interest related to a Reserve Account Insurance Policy and/or Reserve
Account Letter of Credit.
"Prerefunded Obligations" shall mean any bonds or other obligations of any
state of the United States of America or of any agency, instrumentality or local
governmental unit of any such state (1) which are (A) not callable prior to maturity or (B)
as to which irrevocable instructions have been given to the fiduciary for such bonds or
other obligations by the obligor to give due notice of redemption and to call such bonds
for redemption on the date or dates specified in such instructions, (2) which are fully
secured as to principal, redemption premium, if any, and interest by a fund held by a
fiduciary consisting only of cash or Federal Securities, secured in the manner set forth in
Section 9.01 hereof, which fund may be applied only to the payment of such principal of,
redemption premium, if any, and interest on such bonds or other obligations on the
maturity date or dates thereof or the specified redemption date or dates pursuant to such
irrevocable instructions, as the case may be, (3) as to which the principal of and interest
on the Federal Securities, which have been deposited in such fund along with any cash on
10
deposit in such fund are sufficient to pay principal of, redemption premium, if any, and
interest on the bonds or other obligations on the maturity date or dates thereof or on the
redemption date or dates specified in the irrevocable instructions referred to in clause (1)
above and are not available to satisfy any other claims, including those against the
fiduciary holding the same, and (4) which are rated in the highest rating category
(without regard to gradations, such as "plus" or "minus" of such categories) of two of the
Rating Agencies.
"Principal Account" shall mean the separate account in the Sinking Fund
established pursuant to Section 4.04(C)hereof.
"Projects" shall can any structure, property or facility which the Issuer from
time to time may determine to construct or acquire as part of the Airport, together with all
equipment, structures, facilities and other property necessary or appropriate in connection
therewith which are financed in whole or in part with indebtedness secured by this
Resolution, as such Prqjects may be generally described in a Supplemental Resolution
and more particularly described in the plans and specifications on file with the Issuer.
"Qualified Hedge Agreement" shall mean a Hedge Agreement with a
Counterparty that meets the Initial Rating Requirement at the time it was entered.
"Rating Agencies" means ditch, Kroll, Moody's and Standard & Poo.r's.
"Rebate Fund" shall can the Rebate Fund established pursuant to Section
4,04(F)hereof
"Redemption Price" shall mean, with respect to any Bond or portion thereof, the
principal amount or portion thereof, plus the applicable premium, if any, payable upon
redemption thereof pursuant to such Bond or this Resolution.
"Refunding Securities" shall mean Federal Securities and Prerefunded
Obligations.,
"Registrar" shall mean any registrar for the Bonds appointed by or pursuant to
Supplemental Resolution and its successors and assigns, and ally other Person which may
at any time be substituted in its place pursuant to Supplemental Resolution.
"Reserve Account" shall can the separate account in the Sinking Fund
established pursuant to Section 4.04(C) hereof
"Reserve Account Insurance Policy" shall mean the insurance policy deposited
in the Reserve Account in lieu of or in partial. substitution for cash on deposit therein
pursuant to Section 4.05(D)(4) hereof.
"Reserve Account Letter of Credit" shall can a letter of credit or line of credit
or other credit facility (other than a Reserve Account Insurance Policy) deposited in the
Reserve Account in lieu of or in partial substitution for cash on deposit therein pursuant
to Section 4.05(D)(4) hereof
"Reserve Account Requirement" shall mean, as of any date of calculation for
the Reserve Account or any subaccount therein, an amount equal to the lesser of (I)
Maximum Annual Debt Service for all Outstanding Bonds secured thereby, (2) 1 25% of
the average Debt Service for each Bond Year for all Outstanding Bonds secured thereby,
or (3) the -rrkaximum amount of Bond proceeds which may be deposited to the Reserve
Account without subjecting the same to yield restriction under the Code, or causing
interest on any of the Bonds secured thereby (other than Taxable Bonds) to be included in
gross income for purposes of federal income taxation or otherwise violating applicable
provisions of the Code; provided, however, the Issuer may establish by Supplemental
Resolution a different Reserve Account Requirement for a subaccount of the Reserve
Account which separately secures a Series of Bonds pursuant to Section 4.05(D)(4)
hereof, which Reserve Account Requirement may be $0.00. In computing the Reserve
Account Requirement in respect of a Series of Bonds that constitutes Variable Rate
Bonds, the interest rate on such Bonds shall be assumed to be (A) if such Variable Rate
Bonds have been Outstanding for at least 12 months prior to the date of calculation, the
highest interest rate borne by such Variable Rate Bonds during the preceding 12 month
period, and (B) if such Variable Rate Bonds have not been Outstanding for at least 12
months prior to the date of calculation, the Bond Buyer Revenue Bond Index most
recently published prior to the time of calculation. The Reserve Account Requirement
shall be calculated as of September 30 of each year with respect to the next succeeding
Bond Year.
"Resolution" shall mean this Resolution, as the same may from time to time be
amended, modified or supplemented.by Supplemental Resolution.
"Revenue Account" shall can the separate account in the Revenue Fund
established pursuant to Section 4.04(A)hereof.
"Revenue Fund" shall mean the fund established pursuant to Section 4.04(A)
hereof.
"Serial Bonds" shall mean all of the Bonds other than the Tenn Bonds.
"Series" shall mean all the Bonds delivered on original issuance in a simultaneous
transaction and identified. pursuant to Section 2.01 hereof or a Supplemental Resolution
authorizing the issuance by the Issuer of such Bonds as a separate Series, regardless of
variations in maturity, interest rate, Sinking Fund Installments or other provisions.
12
"Sinking Fund" shall mean the fund established pursuant to Section 4.04(C)
hereof
"Sinking Fund Installment" shall mean an amount designated as such by
Supplemental Resolution of the Issuer and established with respect to the Term Bonds.
"Special Purpose Facilities" shall mean any projects, improvements or facilities
determined by the Issuer to be useful in the conduct of the operations of the Airport that
are financed with the proceeds of Special Purpose Facilities Bonds.
"Special Purpose Facilities Bonds" shall can indebtedness described in
Section 6.04 thereof and which are issued for the purpose of paying the cost of Special
Purpose Facilities or reftinding bonds previously issued for such purpose, which bonds
shall not be payable from or secured by the Pledged Funds.
"Standard & Poor's" shall mean S&P Global Ratings, a business of Standard &
Poor's Financial Sery ices .LLC, and any assigns and successors thereto.
"State" shall mean the State of Florida.
"Subordinated Indebtedness" shall can that indebtedness of the Issuer,
subordinate and junior to the Bonds, issued in accordance with the provisions of Section
6.01 hereof.
"Supplemental Resolution" shall can any resolution of the Issuer amending or
supplementing this Resolution adopted and becoming effective in accordance with the
terms of Sections 8.01, 8.02 and 8.03 hereof.
"Taxable Bonds" means those Bonds, other than Federal Subsidy Bonds, which
state, in the body thereof, that the interest income thereon is includable in the gross
income of the Holder thereof for federal income taxation purposes or that such interest is
subject to federal income taxation. Except as otherwise provided herein, Taxable Bonds
shall.not include Federal Subsidy Bonds.
"Term Bonds" shall mean those Bonds which shall be designated as Term Bonds
hereby or by Supplemental Resolution of the Issuer.
"Term Bonds Redemption Account" shall can the separate account in the
Sinking Fund established pursuant to Section 4.04(C)hereof.
"Transfer Amount" shall mean the lesser of (1) the surn of amounts on
deposit in the Airport Surplus Fund on the last day of the Fiscal Year, to the extent such
amounts are not restricted to other uses, plus (B) amounts paid :from the Airport Surplus
Fund during such Fiscal Year toward Operation and Maintenance Costs and Debt
13
Service, minus (C) amounts deposited into the Airport Surplus Fund in such Fiscal Year,
or(2) twenty five percent (25%) of Debt Service payable in such Fiscal Year.
"Variable Rate Bonds" shall mean Bonds issued with a variable, adjustable,
convertible or other similar rate which is not fixed in percentage for the entire term
thereof at the date of issue.
The terms "herein," "hereunder," "hereby," "hereto," "hereof," and any similar
terms, shall refer to this Resolution; the term "heretofore" shall mean before the date of
adoption of this Resolution; and the term "hereafter" shall mean after the date of adoption
of this Resolution.
Words importing the masculine gender include the feminine gender, and vice
versa.
Words importing the singular number include the plural number, and vice versa.
SECTION 1.02. AUTHORITY FOR RESOLUTION. This Resolution is
adopted pursuant to the provisions of the Act. The Issuer has ascertained and hereby
determined that adoption of this Resolution is necessary to carry out the powers, purposes
and duties expressly provided in the Act, that each and every matter and thing as to which
provision is made herein is necessary in order to carry out and effectuate the purposes of
the Issuer in accordance with the Act and to carry out and effectuate the plan and purpose
of the Act, and that the powers of the Issuer herein exercised are in each case exercised in
accordance with the provisions of the Act and in furtherance of the purposes of the Issuer.
SECTION 1.03. RESOLUTION TO CONSTITUTE CONTRACT. In
consideration of the purchase and acceptance of any or all of the Bonds by those who
shall hold the same from time to time, the provisions of this Resolution shall be a part of
the contract of the Issuer with the Holders of the Bonds and shall be deemed to be and
shall constitute a contract between the Issuer, the Holders from time to time of the Bonds
and any Insurer or Credit Bank. The pledge made in this Resolution and the provisions,
covenants and agreements herein set forth to be performed by or on behalf of the Issuer
shall be for the equal benefit, protection and security of the Holders of any and all of said
Bonds and any Insurer or Credit Bank, but only in accordance with the terms hereof. All
of the Bonds, regardless of the time or times of their issuance or maturity, shall be of
equal rank without preference, priority or distinction of any of the Bonds over any other
thereof except as expressly provided in or pursuant to this Resolution.
SECTION 1.04. FINDINGS. It is hereby ascertained, determined and
declared:
(A) That the Issuer owns, operates and maintains the Airport for the benefit of
the citizens of Monroe County, Florida.
14
(B) That it is necessary and desirable and in the best interests of the Issuer to
borrow moneys from time to time to improve, expand and maintain the Airport and to
refinance certain indebtedness related to the Airport.
(C) The Bonds issued hereunder shall be secured. by the Pledged Funds as
provided herein and such Pledged Funds are not currently pledged or encumbered to any
other indebtedness other than the Issuer's debt obligations under a Line of Credit
Agreement between the Issuer and PNC Bank, National Association, dated as of July 1,
2021, which debt obligations will be paid in full upon the issuance of the initial Series of
Bonds hereunder,
(D) That the estimated Gross Revenues and Eligible PITCH Revenues to be
derived in each year hereafter from the operation of the Airport will be sufficient to pay
all the Operation and Maintenance Costs, the principal of and interest on the Bonds to be
issued pursuant to this Resolution, as the same become due, and all other payments
provided for in.this Resolution.
(E) That the principal of and interest on the Bonds to be issued pursuant to this
Resolution, and all other payments provided for in this Resolution will be paid solely
from the Pledged Funds in accordance with the tenns hereof; and the Issuer may not be
compelled by any Person to exercise the ad valorem taxing power of the Issuer or use ad
valorem tax revenues to pay the principal of and interest on the Bonds to be issued
pursuant to this Resolution, or to make any other payments provided for in this
Resolution, and the Bonds shall not constitute a lien upon the Airport or upon any other
property whatsoever of or in the Issuer, other than the Pledged Funds.
[Remainder of page intentionally left blank]
15
ARTICLE 11
AUTHORIZATION,TERMS,EXECUTION AND REGISTRATION OF BONDS
SECTION 2.01. AUTHORIZATION OF BONDS. This Resolution creates
an issue of Bonds of the Issuer to be designated as "Monroe County, Florida Airport
Revenue Bonds (Key West International Airport)" which may be issued in one or more
Series as hereinafter provided. The aggregate principal amount of the Bonds which may
be executed and delivered under this Resolution is not limited except as is or may
hereafter be provided in this Resolution or as limited by the Act.
The Bonds may, if and when authorized by the Issuer pursuant to this Resolution
through the adoption of a Supplemental Resolution, be issued in one or more Series, with
such further appropriate particular designations added to or incorporated in such title for
the Bonds of any particular Series as the Issuer may determine and as may be necessary
to distinguish such Bonds from the Bonds of any other Series. Each Bond shall bear
upon its face the designation so determined for the Series to which it belongs.
The Bonds shall be issued for such purpose or purposes; shall bear interest at such
rate or rates not exceeding the maximum rate permitted by law; and shall be payable in
lawful money of the United States of America on such dates; all as determined by
Supplemental Resolution of the Issuer.
The Bonds shall be issued in such denominations and such form, whether coupon
or registered; shall be dated such date; shall bear such numbers; shall be payable at such
place or places; shall contain such redemption provisions; shall have such Paying Agents
and Registrars; shall mature in such years and amounts; and the proceeds shall be used in
such mariner; all as determined by Supplemental Resolution of the Issuer. The Issuer
may issue Bonds which may be secured by a Credit Facility or by a Bond Insurance
Policy of an Insurer all as shall be determined by Supplemental Resolution of the Issuer.
The Governing Body may delegate approval of the terms, details and sale of a Series of
Bonds to an Authorized Issuer Officer pursuant to a Supplemental Resolution.
SECTION 2.02. EXECUTION OF BONDS. The Bonds shall be executed in
the name of the Issuer with the manual or facsimile signature of the Mayor and the
official seal of the Issuer shall be imprinted thereon, attested and countersigned with the
manual or facsimile signature of the Clerk. In case any one or more of the officers who
shall have signed or sealed any of the Bonds or whose facsimile signature shall appear
thereon shall cease to be such officer of the Issuer before the Bonds so signed and sealed
have been actually sold and delivered such Bonds may nevertheless be sold and delivered
as herein provided and may be issued as if the person who signed or sealed such Bonds
had not ceased to hold such office. Any Bond may be signed and sealed on behalf of the
Issuer by such person who at the actual time of the execution of such Bond shall hold the
16
proper office of the Issuer, although at the date of such Bond such person may not have
held such office or may not have been so authorized. The Issuer may adopt and use for
such purposes the facsimile signatures of any such persons who shall have held such
offices at any time after the date of the adoption of this Resolution, notwithstanding that
either or both shall have ceased to hold such office at the time the Bonds shall be actually
sold and delivered.
SEA rION 2.03. AUTHENTICATION. No Bond of any Series shall be
secured hereunder or entitled to the benefit hereof or shall be valid or obligatory for any
purpose unless there shall be manually endorsed on such Bond a certificate of
authentication by the Registrar or such other entity as may be approved by the Issuer for
such purpose. Such certificate on any Bond shall be conclusive evidence that such Bond
has been duly authenticated and delivered under this Resolution. The 6brin, of such
certificate shall be substantially in the form provided in Section 2.07 hereof.
SECTION 2.04. TEMPORARY BONDS. Until the definitive Bonds of any
Series are prepared, the Issuer may execute, in the same manner as is provided in Section
2.02, and deliver, upon authentication by the Registrar pursuant to Section 2.03 hereof, in
lieu of definitive Bonds, but subject to the same provisions, limitations and conditions as
the definitive Bonds, except as to the denominations thereof, one or more temporary
Bonds substantially of the tenor of the definitive Bonds in lieu of which such temporary
Bond or Bonds are issued, in denominations authorized by the Issuer by subsequent
resolution and with such omissions, insertions and variations as may be appropriate to
temporary Bonds. The Issuer, at his own expense, shall prepare and execute definitive
Bonds, which shall be authenticated by the Registrar. Upon the surrender of such
temporary Bonds for exchange, the Registrar, without charge to the Holder thereof, shall
deliver in exchange therefor definitive Bonds, of the same aggregate principal amount
and Series and maturity as the temporary Bonds surrendered. Until so exchanged, the
temporary Bonds shall in all respects be entitled to the same benefits an.d security as
definitive Bonds issued pursuant to this Resolution. All temporary Bonds surrendered in
exchange for another temporary Bond or Bonds or for a definitive Bond or Bonds shall
be forthwith canceled by the Registrar.
SECTION 2.05. BONDS MUTILATED, DESTROYED, STOLEN OR
LOST. In case any and shall become mutilated, or be destroyed, stolen or lost, the
Issuer may, in its discretion, issue and deliver, and the Registrar shall authenticate, a new
Bond of like tenor as the Bond so mutilated, destroyed, stolen or lost, in exchange and
substitution for such mutilated Bond upon surrender and cancellation of such mutilated
Bond or in lieu of and substitution for the Bond destroyed, stolen or lost, and upon the
Holder furnishing the Issuer and the Registrar proof of his ownership thereof and
satisfactory indemnity and complying with such other reasonable regulations and
conditions as the Issuer or the Registrar may prescribe and paying such expenses as the
17
Issuer and the Registrar may incur. All Bonds so surrendered shall be canceled by the
Registrar. If any of the Bonds shall have matured or be about to mature, instead of
issuing a substitute Bond, the Issuer may pay the same or cause the Bond.to be paid, upon
being indemnified as aforesaid, and if such Bonds be lost, stolen or destroyed, without
surrender thereof,
Any such duplicate Bonds issued pursuant to this Section 2.05 shall constitute
original contractual obligations on the part of the Issuer whether or not the lost, stolen or
destroyed Bond be at any time found by anyone, and such duplicate Bond shall be
entitled to equal and proportionate benefits and rights as to lien on the Pledged Funds to
the same extent as all other Bonds issued hereunder.
SECTION 2.06. INTERCHANGEABILITY, NEGOTIABILITY AND
TRANSFER. Bonds, upon surrender thereof at the office of the Registrar with a written
instrument of transfer satisfactory to the Registrar, duly executed by the Holder thereof or
his attorney duly authorized in writing, may, at the option of the Holder thereof, be
exchanged for an equal aggregate principal amount of registered Bonds of the same
Series and maturity of any other authorized denominations.
'rhe Bonds issued under this Resolution shall be and have all the qualities and
incidents of negotiable instruments -under the Uniform Commercial Code of the State of
Florida, subject to the provisions for registration and transfer contained in this Resolution
and in the bonds. So long as any of the Bonds shall remain Outstanding, the Issuer shall
maintain and keep, at the office of the Registrar, books for the registration and transfer of
the Bonds.
Each Bond shall be transferable only upon the books of the Issuer, at the office of
the Registrar, under such reasonable regulations as the Issuer may prescribe, by the
Holder thereof in person or by his attomey duly authorized in writing upon surrender
thereof together with a written instrument of transfer satisfactory to the Registrar duly
executed and guaranteed by the Holder or his duly authorized attorney, Upon the transfer
of any such Bond, the Issuer shall issue, and cause to be authenticated, in the name of the
transferee a new Bond or Bonds of the same aggregate principal amount and Series and
maturity as the surrendered Bond. 'rhe Issuer, the Registrar and any Paying Agent or
fiduciary of the Issuer may deem and treat the Person in whose name any Outstanding
Bond shall be registered upon the books of the Issuer as the absolute owner of such Bond,
whether such Bond shall be overdue or not, :for the purpose of receiving payment of, or
on account of, the principal or Redemption Price, if applicable, and interest on such Bond
and for all other purposes, and all such payments so made to any such Holder or upon his
order shall. be valid and effectual to satisfy and discharge the liability upon such Bond to
the extent of the sum, or sums so paid and neither the Issuer nor the Registrar nor any
1.8
Paying Agent or other fiduciary of the Issuer shall be affected by any notice to the
contrary.
Except as provided by Supplemental Resolution in the case of Variable Rate
Bonds, the Registrar, in any case where it is not also the Paying Agent in respect to any
Series of Bonds, forthwith (A) following the fifteenth day prior to an Interest Date for
such Series; (B) following the fifteenth day next preceding the date of first mailing of
notice of redemption of any Bonds of such Series; and (C) at any other time as reasonably
requested by the Paying Agent of such Series, shall certify and furnish to such Paying
Agent the names, addresses and holdings of Bondholders and any other relevant
information reflected in the registration books. Any Paying Agent of any fully registered
Bond shall effect payment of interest on such Bonds by mailing a check to the Holder
entitled there-to or may, in lieu thereof, transmit such payment by bank wire transfer or
other electronic means for the account of such Holder.
In all cases in which the privilege of exchanging Bonds or transferring Bonds is
exercised, the Issuer shall execute and deliver Bonds and the Registrar shall authenticate
such Bonds in accordance with the provisions of this Resolution. Execution of Bonds by
the Mayor and the Clerk for purposes of exchanging,replacing or transferring Bonds may
occur at the time of the original delivery of the Series of Which such Bonds are a part. All
Bonds surrendered in any such exchanges or transfers shall be held by the Registrar in
safekeeping until directed by the Issuer to be canceled by the Registrar. For every such
exchange or transfer of Bonds, the Issuer or the Registrar may make a charge sufficient to
reimburse it for any tax, fee, expense or other governmental charge required to be paid
with respect to such exchange or transfer. Except as provided by Supplemental
Resolution in the case of Variable Rate Bonds, the Issuer and the Registrar shall not be
obligated to make any such exchange or transfer of Bonds of any Series during the 15
days next preceding an Interest Date on the Bonds of such Series (other than Capital
Appreciation Bonds), or, in the case of any proposed redemption of Bonds of such Series,
then, for the Bonds subject to redemption, during the 15 days next preceding the date of
the first mailing of notice of such redemption and continuing until such redemption date.
The Issuer may elect to issue any Bonds as uncertificated registered public
obligations (not represented by instruments), commonly known as book-entry
obligations, provided it shall establish a system of registration therefor by Supplemental
Resolution.
SECTION 2.07. FORM OF BONDS. The text of the Bonds, except for
Capital Appreciation Bonds and Variable Rate Bonds, the form of which shall be
provided by Supplemental Resolution of the Issuer, shall be in substantially the following
form, with such omissions, insertions and variations as may be necessary and/or desirable
and approved by the Mayor or the Clerk prior to the issuance thereof (which necessity
19
and/or desirability and approval shall be presumed by such officer's execution of the
Bonds and the Issuer's delivery of the Bonds to the purchaser or purchasers thereo):
[Remainder of page intentionally left blank]
20
No. R-
UNITED STATES OF AMERICA
STATE OF FLORIDA
MONROE COUNTY, FLORIDA
AIRPORT REVENUE BONDS
(KEY WEST INTERNATIONAL AIRPORT),
SERIES
Date of
Interest Rate Maturity Date Orianal Issue CUSIP
Registered Holder:
Principal Amount:
MONROE COUNTY, FLORIDA, a political subdivision of the State of Florida
(the "Issuer"), for value received, hereby promises to pay, solely from the Pledged Funds
hereinafter described, to the Registered Holder identified above, or registered assigns as
hereinafter provided, on the Maturity Date identified above, the Principal Amount
identified above and to pay interest on such Principal Amount from the Date of Original
Issue identified above or from the most recent interest payment date to which interest has
been paid at the Interest Rate per annum identified above on and
— of each year commencing until such Principal
Amount shall have been paid, except as the provisions hereinafter set forth with respect
to redemption prior to maturity may be or become applicable hereto.
Such Principal Amount and interest and the premium, if any, on this Bond are
payable in any coin or currency of the United States of America which, on the respective
dates of payment thereof, shall be legal tender for the payment of public and private
debts. Such Principal Amount and the premium, if any, on this Bond, are payable at the
designated corporate trust office of -3 _9
as Paying Agent. Payment of each installment of interest shall be made to the person in
whose name this Bond shall be registered on the registration books of the Issuer
maintained by ....... - --I ----------- as Registrar,
at the close of business on the date which shall be the fifteenth day (whether or not a
business day) of the calendar month next preceding each interest payment date and shall
be paid by a check of such Paying Agent mailed to such Registered Holder at the address
appearing on such registration books or by bank wire transfer for the account of such
21
Holder. Interest shall be calculated on the basis of a 360-day year of twelve 30-day
months.
This Bond is one of an authorized issue of Bonds in the aggregate principal
amount of $...........................__ (the "Bonds") of like date, tenor and effect, except as to
maturity date, interest rate, registered holder, denomination and number, issued to finance
in and for the Issuer, under the authority of and in full compliance
with the Constitution and laws of the State of Florida, particularly Chapter 125, Part 1,
and Chapter 332, Florida Statutes, and other applicable provisions of law (collectively,
the "Act"), and Resolution No, duly adopted by the Board of County
Commissioners of the Issuer on August 17, 2022, as supplemented (the "Resolution"),
and is subject to all the terms and conditions of the Resolution. All capital terms used in
this Bond not otherwise defined herein shall have the meanings ascribed thereto in the
Resolution.
This Bond and the interest hereon are payable solely from and secured by a lien
upon and a pledge of (1) the Net Revenues to be derived from the operation of the
Airport, (2) Eligible PEC Revenues, and (3) until applied in accordance with the
provisions of the Resolution, all moneys, including investments thereof, in the funds and
accounts established under the Resolution, except (A) moneys in. the PFC Account, the
PFC Capital Improvement Fund (to the extent not legally available to pay debt service on
the Bonds) and the Rebate Fund, (B) moneys in any fund or account to the extent such
moneys shall be required to pay the Operation and Maintenance Costs in accordance with
the terms of the Resolution, and (C) moneys on deposit in a subaccount of the Reserve
Account established by the Resolution to the extent such moneys shall be pledged solely
for the payment of the Series of Bonds for which it was established in accordance with
the provisions of the Resolution (collectively, the "Pledged Funds"), subject in each case
to the application thereof for the purposes and on the conditions permitted by the
Resolution. It is expressly agreed by the Registered I lolder of this Bond that the full faith
and credit of the Issuer are not pledged to the payment of the principal of, premium, if
any, and interest on this Bond and that such Holder shall never have the right to require
or compel the exercise of the taxing power of the Issuer to the payment of such principal,
premium, if any, and interest. This Bond and the obligation evidenced hereby shall not
constitute a lien upon the Airport or any other property of the Issuer, but shall constitute a
lien only on, and shall be payable solely from, the Pledged Funds in. accordance with the
terms of the Resolution. Obligations may be issued by the Issuer from time to time on
parity with the Bonds pursuant to the terms of the Resolution.
This Bond is transferable in. accordance with the terms of the Resolution only
upon the books of the Issuer kept for that purpose at the designated corporate trust office
of the Registrar by the Registered Holder hereof in person or by his attorney duly
authorized in writing, upon the surrender of this Bond, together with a written instrument
of transfer satisfactory to the Registrar duly executed by the Registered Holder or his
22
attorney duly authorized in writing, and thereupon a new Bond or Bonds in the same
aggregate principal amount shall be issued to the transferee in exchange therefor, and
upon the payment of the charges, if any, therein prescribed, The Bonds are issuable in
the form of fully registered Bonds in the denomination of $- and any integral
multiple thereof, not exceeding the aggregate principal amount of the Bonds. The Issuer,
the Registrar and any Paying Agent may treat the Registered Holder of this Bond as the
absolute owner hereof for all purposes, whether or not this Bond shall be overdue, and
shall not be affected by any notice to the contrary, The Issuer shall not be obligated to
make any exchange or transfer of the Bonds during the 15 days next preceding an interest
payment date or, in the case of any proposed redemption of the Bonds, then, for the
Bonds subject to such redemption, during the 15 days next preceding the date of the first
mailing of notice of such redemption and continuing to the redemption date.
The Issuer has established a book-entry system of registration for the Bonds.
Except as specifically provided otherwise in the Resolution, an agent will hold this Bond
on behalf of the beneficial owner hereof. By acceptance of a confirmation of purchase,
delivery or transfer, the beneficial owner of this Bond shall be deemed to have agreed to
such arrangement.
(INSERT REDEMPTION PROVISIONS)
Redemption of this Bond under the preceding paragraphs shall be made as
provided in the Resolution upon notice given by first class mail sent at least 20 days prior
to the redemption date to the Registered Holder hereof at the address shown on the
registration books maintained by the Registrar; provided, however, that failure to mail
notice to the Registered Holder hereof, or any defect therein, shall not affect the validity
of the proceedings for redemption of other Bonds as to which no such failure or defect
has occurred. In the event that less than the full principal amount hereof shall have been
called for redemption, the Registered Holder hereof shall surrender this Bond in
exchange for one or more Bonds in an aggregate principal amount equal to the
unredeemed portion of principal, as provided.in the Resolution.
Reference to the Resolution and any and all resolutions supplemental thereto and
modifications and amendments thereof and to the Act is rnade for a description of the
pledge and covenants securing this Bond, the nature, manner and extent of enforcement
of such pledge and covenants, and the rights, duties, irnmun.ities and obligations of the
Issuer.
It is hereby certified and recited that all acts, conditions and things required to
exist, to happen and to be perflonned precedent to and in the issuance of this Bond, exist,
have happened and have been performed, in regular and due form and time as required by
the laws and Constitution of the State of Florida applicable thereto, and that the issuance
ofthe Bonds does not violate any constitutional or statutory limitations or provisions.
23
Neither the members of the Board of County Commissioners of the Issuer nor any
person executing this Bond shall be liable personally hereon or be subject to any personal
liability or accountability by reason of the issuance hereof.
This Bond shall not be valid or become obligatory for any purpose until the
certificate of authentication hereon shall have been signed by the Registrar.
IN WITNESS WHEREOF, Monroe County, Florida has issued this Bond and
has caused the same to be executed by the manual or facsimile signature of the Mayor of
its Board of County Commissioners, and by the manual or facsimile signature of the
Clerk to such Board, and its seal or a facsimile thereof to be affixed or reproduced
hereon, all as of the Date of Original Issue.
MONROE COUNTY, FLORIDA
(SEAL)
Mayor, Board of County Commissioners
ATTESTED AND COUNTERSIGNED:
Clerk of the Circuit Court and Controller
and ex-officio Clerk to the Board of County
Commissioners of Monroe County, Florida
APPROVED AS TO FORM AND
LEGAL SUFFICIENCY:
____. ............ .. ._
County Attorney
24
CERTIFICATE OF AUTHENTICATION
This Bond is one of the Bonds of the issue described in the within mentioned
Resolution.
DATE OF AUTHENTICATION:
Registrar
By:
Authorized Officer
25
Unless this certificate is presented by an authorized representative of The
Depository Trust Company to the Issuer or its agent for registration of transfer, exchange
or payment, and any certificate issued is registered in the name of Cede & Co. or such
other name as requested by the authorized representative of The Depository Trust
Company and any payment is made to Cede & Co., ANY TRANSFER, PLEDGE OR
OTHER.USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL since the registered owner hereof, Cede & Co., has an interest herein..
FOR VALUE RECEIVED,the undersigned sells, assigns and transfers to
Insert Social Security or Other Identifying Number of Assignee
(Name and Address of Assignee)
the within bond and does hereby irrevocably constitute and appoint
as attorneys to register the transfer of the
said bond on the books kept for registration thereof, with full power of substitution in the
premises.
Dated:
Signature guaranteed:
NOTICE: Signature must be guaranteed by NOTICE: The signature to this assignment
an institution which is a participant in the must correspond with the name of the
Securities Transfer Agent Medallion Registered Holder as it appears upon the
Program(STAMP) or similar program. face of the within bond in every particular,
without alteration or enlargement or any
change whatever and the Social Security or
other identifying number of such assignee
must be supplied.
26
The following abbreviations, when used in the inscription on the face of the within
Bond, shall be construed as though they were written out in full according to applicable
laws or regulations:
TEN COM --as tenants in common
TEN ENT -- as tenants by the entireties
JT TEN -- as joint tenants with right of
survivorship and not as tenants
in common
UNIF TRANS MIN ACT --
(Cult.)
Custodian for
under Uniform Transfers to Minors Act of
(State)
Additional abbreviations may also be used though not in list above.
27
ARTICLE III
REDEMPTION OF BONDS
SECTION 3.01. PRIVILEGE OF REDEMPTION. The terms of this
Article III shall apply to redemption of Bonds other than Capital Appreciation Bonds or
Variable Rate Bonds. The terms and provisions relating to redemption of Capital
Appreciation Bonds and Variable Rate Bonds shall be provided by Supplemental
Resolution. The provisions of this Article III may also be modified pursuant to
Supplemental Resolution to accommodate any redemption provisions with respect to
Federal Subsidy Bonds. Specific redemption tenns for any Series of Bonds shall be
determined pursuant to Supplemental. Resolution.
SECTION 3.02. SELECTION OF BONDS TO BE REDEEMED. The
Bonds shall be redeemed only in authorized denominations and integral multiples thereof.
The Issuer shall, at, least 25 days prior to the redemption date (unless a shorter time
period shall be satisfactory to the Registrar), notify the Registrar of such redemption date
and of the principal amount of Bonds to be redeemed. For purposes of any redemption of
less than all of the Outstanding Bonds of a single maturity, the particular Bonds or
portions of Bonds to be redeemed shall be selected not more than 45 days and not less
than 20 days prior to the redemption date by the Registrar from the Outstanding Bonds of
the maturity or maturities designated by the Issuer by such method as the Registrar shall
deem fair and appropriate and Which may provide for the selection for redemption of
Bonds or portions of Bonds in principal amounts of$5,000 and integral multiples thereof.
If less than all of a Term Bond is to be redeemed the aggregate principal amount to be
redeemed shall be allocated to the Sinking Fund Installments on a pro-rata basis unless
the Issuer, in its discretion, designates a different allocation.
If less than all of the Outstanding Bonds of a single maturity are to be redeemed,
the Registrar shall promptly notify the Issuer and Paying Agent (if the Registrar is not the
Paying Agent for such Bonds) in writing of the Bonds or portions of Bonds selected for
redemption and, in the case of any Bond selected for partial redemption, the principal
amount thereof to be redeemed.
SECTION 3.03. NOTICE OF REDEMPTION. Notice of such redemption
shall specify the Bond or Bonds (or portions thereof) to be redeemed and the date and
place for redemption., shall.be given by the Registrar on.behalf of the Issuer, and (A) shall
be filed with the Paying Agents of such Bonds, and (B) shall be mailed first class,
postage prepaid, at least 20 days nor more than 45 days prior to the redemption date to all
Holders of Bonds to be redeemed at their addresses as they appear on the registration
books kept by the Registrar as of the date of mailing of such notice. Failure to mail such
notice to the Holders of the Bonds to be redeemed, or any defect therein, shall not affect
the proceedings for redemption of Bonds as to which no such failure or defect has
28
occurred. Failure of any Holder to receive any notice mailed as herein provided shall not
affect the proceedings for redemption of such Holder's Bonds.
Each notice of redemption shall state- (1) the CUSIP numbers and any other
distinguishing number or letter of all Bonds being redeemed, (2) the original issue date of
such Bonds, (3) the maturity date and rate of interest borne by each Bond being
redeemed, (4) the redemption date, (5) the Redemption Price, (6) the date on which such
notice is mailed, (7) if less than all Outstanding Bonds are to be redeemed, the certificate
number (and, in the case of a partial redemption of any Bond, the principal amount) of
each Bond to be redeemed, (8) that on such redemption date there shall become due and
payable upon each Bond to be redeemed the Redemption Price thereof, or the
Redemption Price of the specified portions of the principal thereof in the case of Bonds to
be redeemed in part only, together with interest accrued thereon to the redemption date,
and that from and after such date interest thereon shall cease to accrue and be payable,
(9) that the Bonds to be redeemed, whether as a whole or in part, are to be surrendered for
payment of the Redemption Price at the designated office of the Registrar at an address
specified, (10) the name and telephone number of a Person designated by the Registrar to
be responsible for such redemption, (11) unless sufficient funds have been set aside by
the Issuer for such purpose prior to the mailing of the notice of redemption, that such
redemption is conditioned upon the deposit of sufficient funds for such purpose on or
prior to the date set for redemption, and (12) any other conditions that must be satisfied
prior to such redemption.
In addition to the mailing of the notice described above, each notice of redemption
and payment of the Redemption. Price shall be sent to the Electronic Municipal Market
Access system maintained by the Municipal Securities Rulemaking Board within ten (10)
days of the mailing of the notice of redemption to Bondholders; provided, however, the
failure to provide such further notice of redemption or to comply with the terms of this
paragraph shall not in any manner defeat the effectiveness of a call for redemption if
notice thereof is given as prescribed above.
The Issuer may provide that a notice of redemption may be contingent upon the
occurrence of certain condition(s) and that if such condition(s) do not occur, the notice
will be rescinded; provided notice of rescission shall be mailed in the manner described
above to all affected Bondholders as soon as practicable.
SECTION 3.04® REDEMPTION OF PORTIONS OF BONDS. Any and
which is to be redeemed only in part shall be surrendered at any place of payment
specified in the notice of redemption (with due endorsement by, or written instrument of
transfer in form satisfactory to the Registrar duly executed by, the Holder thereof or his
attorney duly authorized in writing) and the Issuer shall execute and the Registrar shall
authenticate and deliver to the Holder of such Bond, without service charge, a new Bond
or Bonds, of any authorized denomination, as requested by such Holder in an aggregate
29
principal amount equal to and in exchange for the unredeemed portion of the principal of
the Bonds so surrendered.
SECTION 3.05. PAYMENT OF REDEEMED BONDS. Notice of
redemption having been given substantially as aforesaid, the Bonds or portions of Bonds
so to be redeemed shall (subject to the satisfaction of any conditions specified in the
notice), on the redemption date, become due and payable at the Redemption Price therein
specified, and from and after such date (unless the Issuer shall default in the payment of
the Redemption ]Price) such Bonds or portions of Bonds shall cease to bear interest.
Upon surrender of such Bonds for redemption in accordance with said notice, such Bonds
shall be paid by the Registrar and/or Paying Agent at the appropriate Redemption Price,
plus accrued interest. All Bonds which have been redeemed shall be canceled and
destroyed by the Registrar and shall not be reissued.
SECTION 3.06. PURCHASE IN LIEU OF OPTIONAL REDEMPTION.
Notwithstanding anything in this Resolution to the contrary, at any time the Bonds are
subject to optional redemption pursuant to this Resolution, all or a portion of the Bonds to
be redeemed as specified in the notice of redemption., may be purchased by the Paying
Agent, as trustee, at the direction of the Issuer, on the date which would be the
redemption date if such Bonds were redeemed rather than purchased in lieu thereof at a
purchase price equal to the redemption price which would have been applicable to such
Bonds on the redemption date for the account of and at the direction of the Issuer who
shall give the Paying Agent, as trustee, notice at least 10 days prior to the scheduled
redemption date accompanied by an opinion of Bond Counsel to the effect that such
purchase will not adversely affect the exclusion from gross income for federal income tax
purposes of interest on such Bonds or any other Outstanding Bonds. In the event the
Paying Agent, as trustee, is so directed to purchase Bonds in lieu of optional redemption,
no notice to the holders of the Bonds to be so purchased (other than the notice of
redemption otherwise required under this Resolution) shall be required, and the Paying
Agent, as trustee, shall be authorized to apply to such purchase the funds which would
have been used to pay the redemption price for such Bonds if such Bonds had been
redeemed rather than purchased. Each Bond so purchased shall not be canceled or
discharged and shall be registered in the name of the Issuer. Bonds to be Purchased
under this Resolution in.the manner set forth above which are not delivered to the Paying
Agent, as trustee, on the purchase date shall be deemed to have been so purchased and
not optionally redeemed on the purchase date and shall cease to accrue interest as to the
former holder thereof on the purchase date.
[Remainder of page intentionally left blank]
30
ARTICLE IY
SECURITY,SPECIAL FUNDS AND APPLICATION THEREOF
SECTION 4.01. BONDS NOT TO BE INDEBTEDNESS OF ISSUER. The
Bonds shall not be or constitute general obligations or indebtedness of the Issuer as
"bonds" within the meaning of any constitutional or statutory provision, but shall be
special obligations of the Issuer, payable solely from and secured by a lien upon and
pledge of the Pledged Funds, in the manner and to the extent provided in this Resolution.
No Holder of any Bond shall ever have the right to compel the exercise of any ad
valorem taxing power to pay such Bond or be entitled to payment of such Bond from any
moneys of the Issuer except from the Pledged Funds in the manner and to the extent
provided herein. The Bonds and the obligations evidenced thereby shall not constitute a
lien upon the Airport or any other property of the Issuer, but shall constitute a lien only
on, and shall be payable solely from, the Pledged Funds.
SECTION 4.02. SECURITY FOR BONDS. The payment of the principal of
or Redemption Price, if applicable, and interest on the Bonds shall be secured forthwith
equally and ratably by a pledge of and lien upon the Pledged Funds; provided, however, a
Series of Bonds may be further secured by a Credit Facility or Bond Insurance Policy in
addition to the security provided herein; and provided further that a Series of Bonds may
be secured independently of any other Series of Bonds by the establishment of a separate
subaccount in the Reserve Account for such Series of Bonds or by not being secured in
any manner by the Reserve Account as provided in a Supplemental Resolution. The
Issuer does hereby irrevocably pledge the Pledged Funds to the payment of the principal
of or Redemption Price, if applicable, and interest on the Bonds in accordance with the
provisions hereof. In addition, the Issuer does hereby irrevocably pledge and grant a lien
upon the Pledged Funds to the payment of the Policy Costs in accordance with the
provisions hereof; provided, however, such pledge and lien shall be junior and
subordinate in all respects to the pledge of and lien upon such Pledged Funds granted
hereby to the Bondholders. Except as otherwise provided by Supplemental Resolution,
the obligation of the Issuer to make Hedge Payments to a Counterparty pursuant to a
Qualified Hedge Agreement shall be on parity with the Bonds as to lien on and pledge of
the Pledged Funds in accordance with the terms hereof(any other payments related to a
Qualified Hedge Agreement, including fees, penalties and termination payments and the
obligation of the Issuer to collateralize, shall be Subordinated Indebtedness of the Issuer).
The Pledged Funds shall immediately be subject to the lien of this pledge without
any physical delivery thereof or further act, and the lien of this pledge shall be valid and
binding as against all parties having claims of any kind in tort, contract or otherwise
against the Issuer.
SECTION 4.03. CONSTRUCTION FUND. The Issuer covenants and agrees
to establish a fund to be known as the "Monroe County, Florida Key West International
31
Airport Construction Fund," which shall be used only for 'payment of the Cost of a
Project. Moneys in the Construction. Fund, until applied in payment of any item of the
Cost of a Project in the manner hereinafter provided, shall be subject to a lien and charge
in favor of the Holders of the Bonds and for the further security of such Holders.
There shall be paid into the Construction Fund the amounts required to be so paid
by the provisions of this Resolution, and there may be paid into the Construction Fund, at
the option of the Issuer, any moneys received for or in connection with a Project by the
.Issuer from any other source.
The Issuer shall establish within the Construction Fund a separate account for each
Project the Cost of which is to be paid in whole or in part out of the Construction Fund.
Moneys in such accounts shall be used to pay Costs of Projects.
The proceeds of insurance maintained pursuant to this Resolution against physical
loss of or damage to a Project, or of contractors' performance bonds with respect thereto
pertaining to the period of construction thereof, shall be deposited into the appropriate
account of the Construction Fund.
Any moneys received by the Issuer from the State or from the United States of
America or any agencies thereof for the purpose of financing part of the Cost of a Project
shall be deposited into the appropriate account of the Construction Fund and used in the
same manner as other Bond proceeds are used therein; provided that separate accounts or
subaccounts may be established in the Construction Fund for moneys received pursuant
to the provisions of this paragraph whenever required by federal or State law; provided,
further, any such moneys shall not be subject to the lien and charge in favor of the
Holders of the bonds
'The Issuer covenants that the acquisition, construction and installation of each
Project will be completed without delay and in accordance with sound engineering
practices. The Issuer shall make disbursements or payments from the Construction Fund
to pay the Cost of a Project upon the filing with the Clerk of certificates and/or
documents signed by an Authorized Issuer Officer, stating with respect to each
disbursement or payment to be made- (A) the item number of the payment, (B) the-name
and address of the Person to who payment is due, (C) the amount to be paid, (D) the
account of the Construction Fund from which payment is to be made, (E) the purpose, by
general classification, for which payment is to be made, and (F) that (i) each obligation,
item of cost or expense mentioned therein has been properly incurred, is in payment of a
part of the Cost of a Project and is a proper charge against the account of the
Construction Fund from which payment is to be made and. has not been the basis of any
previous disbursement or payment, or (ii) each obligation, item of cost or expense
mentioned therein has been previously paid by the Issuer, is a reimbursement of a part of
the Cost of a Project, is a. proper charge against the account of the Construction Fund
from which payment is made, has not been theretofore reimbursed to the Issuer or
32
otherwise been the basis of any previous disbursement or payment and, the Issuer is
entitled to reimbursement thereof, The Clerk shall retain all such certificates and/or
documents for such other period of time as required by applicable law. The Clerk shall
make available the certificates and/or documents at all reasonable times for inspection by
any Holder of any of the Bonds or the agent or representative of any Holder of any of the
Bonds.
Notwithstanding any of the other provisions of this Section 4.03, to the extent that
other moneys are not available therefor, amounts in the Construction Fund derived from
proceeds of the Bonds may be applied to the payment of principal of and interest on such
Bonds when due.
The date of completion of the acquisition, construction and equipping of a Project
shall be documented by an Authorized Issuer Officer in the appropriate records of the
Issuer. Promptly after the date of the completion of aProject, and after paying or making
provision for the payment of all unpaid items of the Cost of such Project, the Issuer shall
transfer the balance of any money in the Construction Fund which shall deposit such
moneys in the following order of priority in (A) another account of the Construction Fund
for which an Authorized Issuer Officer has determined that there are insufficient moneys
present to pay the Cost of the related Project, (B) the Reserve Account, to the extent of a
deficiency therein, and (C) such other fund or account established hereunder as shall be
determined by the Governing Body, provided the Issuer has received all opinion of Bond
Counsel. to the effect that such transfer shall not adversely affect the exclusion, if any, of
interest on the Bonds from gross income for purposes of federal income taxation. or shall
not otherwise affect the status of any Outstanding Bonds issued as Federal Subsidy
Bonds or the Issuer's receipt of Federal Subsidy Payments with respect to any
Outstanding Federal Subsidy Bonds..
SECTION 4.04. CREATION OF FUNDS AND ACCOUNTS. The Issuer
covenants and agrees to establish the following funds and accounts:
(A) The "Monroe County, Florida Key West International Airport Revenue
Fund." The Issuer shall maintain two separate accounts in the Revenue Fund: the
"Revenue Account" and the "PFC Account."
(B) The "Monroe County, Florida Key West International Airport Operation
and Maintenance Fund." The Issuer shall maintain two separate accounts in the
Operation and Maintenance Fund: the "Operation and Maintenance Payment Account"
and the "Operation and Maintenance Reserve Account."
(C) The "Monroe County, Florida Key West International Airport Sinking
Fund." The Issuer shall maintain four separate accounts in the Sinking Fund: the
"Interest Account," the "Principal Account," the -Term Bonds Redemption Account" and
the "Reserve Account."
33
-(D) The "Monroe County, Florida Key West International Airport Surplus
Fund."
(E) The "Monroe County, Florida Key West International Airport PFC Capital
Improvement Fund."
(F) The "Monroe County, Florida Key West International Airport Rebate
Fund."
Moneys in the aforementioned funds and accounts (except for moneys in the
Rebate Fund), until applied in accordance with the provisions hereof, shall be subject to a
lien and charge in favor of the Holders of the Bonds and for the further security of such
Holders in accordance with the terms hereof.
The Issuer may at any time and from time to time appoint one or more depositaries
to hold, for the benefit of the Bondholders, any one or more of the funds and accounts
established hereby. Such depositary or depositaries shall perform at the direction of the
Issuer the duties of the Issuer in depositing, transferring and disbursing moneys to and
from. each of such funds or accounts as herein set forth, and all records of such depositary
in performing such. duties shall be open at, all reasonable times to inspection by the Issuer
and its agents and employees. Any such depositary shall be abank or trust company duly
authorized to exercise corporate trust powers and subject to examination by federal or
state authority, of good standing, and be qualified under applicable State law.
Notwithstanding the foregoing, none of the aforementioned funds and accounts are
required to be established prior to the time any such fund or account is required to be
funded or otherwise utilized hereunder.
SECTION 4.05. DISPOSITION OF GROSS REVENUES AND
ELIGIBLE PEC REVENUES.
(A) Revenue Fund. Into the Revenue Account, the Issuer shall deposit
promptly, as received, all Gross Revenues. Into the PFC Account, the Issuer shall deposit
promptly, as received, all PFC Revenues.
(B) Operation and Maintenance Payment Account. Moneys in the Revenue
Account shall first be used each month to deposit in the Operation and Maintenance
Payment Account such sums as are necessary to pay Operation and Maintenance Costs
for the ensuing month; provided the Issuer may transfer moneys from the Revenue
Account or the Airport Surplus Fund or the Operation and Maintenance Reserve Account
to the Operation and Maintenance Payment Account at any time to pay Operation and
Maintenance Costs to the extent there is a deficiency in the Operation and Maintenance
Payment Account for such purpose. Amounts in the Operation and Maintenance
34
Payment Account shall be paid out from time to time by the Issuer for Operation and
Maintenance Costs.
(C) PF,C_Account. Moneys in the PFC Account shall be applied on or before
the 25 1h day of each month in the following order of priority:
�1(1) ynd.&ghn The Issuer shall deposit or credit to the Interest
Account, the Principal Account and the Tenn Bonds Redemption Account such
amounts as it shall determine pursuant to its Annual Budget and which are Eligible
PFC Revenues.
(2) P C Capital Improvement Fund. The remainder of moneys in the
PFC Account shall be deposited into the PFC Capital Improvement Fund and shall
be utilized in accordance with the terms of Section 4.06 hereof.
(D) Subsequent to the payment described in Section 4.05(B) hereof, moneys on
deposit in the Revenue Account shall be applied by the Issuer on or before the 25 1h day of
each month in the following order of priority:
(1) Interest Account. The Issuer shall deposit or credit to the Interest
.Account the sum which, together with the balance in said Account including any
moneys transferred from the PFC Account to the Interest Account, shall equal the
interest on all Bonds Outstanding (except as to Capital Appreciation Bonds)
accrued and unpaid and to accrue to the end of the then cur-rent calendar month.
All Hedge Receipts and Federal Subsidy Payments shall be deposited directly to
the Interest Account upon receipt. With respect to interest on Bonds which are
subject to a Qualified Hedge Agreement, interest on such Bonds during the terra of
the Qualified Hedge Agreement shall be deemed to include the corresponding
Hedge Payments. Moneys in the Interest Account shall be applied by the Issuer
(a) for deposit with the Paying Agents to pay the interest on the Bonds on or prior
to the date the same shall become due and (b) for I-ledge Payments. Any Federal
Subsidy Payments deposited to the Interest Account shall be deemed to have been
applied to the payment of interest on the Federal Subsidy Bonds to which such
Federal Subsidy Payments relate. The Issuer shall adjust the amount of the deposit
to the Interest Account not later than a month immediately preceding any Interest
Date so as to provide sufficient moneys in the Interest Account to pay the interest
on the Bonds coming due on such Interest Date. No further deposit need be made
to the Interest Account when the moneys therein are equal to the interest coming
due on the Outstanding Bonds on the next succeeding Interest Date. With respect
to debt service on any Bonds which are subject to a Qualified Hedge Agreement,
any Hedge Payments due to the Qualified Hedge Agreement Counterparty relating
to such Bonds shall be paid to the Qualified Hedge Agreement Counterparty on a
parity basis with the aforesaid required payments into the Sinking Fund. In
computing the interest on Variable Rate Bonds which shall accrue during a
35
calendar month, the interest rate on such Variable Rate Bonds shall be assumed to
be (A) if such Variable Rate Bonds have been Outstanding for at least 24 months
prior to the commencement of such calendar month, the highest interest rate borne
by such Variable Rate Bonds during any 30--day period during such preceding 24
months, and (B) if such Variable Rate Bonds have not been Outstanding for at
least 24 months prior to the date of calculation, the Bond Buyer Revenue Bond
Index most recently published prior to the commencement of such calendar month.
(2) 1 Lrjg n incibal Account. CoCommencio later than the month which is
-
one year prior to the first principal due date, the Issuer shall next deposit into the
Principal Account the sum which, together with the balance in said Account,
including any moneys transferred from the PFCA.ccount to the Principal Account,
shall equal the principal amounts on all Bonds Outstanding due and unpaid and
that portion of the principal next due which would have accrued. on such Bonds
during the then current calendar month if such principal amounts were deemed to
accrue monthly (assuming that a year consists of 12 equivalent calendar months
having 30 days each) except for the Sinking Fund Installments to be deposited
pursuant to Section 4.05(D)(3) hereof, in equal amounts from the next preceding
principal payment due date, or, if there be no such preceding payment due date
from a date one year preceding the due date of such principal amount. Moneys in
the Principal Account shall be applied by the Issuer for deposit with the Paying
Agents to pay the principal of the Bonds on or prior to the date the sarne shall
mature, and for no other purpose. Serial Capital Appreciation Bonds shall be
payable from the Principal Account in the years in which such Bonds mature and
monthly payments into the Principal Account on account of such Bonds shall
commence in the twelfth month immediately preceding the maturity date of such
Bonds. The Issuer shall adjust the amount of the deposit to the Principal Account
not later than the month immediately preceding any principal payment date so as
to provide sufficient moneys in the Principal Account to pay the principal on
Bonds becoming due on such principal payment date. No further deposit need be
made to the Principal Account when the moneys therein are equal to the principal
coming due on the Outstanding Bonds on the next succeeding principal payment
date.
(3) Term Bonds Redemption Account. Commencing in the month which
is one year prior to the first Sinking Fund Installment due date, there shall be
deposited to the Term Bonds Redemption Account the sum which., together with
the balance in such Account including any moneys transferred from the IMFC
Account to the Term Bonds Redemption Account, shall equal the Sinking Fund
Installments on all Bonds Outstanding due and unpaid and that portion of the
Sinking Fund Installments of all Bonds Outstanding next due which. would have
accrued on such Bonds during the then current calendar month if such Sinking
Fund Installments were deemed to accrue monthly (assuming that a year consists
36
of 1.2 equivalent calendar months having 30 days each) in equal amounts from the
next preceding Sinking Fund Installment due date, or, if there is no such preceding
Sinking Fund Installment due date, from a date one year preceding the due date of
such Sinking Fund Installment. Moneys in the Term Bonds Redemption Account
shall be used to purchase or redeem Term Bonds in the manner herein provided,
and for no other purpose. Term Capital Appreciation bonds shall be payable from
the Term Bonds Redemption Account in the years in which such Bonds mature
and monthly payments into the Terms Bonds Redemption Account on account of
such Bonds shall commence in the twelfth month immediately preceding the due
date of the related Sinking Fund Installments. The Issuer shall adjust the amount
of the deposit to the Tenn Bonds Redemption Account on the month immediately
preceding any Sinking Fund Installment Date so as to provide sufficient moneys in
the Term Bonds Redemption Account to pay the Sinking Fund Installments
becoming due on such date. Payments to the Term Bonds Redemption Account
shall be on.parity with payments to the Principal Account.
Amounts accumulated in the Term Bonds Redemption Account with
respect to any Sinking Fund Installment (together with amounts accumulated in
the Interest Account with respect to interest, if any, on the TerrnBonds for which
such Sinking Fund Installment was established) may be applied. by the Issuer, on
or prior to the 60th day preceding the due date of such Sinking Fund Installment,
(a) to the purchase of Term Bonds of the Series and maturity for which such
Sinking Fund Installment was established, or (b) to the redemption at the
applicable Redemption Prices of such Term Bonds, if then redeemable by their
terms. Amounts in the Tenn Bonds Redemption Account which are used to
redeem Term Bonds shall be credited against the next succeeding Amortization
Installment which shall become due on such Term Bonds. The applicable
Redemption Price (or principal amount of maturing Term Bonds) of any Tenn
Bonds so purchased or redeemed shall be deemed to constitute part of the Term
Bonds Redemption Account until such Sinking Fund Installment date, for the
purposes of calculating the amount of such Account. As soon as practicable after
the 60th day preceding the due date of any such Sinking Fund Installment, the
Issuer shall proceed to call for redemption on such due date, by causing notice to
be given as provided in Section 3.03 hereof, Term Bonds of the Series and
maturity for which such Sinking Fund Installment was established (except in the
case of Term Bonds maturing on a Sinking Fund Installment date) in such amount
as shall be necessary to complete the retirement of the unsatisfied balance of such
Sinking Fund Installment. The Issuer shall pay out of the Term Bonds
Redemption Account and the Interest Account to the appropriate Paying Agents,
on or before the day preceding such redemption date (or maturity date), the
amount required for the redemption (or for the payment of such Term Bonds then
maturing), and such amount shall be applied by such Paying Agents to such
redemption (or payment). All expenses in connection with the purchase or
37
redemption of Term Bonds shall. be paid by the Issuer from the Operation and
Maintenance Payment Account.,
(4) Reserve Account. There shall be deposited to the Reserve Account
an amount which would enable the Issuer to restore the funds on deposit in the
Reserve Account (including any subaccounts therein) to an amount equal to the
Reserve Account Requirement applicable thereto. All deficiencies in the Reserve
Account must be made up no later than 12 months from the date such deficiency
first occurred, whether such shortfall was caused by decreased market value of the
investments therein of more than 5% or withdrawal (whether from cash or a
Reserve Account Insurance Policy or Reserve Account Letter of Credit). On or
prior to each principal payment date and Interest Date for the Bonds (in no event
earlier than the 25" day of the month next preceding such payment date), moneys
in the Reserve Account shall be applied by the Issuer to the payment of the
principal of or Redemption Price, if applicable, and interest on the Bonds to the
extent moneys in the Interest Account, the Principal Account and the Terrn Bonds
Redemption Account shall be insufficient for such purpose, but only to the extent
the moneys transferred from the Airport Surplus Fund, the PFC Capital
Improvement Fund and the Operation and Maintenance Reserve Account for such
purposes pursuant to Sections 4.05(D)(7), 4.06 and 4.05(D)(6), respectively,
hereof shall be inadequate to fully provide for such insufficiency. Wlienever there
shall be surplus moneys in the Reserve Account by reason of a decrease in the
Reserve Account Requirement or as a result of a deposit in the Reserve Account
Letter of Credit or a Reserve Account Insurance Policy, such surplus moneys, to
the extent practicable, shall be deposited by the Issuer into the Revenue Account
of the Revenue Fund. The Issuer shall promptly inform each Insurer of any draw
upon the Reserve Account for purposes of paying the principal of and interest on
the Bonds.
Upon the issuance of any Series of Bonds under the tenns, limitations and
conditions as herein provided, the Issuer shall fund the Reserve Account in an
amount at least equal to the Reserve Account Requirement to the extent such
Series of Bonds are to be secured by the Reserve Account or any subaccount
therein; provided, however, nothing herein shall be construed to require the Issuer
to hind the ReserveAccount or any subaccount for any Series of Bonds. Upon the
adoption of the Supplemental Resolution authorizing the issuance of a, Series of
Bonds, the Issuer shall determine whether such Series of Bonds shall be secured
by the Reserve Account or any subaccount therein and, if the Issuer determines
that the Series of Bonds will be secured by a separate subaccount therein, tile
Issuer shall also establish the Reserve Account Requirement applicable thereto.
Such required amount, if any, shall be paid in full or in part from the proceeds of
such Series of Bonds or may be accumulated in equal monthly payments to the
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Reserve Account over a period of months from the date of issuance of such Series
of Bonds, which shall not exceed 36 months.
Notwithstanding the foregoing provisions, in lieu of or in substitution of the
required deposits into the Reserve Account, the Issuer may cause to be deposited
into the Reserve Account a Reserve Account Insurance Policy and/or Reserve
Account Letter of Credit for the benefit of the Bondholders in an amount equal to
the difference between the Reserve Account Requirement applicable thereto and
the sums then on deposit in the Reserve Account, if any. The Issuer may also
substitute a Reserve Account Insurance Policy and/or Reserve Account Letter of
Credit for cash on deposit in the Reserve Account upon compliance with the terms
of this Section 4.05(D)(4). Such Reserve Account Insurance Policy and/or
Reserve Account Letter of Credit shall be payable to the Paying Agent (upon the
giving of notice as required thereunder) on any Interest Date or redemption date
on which a deficiency exists which cannot be cured by moneys in any other fund
or account held pursuant to this Resolution and available for such purpose. Upon.
the initial deposit of any such Reserve Account Insurance Policy and/or Reserve
Account Letter of Credit, the provider thereof shall be either (a) an insurer whose
municipal bond insurance policies insuring the payment, when due, or the
principal of and interest on municipal bond issues results in such issues being
rated in one of the three highest rating categories by at least two of the Rating
Agencies (without regard to gradations, such as "plus" or "minus" or "l," vv2yv or
"T'), or (b) a commercial bank, insurance company or other financial institution
which has been assigned a rating in one of the two highest rating categories by at
least one of the Rating Agencies (without regard to gradations, such as "plus" or
Vvininus" or "l," "T' or 'T'). Any Reserve Account Insurance Policy and/or
Reserve Account I...etter of Credit shall equally secure all Bonds secured by the
Reserve Account or subaccount into which such Policy or Letter of Credit is
deposited.
Each Reserve Account Insurance Policy and Reserve Account Letter of
Credit shall Provide for a revolving feature under which the amount available
thereunder will be reinstated to the extent of any reimbursement of draws or
claims paid. If the revolving feature is suspended or terminated for any reason, the
right of the provider of the Reserve Account Insurance Policy or Reserve Account
Letter of Credit to reimbursement will be subordinated to cash replenishment of
the Reserve Account to an amount equal to the difference between the full original
amount available under the Reserve Account Insurance Policy or Reserve Account
Letter of Credit and the amount then available for further draws or claims. If(a)
the provider of a Reserve Account Insurance Policy or Reserve Account 1,etter of
Credit becomes insolvent or (b) the provider of a Reserve Account Insurance
Policy or Reserve Account Letter of Credit defaults in its payment obligations
thereunder or (c) the rating of the provider of a Reserve Account Insurance Policy
39
falls below a rating of"A-" or "A.Y by all of the Rating Agencies then rating such
provider or (d) the rating of the provider of a Reserve Account Letter of Credit
falls below a rating of "AA-" or "AaY by all of the Rating Agencies then rating
such provider, the obligation to reimburse the provider of the Reserve Account
Insurance Policy or Reserve Account Letter of Credit shall be subordinate to the
cash replenishment of the Reserve Account,. Where applicable, the amount
available for draws or claims under a Reserve Account Insurance Policy or
Reserve Account Letter of Credit may be reduced by the amount of' cash or
investments deposited in the Reserve Account pursuant to the provisions hereof.
If the revolving reinstatement feature described in the preceding paragraph
is suspended or terminated or if the Reserve Account Insurance Policy or Reserve
Account Letter of Credit is no longer valid and enforceable, the Issuer shall either
(i) deposit into the Reserve Account an amount sufficient to cause the cash or
investments on deposit in the Reserve Account or applicable subaccount to equal
the Reserve Account Requirement on all Outstanding Bonds then secured. by such
Reserve Account or subaccount, such amount to be paid over the ensuing five
years in equal installments deposited at least senii-annually or (ii) replace such
instrument with a Reserve Account Insurance Policy or a Reserve Account Letter
of Credit meeting the requirements described herein within six months of such
occurrence.
If three days prior to an interest or principal payment date, or such other
period of time as shall be required by the terms of the Reserve Account Insurance
Policy or Reserve Account Letter of Credit, the Issuer shall determine that a
deficiency exists in the amount of moneys available to pay in accordance with the
terms hereof interest and/or principal due on the Bonds on such date, the Issuer
shall immediately notify (a) the issuer of the applicable Reserve Account
Insurance Policy and/or the issuer of the Reserve Account Letter of Credit and
submit a demand for payment pursuant to the provisions of such Reserve Account
Insurance Policy and/or the Reserve Account Letter of Credit, (b) the Paying
Agent, and (c) the Insurer, if any, of the amount of such deficiency and the date on
which such payment is due.
The Issuer may evidence its obligation to reimburse the issuer of any
Reserve Account Letter of Credit or Reserve Account Insurance Policy by
executing and delivering to such issuer a subordinate promissory note therefor;
provided, however, any such note (a) shall not be a general obligation of the Issuer
the payment of which is secured by the full faith and credit or taxing power of the
Issuer, and (b) shall be payable solely from. the Pledged Funds in the manner
provided herein. The obligation to reimburse the provider of a Reserve Account
Insurance Policy or Reserve Account Letter of Credit for any Policy Costs shall be
subordinate to the payment of debt service on the Bonds.
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Any consent or approval of any Insurer described in this Section 4.05(D)(4)
shall be required only so long as there are Outstanding Bonds secured by a Bond
Insurance Policy issued by such Insurer which is in full force and effect and the
commitments of which have been honored by such Insurer. The term "Paying
Agent" as used in this Section 4.05(D)(4) may include one or more Paying Agents
for the Outstanding Bonds.
Whenever the amount of cash in the Reserve Account, together with the
other amounts in the Debt Service Fund, are sufficient to fully pay all Outstanding
Bonds in accordance with their terms (including principal or applicable
Redemption Price and interest thereon), the funds on deposit in the Reserve
Account may be transferred to the other Accounts of the Sinking Fund for the
payment of the Bonds.
The Issuer may also establish a separate subaccount in the Reserve Account
for any Series of Bonds and provide a pledge of such subaccount to the payment
of such Series of Bonds apart from the pledge provided herein. To the extent a
Series of Bonds is secured separately by a subaccount of the Reserve Account, the
Holders of such Bonds shall not be secured by any other moneys in the Reserve
Account. Moneys in a separate subaccount of the Reserve Account shall be
maintained at the Reserve Account Requirement applicable to such Series of
Bonds secured by the subaccount; provided the Supplemental Resolution
authorizing such Series of Bonds may establish the Reserve Account Requirement
relating to such separate subaccount of the Reserve Account at such level as the
Issuer deems appropriate. In the event the Issuer by Supplemental Resolution
establishes the Reserve Account Requirement for a particular Series of Bonds to
be zero dollars ($0.00) or it shall determine that such Series are not to be secured
in any manner by the Reserve Account or a subaccount, then it shall not be
required to establish a separate subaccount; provided, however, such Series of
Bonds shall have no lien on or pledge of any moneys on deposit in the Reserve
Account. Moneys used to replenish the Reserve Account shall be deposited in the
separate subaccounts in the Reserve Account and in the Reserve Account on a pro-
rata basis. In the event the Issuer shall maintain a Reserve Account Insurance
Policy or Reserve Account Letter of Credit and moneys in the Reserve Account or
any subaccount, the moneys shall be used prior to making any disbursements
under such Reserve Account Insurance Policy or Reserve Account Letter of
Credit.
(5) Subordinated Indebtedness. There shall next be deposited by the
Issuer for the payment of any debt service on and other required deposits with
respect to Subordinated Indebtedness incurred by the Issuer in connection with
Improvements to the Airport and in accordance with the proceedings authorizing
such Subordinated Indebtedness.
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(6) Operation and Maintenance Reserve Account. There shall be
deposited to the Operation and Maintenance Reserve Account an amount which
would enable the Issuer to restore the funds on deposit in the Operation and
Maintenance Reserve Account to an amount equal to the Operation and
Maintenance Reserve Requirement. The moneys in the Operation and
Maintenance Reserve Account shall be applied by the Issuer for the purpose of
paying Operation and Maintenance Costs to the extent the arnounts in the
Operation and Maintenance Payment Account are insufficient therefor, provided,
however, that on or prior to each principal and interest payment date for the Bonds
(in no event earlier than. the 25" day of the month next preceding such payment
date), moneys in the Operation and Maintenance Reserve Account shall be applied
for the payment into the Interest Account, the Principal Account and the Tenn
Bonds Redemption Account when the moneys therein are insufficient to pay the
principal of and interest on the Bonds coming due, but only to the extent moneys
transferred from the Airport Surplus Fund and the PFC Capital Improvement Fund
for such purpose pursuant to Sections 4.05( 7)(7) and 4.06, respectively, shall not
be adequate to fully provide for such insufficiency,
(7) Airport Surplus Fund. The balance of any moneys remaining in the
Revenue Account shall be deposited in the Airport Surplus Fund and applied for
any lawful purpose relating to the Airport. Moneys in the Airport Surplus Fund
shall be applied to the payment, on or prior to each principal and interest payment
date for the Bonds (in no event earlier than the 25" day of the month next
preceding such payment date), into the Interest Account, the Principal Account
and the Tenn Bonds Redemption Account when the moneys therein shall be
insufficient to pay the principal of and interest on the Bonds coming due.
(E) Whenever moneys on deposit in the Sinking Fund are sufficient to fully pay
all Outstanding Bonds in accordance with their terms (including principal or applicable
Redemption Price and interest thereon), no further deposits to the Sinking Fund need be
made. If on any payment date the Gross Revenues and Eligible PFC Revenues are
insufficient to deposit the required amount in any of the funds or accounts or for any of
the purposes provided above, the deficiency shall be made up on the subsequent Payment
dates.
The Issuer, in its discretion, may use moneys in the Principal Account and the
Interest Account to purchase or redeem Bonds coming due on the next principal payment
date, provided such purchase or redemption does not adversely affect the Issuer's ability
to pay the principal or interest coming due on such principal payment date on the Bonds
not so purchased or redeemed.
(F) In the event the Issuer shall issue a Series of Bonds secured by a Credit
Facility, the Issuer may establish separate subaccounts in the Interest Account, the
Principal Account and the Tenn Bonds Redemption Account to provide for payment of
42
the principal of and interest on such Series; provided payment from the Pledged F-unds of
one Series of Bonds shall not have preference over payment of any other Series of Bonds.
The Issuer may also deposit moneys in such subaccounts at such other times and in such
other amounts from those provided in Section 4.05(D) as shall be necessary to pay the
principal of and interest on such Bonds as the same shall become due, all as provided by
the Supplemental Resolution authorizing such Bonds and the Credit Facility.
In the case of Bonds secured by a Credit Facility, amounts on deposit in the
Sinking Fund may be applied as provided in the applicable Supplemental Resolution and
the Credit Facility to reimburse the Credit Bank for amounts drawn under such Credit
Facility to pay the principal of, premium, if any, and interest on such Bonds or to pay the
purchase price of any such Bonds which are tendered by the holders thereof for payment;
provided such Credit Facility shall have no priority over Bondholders or an Insurer to
amounts on deposit in the Sinking Fund. Other payments due to a Credit Bank in relation
to obligations arising under its Credit Facility may be on parity with the Bonds as to
source of and security for payment to the extent provided in the Supplemental Resolution
relating thereto.
SECTION 4.06. PFC CAPITAL IMPROVEMENT FUND. The Issuer shall
apply moneys on deposit in the PFC Capital Improvement Fund, to the extent permitted
by the PFC Act, PFC Regulations and PFC Authority, to pay the principal of(whether at
maturity or in satisfaction. of the Sinking Fund Installments) and interest on the Bonds
When due, whenever and to the extent that the money on deposit in the Interest Account,
the Principal Account and the Tenn Bonds Redemption Account and moneys transferred
from the Airport Surplus Fund to said Accounts pursuant to Section 4.05(D)(7) hereof are
insufficient for such purposes.
The Issuer, at its option, but only after determining that no amounts are required to
be applied to pay the principal of and interest on the Bonds as described above, may
apply any amounts remaining in the PFC Capital Improvement Fund for any one or more
of the following purposes: (A) to pay the costs of PFC Improvements, (B) to pay debt
service on any obligation incurred by the County to finance or refinance costs of PFC
Improvements, (C) to purchase or redeem Bonds, if permitted by the PFC Act and PFC
Regulations, or (D) to the extent permitted by the PFC Act and the PFC Regulations, for
any other lawful Airport purpose.
SECTION 4.07 REBATE FUND. Amounts on deposit in the Rebate Fund
shall be held in trust by the Issuer and used. solely to make required rebates to the United
States (except to the extent the same may be transferred to the Revenue Account) and the
Bondholders shall have no right to have the same applied for debt service on the Bonds.
For any Series of Bonds for which the rebate requirements of Section 148(f) of the Code
are applicable, the Issuer agrees to undertake all actions required of it in its arbitrage
certificate relating to such Series of Bonds, including,but not limited to:
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(A) making a determination in accordance with the Code of the amount
required to be deposited in the rebate Fund;
(B) depositing the amount determined in clause (A) above into the Rebate
Fund;
(C) paying on the dates and in the manner required by the Code to the United
States Treasury from the Rebate Fund and any other legally available moneys of the
Issuer such amounts as shall be required by the Code to be rebated to the United States
Treasury; and
(D) keeping such records of the determinations made pursuant to this Section
4.07 as shall be required by the Code, as well as evidence of the fair market value of any
investments purchased with proceeds of the Bonds.
The provisions of the above-described arbitrage certificates may be amended
without the consent of any Holder, Credit Bank or Insurer from time to time as shall be
necessary, in the opinion of Bond Counsel, to comply with the provisions of the Code.
SECTION 4.08 INVESTMENTS. Moneys on deposit in the Construction
Fund, the Sinking Fund, the PFC Capital Improvement Fund, the Operation and
Maintenance Fund, the .Airport Surplus Fu nd and the Revenue Fund shall be continuously
secured in the manner by which the deposit of public funds are authorized to be secured
by the laws of the State. Moneys on deposit in the Construction Fund, the PFC Capital
Improvement Fund, the Operation and Maintenance Fund, the Airport Surplus Fund, the
Revenue Fund and the Sinking Fund (other than the Reserve Account) shall be invested
and reinvested by the Issuer in Authorized Investments, maturing not later than the dates
on which such moneys will be needed for the purposes of such Fund or Account.
Moneys on deposit in the Reserve Account may be invested or reinvested by the Issuer in
Authorized Investments which shall have an average aggregate weighted to to maturity
not greater than five years. Notwithstanding any other provision hereof, all amounts on
deposit in the Construction Fund or Interest Account representing accrued interest and
capitalized interest shall be pledged solely to the payment of interest oil the
corresponding Series of Bonds and, unless otherwise provided by Supplemental
Resolution, shall be invested only in Federal Securities maturing in such times and in
such amounts as are necessary to pay the interest to which they are pledged. All
investments shall be valued at cost; provided, however, that the amounts on deposit in the
Reserve Account shall be valued at the market price thereof, Investments in the Reserve
Account shall be valued by the Issuer on an annual basis as of September 30 of each year.
Any and all income received from the investment of moneys in each separate
account of the Construction Fund, the Interest Account, the Principal Account, the Tenn
Bonds Redemption Account, the Operation and Maintenance Payment Account, the
Airport Surplus Fund, the PFC Capital Improvement Fund, the PFC Account, the
44
Revenue Account, the Reserve Account (to the extent such income and the other amounts
in the Reserve Account do not exceed the Reserve Account Requirement) and the
Operation and Maintenance Reserve Account (to the extent such income and other
amounts in the Operation and Maintenance Reserve Account do not exceed the Operation
and Maintenance Reserve Requirement) shall be retained in such respective Fund or
Account.
Any and all income received from the investment of moneys in the Reserve
Account (only to the extent such income and the other amounts in the Reserve Account
exceeds the Reserve Account Requirement) and of moneys in the Operation and
Maintenance Reserve Account (to the extent such income and other amounts in the
Operation and Maintenance Reserve Account exceeds the Operation and Maintenance
Reserve Requirement) shall be deposited upon receipt thereof in the Revenue Account,
Nothing in this Resolution shall prevent any Authorized Investments acquired as
investments of or security for funds held under this Resolution from being issued or held
in book-entry form on the books of the Department of the Treasury of the United States.
SECTION 4® SEPARATE ACCOUNTS. The moneys required to be
accounted for in each of the foregoing funds, accounts and subaccounts established
herein may be deposited in a single bank account, and funds allocated to the various
funds, accounts and subaccounts established herein may be invested in a common
investment pool, provided that adequate accounting records are maintained to reflect and
control the restricted allocation of the moneys on deposit therein and such investments
for the various purposes of such funds, accounts and subaccounts as herein provided..
The designation and establishment of the various funds, accounts and subaccounts
in and by this Resolution shall not be construed to require the establishment of any
completely independent, self-balancing funds as such terrn is commonly defined and used
in governmental. accounting, but rather is intended solely to constitute an earmarking of
certain revenues for certain purposes and to establish certain priorities for application of
such revenues as herein provided.
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ARTICLE V
COVENANTS
SECTION 5.01. GENERAL. The Issuer hereby makes the covenants
provided in this Article V, in addition to all other covenants in this Resolution, with each
and every Holder of any of the Bonds so long as any of said Bonds remain Outstanding.
SECTION 5.02. ANNUAL BUDGET. The Issuer shall prepare and adopt,
prior to the beginning of each Fiscal Year, an Annual Budget for the Airport in
accordance with applicable law. No expenditure for Operation and Maintenance Costs of
the Airport or Improvements shall. be made in any Fiscal Year in excess of the aggregate
amount provided for Operation and Maintenance Costs and Improvements in the Annual.
Budget unless the Issuer complies in all respects with its policies and procedures for
authorizing such excess Operation and Maintenance Costs or Improvements and
amending its Annual Budget. In each Fiscal Year, the Issuer shall designate as part of its
Annual Budget the amount of Eligible PFC Revenues which shall be utilized to pay debt
service on the Bonds.
If for any reason the Issuer shall not have adopted the Annual Budget before the
first day of any Fiscal Year, other than the first Fiscal. Year, the preliminary budget for
such year or the Annual Budget for the preceding Fiscal Year shall be deemed to be in
effect for such Fiscal Year until the Annual Budget for such Fiscal. Year is adopted,
The Issuer shall mail copies of such Annual Budgets and amended Annual
Budgets and all resolutions authorizing increased expenditures for Operation and
Maintenance Costs or Improvements to any Credit Bank or Insurer of Bonds who shall
file its address with. the Clerk and request in writing that copies of all such Annual.
Budgets and amended Annual Budgets and resolutions be furnished to it. The Issuer
shall also make available all such Annual Budgets, amended Annual Budgets and
resolutions authorizing increased expenditures for Operation and Maintenance Costs or
Improvements at all reasonable times to any Holder or Holders of Bonds or to anyone
acting for and on behalf of such Holder or Holders who requests in writing to review such
instruments.
SECTION 5.03. RATES. For the Fiscal Year commencing October 1, 2022
and for each Fiscal Year thereafter, the Issuer shall fix., establish, maintain and collect
such rates, fees, rentals and charges for the services and facilities of the Airport, and
revise the same from time to time, whenever necessary, so as always to provide in each
Fiscal Year:
(A) Net Revenues, together with the Eligible PFC Revenues and the Transfer
Amount, equal. to at least 1.25% of the Debt Service becoming due in such Fiscal Year;
provided
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(B) the Net Revenues, together with Eligible PFC Revenues, shall be adequate
at all times to pay in such Fiscal Year at least 100% of(1) the Debt Service becoming due
in such Fiscal Year, (2) any amounts required by the term.s hereof to be deposited in the
Reserve Account or with any issuer of a Reserve Account Letter of Credit or Reserve
Account Insurance Policy in such Fiscal Year, (3) any amounts required by the terms
hereof to be deposited in the Operation and Maintenance Reserve Account in such Fiscal
Year, and (4) any Subordinated Indebtedness coming due in said ]Fiscal Year to the extent
the County reasonably expects to pay such Subordinated Indebtedness frorn Net
Revenues or Eligible PFC Revenues or to the extent such Subordinated Indebtedness is
paid from Net Revenues or Eligible PFC Revenues.
Such rates, fees, rentals and other charges shall not be so reduced so as to be
insufficient to provide adequate Net Revenues, Eligible PFC Revenues and the Transfer
Amount for the purposes provided therefor by this Resolution.
If, in any Fiscal Year, the Issuer shall fail to comply with the requirements
contained in this Section 5.03, it shall cause the Airport Consultant to review its rates,
fees, rentals, charges, income, Gross Revenues, Eligible PFC Revenues, Operation and
Maintenance Costs and methods of operation and to make written recommendations as to
the methods by which the Issuer may promptly seek to comply with the requirements set
forth in this Section 5.03. The Issuer shall forthwith commence to implement such
recommendations to the extent required so as to cause it to thereafter comply with said
requirements., So long as the Issuer implements such recommendations within. 120 days
of the receipt thereof, the Issuer's failure to comply with this Section 5.03 shall not be
considered an Event of Default under Section 7.01 hereof.
SECTION 5.04 BOOKS AND RECORDS. 'rhelssuer shall keep sufficient
books, records and accounts of the Gross Revenues, Eligible PFC Revenues, Operation
and Maintenance Costs and the operations of the Airport and the Holders of any Bonds
Outstanding or the duly authorized representatives thereof shall have the light at all
reasonable times to inspect all books, records and accounts of the Issuer relating thereto,
upon written request.
SECTION 5.05 ANNUALAUDIT. The Issuer shall, after the close of each
Fiscal. Year, cause the books, records and accounts relating to the Airport to be properly
audited by a recognized independent firm of certified public accountants, and shall
require such accountants to complete their report of such Annual Audit in accordance
with applicable law. Each Annual Audit shall be in conformity with generally accepted
accounting principles as applied to governmental entities and publicly owned airports
such as the Airport. A copy of each Annual Audit shall regularly be famished to any
Credit Bank or Insurer who shall have furnished its address to the Clerk and requested in
writing that the same be furnished to it.
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SECTION 5.06 NO MORTGAGE OR SALE OF THE AIRPORT. The
Issuer irrevocably covenants, binds and obligates itself not to sell, lease, encumber or in
any manner dispose of the Airport as a whole or any substantial part thereof(except as
provided below) until all of the Bonds and all interest thereon shall have been paid. in full
or provision for payment has been made in accordance with Section 9.01 hereof
The foregoing provision notwithstanding, the Issuer shall have and hereby
reserves the right to sell, lease or otherwise dispose of any of the property comprising a
part of the Airport in the following manner, if any one of the following conditions exist;
(A) such property is not necessary for the operation of the Airport, (B) such property is
not useful in the operation of the Airport, (C) such property is not profitable in the
operation of the Airport, or (D) in the case of a lease of such property, will be
advantageous to the Airport and will not materially adversely affect the security for the
Bondholders.
Prior to any such sale, lease or other disposition of said property: (1) if the amount
to be received therefor is not in excess of five percent (5.00%) of the market value of the
Dross plant of the Airport, an Authorized Issuer Officer shall make a finding in writing
determining that one or more of the conditions for sale, lease or disposition of property
provided for in the second paragraph of this Section 5.06 have been met; or (2) if the
amount to be received from such sale, lease or other disposition of said property shall be
in excess of five percent (5.00%) of the market value of the gross plant of the Airport, (a)
an Authorized Issuer Officer shall first make a finding in writing determining that one or
more of the conditions for sale, lease or other disposition of property provided for in the
second paragraph of this Section 5.06 have been met, (b) the Governing Body shall, by
resolution, duty adopt, approve and concur in the finding of the Authorized Issuer
Officer, and (c) the Issuer shall obtain an opinion of.Bond Counsel to the effect that such
sale, lease or other disposition is not in violation of the Act and will not adversely affect
the federal tax exempt status of interest on the Bonds (other than Taxable Bonds) or shall
not otherwise affect the status of any Outstanding Bonds issued as Federal Subsidy
Bonds or the Issuer's receipt of Federal Subsidy Payments with respect to any
Outstanding Federal Subsidy Bonds.
Unless otherwise directed by Bond Counsel., the proceeds from any such sale or
other disposition shall be deposited into the Airport Surplus Fund. Proceeds from any
such lease shall constitute Gross Revenues and shall be deposited in the Revenue
Account.
The transfer of the Airport as a whole from the control of the Governing Body to
some other board or authority which may hereafter be created for such purpose and which
constitutes a governmental entity, interest on obligations issued by which are excluded
from gross income for purposes of federal income taxation, shall not be deemed
prohibited by this Section 5.06 and such successor board or authority shall fall within the
48
definition of "Issuer" in Section 1.01 hereof and such successor board or authority shall
adopt a.resolution or take such other action to evidence its obligations hereunder.
Notwithstanding the foregoing provisions of this Section 5.06, the Issuer shall
have the authority to sell for fair and reasonable consideration any land comprising a part
of the Airport which is no longer necessary or useful in the operation of the Airport and
the proceeds derived from the sale of such land shall be disposed of in accordance with
the provisions of the fourth paragraph of this Section 5.06.
Notwithstanding provisions of this Section 5.06, the Issuer may make contracts or
grant licenses for the operation of, or grant easements or other rights with respect to, any
part of the Airport if such contract, license, easement or right does not, in the opinion of
the Airport Consultant, as evidenced by a certificate to that effect filed with the Issuer,
impede or restrict the operation by the Issuer of the Airport, but any payments to the
Issuer under or in connection with any such contract, license, easement or right in respect
of the Airport or any part thereof shall constitute Gross Revenues and shall be deposited
in the Revenue Account.
SECTION 5.07 INSURANCE. The Issuer will carry such insurance as is
ordinarily carried by public entities owning and operating aviation facilities similar to the
Airport with a reputable insurance carrier or carriers, in such amounts as the Issuer shall
determine to be sufficient and such other insurance against loss or damage by fire,
explosion, hurricane, tornado or other hazards and risks, and said property loss or damage
insurance shall at all times be in an amount or amounts equal to the fair appraisal value of
the buildings, properties, furniture, fixtures and equipment of the Airport, or such other
amount or amounts as the Insurance Consultant shall approve as sufficient. The Issuer
shall engage an Insurance Consultant from time to time to assist it with obtaining and
maintaining such insurance.
The Issuer may establish minimum levels of insurance for which the Issuer may
self-insure. Such minimum levels of insurance shall be in amounts as recommended in
writing by the Insurance Consultant.
The proceeds from property loss and casualty insurance shall be deposited in the
Airport Surplus Fund and, together with other available funds of the Issuer, shall be used
to repair or replace the damaged portion of the Airport; provided, however, if the Issuer
makes a determination in accordance with Section 5.06 hereof that such damaged portion
of the Airport is no longer necessary or useful in the operation of the Airport, such
proceeds shall (1) if such proceeds equal or exceed $1,000,000, (a) be applied to the
redemption or purchase of Bonds, or(b) be deposited in irrevocable trust for the payment
of Bonds in the manner set forth in Section 9.01, provided the Issuer has received an
opinion of Bond Counsel to the effect that such deposit shall not adversely affect the
exclusion, if any, from gross income of interest on the Bonds for purposes of federal
income taxation (other than Taxable Bonds) and will not otherwise affect the status of
49
any Outstanding Bonds issued as Federal Subsidy Bonds or the Issuer's receipt of Federal
Subsidy Payments with respect to any Outstanding Federal Subsidy Bonds, or (2) if such
proceeds are less than $1,000,000, be deposited in the Revenue Account.
SECTION 5.08 ENFORCEMENT OF COLLECTIONS. The Issuer will
diligently enforce and collect the rates, fees,rentals and other charges for the services and
facilities of the Airport herein pledged; will take all reasonable steps, actions and
proceedings for the enforcement and collection of such rates, charges, rentals and fees as
shall become delinquent, to the full extent permitted or authorized by law; and will
maintain accurate records with respect thereof. All such fees, rates, charges, rentals and
revenues herein pledged shall, as collected, be held in trust to be applied as herein
provided and not otherwise.
SECTION 5.09 NO COMPET INCH FACILITIES. To the full extent of the
law and other than Marathon Airport, the Issuer will not grant, or cause, consent to, or
allow the granting of any franchise or permit to conduct aeronautical services or provide
access to the Airport to conduct aeronautical services to any Person or undertake any
aviation project not made a part of the Airport which. will materially compete with the
Airport, as determined by the Issuer.
SECTION 5.10 CONSULTANTS. The Issuer will, for the purpose of
performing and carrying out the duties imposed on the Airport Consultant and Insurance
Consultant by this Resolution, employ one or more Persons having a favorable reputation
for skill and experience in such work. The cost of employing such Consultants as
provided by this Resolution shall be treated as a part of the Operation and Maintenance
Cost of the Airport or as a Cost of a Project as appropriate. The Issuer may appoint one
or more Airport Consultants and Insurance Consultants to perform the responsibilities
described herein for such Consultants.
SECTION 5.11. MAINTENANCE OF PFC REVENUES. The Issuer
covenants to do all things necessary on its part to continue the levy of the Passenger
Facility Charges in compliance with the PFC Act and any successor provision of law and
to diligently enforce collection of the Passenger Facility Charges. The Issuer will at all
times comply with all of the requirements and conditions of the PFC Act, the PFC
Regulations and the PFC Authority, and take every necessary action to remain qualified
to levy the Passenger Facility Charges and collect the PFC Revenues. The Issuer will not
take any action which will jeopardize eligibility for receipt of such funds which may
adversely affect the undertakings provided in this instrument., The Issuer will not take
any action or enter into any agreement which will have the effect of reducing the level of
Passenger Facility Charges received by the Issuer if such reduction shall materially
adversely affect the Issuer's ability to pay the Bonds.
SECTION 5.1.2. COMPLIANCE WITH PFC ACT, PFC REGULATIONS
AND PFC AUTHORITY. The Issuer covenants that it will comply with all provisions
50
of the PFC Act and the PFC Regulations applicable to the Issuer, and all provisions of the
PFC Authority, and that it will not take any action or omit to take any action with respect
to the PFC Revenues, the Projects, the Airport or otherwise if such action or omission
would, pursuant to the PFC Act, the PFC Regulations or the PFC Authority, cause the
termination of the authority to impose Passenger Facility Charges or prevent the use of
the Eligible PFC Revenues as contemplated by this Resolution and the PFC Authority.
The Issuer covenants that all PFC Revenues will be used in compliance with all
provisions of the PFC Act, the PFC Regulations and the PFC Authority applicable to the
Issuer, and all provisions thereof. Without limiting the generality of the foregoing, the
Issuer covenants that to the extent necessary to comply with the foregoing covenant:
(A) it (i) will impose the Passenger Facility Charges to the full extent
authorized by the PFC Authority, (ii) will not unilaterally decrease the level of the
Passenger Facility Charges to be collected from any passenger, (iii) will unilaterally
increase the total approved Passenger Facility Charges pursuant to PFC Regulations
§158.37(a) to the extent necessary to pay the debt service of the Bonds, and (iv) will
apply for an additional increase in total approved Passenger Facility Charges pursuant to
the PFC Regulations to the extent the Issuer projects such increase may be necessary to
pay the debt service of the Bonds;
(B) it will not impose any noise or access restriction at the Airport not in
compliance with the Airport Noise and Capacity Act of 1990, Pub. L 101-508, Title IX,
Subtitle D;
(C) it will take all action reasonably necessary to cause all collecting air carriers
to collect and promptly remit to the Issuer the Passenger Facility Charges at the Airport
required by the PFC Act, the PFC Regulations and the PFC Authority to be so collected
and remitted; and
(D) it will contest any attempt by the FAA to terminate or suspend the authority
to impose, receive or use the Passenger Facility Charges at the Airport prior to the charge
expiration date as defined in the PFC Authority or the date total approved Passenger
Facility Charge revenue has been collected.
SECTION 5.13. MANAGEMENT OF AIRPORT. The Issuer shall not take
any action which would cause the Administrator of the FAA, the Department of
Transportation, or any successor to the powers and authority of such Administrator, to
suspend or revoke operating certificates issued for the Airport under the Federal Aviation
Act of 1958, or any successor statute. The Issuer shall comply with all valid acts,
including the acts, rules, regulations, orders and directives of any governmental,
legislative, executive, administrative or judicial body applicable to the Airport, unless the
same shall be contested in good faith.
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SECTION 5.14. OI>E'RATION OF THE AIRPORT. The Issuer covenants
that it will at all times use reasonable efforts, subject tofirce majeure, to keep the Airport
open for landings and takeoffs of aircraft of any type using facilities similar to those at
the Airport and to maintain the powers, duties and obligations now reposed in it pursuant
to law, and will. not at any time take or fail to take any action the effect of which could
reasonably be expected to delay or imperil either the payment of the indebtedness
evidenced by any of the Bonds or the performance or observance of any of the covenants
herein contained.
SECTION 5.15. COVENANTS WITH CREDIT BANKS AND
INSURERS. The Issuer may make such covenants as it may in its sole discretion
determine to be appropriate with any Insurer, Credit Bank or other financial institution
that shall agree to insure or to provide for Bonds of any one or more Series credit or
liquidity support that shall enhance the security or the value of such Bonds. Such
covenants may be set forth in the applicable Supplemental Resolution and shall be
binding on the Issuer, the Registrar, the Paying Agent and all the Holders of Bonds the
same as if such covenants were set forth in full in this Resolution and may not diminish
the security of any of the Bonds Outstanding.
SECTION 5.1.6 GOVERNMENT GRANTS. All Government Grants shall
be utilized in accordance with the terms of such Government Grants and applicable law.
The Issuer shall comply in. all respects with the conditions and provisions of all
Government Grants.,
SECTION 5.1.7. FEDERAL INCOME TAXATION COVENANTS;
TAXABLE BONDS. The Issuer covenants with the Holders of each Series of Bonds
(other than Taxable Bonds and Federal Subsidy Bonds) that it shall not use the proceeds
of such Series of Bonds in any manner which would cause the interest on such Series of
Bonds to be or become included in gross income for purposes of federal income taxation.
The Issuer covenants with the Holders of each Series of Bonds (other than Taxable
Bonds) that neither the Issuer nor any Person under its control or direction will make any
use of the proceeds of such Series of Bonds (or amounts deemed to be proceeds under the
Code) in any manner which would cause such Series of Bonds to be "arbitrage bonds"
within the meaning of the Code and neither the Issuer nor any other Person under its
control shall do any act or fail to do any act which would cause the interest on such Series
of Bonds (other than Taxable Bonds and Federal Subsidy Bonds) to become subject to
inclusion within gross income for purposes of federal income taxation.
'The Issuer hereby covenants with the Holders of each Series of Bonds (other than
Taxable Bonds and Federal Subsidy Bonds) that it will comply with all provisions of the
Code necessary to maintain the exclusion from gross income of interest on the Bonds for
purposes of federal income taxation, including, in particular, the payment of any amount
required to be rebated to the U.S. Treasury pursuant to the Code.
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The Issuer may, if it so elects, issue one or more Series of Taxable Bonds the
interest on which is (or may be) includable in the gross income of the Holder thereof for
federal income taxation purposes, so long as each Bond of such Series states in the body
thereof that interest payable thereon is (or may be) subject to federal income taxation and
provided that the issuance thereof will not cause interest on any other Bonds theretofore
issued hereunder to be or become subject to federal income taxation.. The covenants set
forth in this Section 5.17 shall not apply to any Taxable Bonds.
SECTION 5.18. HEDGE AGREEMENT'S. Each Counteiparty to a
Qualified Hedge Agreement shall meet the Initial Rating Requirement at the time the
Qualified I-ledge Agreement was entered. For the period the Counterparty does riot fall
below "Baa2" by Moody's or "BBB" by Standard & Poofs (the "Minimum Rating
Requirement"), interest on Bonds subject to a Qualified Hedge Agreement with such
Counteiparty shall be deemed to be the Hedge Payments for purposes of the definition of
"Debt Service." For any period the Counterparty does not satisfy the Minimum Rating
Requirement and is not replaced by a Counterparty that meets the Initial Rating
Requirement, interest on Bonds subject to a Qualified Hedge Agreement with such
Counterparty shall be the actual interest on such Bonds (not taking into account the
Hedge Payments) for purposes of the definition of"Debt Service." The above-described
requirements for a Counterparty to a Qualified Hedge Agreement and the inclusion or
exclusion of Hedge Payments for purposes of the definition of "Debt Service" may be
waived in writing by the Insurer(s) and Credit Bank(s) of the Bonds if such Bonds are all
secured by Bond Insurance Policies and/or Credit Facilities.
SECTION 5.19. COVENANTS RELATING TO FEDERAL SUBSIDY
BONDS. The Issuer covenants with respect to any Bonds issued as Federal Subsidy
Bonds that it will:
(A) File, on a timely basis, Internal Revenue Service For 8038-CP or such
other for or forms required by the United States Department of Treasury to receive
Federal Subsidy Payments in connection with any Bonds issued as Federal Subsidy
Bonds.
(B) Deposit proniptly the Federal Subsidy Payments received from the United
States Department of Treasury, if any, to the Interest Account of the Debt Service Fund
to pay interest on the Federal Subsidy Bonds.
(C) Corriply with all provisions of the Code, all Treasury Regulations
promulgated thereunder, and any applicable notice, ruling or other formal interpretation
issued by the United States Department of Treasury or the Internal Revenue Service, in
order for the Bonds issued as Federal Subsidy Bonds to be and to remain Federal. Subsidy
Bonds.
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(D) Not take any action, or fail to take any action, if any such action or failure
to take such action would adversely affect the Issuer's receipt of Federal Subsidy
Payments or the status of the Bonds issued as Federal Subsidy Bonds, or any portion
thereof, as Federal Subsidy Bonds. The Issuer covenants that it will not directly or
indirectly use or permit the use of any proceeds of Bonds issued as Federal Subsidy
Bonds or any other of its funds or take or omit to take any action that would cause the
Bonds issued as Federal Subsidy Bonds to be or become "arbitrage bonds" within the
meaning of Section 148(a) or to fail to meet any other applicable requirements of the
Code.
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ARTICLE VI
SUBORDINATED INDEBTEDNESS,ADDITIONAL BONDS AND SPECIAL
PURPOSE FACILITIES BONDS
SECTION 6.01. SUBORDINATED INDEBTEDNESS. The Issuer will not
issue any other obligations, except under the conditions and in the manner provided
herein, payable from the Pledged Funds or voluntarily create or cause to be created any
debt, lien, pledge, assignment, encumbrance or other charge having priority to or being
on a parity with the lien thereon in favor of the Bonds and the interest thereon. The
Issuer may at any time or from time to time issue evidences of indebtedness payable in
whole or in part out of Net Revenues and which may be secured by a pledge of Net
Revenues; provided, however, that such pledge shall be, and shall be expressed to be,
subordinated in all respects to the pledge of the Net Revenues created by this Resolution
and provided further that the issuance of such Subordinated Indebtedness shall be subject
to any provisions contained in financing documents securing outstanding Subordinated
Indebtedness to the extent inch provisions impact on the ability of the Issuer to issue
Subordinated Indebtedness. No Subordinated Indebtedness shall be subject to
acceleration. The Issuer shall have the right to covenant with the holders from time to
time of any Subordinated Indebtedness to add to the conditions, limitations and
restrictions under which any Additional Bonds may be issued under the provisions of
Section 6.02 hereof. The Issuer agrees to pay promptly any Subordinated Indebtedness
as the same shall become due.
SECTION 6.02. ISSUANCE OF ADDITIONAL BONDS. No Additional
Bonds, payable on a parity with the Bonds then Outstanding pursuant to this Resolution,
shall be issued except upon the conditions and in the manner herein provided. The Issuer
may issue one or more Series of Additional Bonds for any one or more of the following
purposes: (i) financing or refinancing Costs of a Project, or the completion thereof, or (ii)
refunding any or all Outstanding Bonds or of any Subordinated Indebtedness of the
Issuer.
No such Additional Bonds shall be issued unless the -following conditions are
complied with:
(A) Except in the case of Additional Bonds issued for the purpose of refunding
Outstanding Bonds, the Issuer shall certify that it is current in all deposits into the various
funds, accounts and subaccounts established hereby and all payments theretofore required
to have been deposited or made by it under the provisions of this Resolution have been
deposited or made and it has complied with the covenants and agreements of this
Resolution.
(B) There shall have been filed with the Issuer a certificate of the Clerk setting
forth for the last complete Fiscal Year or a period of 12 consecutive months of the 24
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months most recently concluded prior to the issuance of the Additional Bonds (the
"12-Month Period") (1) Gross Revenues received by the Issuer during the 12-Month
Period; (2) the Operation and Maintenance Costs incurred during the 12-Month Period;
(3) the Eligible PFC Revenues received during the 12-Month Period; (4) the Ma:ximum
Annual Debt Service including the Additional Bonds then proposed to be issued; (5) that
Net Revenues and Eligible PFC Revenues received by the Issuer during the 12-Month
Period were in an amount at least equal to 125% of the Maximuni Annual Debt Service
including the Additional Bonds then proposed to be issued; and (6) that Net Revenues
and the Eligible PFC Revenues received by the Issuer during the 12 Month Period were
in an amount equal to at least (a) 100% of the Maximum Annual Debt Service including
the Additional Bonds then proposed to be issued, (b) 100% of any amounts required by
the terms hereof to be deposited in the Reserve Account or with the issuer of any Reserve
Account Letter of Credit or Reserve Account Insurance Policy during the 12-Month
Period, and (c) 110% of any Subordinated Indebtedness coming due during the .12
months immediately succeeding the issuance of the proposed Additional Bonds to the
extent the County reasonably expects such Subordinated Indebtedness to be paid from
Net Revenues or Eligible PFC Revenues.
(C) With respect to Additional Bonds that are issued to complete a Project, the
Authorized Issuer Representative shall have filed with the Clerk a certificate
demonstrating that the proceeds of such Additional Bonds to be issued (net of issuance
costs and any discounts) will be not more than 10% of the original Cost of such Project
for the completion of which such Additional Bonds are then being issued. If the
Authorized Issuer Representative files such certificate with the Clerk, the conditions of
Section 6.02(B) hereof shall not apply to the issuance of such Additional Bonds.
(D) For the purpose of determining the Debt Service under this Section 6,02,
the interest rate on additional parity Variable Rate Bonds then proposed to be issued shall
be deemed to be the Bond Buyer Revenue Bond Index most recently published prior to
the sale of such Additional Bonds.
(E) For the purpose of determining the Debt Service under this Section 6.02,
the interest rate on Outstanding Variable Rate Bonds (not subject to a Qualified Hedge
Agreement) shall be deemed to be (1) if such Variable Rate Bonds have been
Outstanding for at least .12 months prior to the date of sale of such Additional Bonds, the
highest of(a) the actual rate of interest home by such Variable Rate Bonds on the date of
sale, and (b) the average interest rate borne by such Variable Rate Bonds during the 12-
month period preceding the date of sale, or (2) if such Variable Rate Bonds have not been
Outstanding for at least 12 months prior to the date of sale of such Additional Bonds, the
higher of(a) the actual rate of interest borne by the Variable Rate Bonds on the date of
sale, and (b) the Bond Buyer Revenue Bond Index most recently published prior to the
sale of such Additional Bonds.
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(F) Additional Bonds shall be deemed to have been issued pursuant to this
Resolution the same as the Outstanding Bonds, and all of the other covenants and other
provisions of this Resolution (except as to details of such Additional Bonds inconsistent
therewith) shall be for the equal benefit, protection and security of the Holders of all
Bonds issued pursuant to this Resolution. Except as provided in Sections 4.02 and 4.05
hereof, all Bonds, regardless of the time or times of their issuance, shall rank equally with
respect to their lien on the Pledged Funds and their sources and security for payment
therefrom without preference of any Bonds over any other.
(G) In the event any Additional Bonds are issued for the purpose of refunding
any Bonds then Outstanding, the conditions of Section. 6.02(B) hereof shall not apply,
provided that the issuance of such Additional Bonds shall not result in an increase in
Maximum Annual Debt Service. The conditions of Section 6.02(B) hereof shall apply to
Additional Bonds issued to refund Subordinated Indebtedness and to Additional Bonds
issued for refunding purposes which cannot meet the conditions of this paragraph.
SECTION 6.03. BOND ANTICIPATION NOTES. The Issuer may issue
notes in anticipation of the issuance of Bonds which shall have such terms and details and
be secured in such manner, not inconsistent with this Resolution, as shall be provided by
Supplemental Resolution of the Issuer. Such notes shall be Subordinated Indebtedness,
unless the Issuer satisfies the conditions of Section 6.02 hereof relating to Additional
Bonds.
SECTION 6.04 ISSUANCE OF OBLIGATIONS NOT' SEC'URED
HEREUNDER — SPECIAL PURPOSE FACILITIES BONDS. The Issuer shall be
permitted to issue Special Purpose Facilities Bonds for the purpose of financing the cost
of such Special Purpose Facilities as it shall deem necessary or desirable in the operation
of the Airport. Special Purpose Facilities may consist of(A) Special Purpose Facilities
that are owned and/or operated by private companies and the Special Purpose Facilities
Bonds are payable from and secured exclusively by payments to be made by such. private
cornpanies, and (B) Special Purpose Facilities that are owned by the Issuer and the
Special Purpose Facilities Bonds are payable from and secured by any source other than
the Pledged Funds. The Issuer shall determine the terms and conditions under which
Special Purpose Facilities Bonds may be issued without regard to any test, financial or
otherwise, contained in this Resolution,
The Issuer may cause any Special Purpose Facilities to become a part of the
Airport by resolution of the Governing Body, if there shall be filed with the Clerk a
report of the Airport Consultant substantially in the form. provided in Section 6.02 hereof
relating to the issuance of Additional Bonds.
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ARTICLE V11
DEFAULTS AND REMEDIES
SECTION 7.01. EVENTS OF DEFAULT. The following events shall each
constitute an "Event of Default":
(A) Default shall be made in the payment of the principal of, Sinking Fund
Installment, redemption premium or interest on any Bond when due. In determining
whether a payment default has occurred, no effect shall be given to payment made under
a Bond Insurance Policy.
(B) There shall occur the dissolution or liquidation of the Issuer, or the filing by
the Issuer of a voluntary petition in bankruptcy, or the commission by the Issuer of any
act of bankruptcy, or adjudication of the Issuer as a bankrupt, or assignment by the Issuer
for the benefit of its creditors, or appointment of a receiver for the Issuer, or the entry by
the Issuer into an agreement of composition with its creditors, or the approval by a court
of competent jurisdiction of a petition applicable to the Issuer in any proceeding for its
reorganization instituted under the provisions of the Federal Bankruptcy Act, as
amended, or under any similar act in any jurisdiction which may now be in effect or
hereafter adopted.
(C) The Issuer shall default in the due and punctual performance of any other of
the covenants, conditions, agreements and provisions contained in the Bonds or in this
Resolution on the part of the Issuer to be performed, and such default shall continue for a
period of 90 days after written notice of such default shall have been received from an
Insurer or the Holders of not less than 25% of the aggregate principal amount of Bonds
Outstanding. Notwithstanding the foregoing, the Issuer shall not be deemed to be in
default hereunder if such default can be cured within a reasonable period of time and if
the Issuer in good faith institutes appropriate curative action and diligently pursues such
action until default has been corrected.
SECTION 7.02. REMEDIES. Any Holder of Bonds issued under the
provisions of this Resolution or any trustee or receiver acting for such Bondholders may
either at law or in equity, by suit, action, mandamus or other proceedings in any court of
competent jurisdiction, protect and enforce any and all rights under the Laws of the State
of Florida, or granted and contained in this Resolution, and may enforce and compel the
performance of all duties required by this Resolution or by any applicable statutes to be
perfonned by the Issuer or by any officer thereof, provided, however, that no .holder,
trustee or receiver shall have the right to declare the Bonds immediately due and payable.
The Holder or Holders of Bonds in an aggregate principal amount of not less than
25% of the Bonds then Outstanding may by a duly executed certificate in writing appoint
a trustee for Holders of Bonds issued pursuant to this Resolution with authority to
represent such Bondholders in any legal proceedings for the enforcement and protection
58
of the rights of such Bondholders and such certificate shall. be executed by such
Bondholders or their duly authorized attorneys or representatives, and shall be filed in the
office of the Clerk. Notice of such appointment, together with evidence of the requisite
signatures of the Holders of not less than 25% in aggregate principal. amount of Bonds
Outstanding and the trust instrument under which the trustee shall. have agreed to serve
shall.be filed with the Issuer and the trustee and notice of such appointment shall be given
to all Holders of Bonds in the same manner as notices of redemption are given hereunder.
After the appointment of the first trustee hereunder, no further trustees may be appointed;
however, the Holders of a majority in aggregate principal amount of all. the Bonds then
Outstanding may remove the trustee initially appointed and appoint a successor and
subsequent successors at any time.
Upon the Issuer becoming aware of the occurrence of an Event of Default under
Section 7.01 hereof, the Issuer shall promptly file a notice of such Event of Default to the
Electronic Municipal. Market Access,
SECTION 7.03. DIRECTIONS TO TRUSTEE AS TO REMEDIAL
PROCEEDINGS. The Holders of a majority in principal amount of the Bonds then
Outstanding (or any Insurer insuring any then Outstanding Bonds) have the right, by an.
instrument or concurrent instruments in. writing executed and delivered to the trustee, to
direct the method and place of conducting all remedial proceedings to be taken by the
trustee hereunder with respect to the Series of Bonds owned by such Holders or insured
by such insurer, provided that such direction shall not be otherwise than in accordance
with law or the provisions hereof, and that the trustee shall have the right to decline to
follow any direction of the Holders which in the opinion of the trustee would be unjustly
prqjudicial to Holders of Bonds not parties to such.direction.
SECTION 7.04. REMEDIES CUMULATIVE. No remedy herein conferred
upon or reserved to the Bondholders is intended to be exclusive of any other remedy or
remedies, and each and every such remedy shall be cumulative, and shall be in addition
to every other remedy given hereunder or now or hereafter existing at law or in equity or
by statute.
SECTION 7.05. WAIVER OF DEFAULT. No delay or omission of any
Bondholder to exercise any right or power accruing upon any default shall impair any
such right or power or shall be construed to be a waiver of any such default, or an
acquiescence therein; and every power and remedy given by Section 7.02 to the
Bondholders may be exercised from time to time, and as often as may be deemed
expedient.
SECTION 7.06. APPLICATION OF MONEYS AFTER DEFAULT. If an
Event of Default shall happen and shall not have been remedied, the Issuer or a trustee or
receiver appointed for the purpose shall apply all Pledged Funds (except as for amounts
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in the subaccounts of the Reserve Account which shall be applied to the payment of the
Series of Bonds for which they were established) as follows and in the following order:
(A) To the payment of the reasonable and proper charges, expenses and
liabilities of the trustee or receiver and Registrar hereunder-,
(13) To the payment of the amounts required for reasonable and necessary
Operation and Maintenance Costs, and for the reasonable renewals, repairs and
replacements of the Airport necessary to prevent loss of Net Revenues and Eligible PFC
Revenues, as certified by the Airport Consultant-,
(C) To the payment of the interest and principal or Redemption Price, if
applicable,then due on the Bonds, as follows-
(i) Unless the principal of all the Bonds shall have become due and
payable, all such moneys shall be applied-
FIRST- to the payment to the Persons entitled thereto of all
installments of interest then due, in the order of the maturity of such
installments, and, if the amount available shall not be sufficient to pay in
full any particular installment, then to the payment ratably, according to the
amounts due on such. installment, to the Persons entitled thereto, without
any discrimination or preference;
SECOND: to the payment to the Persons entitled thereto of the
unpaid principal of any of the Bonds which shall have become due at
maturity or upon mandatory redemption prior to maturity (other than Bonds
called for redemption for the payment of which.moneys are held pursuant to
the provisions of Section 9.01 of this Resolution), in the order of their due
dates, with interest upon such Bonds from the respective dates upon which
they became due, and, if the amount available shall not be sufficient to pay
in full Bonds due on any particular date, together with such interest, then to
the payment first of such interest, ratably according to the amount of such
interest due on such date, and then to the payment of such principal, ratably
according to the amount of such principal due on such date, to the Persons
entitled thereto without any discrimination or preference; and
THIRD: to the payment of the Redemption Price of any Bonds
called for optional redemption pursuant to the provisions of this Resolution.
(ii) If the principal of all the Bonds shall have become due and payable,
all such moneys shall be applied to the payment of the principal. and interest then
due and unpaid upon. the Bonds, with interest thereon as aforesaid, without
preference or priority of principal over interest or of interest over principal., or of
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any installment of interest over any other installment of interest, or of any Bond
over any other Bond, ratably, according to the amounts due respectively for
principal and interest, to the Persons entitled thereto without any discrimination or
preference.
(D) To the payment of all amounts owed to an Insurer or a Credit Bank not
covered by A, B or C above.
SECTION 7.07 CONTROL BY INSURER. To the extent an Insurer makes
any payment of principal of or interest on Bonds in accordance with its Bond Insurance
Policy, such Insurer shall become subrogated to the rights of the recipients of such
payments in accordance with the terms of its Bond Insurance Policy. Upon the
occurrence and continuance of an Event of Default, an Insurer of a Series of Bonds, if
Such Insurer shall not be in payment default under its Bond Insurance Policy, shall be
deemed to be the sole owner of such Bonds for purposes of(A) directing and controlling
the enforcement of all rights and remedies with respect to such Series of Bonds, including
any waiver of an Event of Default and removal of any trustee, and (B) exercising any
voting right or privilege or giving any consent or direction or taking any other action that
the Holders of such Bonds are entitled to take pursuant to this Article VII hereof. No
provision expressly recognizing or granting rights in or to an Insurer shall be modified
without the consent of such Insurer. An Insurer's rights under this Section 7.07 shall be
suspended during any period in which such Insurer is in default in its payment obligations
under its and Insurance Policy (except to the extent of amounts previously paid by such
Insurer and due and owing to such Insurer) and shall be of no force or effect if its Bond
Insurance Policy is no longer in effect or if the Insurer asserts that its Bond Insurance
Policy is not in effect or if the Insurer waives such rights in writing. The rights granted to
an Insurer under this Section 7.07 are granted in consideration of such Insurer issuing its
Bond Insurance Policy. The Issuer shall provide each Insurer immediate notice of any
Event of Default described in Section 7.01(A) hereof and notice of any other Event of
Default occurring here-under within 30 days of the occurrence thereof Each Insurer of
any Bonds hereunder shall be considered a third-party beneficiary to the Resolution with
respect,to such Bonds.
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ARTICLE VIII
SUPPLEMENTAL RESOLUTIONS
SECTION 8.01. SUPPLEMENTAL RESOLUTION WITHOUT
BONDHOLDERS' CONSENT. The Issuer, from time to time and at any time, may
adopt such Supplemental Resolutions without the consent of the Bondholders (which
Supplemental Resolution shall thereafter form a part hereof) for any of the following
purposes-
(A) To cure any ambiguity or formal defect or on or to correct any
inconsistent provisions in this Resolution or to clarify any matters or questions arising
hereunder.
) to grant to or confer upon the Bondholders any additional rights, remedies,
powers, authority or security that may lawfully be granted to or conferred upon the
Bondholders.
(C) To add to the conditions, limitations and restrictions on the issuance of
Bonds tinder the provisions of this Resolution other conditions, limitations and
restrictions thereafter to be observed.,
(D) To add to the covenants and agreements of the Issuer in this Resolution
other covenants and agreements thereafter to be observed by the Issuer or to surrender
any right or power herein reserved to or conferred upon the Issuer.
(E) To specify and determine the matters and things referred to in Sections 2.01
or 2.07 hereof, and also any other matters and things relative to such Bonds which are not
contrary to or inconsistent with this Resolution as theretofore in effect, or to amend,
modify or rescind any such authorization, specification or determination at any time prior
to the first delivery of such Bonds.
(F) To authorize Projects or to change or modify the description of any project.
(Cl) To specify and determine matters necessary or desirable for the issuance of
Variable Rate Bonds, Federal Subsidy Bonds or Capital Appreciation Bonds.
(H) To provide for the establishment of a separate subaccount or subaccounts in
the Reserve Account which shall independently secure one or more Series of Bonds.
(1) To make any other change that, in the opinion of the Issuer, would not
materially adversely affect the security for the Bonds. In making such determination, the
Issuer shall not take into consideration any Bond Insurance Policy or Credit Facility.
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SECTION 8.02. SUPPLEMENTAL RESOLUTION WITH
BONDHOLDERS' AND INSURER AND CREDIT BANK CONSENT. Subject to
the terms and provisions contained in this Section 8.02 and Section 8.01 and 8.03 hereof,
the Holder or Holders of not less than a majority in aggregate principal amount of the
Bonds then Outstanding shall.have the right, from time to time, anything contained in this
Resolution to the contrary notwithstanding, to consent to and approve the adoption of
such Supplemental Resolutions hereto as shall be deemed necessary or desirable by the
Issuer for the purpose of supplementing, modifying, altering, amending, adding to or
rescinding, in any particular, any of the terms or provisions contained in this Resolution;
provided, however, that if such modification or amendment will, by its terms, not take
effect so long as any Bonds of any specified Series or maturity remain Outstanding, the
consent of the Holders of such Bonds shall not be required and such Bonds shall not be
deemed to be Outstanding for the purpose of any calculation of Outstanding Bonds under
this Section 8.02. Any Supplemental Resolution which is adopted in accordance with the
provisions of this Section 8.02 shall also require the written consent of the Insurer and the
Credit Bank of any Bonds which are Outstanding at the time such Supplemental
Resolution shall take effect and for which such Insurer and Credit Batik are not in default
with respect to their obligations. No Supplemental Resolution may be approved or
adopted which shall permit or require (A) an extension of the maturity of the principal of
or the payment of the interest on any Bond issued hereunder, (B) reduction in the
principal amount of any Bond or the Redemption Price or the rate of interest thereon, (C)
the creation of a lien upon or a pledge of the Pledged Funds other than the lien and pledge
created by this Resolution or except as otherwise permitted or provided hereby which
materially adversely affects any Bondholders, (D) a preference or priority of any and or
Bonds over any other Bond or Bonds (except as to the establishment of separate
subaccounts in the Reserve Account provided in Section 4.05(D)(4) hereot), or (E) a
reduction in the aggregate principal amount of the Bonds required for consent to such
Supplemental Resolution. Nothing herein contained, however, shall be construed as
making necessary the approval by Bondholders or the Insurer or Credit Bank of the
adoption of any Supplemental Resolution as authorized in Section 8.01 hereof.
Except as otherwise provided herein, if at any time the Issuer shall determine that
it is necessary or desirable to adopt any Supplemental Resolution pursuant to this Section
8.02, the Clerk. shall cause the Registrar to give notice of the proposed adoption of such
Supplemental Resolution and the form of consent to such adoption to be mailed, postage
prepaid, to all Bondholders at their addresses as they appear on the registration books.
Such notice shall briefly set forth the nature of the proposed Supplemental Resolution
and shall state that copies thereof are on file at the offices of the Clerk and the Registrar
for inspection by all Bondholders. The Issuer shall not, however, be subject to any
liability to any Bondholder by reason of its failure to cause the notice required by this
Section 8.02 to be mailed and any such failure shall not affect the validity of such
Supplemental Resolution when consented to and approved as provided in this Section
8.02.
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Whenever the Issuer shall deliver to the Clerk an instrument or instruments in
writing purporting to be executed by the Holders of not less than a majority in aggregate
principal. amount of the Bonds then Outstanding, which instrument or instruments shall
refer to the proposed Supplemental Resolution described in such notice and shall
specifically consent to and approve the adoption thereof in substantially the forna. of the
copy thereof referred to in such notice, thereupon, but not otherwise, the Issuer may
adopt such Supplemental Resolution in substantially such form, without liability or
responsibility to any Holder of any Bond, whether or not such Holder shall have
consented thereto.
If the Holders of not less than a majority in aggregate principal amount of the
Bonds Outstanding at the time of the adoption of such Supplemental. Resolution shall
have consented to and approved the adoption thereof as herein provided, no Holder of
any Bond shall have any right to object to the adoption of such Supplemental Resolution,
or to object to any of the terms and provisions contained therein or the operation thereof,
or in any manner to question the propriety of the adoption thereof, or to enjoin or restrain
the Issuer from adopting the same or from taking any action pursuant to the provisions
thereof.
Notwithstanding the foregoing, the initial. purchasers of Additional. Bonds shall be
deemed to have consented in writing to any amendments to the Resolution that are to
become effective on or after the issuance of such Additional Bonds in. accordance with
this Section 8.02 if the proposed amendments are reasonably disclosed in the offering
documentation prepared and distributed in connection with the issuance of such
Additional. Bonds and such offering documentation and the related Supplemental
Resolution provides that such initial purchasers have so consented through their purchase.
Upon the adoption of any Supplemental Resolution pursuant to the provisions of
this Section 8.02, this Resolution shall be deemed to be modified and amended in
accordance therewith, and the respective rights, duties and obligations under this
Resolution of the Issuer and all Holders of Bonds then Outstanding shall thereafter be
deten.nined, exercised and enforced in all respects under the provisions of this Resolution
as so modified and amended.
SECTION 8.03. AMENDMENT WITH CONSENT OF INSURER AND
CREDIT BANK ONLY. For purposes of amending this Resolution pursuant to Section
8.02 hereof, an Insurer or Credit Bank for Bonds shall be considered the Holder of such
Bonds which it has provided credit enhancement. The consent of the Holders of such
Bonds shall not be required if the Insurer or Credit Bank for such Bonds shall consent to
the amendment as provided by this Section 8.03 and such Insurer or Credit Bank is not in
default with respect to its obligations under its Bond Insurance Policy or Credit Facility.
Prior to adoption of any amendment made pursuant to this Section 8.03, notice of such
amendment shall be delivered to the Rating Agencies then rating the Bonds. Upon filing
with the Clerk of evidence of such consent the Insurer or Credit Bank as aforesaid, the
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Issuer may adopt such Supplemental Resolution. After the adoption by the Issuer of such
Supplemental Resolution, notice thereof shall be mailed in the same manner as notices of
an amendment under Section 8.02 hereof Notwithstanding the foregoing, the consent of
all affected Bondholders shall still be required with respect to any amendment set forth in
the clauses (A), (B), (C), (D) car(E) in the first paragraph of Section 8.02 hereof.
[Remainder of page intentionally left blank]
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ARTICLE IX
MISCELLANEOUS
SECTION 9.01. DEFEASANCE. If (A) the Issuer shall pay or cause to be
paid or there shall otherwise be paid to the Holders of any Series of Bonds the principal
and interest or Redemption Price, plus accrued interest, due or to become due thereon, at
the times and in the manner stipulated therein and in this Resolution, and (B) the Issuer
shall pay all Policy Costs owing to any provider of a Reserve Account Letter of Credit or
Reserve Account Insurance Policy and all amounts owing to the Insurers and Credit
Banks, then all covenants, agreements and other obligations of the Issuer to the holders of
such Series of Bonds, shall thereupon cease, terminate and become void and be
discharged and satisfied. In such event, the Paying Agents shall pay over or deliver to the
Issuer all money or securities held by them pursuant to this Resolution which are not
required for payment or redemption of any Series of Bonds not theretofore surrendered
for such payment or redemption.
Any Bonds or interest installments appertaining thereto shall be deemed to have
been paid within the meaning of this Section 9.01 if(i) in case any such Bonds are to be
redeemed prior to the maturity thereof, there shall have been taken all action necessary to
call such Bonds for redemption and notice of such redemption shall have been duty given
or provision shall have been made for the giving of such notice, and (ii) there shall have
been deposited in irrevocable trust with a banking institution or trust company by or on
behalf of the Issuer either moneys in an amount which shall be sufficient, or Refunding
Securities verified by an independent certified public accountant or nationally recognized
company that provides verification services for municipal bonds to be in such amount
that, the principal of and the interest on or redemption price which when. due will provide
moneys which, together with the moneys, if any, deposited with such banking institution
or trust company at the same time shall be sufficient, to pay the principal of and interest
due and to become due on said Bonds on and prior to the maturity date thereof. Except
as hereafter provided, neither the Refunding Securities nor any moneys so deposited with
such banking institution or trust company nor any moneys received by such bank or trust
company on account of principal of or redemption price, if applicable, or interest on said
Refunding Securities shall be withdrawn or used for any purpose other than, and all such
moneys shall be held in trust for and be applied to, the payment, when due, of the
principal of or redemption price of the Bonds for the payment of which they were
deposited and the interest accruing thereon to the date of maturity; provided, however,
the Issuer may substitute new Refunding Securities and moneys for the deposited
Refunding Securities and moneys if the new Refunding Securities and moneys are
sufficient to pay the principal of and interest on or redemption price of the refunded
Bonds.
For purposes of determining whether Variable Rate Bonds shall be deemed to
have been paid prior to the maturity or the redemption date thereof, as the case may be,
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by the deposit of moneys, or specified Refunding Securities and moneys, if any, in
accordance with this Section 9.01, the interest to come due on such Variable Rate Bonds
on or prior to the maturity or redemption date thereof, as the case may be, shall be
calculated at the Maximum Interest Rate; provided, however, that if on any payment
date, as a result of such Variable Rate Bonds having borne interest at less than the
Maximum. Interest Rate for any period, the total aniount of moneys and specified
Refunding Securities on deposit for the payment of interest on such Variable Rate Bonds
is in excess of the total amount which would have been required to be deposited on such
date in respect of such Variable Rate Bonds in order to satisfy this Section 9.01, such
excess shall be paid to the Issuer free and clear of any trust, lien, pledge or assignment
securing the Bonds or otherwise existing under this Resolution.
If Bonds are not to be redeemed. or paid within 60 days after any such defeasance
described in this Section 9.01, the Issuer shall cause the Registrar to mail a notice to the
Holders of such Bonds that the deposit required by this Section 9.01 of moneys or
Refunding Securities has been made and. said Bonds are deemed to be paid in accordance
with the provisions of this Section 9.01 and stating such maturity date upon which
moneys are to be available for the payment of the principal. of and interest on or
redemption price of said Bonds. Failure to provide said notice shall not affect the Bonds
being deemed to have been paid in accordance with the provisions of this Section 9.01.
Nothing herein shall be deemed to require the Issuer to call any of tile Outstanding
Bonds for redemption prior to maturity pursuant to any applicable optional redemption
provisions, or to impair the discretion of the Issuer in determining whether to exercise
any such option for early redemption.
Notwithstanding anything herein to the contrary, in the event that the principal of
or interest due on the Bonds shall be paid by an Insurer or Insurers, such Bonds shall
remain Outstanding, shall not be defeased. or otherwise satisfied and shall not be
considered paid by the Issuer, and the pledge of the Pledged Funds and all covenants,
agreements and other obligations of the Issuer to the Bondholders shall continue to exist
and such Insurer or Insurers shall be subrogated to the rights of such Bondholders until
such time as the Insurer or Insurers have been reimbursed and paid in full.
SECTION 9.02. CAPITAL APPRECIATION BONDS. For the purposes of
(A) receiving payment of the Redemption Price if a Capital Appreciation Bond is
redeemed prior to maturity, or (B) receiving payment of a Capital Appreciation Bond if
the principal of all Bonds becomes due and payable under the provisions of this
Resolution, or (C) computing the amount of Bonds held by the Holder of a Capital
Appreciation.Bond in giving to the Issuer or any trustee or receiver appointed to represent
the Bondholders any notice, consent, request or demand pursuant to this Resolution for
any purpose whatsoever, the principal amount of a Capital Appreciation Bond shall be
deemed to be its Accreted Value.
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SECTION 9.03. SALE OF BONDS. The Bonds shall be issued and sold at
public or private sale at one time or in installments from time to time and at such price or
prices as shall be consistent with the provisions of the Act, the requirements of this
Resolution and other applicable provisions of law.
SECTION 9.04. SEVERABILITY OF INVALID PROVISIONS. If any
one or more of the covenants, agreements or provisions of this Resolution shall be held
contrary to any express provision 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 and provisions of
this Resolution and shall in no way affect the validity of any of the other covenants,
agreements or provisions hereof or of the Bonds issued hereunder.
SECTION 9.05. VALIDATION AUTHORIZED. To the extent deemed
necessary by Bond Counsel or desirable by Counsel for the Issuer, the and Counsel is
authorized to institute appropriate proceedings for validation of a Series of the Bonds
herein authorized pursuant to Chapter 75, Florida Statutes,
SECTION 9.06. REPEAL OF INCONSISTENT RESOLUTIONS. All
resolutions, resolutions or parts thereof in conflict herewith are hereby superseded and
repealed to the extent of such conflict.
SECTION 9.07. EFFECTIVE DATE. This Resolution shall take effect
immediately upon its adoption.
PASSED AND ADOPTED by the Board of County Commissioners of Monroe
County, Florida, at a regular meeting of said Board held on the 17th day of August, 2022.
Mayor David Rice Yes
Mayor Pro Tem Craig Cates Yes
�0 4 Commissioner Michelle Coldiron Yes
Commissioner Holly Raschein Yes
Commissioner James K. Scholl Yes
vA
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY,FLORIDA
Attest: Kevin Madok, Clerk
IN,
By: j� BY: 4 11 ,
Deput3'"Cier`k" V Mayor
NROE COUNTY AmnNEY
FILED FOR RECORD riOVE40,%Y1 FOFVA
2022 AUG 17
68 "'----'-P—E�7
CLERK CIR.CT. ASSWTA "rOUNTY ATTORNEY
MONROE COUNTY, FL
DMkm 8/2/22
................