Resolution 545-2002
ADOPTED DECEMBER 18 , 2002
SOLID WASTE DISPOSAL SYSTEM REFUNDING
REVENUE NOTE, SERIES 2002 RESOLUTION
MONROE COUNTY, FLORIDA
11
OPTIONAL PREPAYMENT. ............................ 17
MANDATORY PREPAYMENT. ......................... 18
PAYMENT OF PREPAID SERIES 2002 NOTE. . . . . . . . . . . . . . 18
ARTICLE III
PREP A YMENT OF THE SERIES 2002 NOTE
SECTION 3.01.
SECTION 3.02.
SECTION 3.03.
SECTION 2.01. AUTHORIZATION OF THE SERIES 2002 NOTE. ........... 8
SECTION 2.02. APPLICATION OF SERIES 2002 NOTE PROCEEDS;
TRANSFER OF CERTAIN MONEYS. ................8
SECTION 2.03. EXECUTION OF THE SERIES 2002 NOTE. ................ 9
SECTION 2.04. SERIES 2002 NOTE MUTILATED, DESTROYED,
STOLEN OR LOST. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 2.05. REGISTRATION OF SERIES 2002 NOTE................. 10
SECTION 2.06. DESIGNATION OF THE SERIES 2002 NOTE AS A
QUALIFIED TAX-EXEMPT OBLIGATION ...... . . . . 10
SECTION 2.07. ADJUSTMENTS TO INTEREST RATE................... 10
SECTION 2.08. FORM OF THE SERIES 2002 NOTE. ..................... 11
ARTICLE II
AUTHORIZATION, TERMS, EXECUTION AND
REGISTRATION OF THE SERIES 2002 NOTE
DEFINITIONS. ........................................ 1
AUTHORITY FOR RESOLUTION. . . . . . . . . . . . . . . . . . . . . . . . . 6
RESOLUTION TO CONSTITUTE CONTRACT. ............. 6
FINDINGS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ACCEPTANCE OF BID PROPOSAL. ...................... 7
AUTHORIZATION OF REFUNDING OF REFUNDED
BONDS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE I
GENERAL
Pa2e
TABLE OF CONTENTS
SECTION 1.01.
SECTION 1.02.
SECTION 1.03.
SECTION 1.04.
SECTION 1.05.
SECTION 1.06.
111
SECTION 7.01. SERIES 2002 NOTE EVIDENCES A LOAN. ............... 29
ARTICLE VII
MISCELLANEOUS
SECTION 6.01. SUPPLEMENTAL RESOLUTIONS WITH THE SERIES
2002 NOTEHOLDERCONSENT. ...................28
ARTICLE VI
SUPPLEMENTAL RESOLUTIONS
DEF AUL TS DEFINED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
REMEDIES ON DEF AUL T. .......... . . . . . . . . . . . . . . . . . . . 26
REMEDIES CUMULATIVE. ............................ 26
WAIVER OF DEF AUL T. ............................... 27
ARTICLE V
DEF AUL TS AND REMEDIES
SERIES 2002 NOTE NOT TO BE INDEBTEDNESS OF
ISSUER. ....................................... 19
SECURITY FOR THE SERIES 2002 NOTE. .. . . .. . . .... . . . . 19
CREATION OF FUNDS AND ACCOUNTS. . . . . . . . . . . . . . . . . 19
DISPOSITION OF REVENUES. . . . . . . . . . . . . . . . . . . . . . . . . . . 20
PAYMENT OF THE SERIES 2002 NOTE. ................. 21
REBATE ACCOUNT. ..................................22
SEPARATE ACCOUNTS. ..............................22
INVESTMENTS. ...................................... 23
FEDERAL INCOME TAX COVENANTS. ................. 23
ANNUAL AUDIT AND BUDGET. ....................... 23
OTHER MONEYS. .................................... 24
ADDITIONAL DEBT .................................. 24
SYSTEM RATES ..................................... 24
AUTHORIZATION TO EXECUTE ESCROW DEPOSIT
AGREEMENT .................................. 25
CONSTRUCTION, OPERATION AND MAINTENANCE. . . . . 25
ENFORCEMENT OF CHARGES . . . . . . . . . . . . . . . . . . . . . . . . . 25
ARTICLE IV
SECURITY; DEBT SERVICE FUND;
COVENANTS OF THE ISSUER
SECTION 5.01.
SECTION 5.02.
SECTION 5.03.
SECTION 5.04.
SECTION 4.15.
SECTION 4.16.
SECTION 4.02.
SECTION 4.03.
SECTION 4.04.
SECTION 4.05.
SECTION 4.06.
SECTION 4.07.
SECTION 4.08.
SECTION 4.09.
SECTION 4.10.
SECTION 4.11.
SECTION 4.12.
SECTION 4.13.
SECTION 4.14.
SECTION 4.01.
IV
FORM OF ESCROW DEPOSIT AGREEMENT ............ D-I
BID PROPOSAL ..................................... C-I
REQUEST FOR COMMITMENT. . . . . . . . . . . . . . . . . . . . . . . . B-1
DISCLOSURE LETTER AND
TRUTH-IN-BONDING STATEMENT. . . . . . . . . . . . . . . . . . A-I
WAIVER OF JURY TRIAL ............................. 29
GENERAL AUTHORITY. .............................. 29
SEVERABILITY OF INVALID PROVISIONS. ............. 29
REPEAL OF INCONSISTENT RESOLUTIONS. ............ 30
EFFECTIVE DATE. ................................... 30
EXHIBIT D
EXHIBIT C
EXHIBIT B
EXHIBIT A
SECTION 7.02.
SECTION 7.03.
SECTION 7.04.
SECTION 7.05.
SECTION 7.06.
RESOLUTION NO. 545-2002
A RESOLUTION OF THE BOARD OF COUNTY
COMMISSIONERS OF MONROE COUNTY, FLORIDA
ACCEPTING THE PROPOSAL OF SUNTRUST BANK TO
PROVIDE THE COUNTY WITH A LOAN IN AN
AGGREGATE PRINCIPAL AMOUNT OF $4,143,945.49 IN
ORDER TO REFUND ALL OF THE OUTSTANDING
MONROE COUNTY MUNICIPAL SERVICE DISTRICT
REFUNDING IMPROVEMENT BONDS, SERIES 1991;
AUTHORIZING THE ISSUANCE OF THE MONROE
COUNTY SOLID WASTE DISPOSAL SYSTEM
REFUNDING REVENUE NOTE, SERIES 2002 TO
EVIDENCE SUCH LOAN; PLEDGING THE GROSS
REVENUES OF THE COUNTY'S SOLID WASTE
DISPOSAL SYSTEM AND CERTAIN OTHER FUNDS TO
PAY THE SERIES 2002 NOTE; PROVIDING CERTAIN
TERMS AND DETAILS OF THE SERIES 2002 NOTE;
MAKING CERTAIN COVENANTS AND PROVIDING
CERTAIN RIGHTS TO THE HOLDER OF THE SERIES 2002
NOTE; AUTHORIZING TIlE DELIVERY AND EXECUTION
OF AN ESCROW DEPOSIT AGREEMENT AND THE
APPOINTMENT OF AN ESCROW AGENT TIlERETO; AND
PROVIDING AN EFFECTIVE DATE.
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, all capitalized
terms shall have the meaning set forth below:
"Authorized Investments" shall mean any investments that are lawful and valid
pursuant to State law for government entities such as the Issuer.
"Bid Proposal" shall mean the Bid Proposal submitted by SunTrust Bank in response
to the Request for Commitment, a copy of which Bid Proposal is attached hereto as
Exhibit C.
"Board" shall mean the Board of County Commissioners of the Issuer.
"Bond Counsel" shall mean 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.
"Code" shall mean the Internal Revenue Code of 1986, as amended, and the
regulations and rules thereunder in effect or imposed.
"Clerk" shall mean the Clerk of the Circuit Court for Monroe County, Florida, and
Ex-officio Clerk of the Board of County Commissioners ofthe Issuer, or such other person
as may be duly authorized to act on his or her behalf.
"Consulting Engineers" shall mean any engineering firm of reputation for skill and
experience with respect to the construction and operation of facilities similar to those that
comprise the System, which is duly licensed under the laws of the State of Florida and
designated by the Issuer to perform the duties of the Consulting Engineers under the
provisions hereof.
"County Administrator" shall mean the County Administrator of the Issuer, and
such other person as may be authorized to act on his or her behalf.
"County Attorney" shall mean the County Attorney of the Issuer, and such other
person as may be authorized to act on his or her behalf.
"Determination of Taxability" shall mean the circumstance of interest paid or
payable on the Series 2002 Note becoming includable for federal income tax purposes in the
gross income ofthe Holder of the Series 2002 Note for any reason whatsoever and regardless
of whether the same was within or beyond the control of the Issuer. A Determination of
Taxability shall be evidenced by either (a) the receipt by the Issuer or Holder of the Series
2002 Note of an original or a copy of an Internal Revenue Service Technical Advice
Memorandum or Statutory Notice of Deficiency which holds that any interest payable on the
Series 2002 Note is includable in the gross income of such Holder of the Series 2002 Note;
(b) the issuance of any public or private ruling of the Internal Revenue Service that any
2
interest payable on the Series 2002 Note is includable in the gross income of the Holder of
the Series 2002 Note; or (c) receipt by the Issuer or the Holder of the Series 2002 Note of an
opinion of Bond Counsel that any interest on the Series 2002 Note has become includable
in the gross income of the Holder of the Series 2002 Note for federal income tax purposes.
For all purposes of this definition, a Determination of Taxability will be deemed to occur on
the first date as of which the interest on the Series 2002 Note is deemed includable in the
gross income of the Holder of the Series 2002 Note. A Determination of Taxability shall not
occur solely from the fact that such interest is taken into account in determining adjusted
current earnings for the purpose of the alternative minimum income tax imposed on
corporations.
"Escrow Deposit Agreement" shall mean the agreement authorized pursuant to
Section 4.14 hereof.
"Federal Securities" shall have the meaning ascribed thereto in the Refunded Bonds
Resolution.
"Fiscal Year" shall mean the period commencing on October 1 of each year and
continuing through the next succeeding September 30, or such other period as may be
prescribed by law.
"Gross Revenues" shall mean all income and moneys received by the Issuer from the
rates, fees, rentals, charges, assessments and other income to be made and collected by the
Issuer for the use of the products, services and facilities to be provided by the System or
otherwise received by the Issuer or accruing to the Issuer in the management and operation
of the System calculated in accordance with generally accepted accounting principles
applicable to solid waste collection, disposal and management systems similar to the System,
including, without limiting the generality of the foregoing, any investment of moneys under
the provisions of this Resolution. Gross Revenues shall not include any federal or state grant
moneys received by the Issuer.
"Holder" or "Series 2002 Noteholder" or "Registered Owner" shall mean the
owner of the Series 2002 Note as set forth on the registration books of the Issuer. The
original Holder of the Series 2002 Note shall be SunTrust Bank.
"Interest Rate" shall mean the annual fixed interest rate equal to 3.41 % per annum.
The Interest Rate shall be calculated on the basis of a 360-day year consisting of twelve 30-
day months.
3
"Issuer" or "County" shall mean Monroe County, Florida, a political subdivision
of the State.
"Maximum Annual Debt Service" shall mean the maximum annual debt service to
come due during any subsequent Fiscal Year of the Issuer on the Series 2002 Note and all
other outstanding debt of the Issuer issued subsequently to the Series 2002 Note which is
secured by or payable from the Pledged Revenues on a parity basis as to the Series 2002
Note. With respect to any variable rate debt, the interest rate used to determine Maximum
Annual Debt Service shall be the greater of (a) 6.00% per annum, or (b) the average actual
interest rate in effect during the applicable Test Period.
"Mayor" shall mean the Chairperson or Mayor of 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.
"Net Revenues" shall mean Gross Revenues less Operating Expenses.
"Operating Expenses" shall mean the Issuer's expenses for operation, maintenance,
repairs and replacements with respect to the System and shall include, without limiting the
generality of the foregoing, administration expenses, insurance and surety bond fees,
accounting, legal, financial advisory, consulting and engineering expenses, fees for the
management of the System or any portion thereof, payments made in regard to the purchase
of materials or services essential to or to be used in the operation of the System, ordinary and
current rentals of equipment or other property, refunds of moneys lawfully due to others,
payments to others for disposal or recycling of solid wastes, paYments to pension, retirement,
health and hospitalization funds, and any other expenses required to be paid for or with
respect to proper operation or maintenance of the System, including appropriate reserves
therefor, all to the extent properly attributable to the System in accordance with generally
accepted accounting principles applicable to public solid waste collection, disposal and
management systems similar to the System, but does not include (1) 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,
(2) minor capital expenditures necessary for the proper and economical operation or
maintenance of the System, or (3) any provision for interest, depreciation, amortization or
similar charges.
"Outstanding," when used with reference to the Series 2002 Note and as of any
particular date, shall describe that portion of the Series 2002 Note theretofore and thereupon
being delivered and which remains unpaid except any Series 2002 Note in lieu of which
4
another Series 2002 Note or Notes has been issued under agreement to replace a lost,
mutilated or destroyed Series 1999 Bonds pursuant to Section 2.04 hereof.
"Pledged Revenues" shall mean (1) the Gross Revenues, and (2) until applied in
accordance with the provisions of this Resolution, all moneys, including investments thereof,
in the funds and accounts established hereunder.
"Refunded Bonds" shall mean all of the outstanding Monroe County Municipal
Service District Refunding Improvement Bonds, Series 1991, dated as of April 1, 1991,
issued in the aggregate principal amount of$9,570,000, and $5,660,000 of which currently
remains outstanding.
"Refunded Bonds Resolution" shall mean the Issuer's Resolution No. 061-1991,
adopted by the Board on March 12, 1991, as amended and supplemented.
"Request for Commitment" shall mean the Request for Commitment distributed by
the Issuer's Financial Advisor, Public Financial Management Inc., on behalf of the Issuer
with respect to the Series 2002 Note, a copy of which Request for Commitment is attached
hereto as Exhibit C.
"Redemption Price" shall mean, with respect to the Series 2002 Note or portion
thereof, the principal amount or portion thereof payable upon redemption thereof pursuant
to the Series 2002 Note or this Resolution.
"Series 2002 Note" shall mean the Issuer's Monroe County, Florida Solid Waste
Disposal System Refunding Revenue Note, Series 2002, authorized pursuant to Section 2.01
hereof.
"State" shall mean the State of Florida.
"Supplemental Resolution" shall mean any resolution of the Issuer amending or
supplementing this Resolution adopted and becoming effective in accordance with the terms
of Section 6.01 hereof.
"System" shall mean any and all solid waste collection, disposal and management
facilities (including landfills, construction demolition debris disposal sites, collection
facilities and transfer stations and recycling facilities) now owned or hereafter owned by the
Issuer, which System shall also include any and all improvements, extensions and additions
thereto hereafter constructed or acquired either from the proceeds of any indebtedness issued
by the Issuer or from any other sources, together with all property, real or personal, tangible
5
or intangible, now or hereafter owned or used in connection therewith, including all
contractual rights and rights to capacity associated therewith.
"Test Period" shall mean, as of the date of determination thereof, the immediately
preceding twelve (12) month period.
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 every other gender.
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 Chapter 125, Florida Statutes, the Monroe County Code
and other applicable provisions of law.
SECTION 1.03. RESOLUTION TO CONSTITUTE CONTRACT. In
consideration ofthe purchase and acceptance of the Series 2002 Note 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 Holder of the Series 2002 Note and shall be deemed to be and shall
constitute a contract between the Issuer and the Holder from time to time of the Series 2002
Note. 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 Holder of the Series 2002 Note.
SECTION 1.04.
FINDINGS. It is hereby ascertained, determined and declared
that:
(A) The Issuer now owns, operates and maintains the System for the collection,
disposal and management of solid waste for the protection, health and well-being of its
residents.
(B) There has previously been issued the Refunded Bonds of which $5,660,000
currently remains outstanding.
(C) The Issuer can achieve debt service savings through the issuance ofthe Series
2002 Note and the refunding of the Refunded Bonds.
6
(D) That pursuant to the Request for Commitment the Issuer requested proposals
from financial institutions to provide the Issuer with a loan in an amount not to exceed
$6,000,000, the proceeds of which would be applied for the principal purpose of current
refunding the Refunded Bonds in order to achieve certain debt savings.
(E) That the Bid Proposal submitted by SunTrust Bank was the most beneficial
proposal to provide such loan.
(F) The principal of and interest on the Series 2002 Note will be payable solely
from the Pledged Revenues as provided herein and the estimated Pledged Revenues will be
sufficient to pay the principal of and interest on the Series 2002 Note, as the same becomes
due and all other payments provided for in the Resolution.
(G) The Issuer shall never use or be required to use any ad valorem taxes for the
payment of the Series 2002 Note. The Series 2002 Note shall not constitute a direct
obligation of the Issuer or a pledge of its faith and credit, nor shall the Series 2002
Noteholder have any lien or encumbrance on any property in the Issuer, other than the
Pledged Revenues.
(H) Due to the potential volatility of the market for tax-exempt obligations such as
the Series 2002 Note and the complexity of the transactions relating to such Series 2002
Note, it is in the best interest of the Issuer to issue the Series 2002 Note pursuant to Section
218.385(1), Florida Statutes. The Issuer acknowledges receipt of the information required
by Section 218.385, Florida Statutes, in connection with such sale of the Series 2002 Note,
including a "Truth-In-Bonding" statement. The aforementioned information is set forth in
the copy of the letter of Sun Trust Bank attached hereto as Exhibit A.
(I) It is not reasonably anticipated that more than $10,000,000 of tax-exempt
obligations as defined under Section 265(b)(3) of the Code will be issued by the Issuer in
calendar year 2002.
SECTION 1.05. ACCEPTANCE OF BID PROPOSAL. The Issuer hereby
accepts the Bid Proposal of SunTrust Bank to provide financing for the refunding of the
Refunded Bonds.
SECTION 1.06. AUTHORIZA TION OF REFUNDING OF REFUNDED
BONDS. The Issuer hereby authorizes the refunding, on a current basis, of the Refunded
Bonds.
7
ARTICLE II
AUTHORIZATION, TERMS, EXECUTION AND
REGISTRATION OF THE SERIES 2002 NOTE
SECTION 2.01. AUTHORIZATION OF THE SERIES 2002 NOTE. This
Resolution creates an obligation of the Issuer in the aggregate principal amount of
$4,143,945.49 to be designated as "Monroe County, Florida Solid Waste Disposal System
Refunding Revenue Note, Series 2002." The Series 2002 Note shall be issued in the
aggregate principal amount of $4,143,945.49, shall be dated as of December 19,2002 and
shall mature on October 1, 20 11, subject to optional and mandatory prepayment prior to
maturity as described herein. The Series 2002 Note shall be issued as one fully registered
Series 2002 Note in the denomination of $4,143,945.49 and shall bear interest from
December 19,2002, at the Interest Rate (calculated on the basis of a 360-day year consisting
of twelve 30-day months), payable semi-annually on April I and October I of each year,
commencing April I, 2003. The Interest Rate may be adjusted pursuant to Section 2.07
herein. Such Interest Rate complies with and shall comply in all respects with the maximum
interest rate provisions of Section 215.84, Florida Statutes. The Series 2002 Note shall be
priced at 100% of its aggr:egate principal amount. The Series 2002 Note shall be payable as
to principal, Redemption Price, if applicable, and interest by check or draft of the Issuer
mailed to the Registered Owner of the Series 2002 Note as evidenced on the registration
books maintained by the Issuer as of the close of business on the fifth business day next
preceding an interest payment date; provided, that payments on the Series 2002 Note may be
payable by bank wire transfer upon the request ofthe registered owner thereof. In the event
that such payments are received by the Registered Owner more than ten (10) days after the
scheduled payment date, a late payment fee equal to five percent (5%) of the past due amount
shall be due and payable from the Issuer to the Registered Owner. Promptly following the
final payment of the principal of the Series 2002 Note the Registered Owner shall provide
the Issuer with evidence of cancellation of the Series 2002 Note. Principal of and interest
on the Series 2002 Note shall be payable in any coin or currency of the United States of
America which, on the date of maturity of the Series 2002 Note, are legal tender for the
payment of public and private debts.
SECTION 2.02. APPLICATION OF SERIES 2002 NOTE PROCEEDS;
TRANSFER OF CERTAIN MONEYS. The proceeds derived from the sale of the Series
2002 Note and premium, if any, and certain other legally available moneys of the Issuer,
shall, simultaneously with the delivery of the Series 2002 Note to the purchaser thereof, be
applied by the Issuer as follows:
8
(A) A sufficient amount ofthe Series 2002 Note proceeds shall be deposited to an
escrow deposit trust fund established under the terms and provisions of the Escrow Deposit
Agreement and shall be invested in Federal Securities in the manner set forth in such Escrow
Deposit Agreement, which investments shall mature at such times and in such amounts as
shall be sufficient to pay the principal of, premium, if any, and interest on the Refunded
Bonds as the same mature or are redeemed.
(B) A sufficient amount of the Series 2002 Note proceeds shall be applied to the
payment of costs and expenses relating to the issuance of the Series 2002 Note.
(C) The balance, if any, of the Series 2002 Note proceeds shall be deposited in the
Sinking Fund and shall be applied to the payment of interest on the Series 2002 Note.
(D) Any excess moneys on deposit in the funds and accounts established for the
Refunded Bonds under the Refunded Bonds Resolution shall be transferred to the escrow
deposit trust fund established pursuant to the Escrow Deposit Agreement.
SECTION 2.03. EXECUTION OF THE SERIES 2002 NOTE. The Series
2002 Note shall be executed in the name of the Issuer with the manual signature ofthe Mayor
and the official seal of the Issuer shall be imprinted thereon, attested and countersigned with
the manual signature of the Clerk. In case anyone or more of the officers who shall have
signed or sealed the Series 2002 Note shall cease to be such officer ofthe Issuer before the
Series 2002 Note so signed and sealed has been actually sold and delivered, the Series 2002
Note may nevertheless be sold and delivered as herein provided and may be issued as if the
person who signed or sealed the Series 2002 Note had not ceased to hold such office. The
Series 2002 Note may be signed and sealed on behalf of the Issuer by such person who at the
actual time of the execution of the Series 2002 Note shall hold the proper office of the Issuer,
although at the date of the Series 2002 Note such person may not have held such office or
may not have been so authorized.
SECTION 2.04. SERIES 2002 NOTE MUTILATED, DESTROYED,
STOLEN OR LOST. In case the Series 2002 Note shall become mutilated, or be destroyed,
stolen or lost, the Issuer shall issue and deliver a new Series 2002 Note of like tenor as the
Series 2002 Note so mutilated, destroyed, stolen or lost, in exchange and substitution for the
mutilated Series 2002 Note upon surrender and cancellation of such mutilated Series 2002
Note orin lieu of and substitution for the Series 2002 Note destroyed, stolen or lost, and upon
the Holder furnishing the Issuer proof of his ownership thereof and satisfactory indemnity
and complying with such other reasonable regulations and conditions as the Issuer may
prescribe and paying such expenses as the Issuer may incur. The Series 2002 Note so
surrendered or otherwise substituted shall be cancelled by the Issuer. If the Series 2002 Note
9
shall have matured or be about to mature, instead of issuing a substitute Series 2002 Note,
the Issuer may pay the same or cause the Series 2002 Note to be paid, upon being
indemnified as aforesaid, and if the Series 2002 Note is lost, stolen or destroyed, without
surrender thereof.
SECTION 2.05. REGISTRATION OF SERIES 2002 NOTE. So long as the
Series 2002 Note remains outstanding, the Issuer shall maintain and keep the address of the
Registered Owner of the Note.
The Issuer may deem and treat the person in whose name the Series 2002 Note shall
be registered as the absolute owner of the Series 2002 Note, whether the Series 2002 Note
shall be overdue or not, for the purpose of receiving payment of, or on account of, the
principal of and interest on the Series 2002 Note and for all other purposes, and all such
payments so made to any such Registered Owner or upon his order shall be valid and
effectual to satisfy and discharge the liability upon the Series 2002 Note to the extent of the
sum or sums so paid, and the Issuer shall not be affected by any notice to the contrary.
The transfer of the Series 2002 Note shall be registrable only upon the books of the
Issuer, at the office of the Clerk, under such reasonable regulations as the Issuer may
prescribe, by the Registered Owner thereof in person or by his attorney duly authorized in
writing upon surrender thereof together with a written instrument of transfer satisfactory to
the Clerk duly executed and guaranteed by the Registered Owner or his duly authorized
attorney. Upon the registration of transfer of the Series 2002 Note, the Issuer shall issue in
the name of the transferee a new Note of the same principal amount and maturity as the
surrendered Series 2002 Note. For every such registration of transfer, the Issuer may charge
the registered owner a reasonable amount to reimburse it for any tax, fee, expense or other
governmental charge (other than a charge imposed by the Issuer) required to be paid with
respect to such transfer.
SECTION 2.06. DESIGNATION OF THE SERIES 2002 NOTE AS A
QUALIFIED TAX-EXEMPT OBLIGATION. The Issuer hereby designates the Series
2002 Note as a "qualified tax-exempt obligation" under Section 265(b )(3) of the Code. This
designation is based upon the findings of the Issuer set forth in Section 1.04(1) hereof and
the Mayor or the Clerk is authorized to certify such finding upon the issuance of the Series
2002 Note.
SECTION 2.07. ADJUSTMENTS TO INTEREST RATE. (A) If for any
reason it shall be determined that the Series 2002 Note is not a "qualified tax-exempt
obligation" within the meaning of Section 265(b )(3) of the Code, then the Interest Rate
thereon shall be adjusted to such rate as shall provide the Series 2002 Noteholder with the
10
same rate of return that the Series 2002 Noteholder would have otherwise received on the
Series 2002 Note taking into account the diminished deductibility of interest expense of the
Series 2002 Noteholder under Section 265 ofthe Code as a result of the non "qualified tax-
exempt obligation" status of the Note; provided, however, such increased rate shall never
exceed the maximum rate allowable by law. The Series 2002 Noteholder shall provide the
Issuer with sufficient evidence supporting any such increase.
(B) In the event of a Determination of Taxability, the Interest Rate on the Series
2002 Note shall be increased to a rate per annum equal to the Interest Rate times 1.54 (the
"Taxable Rate") effective retroactively to the date on which such Determination of Taxability
was made. Immediately upon a Determination of Taxability, the Issuer agrees to pay to the
Holder of the Series 2002 Note subject to such Determination of Taxability the Additional
Amount (as defined herein). "Additional Amount" means (i) the difference between (a)
interest on the Series 2002 Note for the period commencing on the date on which the interest
on such Series 2002 Note (or portion thereof) loses its tax-exempt status and ending on the
earlier of the date such Series 2002 Note ceased to be outstanding or such adjustment is no
longer applicable to such Series 2002 Note (the "Taxable Period") at a rate per annum equal
to the Taxable Rate, and (b) the aggregate amount of interest payable on such Series 2002
Note for the Taxable Period under the provisions of such Series 2002 Note without
considering the Determination of Taxability, plus (ii) any penalties and interest paid or
payable by such Series 2002 Noteholder to the Internal Revenue Service by reason of such
Determination of Taxability.
(C) The Series 2002 Noteholder shall promptly notify the Issuer in writing of any
adjustments pursuant to this Section 2.07. Such adjustments shall become effective as of the
effective date of the event causing such adjustment. Adjustments pursuant to this Section
2.07 may be retroactive. The Series 2002 Noteholder shall certify to the Issuer in writing the
additional amount, if any, due to the Series 2002 Noteholder as a result of an adjustment
pursuant to this Section 2.07. Notwithstanding any provision of this Section 2.07 to the
contrary, in no event shall the Interest Rate on the Series 2002 Note exceed the maximum
rate permitted by law.
(D) The provisions set forth in this Section 2.07 shall survive payment of the Series
2002 Note until such time as the federal statute oflimitations under which the interest on the
Series 2002 Note could be declared taxable under the Code shall have expired.
SECTION 2.08. FORM OF THE SERIES 2002 NOTE. The text of the Series
2002 Note shall be in substantially the following form with such omissions, insertions and
variations as may be necessary or desirable and approved by the Mayor, the County Attorney,
the County Administrator or the Clerk prior to the issuance thereof (which necessity or
11
desirability and approval shall be presumed by such officer's execution of the Series 2002
Note and the Issuer's delivery of the Series 2002 Note to the purchaser thereof):
[Remainder of page intentionally left blank]
12
$4,143,945.49
UNITED STATES OF AMERICA
STATE OF FLORIDA
MONROE COUNTY, FLORIDA SOLID WASTE
DISPOSAL SYSTEM REFUNDING REVENUE NOTE,
SERIES 2002
Interest
Rate
Maturity
Date
Date of
Original Issue
3.41 %
October 1,2011
December 19, 2002
Registered Holder:
SUNTRUST BANK
Principal Amount:
FOUR MILLION ONE HUNDRED FORTY-THREE
THOUSAND NINE HUNDRED FORTY-FIVE AND 49/100
DOLLARS
Monroe County, Florida, a political subdivision of the State of Florida (the "Issuer"),
for value received, hereby promises to pay, solely from the funds hereinafter described, to
the Registered Holder identified above, or registered assigns as hereinafter provided, on the
Maturity Date identified above, subject to prior mandatory redemption as provided herein,
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 payment date to which
interest has been paid at the Interest Rate per annum set forth and described in the hereinafter
defined Resolution on April I and October I of each year commencing April I, 2003, 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 on this Series 2002 Note 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. Payment of each
installment of principal and interest shall be made to the person in whose name this Series
2002 Note shall be registered on the registration books ofthe Issuer, at the close of business
on the date which shall be the fifth business day next preceding each payment date and shall
be paid by a check or draft of the Issuer mailed to such Registered Holder at the address
appearing on such registration books or, at the request and expense of such Registered
Holder, by bank wire transfer for the account of such Holder. In the event that such
payments are received by the Registered Holder more than ten (10) days after the scheduled
13
payment, a late payment fee equal to five percent (5%) of the past due amount shall be due
and payable from the Issuer to the Registered Holder. Promptly following the final payment
of the principal of the Series 2002 Note the Registered Holder shall provide the Issuer with
evidence of cancellation of the Series 2002 Note.
All payments must be made to the Registered Holder in immediately available funds,
free and clear of any defenses, set offs, counterclaims, or withholdings or deductions for
taxes.
The interest rate on this Series 2002 Note may be adjusted as provided in the
hereinafter described Resolution.
This Series 2002 Note is issued for the principal purpose of (A) refunding, on a
current basis, the Monroe County Municipal Service District Refunding Improvement Bonds,
Series 1991, as more particularly described in the hereinafter defined Resolution, and (B)
paying costs and expenses of issuing the Series 2002 Note. The Series 2002 Note is being
issued under the authority of and in full compliance with the Constitution and laws of the
State of Florida, particularly Chapter 125, Florida Statutes, and other applicable provisions
oflaw (collectively, the "Act"), and a resolution duly adopted by the County Commission of
the Issuer on December 18, 2002 (the "Resolution"), and is subject to all the terms and
conditions of the Resolution.
The Series 2002 Note and the interest hereon are payable from and secured by a lien
upon and a pledge of (1) the Gross Revenues (as defined in the Resolution) to be derived
from the operation of the Issuer's solid waste disposal, collection and management system,
and (2) until applied in accordance with the provisions of this Resolution, all moneys,
including investments thereof, in the funds and accounts established under the Resolution
(collectively, the "Pledged Revenues").
IT IS EXPRESSLY AGREED BY THE REGISTERED HOLDER OF THIS SERIES
2002 NOTE THAT THE FULL FAITH AND CREDIT OF THE ISSUER, THE STATE OF
FLORIDA, OR ANY POLITICAL SUBDIVISION OR AGENCY THEREOF, ARE NOT
PLEDGED TO THE PAYMENT OF THE PRINCIPAL OF, PREMIUM, IF ANY, AND
INTEREST ON THIS SERIES 2002 NOTE AND THAT SUCH HOLDER SHALL NEVER
HAVE THE RIGHT TO REQUIRE OR COMPEL THE EXERCISE OF ANY TAXING
POWER OF THE ISSUER, THE STATE OF FLORIDA, OR ANY POLITICAL
SUBDIVISION OR AGENCY THEREOF, TO THE PAYMENT OF SUCH PRINCIPAL,
PREMIUM, IF ANY, AND INTEREST. THIS SERIES 2002 NOTE AND THE
OBLIGATION EVIDENCED HEREBY SHALL NOT CONSTITUTE A LIEN UPON ANY
PROPERTY OF THE ISSUER, BUT SHALL CONSTITUTE A LIEN ONLY ON, AND
14
SHALL BE PAYABLE SOLELY FROM, THE PLEDGED REVENUES TO THE EXTENT
PROVIDED IN THE RESOLUTION. THE ISSUER MAY ISSUE ADDITIONAL
OBLIGATIONS ON P ARlTY WITH THE SERIES 2002 NOTE IN ACCORDANCE WITH
THE TERMS OF THE RESOLUTION.
The Series 2002 Note may be prepaid at the option of the Issuer, from any moneys
legally available therefor, upon notice as provided in the Resolution and described below,
in whole or in part at any time or from time to time, without penalty or premium, by paying
to the Registered Holder hereof all or part of the principal amount of the Series 2002 Note
to be prepaid, together with the unpaid interest accrued on the amount of principal so prepaid
to the date of such prepayment. In the event any portion of the Series 2002 Note is optionally
prepaid, the amount so prepaid shall be applied as a credit against the latest scheduled
amortization installment as set forth below.
The Series 2002 Note is subject to mandatory prepayment prior to maturity at a
Redemption Price equal to the principal amount thereof, plus accrued interest thereon to the
date fixed for prepaYment, on October 1 of each year, without premium, as follows:
Amortization Date
October 1,2003
October 1,2004
October I, 2005
October I, 2006
October 1, 2007
October 1,2008
October 1, 2009
October I, 2010
October 1,2011 *
*Final maturity.
Principal Amount
$ 323,086.79
423,468.48
437,908.75
452,841.44
468,283.34
484,251.80
500,764.79
517,840.86
535,499.24
Optional prepayment of the Series 2002 Note shall be made as provided in the
Resolution upon notice given by first class mail sent at least ten (10) days prior to the
prepayment date. In the event that less than the full principal amount hereof shall have been
called for optional prepayment, the Registered Holder hereof shall make a notation on the
Series 2002 Note indicating the amount and date of such prepayment and shall promptly
transmit an acknowledgment to the Issuer indicating the amount and date of such prepayment
and the amount and date of the next scheduled payment.
15
Reference to the Resolution and any and all resolutions supplemental thereto, and
modifications and amendments thereof, and to the Act is made for a description of the pledge
securing the Series 2002 Note, the nature, manner and extent of enforcement of such pledge,
and the rights, duties, immunities 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 performed precedent to and in the issuance of the Series 2002 Note,
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
of the Series 2002 Note does not violate any constitutional or statutory limitations or
provIsIOns.
Neither the members of the Board of County Commissioners of the Issuer nor the
Mayor nor the Clerk nor any person executing the Series 2002 Note shall be liable personally
hereon or be subject to any personal liability or accountability by reason of the issuance
hereof.
IN WITNESS WHEREOF, Monroe County, Florida has issued this Series 2002
Note and has caused the same to be executed by the manual signature of the Mayor of its
Board of County Commissioners and countersigned and attested to by the manual signature
of the Clerk of such Board, and its official seal to be affixed hereon, all as of the Date of
Original Issue.
MONROE COUNTY, FLORIDA
(SEAL)
Mayor, Board of County Commissioners
ATTESTED AND COUNTERSIGNED:
Clerk, Board of County Commissioners
APPROVED AS TO FORM AND
LEGAL SUFFICIENCY:
County Attorney's Office
16
ARTICLE III
PREPAYMENT OF THE SERIES 2002 NOTE
SECTION 3.01. OPTIONAL PREPAYMENT. The Series 2002 Note may be
prepaid at the option of the Issuer, from any moneys legally available therefor, upon notice
as provided herein, in whole or in part at any time or from time to time, without penalty or
premium, by paying to the Holder all or part ofthe principal amount of the Series 2002 Note
to be prepaid, together with the unpaid interest accrued on the amount of principal so prepaid
to the date of such prepayment.
In the event any portion ofthe Series 2002 Note is optionally prepaid pursuant to this
Section 3.01, the amount so prepaid shall be applied as a credit against the latest scheduled
amortization installment as set forth in Section 3.02 hereof. The Holder shall make a
notation on the Series 2002 Note indicating the amount and date of such prepayment and
shall promptly transmit an acknowledgment to the Issuer indicating the amount and date of
such prepayment and the amount and date of the next scheduled payment.
Notice of such optional prepayment, which shall specify the principal amount to be
prepaid and the date for prepayment, shall be given by the Issuer, and shall be mailed first
class, postage prepaid, at least ten (IO) days prior to the prepayment date to the Holder of
Series 2002 Note at its address as it appears on the registration books kept by the Issuer as
of the date of mailing of such notice.
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17
SECTION 3.02. MANDATORY PREPAYMENT. The Series 2002 Note is
subject to mandatory sinking fund prepayment prior to maturity at a Redemption Price equal
to the principal amount thereof, plus accrued interest thereon to the date fixed for
prepayment, on October 1, 2003, and thereafter on each October 1, without premium, as
follows:
Amortization Date
October 1, 2003
October 1,2004
October I, 2005
October 1, 2006
October 1, 2007
October 1, 2008
October I, 2009
October I, 20 I 0
October 1, 2011*
*Final maturity.
Principal Amount
$ 323,086.79
423,468.48
437,908.75
452,841.44
468,283.34
484,251.80
500,764.79
517,840.86
535,499.24
SECTION 3.03. PAYMENT OF PREPAID SERIES 2002 NOTE. Notice of
optional prepayment having been given as provided in Section 3.01 hereof, the Series 2002
Note or a portion of the Series 2002 Note so to be prepaid shall, on the prepayment date,
become due and payable at the Redemption Price therein specified, and from and after such
date as the Holder actually receives such prepayment, the Series 2002 Note or portion thereof
shall cease to bear interest.
[Remainder of page intentionally left blank]
18
ARTICLE IV
SECURITY; DEBT SERVICE FUND;
COVENANTS OF THE ISSUER
SECTION 4.01. SERIES 2002 NOTE NOT TO BE INDEBTEDNESS OF
ISSUER. The Series 2002 Note shall not be or constitute a general obligation or
indebtedness of the Issuer as a "bond" within the meaning of any constitutional or statutory
provision, but shall be a special obligation of the Issuer, payable from and secured by a lien
upon and pledge of the Pledged Revenues in accordance with the terms of this Resolution.
No Holder of the Series 2002 Note shall ever have the right to compel the exercise of any ad
valorem taxing power to pay such Series 2002 Note, or be entitled to payment of the Series
2002 Note from any moneys of the Issuer, except from the Pledged Revenues, in the manner
provided herein.
SECTION 4.02. SECURITY FOR THE SERIES 2002 NOTE. The payment
of the principal of or Redemption Price, if applicable, and interest on the Series 2002 Note
shall be secured forthwith equally and ratably by a pledge of and lien upon the Pledged
Revenues. The Issuer does hereby irrevocably pledge the Pledged Revenues to the payment
of the principal of or Redemption Price, if applicable, and interest on the Series 2002 Note
in accordance with the provisions hereof. Except as otherwise provided herein, the Pledged
Revenues 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. CREATION OF FUNDS AND ACCOUNTS. The Issuer
covenants and agrees to establish the following funds and accounts:
(A) the "Monroe County, Florida Solid Waste Disposal System Revenue Fund,"
(B) the "Monroe County, Florida Solid Waste Disposal System Operation and
Maintenance Fund,"
(C) the "Monroe County, Florida Solid Waste Disposal System Sinking Fund."
Moneys in the aforementioned Sinking Fund, until applied in accordance with the
provisions hereof, shall be held in trust for and be subject to a lien and charge in favor of the
Holder of the Series 2002 Note and for the further security of such Holders.
19
The Issuer may at any time and from time to time appoint one or more depositories
to hold, for the benefit of the Holder of the Series 2002 Note, anyone or more of the funds
and accounts established hereunder. Such depositary or depositories shall perform at the
direction of the Issuer the duties of the Issuer in depositing, transferring and disbursing
moneys to and from such fund 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 agent and employees. Any such depositary shall be a bank or trust company duly
authorized to perform such responsibilities pursuant to applicable law.
SECTION 4.04. DISPOSITION OF REVENUES.
(A) Except as otherwise provided by Section 4.08 hereofwith respectto investment
income, the Issuer shall deposit promptly into the Revenue Fund, as received, all Gross
Revenues.
(B) Moneys in the Revenue Fund shall be disposed of by the Issuer on or before
the twenty- fifth (25th) day of each month, commencing in the month immediately following
the delivery of the Series 2002 Note to the Holder thereof, or such later date as hereinafter
provided, in the following manner and in the following order of priority:
(1) Sinking Fund - Interest. The Issuer shall deposit or credit to the Sinking
Fund the sum which, together with the balance allocated to pay interest in said Fund,
shall equal the interest on the Series 2002 Note accrued and unpaid and to accrue to
the end of the then current calendar month. No further deposit need be made to the
Sinking Fund for interest when the moneys therein allocated to pay interest are equal
to the interest coming due on the Series 2002 Note on the next succeeding interest
payment date.
(2) Sinking Fund - Principal. Commencing in the month following the
issuance of the Series 2002 Note, the Issuer shall next deposit into the Sinking Fund
the sum which, together with the balance allocated to pay the principal or mandatory
sinking fund prepayment amount in said Fund, shall equal the principal amount or
mandatory sinking fund prepayment amount ofthe Series 2002 Note due and unpaid
and that portion of the principal or mandatory sinking fund prepayment amount next
due which would have accrued on such Bonds through the end of the then current
calendar month if such principal amounts or mandatory sinking fund prepayment
amounts were deemed to accrue monthly (assuming that a year consists of twelve (12)
equivalent calendar months having thirty (30) days each) in equal amounts from the
next preceding payment due date (or issue date), or, if there be no such preceding
payment due date, from a date one year preceding the due date of such principal
20
amount or mandatory sinking fund prepayment amount. No further deposit need be
made to the Sinking Fund for principal or mandatory sinking fund prepayment amount
when the moneys therein are equal to the principal or mandatory sinking fund
prepayment amount coming due on the Outstanding Bonds on the next succeeding
payment date.
(3) Operation and Maintenance Fund. Moneys in the Revenue Fund shall
next be used each month to deposit in the Operation and Maintenance Fund such sums
as are necessary to pay Operating Expenses for the ensuing month. Amounts in the
Operation and Maintenance Fund shall be paid out from time to time by the Issuer for
Operating Expenses.
(4) Surplus Funds. The balance of any Gross Revenues remaining in said
Revenue Fund may be applied for any lawful purpose, including, but not limited to,
purchase or redemption of the Series 2002 Note, payment of subordinated
indebtedness and improvements, renewals and replacements to the System; provided,
however, that none of such revenues shall ever be used for the purposes provided
herein unless all paYments required in Sections 4. 04(B)(1 ) through 4. 04(B )(3) hereof,
including any deficiencies for prior payments, have been made in full to the date of
such use.
(C) Whenever moneys on deposit in the Sinking Fund are sufficient to fully pay
the Series 2002 Note in accordance with its 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 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 Sinking Fund to purchase or
redeem the portion of the Series 2002 Note coming due on the next 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 payment date on the Bonds not so purchased or redeemed.
SECTION 4.05. PAYMENT OF THE SERIES 2002 NOTE. Except as
otherwise provided in Section 4.11 hereof, the Issuer hereby agrees to pay, solely from
Pledged Revenues, on the dates designated for payment of any principal of or Redemption
Price, if applicable, or interest on the Series 2002 Note, sufficient monies to pay such
principal or Redemption Price, if applicable, or interest. The Issuer shall utilize such monies
for payment of the principal of or Redemption Price and interest on the Series 2002 Note
when due.
21
SECTION 4.06. REBATE ACCOUNT. The Issuer covenants and agrees to
establish a special rebate account if it is determined that the Issuer has any rebate obligations
under the Code. Amounts on deposit in such account, if any, 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 Issuer) and the Series 2002 Noteholder shall have no right to
have the same applied for debt service on the Series 2002 Note. The Issuer agrees to
undertake all actions required of it in its arbitrage certificate related to the Series 2002 Note,
including, but not limited to:
(A) making a determination in accordance with the Code of the amount required
to be deposited in the rebate account;
(B) depositing the amount determined in clause (A) above into the rebate account;
(C) paying on the dates and in the mannerrequired by the Code to the United States
Treasury from the rebate account 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 4.06
as shall be required by the Code, as well as evidence of the fair market value of any
investments purchased with proceeds of the Series 2002 Note.
The provisions of the above-described arbitrage certificate may be amended without
the consent of any Holder from time to time as shall be necessary, in the opinion of Bond
Counsel, to comply with the provisions of the Code.
SECTION 4.07. 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, non- exclusive 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 ofthe 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 term 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.
22
The Issuer shall be authorized to establish any separate accounts within any of the
Funds created herein or subaccounts within any such accounts that the Issuer may determine
is beneficial or desirable in administering the moneys on deposit herein.
SECTION 4.08. INVESTMENTS. Moneys on deposit in the Sinking Fund, the
Operation and Maintenance Fund 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 Sinking Fund, the Operation and Maintenance Fund and the
Revenue Fund may be invested and reinvested in Authorized Investments maturing not later
than the date on which the moneys therein will be needed for the purposes of such fund. All
investments shall be valued at cost. All such investments shall be valued at their fair market
value.
Any and all income received by the Issuer from the investment of moneys in any Fund
shall be retained in such Fund.
Nothing in this Resolution shall prevent any Authorized Investments acquired as
investments of or security for funds held under their Resolution from being issued or held
in book-entry form on the books of the Department of Treasury of the United States.
SECTION 4.09. FEDERAL INCOME TAX COVENANTS. The Issuer
covenants with the Holder of the Series 2002 Note that it shall not use the proceeds of the
Series 2002 Note in any manner which would cause the interest on the Series 2002 Note to
be included in gross income for purposes of federal income taxation.
The Issuer covenants with the Series 2002 Noteholder that neither the Issuer nor any
person under its control or direction will make any use of the proceeds of the Series 2002
Note (or amounts deemed to be proceeds under the Code) in any manner which would cause
the Series 2002 Note to be an "arbitrage bond" within the meaning of Section 148 of the
Code and neither the Issuer nor any other person shall do any act or fail to do any act which
would cause the interest on the Series 2002 Note to be included in gross income for purposes
of federal income taxation.
The Issuer hereby covenants with the Series 2002 Noteholder that it will comply with
all provisions of the Code necessary to maintain the exclusion of interest on the Series 2002
Note from gross income 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.
SECTION 4.10. ANNUAL AUDIT AND BUDGET. The Issuer shall,
immediately after the close of each Fiscal Year, cause the financial statements of the Issuer
23
to be properly audited by a recognized independent certified public accountant or recognized
independent firm of certified public accountants, and shall require such accountants to
complete their report on the annual financial statements in accordance with applicable law.
The annual financial statements shall be prepared in conformity with generally accepted
accounting principles consistently applied. A copy of the audited financial statements for
each fiscal Year shall be furnished to the Series 2002 Noteholder within 210 days after the
end of each Fiscal Year. The Issuer shall also provide the Series 2002 Noteholder each
Fiscal Year with a copy of its annual budget within 60 days after the final adoption of such
budget.
SECTION 4.11. OTHER MONEYS. The Issuer may, in its sole discretion,
utilize other legally available moneys, in addition to the Pledged Revenues, to pay the
principal of and interest on the Series 2002 Note.
SECTION 4.12. ADDITIONAL DEBT. So long as the Series 2002 Note is
outstanding under this Resolution, the Issuer covenants and agrees that it shall not issue any
debt obligations on parity with the Series 2002 Note and payable from the Pledged Revenues
or any portion thereof unless the Net Revenues received by the Issuer during any twelve
consecutive months within the eighteen months immediately preceding the date of sale of
such debt obligations were equal to at least 135% of the Maximum Annual Debt Service
taking into account the proposed debt obligations. The Issuer shall provide the Series 2002
Noteholder with a certification executed by the Clerk or the County Administrator evidencing
compliance with this Section 4.12 prior to the issuance of any such debt obligations.
SECTION 4.13. SYSTEM RATES. The Issuer shall fix, establish and maintain
such rates and collect such fees, rates, assessments or other charges for the product, services
and facilities of its System, and revise the same from time to time, whenever necessary, as
will always provide in each Fiscal Year, Net Revenues adequate at all times to pay in each
Fiscal Year at least one hundred thirty-five percent (135%) of the principal (including any
mandatory sinking fund prepayment amounts) and interest on the Series 2002 Note which
is due in such Fiscal Year. Such rates, fees and other charges shall not be so reduced so as
to be insufficient to provide adequate Net Revenues 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 4.13, it shall engage the Consulting Engineers and cause the Consulting
Engineers to review its rates, fees, charges, income, Gross Revenue, Operating Expenses 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 4.13. The
Issuer shall forthwith commence to implement such recommendations to the extent required
24
so as to cause it to thereafter comply with said requirements. So long as the Issuer
implements such recommendations and the Net Revenues are adequate to pay the principal
(including mandatory sinking fund payments) and interest on the Series 2002 Note it shall
not constitute a Default hereunder.
SECTION 4.14. AUTHORIZATION TO EXECUTE ESCROW DEPOSIT
AGREEMENT. The Issuer hereby authorizes the Mayor to execute and the Clerk to attest
an Escrow Deposit Agreement (the "Escrow Deposit Agreement") and to deliver the Escrow
Deposit Agreement to The Bank ofN ew York Trust Company of Florida, N .A., Jacksonville,
Florida, which is hereby appointed as escrow agent thereunder (the "Escrow Agent"). All
of the provisions of the Escrow Deposit Agreement when executed and delivered by the
Issuer as authorized herein and when duly authorized, executed and delivered by the Escrow
Agent, shall be deemed to be a part of this Resolution as fully and to the same extent as if
incorporated verbatim herein, and the Escrow Deposit Agreement shall be in substantially
the form attached hereto as Exhibit D, with such changes, amendments, modifications,
omissions and additions, including the date of such Escrow Deposit Agreement, as may be
approved by the Mayor. Execution by the Mayor of the Escrow Deposit Agreement shall be
deemed to be conclusive evidence of approval of such changes.
SECTION 4.15. CONSTRUCTION, OPERATION AND MAINTENANCE.
The Issuer will maintain or cause to be maintained the System and all portions thereof in
good condition and will operate or cause to be operated the same in an efficient and
economical manner, making or causing to be made such expenditures for equipment and for
renewals, repairs and replacements as may be proper for the economical operation and
maintenance thereof. The Issuer may contract with a responsible person which has
experience in the operation of solid waste disposal systems similar to the System for the
operation and maintenance of the System.
SECTION 4.16. ENFORCEMENT OF CHARGES. The Issuer shall compel
the prompt payment of rates, fees, assessments and charges imposed for the use of the
services and facilities of the System, and to that end will vigorously enforce all of the
provisions of any ordinance or resolution of the Issuer having to do with charges and control
of the solid waste stream in the Issuer, and all of the rights and remedies permitted the Issuer
under law, including the securing of injunction against the disposition of solid waste into the
System by any premises delinquent in the payment of such charges. The Issuer shall cause
all solid waste special assessments to be placed on the tax roll of the Monroe County Tax
Collector.
25
ARTICLE V
DEFAULTS AND REMEDIES
SECTION 5.01. DEFAULTS DEFINED. The following shall be "Defaults"
under this Resolution and the term "Default" shall mean, whenever it is used in this
Resolution, anyone or more of the following events:
(a) Failure by the Issuer to pay the principal of, Redemption Price, if applicable, and
interest on the Series 2002 Note as the same shall become due and payable.
(b) Failure by the Issuer to observe and perform any covenant, condition or
agreement on its part to be observed or performed, other than as referred to in Section
5.01(a), for a period of thirty (30) days after written notice specifying such failure and
requesting that it be remedied shall have been given to the Issuer by the Series 2002
Noteholder. Notwithstanding the foregoing, the Issuer shall not be deemed in default
hereunder if such default can be cured within a reasonable period of time and if the Issuer
in good faith institutes curative action and diligently pursues such action until the default has
been corrected, provided such period shall not exceed 60 days without the written consent
of the Series 2002 Noteholder.
(c) The dissolution or liquidation of the Issuer, or the initiation by or against the
Issuer of any proceeding under any federal or state law relating to bankruptcy, insolvency,
arrangement, reorganization, readjustment of debt or any other form of debtor relief.
SECTION 5.02. REMEDIES ON DEFAULT. The Holder of the Series 2002
Note issued under the provisions ofthis Resolution 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 performed by the Issuer or by any officer
thereof; provided, however, that the Series 2002 Noteholder shall not have the right to
declare the Series 2002 Note immediately due and payable.
SECTION 5.03. REMEDIES CUMULATIVE. No remedy herein conferred
upon or reserved to the Series 2002 Noteholder 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.
26
SECTION 5.04. WAIVER OF DEFAULT. No delay or omission of the Series
2002 Noteholder to exercise any right or power accruing upon any Default shall impair any
such right or power or shall be construed to be a waiver of any such Default, or an
acquiescence therein; and every power and remedy given by this Section 5.04 hereof to the
Series 2002 Noteholder may be exercised from time to time, and as often as may be deemed
expedient.
[Remainder of page intentionally left blank]
27
ARTICLE VI
SUPPLEMENTAL RESOLUTIONS
SECTION 6.01. SUPPLEMENTAL RESOLUTIONS WITH THE SERIES
2002 NOTEHOLDER CONSENT. The Issuer, from time to time and at any time, may
adopt resolutions amendatory or supplemental hereto (which resolutions shall thereafter form
a part hereof) for any purpose; provided, however, the Issuer must obtain the written consent
of the Series 2002 Noteholder prior to the adoption thereof if any of the rights of the Series
2002 Noteholder will be adversely affected.
[Remainder of page intentionally left blank]
28
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. SERIES 2002 NOTE EVIDENCES A LOAN. The Series 2002
Note issued hereunder evidences a loan made by SunTrust Bank to the Issuer. Through its
acceptance of the Series 2002 Note hereunder, SunTrust Bank acknowledges that it has no
present intent to sell, assign or otherwise transfer the Series 2002 Note; provided, however,
that SunTrust Bank may, in its sole discretion, sell, assign or otherwise transfer the Series
2002 Note prior to its maturity. In the event of such sale, assignment or other transfer ofthe
Series 2002 Note, SunTrust Bank shall comply in all respects with all applicable securities
laws, rules and regulations and blue sky laws and any other applicable laws, rules or
regulations regarding disclosure and registration.
SECTION 7.02. WAIVER OF JURY TRIAL. If any legal action is taken with
respect to the Series 2002 Note or the Issuer's obligations hereunder, or SunTrust's
commitment thereto, or any other transaction related to the Series 2002 Note, the Issuer and
SunTrust Bank hereby waive their rights to jury trial.
SECTION 7.03. GENERAL AUTHORITY. The members of the Board of
County Commissioners of the Issuer and the officers, attorneys and other agents or
employees of the Issuer are hereby authorized to do all acts and things required of them by
this Resolution, or desirable or consistent with the requirements hereof for the full punctual
and complete performance of all the terms, covenants and agreements contained herein or
in the Series 2002 Note, and each member, employee, attorney and officer of the Issuer, the
Mayor, the County Administrator, the County Attorney and the Clerk are hereby authorized
and directed to execute and deliver any and all papers and instruments and to be and cause
to be done any and all acts and things necessary or proper for carrying out the transactions
contemplated hereunder.
SECTION 7.04. SEVERABILITY OF INVALID PROVISIONS. If anyone
or more of the covenants, agreements or provisions of this Resolution shall be held contrary
to any express provision oflaw 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 Series 2002 Note issued hereunder.
29
SECTION 7.05. REPEAL OF INCONSISTENT RESOLUTIONS. All
resolutions or parts thereof in conflict herewith are hereby superseded and repealed to the
extent of such conflict.
SECTION 7.06. 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 the Board, on this 18th day of December, 2002.
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30
EXHIBIT A
DISCLOSURE LETTER
AND
TRUTH-IN-BONDING STATEMENT
SUNTRUST BANK
DISCLOSURE LETTER
AND
TRUTH-IN-BONDING STATEMENT
December 18, 2002
Board of County Commissioners of
Monroe County, Florida
Key West, Florida
Commissioners:
In connection with the purchas~ of the $4,143,945.49 aggregate principal amount of the
Monroe County, Florida Solid Waste Disposal System Refunding Revenue Note, Series 2002 (the
"Series 2002 Note") authorized to be issued by a resolution of Monroe County, Florida (the "Issuer")
adopted on the date hereof (the "ReSolution"), the undersigned purchaser of the Series 2002 Note
(the "Original Purchaser"), hereby acknowledges and represents that (1) the Original Purchaser is
famlliar with the Issuer; (2) the Original Purchaser has been furnished certain business and fmancial
information about the Issuer; (3) the Issuer has made available to the Original Purchaser the
opportunity to ()btaih additional information and to evaluate the merits and risks of an investment
in the Series 2002 Note; and (4 ) the Original Purchaser has had the opportunity to ask questions of
and receive answeI'$ from representatives of the Issuer concerning the terms and conditions of the
offering and the information supplied to the Original Purchaser.
The Original Purchaser ackn()wledges and represents that it has been advised that the Series
2002 Note has not been registered under the Securities Act of 1933, as amended, in reliance upon
the exemption contained in :Section 3(a)(2) thereof, and that the Issuer is not presently registered
under Section 12 of the SecQrlties ~d Exchange Act of 1934, as amended. The Original Purchaser,
therefore, realizes that if and when the Original Purchaser wishes to resell the Series 2002 Note there
may not be available current bUsiness and fmancial infonnation about the Issuer. Further, no trading
market now exists for the Series 2002 Note. Accordingly, the Original Purchaser understands that
it may need to bear the.risks of this investment for an indefinite time, since any sale prior to the
. maturity of the Series 2002 Note may notbe possible or may be at a price below that which the
Original Purchaser is paying for the Series 2002 Note.
It is understood that the Original Purchaser has undertaken to verify the accuracy,
completeness and truth of any statements made concerning any of the material facts relating to this
EXHIBIT A
DISCLOSURE LETTER
AND
TRUTH-IN-BONDING STATEMENT
transaction, including information regarding the business and financial condition of the Issuer. The
Original Purchaser has conducted its own investigation to the extent it deemed necessary. The
Original Purchaser has been offered an opportunity to have made available to it any and all such
information it might request from the Issuer. On this basis, it is agreed by acknowledgment of this
letter that the Original Purchaser hereto is not relying on any other party or person to undertake the
furnishing or verification of information relating to this transaction.
The Original Purchaser acknowledges that the Series 2002 Note is being purchased as part
of a private placement of the Series 2002 Note negotiated directly between the Issuer and
representatives of the undersigned. Accordingly, no Official Statement or other disclosure document
has been prep3red in connection with the issuance of the Series 2002 Note and we hereby
acknowledge that we have made our own indepelldent examination of all facts and circumstances
sun-aunding the Series 2002 Note and the. financing and that no reliance has been placed on any
findings by the Issuet;'in the Resol~tion as to the ability of the Issuer to meet its payment obligations
so as to meet debt service on the Series 2002 Note or any other representations by anyone other than
the Issuer.
The Original Purchaser is purchasing the Series 2002 Note for investment purposes only and
not with any present intent to distribute or resell the Series 2002 Note. The Original Purchaser
hereby covenants that any Stich distribution or resale shall comply in all respects with the applicable
securities laws.
The Original Purchaser further acknowledges and represents that (1) it is the only initial
purchaser of the Series 2002 Note, (2) it has such knowledge and experience in financial and
business matters that it is capable of evaluating the merits and risks of the Series 2002 Note, and (3)
it is not pu.r<:hasing the Series.2002 Note for more than one account or with a view to distributing
the Series 2002 Note. The Origjnal Purchaser acknowledges that the representations contained in
this paragraph are being made in ord.er to meetone of the exceptions to the continuing disclosure
requirements Set forth in Rule ISc2-12 promulgated under the Securities Exchange Act of 1934.
Pursuant to the provisions of Section 218.385, Florida Statutes, as amended, the Original
Purchaser is providing the following infOrmation with respect to the purchase of the Series 2002
Note. The Original Purchaser represents to you as follows:
(a) The nature and estimated amounts of expenses to be incurred and paid by the
Original Purchaser in connection with the issuance and sale of the Series 2002 Note
is: None.
(b) There are no "fmders," as defined in Section 218.3 86, Florida Statutes, as amended,
in connection with the issuance of the Series 2002 Note.
(c) No discount or fee is expected to be realized by the Original Purchaser in connection
with the issuance of the Series 2002 Note.
2
(d) No management fee will be charged by the Original Purchaser in connection with the
issuance of the Series 2002 Note.
(e) No other fee, bonus or other compensation will be paid by the Original Purchaser in
connection with the issWince of the Series 2002 Note to any person not regularly
employed or retained by the Original Purchaser (including a "finder" as defmed in
Section 218.386, Florida Statutes).
(t) The name and address of the Original Purchaser is:
SunTrust Bank
777 Brickell Avenue, 4th Floor
Miami, Florida 33131
(g) The Issuer is proposing to issue the $4,143,945049 Series 2002 Note for the principal
purpose of refunding the Refunded Bonds (as defined in the Resolution). The Series
- . 2002Note i~ expected to be repaid over a period of approximately 8.75 years. At an
annual rate of 3 Al %, total interest paid over the life of the Series 2002 Note will be
approximately $719,911.07. The expected source of repayment for the Series 2002
Note is certain Pledged Revenues (as such term is defined in the Resolution) of the
' ISSUer. Authorizing the Series 2002 Note will result in an average of approximately
$555,869.32 of such revenues of theIs suer being expended to pay debt service on the
Series 2002 Note each year and such amount will not be available to pay for other
services of the Issuer.
Very truly yours,
SUNTRUST BANK
By:
Authorized Signatory
3
EXHIBIT B
REQUEST FOR COMMITMENT
MONROE COUNTY, FLORIDA
REQUEST FOR COMMcrTMENT
FORA
TAX-EXEMPT, TERM NOTEILOAN
Issue Date: November 21, 2002
Due Date: December 5, 2002
Public Financial Management, Inc.
10100 Deer Run Farms Road
Ft.Myers,~ 33912
239-939-3009
239-939-1220
TABLE OF CONTENTS
Page
I. Introduction
A. Obj ectives,_ ___________ ... ._______ _ __ __ ___ ____.____ _ __ __ _____ __ ___ _________ __________ .____ __ __ _ ________ ...._______ _. _.1
B. Bidding Instructions
1. Sealed Bids ............ _________ ___ ______________. ..__..........._.........___ _____ __....____________.____.. ..1
2. Bid Response.. _. _.___ __. _. __ _ _ _ __ _ _. _ _. __ _ _ _. _.... _.......... ......... _.. _ _ _ _ _ _ _... _._. _ _ _ _ _.... _ _.. __ _ _... ,2
3. Questions, Additionallnformation.____...._...___...m__....______.. ......_________....__.....2
4 . Tentative Schedule... _____ ___._____._._.._.._.._.__.___...__.__.___...m_____.m_...__________.._ ._....2
C. Security for N otelLoan. _ _. __ ___. ___ __ _ ____... __............... ..... __._ _ __ _ __..... ____ _ _ ____ ___..... _ _ _......3
D. Structure of the Financing..........___...._...._________....___..____..... ..______...__........___...... ..3
E. Qualified T ax -Exempt Obligation....... '''m__ ______________________ _......______________....__ __...3
F. Provisos........ __... __ __ _ _ __ _ _ _ __ _.. _ _ _. _ _ .__.. _................ ._.. _. __....._......_ _ _ __. _ _. ........... _. _ _. _ _. _._.. ,3
n. Evaluation of Responses - Criteria.............m...________________________.....m...__.___________..___.4
ill. Instructions to OfIerors.________ ________ __...___.......__._.______._____.._____._____.. .....__.____._..___.....____.5
N. Other Information.. _ __................ ...... .... _ _ __ __.............. _.... _ _. _ _...... __. _......._.. __ _ _ _ _.. _ _ __... __ _ _.6
Exhibit A Schedule of Project Cost Estimates & Note/Loan Size Estimate
Exhibit B Public Entity Crimes Form
REQUEST FOR COMMITMENT
TERM NOTE/LOAN
MONROE COUNTY, FLORIDA
I. Introduction
A. Objectives
The objective of this Request for Commitment (the "RFC") is to identify the institution
that can provide Monroe County, Florida ("County") with a bank-qualified, tax-exempt,
fixed-rate Note/Loan (the "NoteJLoan") as follows:
· Refund maturities 2003 through 2011 of the outstanding $5,660,000 Municipal
Service District Refunding Improvement Bonds, Series 1991 ("Series 1991 Bonds")
with closing after January 1, 2002.
· The Series 1991 Bonds maturing on or after October 1, 2000 are subject to
redemption at the option of the District, on or after October 1, 1999, in whole on
any date or in part on any interest payment date, selected as directed by the District,
at the following redemption prices expressed as a percentage of the principal
amount of the Series 1991 Bonds to be redeemed, plus accrued interest to the
redemption date:
Redemption Period
Redemption Price
October 1, 1999 through September 30, 2000
October 1,2000 through September 30,2001
October 1,2001 and thereafter
102%
101%
100%
· The note and the interest hereon will be secured by and payable from a lien upon the
payments received from franchisee solid waste collectors with respect to
commercial property within the area of the District; all other non ad-valorem funds
received by the District with respect to the furnishing of the services of the Facilities
to the residents of the District, excluding any state or federal funds received from
time to time by the District; and any income derived from the investment of funds
and accounts created and established by the Bond Resolution.
B. Bidding Instructions
1. Sealed Bids
One copy of the response to this RFC should be submitted on or before 2:00 P.M.
on December 5, 2002 per the following instructions:
Kyrle L. Turton
Consultant
Public Financial Management, Inc.
1
""
10100 Deer Run Farms Rd. #201
Fort Myers, FL 33912
(239) 939-3009
(one copy)
Jim Roberts
County Administrator
Monroe County
5100 College Road
County Administrator
Public Service Bldg., Wing IT
Key West, FL 33040
(305) 292-4441
The County reserves the right to reject any and all responses, to waive any
informalities or irregularities in any responses received and to readvertise or take
any other such actions that may be deemed to be in the best interest of the County.
2. Bid Response
Each bid should address all pertinent areas and be specific. Any conditions should
be clearly stated.
The failure to disclose substantive terms, conditions and covenants may be
considered cause for the offeror's response to be rejected by the County. In
addition, any responses that are subject to credit review and approval may be
considered cause for the offeror's responSe to be rejected by the County.
3. Questions, Additional Information
Offerors, their agents and/or associates shall refrain from contacting or soliciting
any member of the County Commission, County staff or the County's Financing
Team regarding this RFC during the selection process. Failure to comply with this
provision may result in the disqualification of the offeror. All requests for
clarifications or additional information should be directed to Public Financial
Management, Inc., the County's Financial Advisor:
Public Financial Management, Inc.
10100 Deer Run Farms Road, Suite 201
Fort Myers, FL 33912
(239) 939-3009 Phone
(239) 939-1220 Fax
turtonk<lilpublicfin.com
The Financial Advisor may choose, at its sole discretion, to redirect such requests
to other members of the County's Financing Team. However, all initial requests
2
should be directed to the Financial Advisor. All documents needed for credit
review should be requested immediately.
4. Tentative Schedule
The County will attempt to adhere to the following schedule:
November 21, 2002
RFC Issued
December 5,2002
Written responses due prior to 2:00 P.M.
December 9, 2002
Analysis of Responses to County
December 18, 2002
County approval of Provider
January 16,2002
Closing on NotelLoan
The County reserves the right to alter scheduled dates if necessary.
c. Security for NotelLoan
Amounts due under the NotelLoan will be payable as outlined in Section I A.
D. Structure of the Financing
The following describes the County's requirements in establishing the Note/Loan:
1. Amount: As outlined in Section I A.
2. Rate: Fixed, tax-exempt rate on a bank-qualified basis. The rate quoted may not
exceed the maximum rate permitted under Florida Statute 215.84 applicable at the
time of sale.
3. Repayment Provisions: Principal will be paid annually and interest payments on the
outstanding principal balance of the Note/Loan will be calculated on a 30/360-day
basis and will be paid semi-annually.
4. Prepayment Provisions: The NotelLoan is subject to prepayment with no penalty
in whole or in part at any time following five (5) business days notice by the
County.
If the proposer is unable to adhere to the above structure, please identify the
structure or minimum conditions or prepayment requirements of the proposer for
bidding on the Note/Loan.
3
E. Qualified Tax-Exempt Obligation
The County will attempt to take such actions as may be required by Treasury regulations
In
order to maintain the status of the NotelLoan as a "qualified" tax-exempt obligation
according to the Internal Revenue Code.
F. Other Provisions
The County will not accept responses with reserve requirements or requirements to
maintain minimum balances in any bank account as a condition for the NotelLoan.
Gross Up
The bidder may include in its bid provisions increasing the interest rate on the NotelLoan
if they become taxable. The County will not consider bids that adjust the interest rate on
the NotelLoan based on changes in the maximum corporate tax rate or the preference
reduction rate.
Additional NoteILoan (Additional Paritv Debt)
The County will covenant in the resolution authorizing the issuance of the Note not to
issue additional debt on a parity with the Note unless after issuance of the debt the
County will have a debt service coverage ratio of at least 1.10 to 1, based on any twelve
consecutive months within the eighteen months immediately preceding the date of sales
of parity bonds.
Late Payment
The bidder may include in its bid a "late payment rate" to apply if payments are not made
when due. Such a late payment rate may take effect no earlier than ten (10) days after the
date payment is due. There shall be no other fees or penalties imposed for late payment.
No late payment rate will be included in the bond documents unless it is specified in the
bid.
II. EVALUATION OF COMMITMENTS - CRITERIA
Proposals will be evaluated on the basis of cost and compliance with the proposed structure
and terms of the NotelLoan as outlined in this RFC.
A. Proposal Format
In order to assist the County in reviewing proposals, each proposal shall be prepared
utilizing the following format and headings:
1. Contact Information - State the legal name of the financial institution or firm,
current principal business address, contact person, telephone and facsimile
numbers.
4
2. Interest Rate - State the fixed rates being proposed for the above identified
structure as follows:
a. Such rates must be expressed as a function of the LIB OR-based U.S. Dollar
Swap Offering Rate. The final interest rate will be set no later than three (3)
business days prior to the closing date for the NotelLoan.
b. Provide a preliminary debt service schedule.
c. Interest will be payable as discussed under Section D., "Structure of the
Financing" above.
3. Fees and Expenses - Describe in detail all fees and expenses that the County will
be responsible to pay for each transaction. The amounts stated in the proposal shall
represent the maximum amounts payable to the offeror by the County. All fees and
expenses in excess of those stated in the response shall be the sole responsibility of
the offeror and will not be paid or reimbursed by the County. The County has
determined that bond counsel will prepare documents. Please include your fees for
bank counsel review only. Please state fees based upon both scenarios.
4. Covenants and Conditions - Provide a listing of all conditions, terms or
restrictions, other than those already specified in this RFC, which would be
included in your commitment to provide each Loan.
III. INSTRUCTIONS TO OFFERORS
A. Offerors shall thoroughly examine and be familiar with the bid specifications. Failure
of any offeror to receive or examine this document shall in no way relieve any offeror
of obligations pertaining to this bid or the subsequent contract.
B. Any changes or modifications to the bid specifications can result in the rejection of the
bid as not being responsive to this RFC.
C. Any responses that are subject to credit review or approval of the bank may be
considered cause for the offeror's response to be rejected by the County. All responses
submitted should be commitments to lend.
D. The responsibility for delivering the proposal to the County on or before the specified
date and time will be solely and strictly the responsibility of the offeror. The County
will in no way be responsible for delays caused by the United States Post Office or a
delay caused by any other occurrence.
E. The response deadline shall be strictly observed. Under no circumstances will a
proposal delivered after the time specified be considered. Such responses will be
returned to the offeror unopened.
5
F. Offerors will not be allowed to withdraw or modify their bids for a period of sixty (60)
days after the opening time and date.
G. The County reserves the right to reject the bid of any offeror who has previously failed
in the proper performance of a contract or to deliver on time other contracts similar in
nature, or who is not in a position to perform properly under this contract.
H. Federal, state and local laws, ordinances, rules and regulations that in any manner affect
the items covered herein apply. Lack of knowledge by the offeror will in no way be a
cause for relief from responsibility.
1. No successful offeror may assign any portion of the contractual agreement between the
parties without prior written authorization by the County.
J. Changes to the RFC may be made by and at the sole discretion of the County.
K. Public Entity Crimes Form - Each offeror shall complete the Public Entity Crimes Form
(Exhibit B) and shall submit the same with the proposal. The County considers the
failure of the offeror to submit this document to be a major irregularity and may be
cause for rejection ofthe proposal.
L. Warranties - The offeror, in submission of its proposal, warrants to the County that it
will comply with all applicable federal, state and local laws, regulations and orders in
providing the services under the proposed documents.
IV. OTHER INFORMATION
A. The award will be made to the institution whose response complies with all of the
requirements set forth in this RFC and whose bid, in the sole opinion of the County, is
best, considering all aspects of the offeror's response.
B. In the event that the successful offeror does not execute a contract within a time frame
acceptable to the County, the County may give notice of intent to award the bid to the
next most qualified offeror or to call for new bids and may proceed to act accordingly.
6
EXHIBIT C
BID PROPOSAL
December 3, 2002
James L. Roberts, County Administrator
Monroe County
1100 Simonton Street
Suite 2-205
Key West, Florida 33040
RE: A) $5,660,000 tax-exempt bank-qualified Bond
B) $3,405,000 tax-exempt bank-qualified Bond
Dear Mr. Roberts:
SunTrust Bank (hereinafter referred to as the "Bank") is pleased to infonn you that it has approved
. and hereby extends to Monroe County its. commitment under the following tenns and conditions,
and such additional terms and conditions as may be reasonably required heretofore.
1. BORROWER:
Monroe County (hereinafter referred to as the "Borrower").
2. FACILITY:
A) Up to a $5,660,000.00 tax-exempt bank-qualified Bond (hereinafterreferred to
as the "Bond").
B) Up to a $3,405,000.00 tax-exempt bank-qualified Bond (hereinafter referred to
as the "Bond").
3. PURPOSE:
A) To refund the Municipal Service District Refunding Improvement Bonds,
Series 1991.
B) To refund the Guaranteed Entitlement Revenue Bonds, Series 1993.
4. COLLATERAL:
A) The The Note shall be fully secured by and payable from a lien upon the
payments received from franchisee solid waste collectors with respect to
commercial property with the area of the District; all other non ad-valorem
funds received by the District with respect to the furnishing of the services of
the Facilities to the residents of the District, excluding any state or federal
funds received from time to time by the District; and any income derived from
the investment of funds and accounts created and establizhed by the Bond
Resolution (hereinafter referred to as the "Pledged Revenue".)
B) The Note shall be fully secured by a lien upon the Borrower's gross collections
of the Guaranteed entitlement and second guaranteed entitlement portion of the
revenue sharing trust funds of the State of Florida, as defined in and as
distributable to the County, under the provisions of Chapter 218, Part II, and
Florida Statutes. (hereinafter referred to as the "Pledged Revenue".)
,
5. MATURITY:
A) The Bond will mature on 10/1/2011.
B) The Bond will mature on 121112008.
6. REPAYMENT:
Interest shall be due semi-annually and principal shall be due annually. All
payments by the Borrower shall be made by the due date by no later than 2:00 p.m.
to the Bank in immediately available funds, free and clear of any defenses, set-offs,
counterclaims; or withholdings or deductions for taxes. Payments received more
than 10 days past the due date shall be assessed a 5% late payment fee.
There shall be no prepayment penalty. The Borrower shall provide a minimum of5
business days notice of its intent to prepay the Bond in whole or in part.
7. FEE(S) AND EXPENSES:
The Borrower shall be required to pay the Bank's attorney fees for review of all
legal documents, which shall be capped at $5,000.00, based upon Borrower's
counsel preparing the documentation.
8. INTEREST RATE:
A) The Bond shall bear a tax-exempt bank qualified rate fixed for the term of
the Bond. Said fixed rate shall be set 3 business days prior to the date of
closing and it shall be equal to {the 10 year federal reserve h.15 statistical
release rate for fixed rate payers and interest rate swaps, "the index rate",
phIS 85 basis points} divided by 1.5054. (As of 12/02/02, this rate was
3.690A..) The index rate can be found at the following website:
http://federalreserve.gov/teleaseslhI5/current. Interest at the foregoing rate
will be computed on the basis of a 30/360-day year.
B) The Bond shall bear a tax-exempt bank qualified rate fixed for the term of
the Bond. Said fixed rate shall be set 3 business days prior to the date of
closing and it shall be equal to {the 7 year federal reserve h.15 statistical
release 'rate for fixed rate payers and interest rate swaps, "the index rate",
plus 70 basis points}., (As of 12/02/02, this rate was 3.29%.) The index rate
can be found at the following website:
http://federalreserve.gov/releasesIh15/current. Interest at the foregoing rate
will be computed on the basis of a 30/360-day year.
9. DOCUMENTATION:
At or prior to closing, the Bank shall have received all documents that are typical
for transactions of this nature.
10. FINANCIAL REPORTING REQUIREMENTS:
2
The Borrower shall submit audited financial statements and an operating budget
for all funds, as ratified by the County Commission, to the Bank not less than
annually.
11. COVENANTS & CONDITIONS:
Funding of the Bond is contingent upon a satisfactorily legal opinion as to the
Borrower's tax-exempt status and authority under its Charter to borrow money, as
well to the fact that the Bond constitutes bank-qualified status. The legal opinion
and the authority to borrow money must be acceptable to the Bank in form,
manner, tenure and purpose.
There shall be no material adverse change in the Borrower's financial condition
prior to closing.
12. DEBT SERVICE COVERAGE TEST:
A) Gross revenues of the .municipal service district-waste enterprise funds less
expenses priQr to transfers (excluding depreciation & amortization, interest
expel)se and non cash expenses) shall provide a 135% coverage of the annual
interest & principal requirement of the Bond. Any additional debt secured by
.the Pledged Revenues must meet a 135% coverage ratio. The Borrower shall
covenant to maintain charged rates at a sufficient level to be able to meet the
debt service coverage
B) Gross collections of the Pledged Revenues must provide a 105% coverage of
the ~ual interest & principal requirement of the Bond. Any additional debt
secwed br the Pledged Revenues must meet a 105% coverage ratio for the
highest annual debt service requirement to be incurred.
13. . ATTORNEY'S FEE-AND COSTS IN THE EVENT BOND DOES NOT CLOSE:
Boqower agrees that should this transaction fail to close for any reason, the Bond
counsel shall be entitled to be reimbursed for any of their out-of-pocket costs and
to be paid a reasonable fee for its services through the expiration date of this
Commitment, and Borrower understands that such fee shall be paid by Borrower
immediately upon receipt of a statement.
14. INTEREST RATE ADJUSTMENT:
If the Bond is issued at a tax exempt rate but later the interest on the Bond becomes
taxable for any reason, then the Bond will bear interest from the earliest effective
date as of which interest payable on the Bond is includable in the gross income of
the Bank at a (ate Per annum equal to the interest rate on this Bond times [1.54]
[multiplier ifnon bank qualified] (the "Taxable Rate").
15. ARBIRTRAGE REPONSIBLILITY:
The Borrower shall assume whatever responsibility and take whatever action is
necessary to assure that the Bond will not constitute an "arbitrage bond" under the
provision of Section 148 of the Code. Additionally, the Borrower shall covenant to
comply with any and all rebate requirements contained in Section 148 of the Code.
3
16. INTEREST RATE LIMITATION:
The Borrower shall be responsible for ensuring that the Bond complies with the
provisions of Section 215.84, Florida Statutes, relating to maximum rate ofinterest
including, but not limited to, the filing of a request with the State Board of
Administration for authorization of the interest rate provided herein, if such
interest rate is in excess of the maximum rate.
17. REPRESENTATIONS:
The Borrower warrants and represents that to the best of its knowledge all the
docum.entS and/or inf()rmation provided to the Bank prior to the date hereof are
true. and co~ and.further acknowledges that the issuance of this Commitment
Letter by the J3ank is in reliance upon the accuracy and truth of said documents
and/or information. Further, the Borrower warrants and represents that all material
information known to the Borrower has been disclosed to the Bank and the
Borrower acknowledges that the Bank has relied upon this representation in the
issuance of this Commitment Letter.
18. COMPLIANCE:
This Commitment shall comply with the- regulations of the Comptroller of the
Currency and the regulatory agencies governing the Bank.
19~ WAIVER OF TRIAL BY JURY:
JF ANY LEGAL ACTION IS TAKEN WITH RESPECT TO THIS
~OMMITMENT OR THE NOTE DOCUMENTS, OR ANY
TRANS,ACTlO~.. DESCRIBED IN. THIS COMMITMENT, THE
BORROWER ANi> BANK WAIVE THEIR RIGHTS TO TRIAL BY JURY.
4
20. ACCEPTANCE:
This Commitment shall be considered null and void unless the Borrower shall
acknowledge acceptance hereof by signing and returning this letter on or before
December 20, 2002.
On behalf of Sun Trust Bank it is our pleasure to extend this credit to you and we look forward to
establishing a mutually beneficial relationship. If you have any questions, please give me a call at
(305) 579-7014, otherwise execute the commitment letter where indicated below.
Sincerely,
Kimrey Newlin
First Vice President
Institutional & Governmental Banking
ACCEPTANCE: The terms and conditions of this Commitment are hereby accepted.
Dated:
Monroe County
By:
As its:
;;.- .-
By:
As its:
5
EXHIBIT D
FORM OF ESCROW DEPOSIT AGREEMENT
ESCROW DEPOSIT AGREEMENT
ESCROW DEPOSIT AGREEMENT, dated as of December 19,2002, by and
between MONROE COUNTY, FLORIDA (the "County"), and THE BANK OF NEW
YORK TRUSTCOMP ANY OF FLORIDA, N.A. (the "Escrow Agent"), a national
banking association organized and existing under the laws of the United States of America,
having its designated corporate trust office in Jacksonville, Florida, as escrow agent
hereunder.
WHEREAS, there has heretofore been issued the Monroe County Municipal Service
District Refunding Improvement Bonds, Series 1991 (the "Series 1991 Bonds")pursuantto
Resolution No. 061-1991 adopted on March 12, 1991, as amended and supplemented (the
"Refunded Bonds Resolution"); and
WHEREAS, the County has determined to exercise the option under the Refunded
Bonds Resolution to current refundall of the Senes 1991 Bonds (the "Refunded Bonds");
and
WHEREAS, the County has determined to issue its $4,143,945.49 Monroe County,
Florida Solid Waste Disposal System Refunding Revenue Note, Series 2002 (the "Series
2002 Note") pursuant to a resolution adopted on December 18,. 2002, a portion of the
. proceeds of which Series 2002 Bonqs will be used to purchase certain United States Treasury
obligations in order to provide payment for th,e Refunded Bonds and discharge and satisfy
the pledges, liens 'and other obligations under the Refunded Bonds Resolution in regard to
such Refunded Bonds; and
WHEREAS, the issuance of the Series 2002 Bonds, the purchase by the Escrow
Ageiltof the hereinafter defined Escrow Securities, the deposit of such Escrow Securities
into an 'escrow deposit trust fund to. be held by the Escrow Agent and the discharge and
satisfaction of the pledges, liens and other obligations under the Refunded Bonds Resolution
in regard to the Refunded Bonds shall occur as a simultaneous transaction; and
WHEREAS, this Agreement is intended to effectuate such simultaneous transaction;
NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants
hereinafter set forth, the parties hereto agree as follows:
SECTION 1. PREAMBLES. The County represents that the recitals stated
above are true and correct, and the same are incorporated herein.
SECTION 2. RECEIPT OF REFUNDED BONDS RESOLUTION. Receipt
of a Uu!le and correct copy of the above-mentioned Refunded Bonds ,Resolution and this
Agreemmt is hereby acknowledged by the Escrow Agent. The applicable and necessary
provisions of the Refunded Bonds Resolution, including, without limitation, Section 2.09 and
Section 6.05 thereof, are incorporated herein by reference. Reference herein to or citation
herein of any provisions of the Refunded Bonds Resolution shall be deemed to incorporate
the same as a part hereof in the same manner and with the same effect as if the same were
fully set farth herein.
SECTION 3. DISCHARGE OF PLEDGE OF HOLDERS OF REFUNDED
BONDS. In accordance with Section 6.05 of the Refunded Bonds Resolution, the County
by thiswiting exercises the option to cause the pledge of and lien on the Pledged Funds (as
defined in the Refunded Bonds Resolution) in favor of the holders of the Refunded Bonds
to no kmgar be in effect.
SEC110N 4. ESTABLISHMENT OF ESCROW FUND. There is hereby
createdaod established with the Escrow Agent a special, segregated and irrevocable escrow
deposit Bust . fund designated the "Monroe County Municipal Service District Refunding
Improvanent Bonds, Series 1991 Escrow Deposit Trust Fund" (the "Escrow Fund"). The
Escrow Fund shall be held in the custody of the Escrow Agent as a trust fund for the benefit
. of the holders of the Refunded Bonds, separate and apart from other funds and accounts of
the CoDDly and the Escrow Agent. The Escrow Agent hereby accepts the Escrow Fund and
acknowledges the receipt of and deposit to the credit of the Escrow Fund the sum of
$4,110,-145.49 from the County from proceeds of the Series 2002 Note (the "Note
Proceeils*), and the sum of$1 ,666~ 192.00 received from the County from certain moneys on
depositin the funds and accounts established pursuant to the Refunded Bonds Resolution for
the bendit of the holders of the Refunded Bonds (the "County Moneys").
SECfION 5. . DEPOSIT OF MONEYS AND SECURITIES IN ESCROW
FUND. The County hereby directs and the Escrow Agent represents and acknowledges that,
concllllmtly with the deposit of the Note Proceeds and County Moneys under Section 4
above, it has used all of the Note Proceeds and $1,666,190.51 of the County Moneys to
purchaseon behalf of and for the acco~t of the County certain open market, non-callable
United States Treasury obligations (collectively, together with any other securities which may
be on dqJosit, from time to time, in the Escrow Fund, the "Escrow Securities"), which are
descnl>ed in Schedule A hereto, and the Escrow Agent will deposit such Escrow Securities
and $1.49 in cash (the "Cash Deposit") in the Escrow Fund. All Escrow Securities shall be
noncallable, direct obligations of the United States of America.
2
In the event any of the Escrow Securities described in Schedule A hereto are not
available for delivery on December19, 2002, the Escrow Agent may, at the written direction
of the County and with the approval of Bond Counsel, substitute other United States Treasury
obligations and shall credit such other obligations to the Escrow Fund and hold such
obligations until the aforementioned Escrow Securities have been delivered. The Escrow
Agent shall in no manner be responsible or liable for failure or delay of Bond Counselor the
County to promptly approve the substitutions of other United States Treasury obligations for
the Escrow Fund.
SECTION 6. SUFFICIENCY OF ESCROW SECURITIES AND THE
CASH DEPOSIT~ The County represents that the Cash Deposit and the interest on and the
principal amounts successively maturing on the Escrow Securities in accordance with their
terms (without consideration of any re~vestment of such maturing principal and interest) are
. sufficient such that moneys will be av&ilable to the Escrow Agent in amounts sufficient and
at the times required to pay the @Il1ounts of principal of, redemption premium, if any, and
interest due and to become due on the Refunded Bonds as described in Schedule B attached
. .
hereto. If the Escrow Securities and the Cash Deposit shall be insufficient to make such
paYments, the CQunty shalltimely deposit to the Escrow Fund, solely from legally available
funds of the County, such additional amounts as may be required to pay the Refunded Bonds
as described in Schedule B hereto. Notice of any insufficiency shall be given by the Escrow
Agent to the County as promptly as possible, but the Escrow Agent shall in no manner be
responsible for the County's failure to make such deposits.
SECTION 7. E~QROW SF;CURlTIES AND THE CASH DEPOSIT IN
TRUST FOR HOLDERSOFREFt1NDED BONDS. The deposit of the Escrow Securities
and the Cash Deposit in the Escrow Fund shall constitute an irrevocable deposit of Federal
Securities (as. defined in the Refunded Bonds Resolution) and cash in trust solely for the
paYment of the principal of, redemption premium, if any, and interest on the Refunded Bonds
at such tImes and in such amounts as set forth in Schedule B hereto, and the principal of and
interest earnings 00 such Escrow Securities and the Cash Deposit shall be used solely for
such purpose.
SECTION 8. ESCROW AGENT TO PAY REFUNDED BONDS FROM
ESCROW FUND. Th~ County hereby directs, and the Escrow Agent hereby agrees, that
it will take all actions required to be taken by it under the provisions of the Refunded Bonds
Resolution referenced in tltis Agreement, including the timely transfer of money to the
Paying Agent for the Refunded Bonds (The Bank of New York) as provided in the Refunded
Bonds Resolution, in order to effectuate this Agreement and to pay the Refunded Bonds in
the amounts and at the times ptovided in Schedule B hereto. The Escrow Securities and the
Cash Deposit shall be used to pay the principal of, redemption premium, if any, and interest
3
on the Refunded Bonds as the same may mature or be redeemed. If any paYment date shall
be a day on which either the Paying Agent for the Refunded Bonds or the Escrow Agent is
not open for the acceptance or delivery of funds, then the Escrow Agent may make paYment
on the next business day. The liability of the Escrow Agent for the payment of the principal
of, redemption premium, if any, and interest on the Refunded Bonds pursuant to this
Agreement shall be limited to the application of the Escrow Securities and the Cash Deposit
and the interest earnings thereon available for such purposes in the Escrow Fund.
SECTION 9. REINVESTMENT OF MONEYS AND SECURITIES IN
ESCROW FUND. Moneys deposited in the Escrow Fund shall be invested only in the
Escrow Securities listed in Schedule A hereto and the Cash Deposit and, except as provided
in Section 5 hereof and this Section 9, neither the County nor the Escrow Agent shall
otherwise invest or reinvest any moneys in the Escrow Fund.
Except as provided in Section 5 hereof and in this Section 9, the Escrow Agent may
not sell or otherwise dispose of any or all of the Escrow Securities or the Cash Deposit in the
Escrow Fund and. reinvest the proceeds thereof in other securities nor may it substitute
securities for any of the Escrow Securities, except upon written direction of the County and
where, prior to any such reinvestment or substitution, the Escrow Agent has received from
the County the following:
(a) a written verification report by a fmn of independent certified public
accountants, ,of recognized standing, appointed by the County and acceptable
to the Escrow Agent, to the effect that after such reinvestment or substitution
the principal amount of Escrow Securities, together with the interest therein,
. will be sufficient to pay the Refunded Bonds as described in Schedule B hereto
(such verification shall not be necessary in the event the County shall
determine to reinvest cash in Escrow Securities which mature on or before the
next principalandlor interest paYment date for the Refunded Bonds and which
have a face amount which is at least equal to the cash amount invested in such
Escrow Securities); and
(b) a written opinion of nationally recognized Bond Counsel to the effect that (i)
such investment will not cause the Series 2002 Bonds or the Refunded Bonds
to be "arbitrage bonds" within the meaning of Section 148 of the Internal
Revenue Code, as amended, and the regulations promulgated thereunder or
otherwise cause the interest on the Refunded Bonds or the Series 2002 Note
to be included as gross income for purposes offederal income taxation, and (ii)
such investment does not violate any provision of Florida law or of the
Refunded Bonds Resolution.
4
The above-described verification report need not be provided in the event the County
purchases Escrow Securities with the proceeds of maturing Escrow Securities and such
purchased Escrow Securities mature on or before the next interest paYment date for the
Refunded Bonds and have a face amount which is at least equal to the cash amount invested
in such Escrow Securities.
In the event the above-referenced verification concludes that there are surplus moneys
in the Escrow Fund, such surplus moneys shall be released to the County upon its written
direction. The Escrow Fund shall continue in effect until the date upon which the Escrow
Agent makes the fmal paYment to the Paying Agent for the Refunded Bonds in an amount
sufficient to pay the Refunded Bonds as described in Schedule B hereto, whereupon the
Escrow Agent shall sell or redeem any Escrow Securities remaining in the Escrow Fund, and
shall remit to the County the proceeds thereof, together with all other money, if any, then
remaining in the Escrow Fund.
SECTION 10. REDEMPTION OF CERTAIN REFUNDED BONDS. The
COmity hereby irrevocably instructs the Escrow Agent to direct, on behalf of the Issuer, that
. the Registrar and Paying Agent for the Refunded Bonds (The Bank of New York) give at the
appropriate times the notice or notices, if any, required by the Refunded Bonds Resolution
in connection with the redemption of the Refunded Bonds. Such notice of redemption shall
be given by the Registrar for such Refunded Bonds in accordance with the Refunded Bonds
Resoluti"on. The Refunded Bonds shall be redeemed on January 28,2003 at a redemption
price ell,~1 to 100% of the principal amount thereof plus interest accrued to the redemption
date.
SECTION 11. DEFEASANCE NOTICE TO HOLDERS OF REFUNDED
BONDS. Concurrently with the deposit of the Escrow Securities and Cash Deposit set forth
in Section 5 hereof, the Refunded Bonds shall be deemed to have been paid within the
meaning and with the effect expressed in Section 6.05 of the Refunded Bonds Resolution.
Within 30 days of the deposit of moneys into the Escrow Fund, the Escrow Agent, on behalf
of the County, shall Cause the Paying Agent for the Refunded Bonds (The Bank of New
York) to mail to the holders of the Refunded Bonds the appropriate notices in the form
provided in Schedule C attached hereto.
SECTION 12. ESCROW FUND IRREVOCABLE. The Escrow Fund hereby
created shall be irrevocable and the holders of the Refunded Bonds shall have an express lien
on all Escrow Securities and the Cash Deposit deposited in the Escrow Fund pursuant to the
terms hereof and the interest earnings thereon until paid out, used and applied in accordance
with this Agreement and the Refunded Bonds Resolution. Neither the County nor the
5
Escrow Agent shall cause nor permit any other lien or interest whatsoever to be imposed
upon the Escrow Fund.
SECTION 13. AMENDMENTS TO AGREEMENT. This Agreement is made
for the benefit of the County and the holders from time to time of the Refunded Bonds and
it shall not be repealed, revoked, altered or amended without the written consent of all such
holders and the written consent of the Escrow Agent; provided, however, that the County and
the Escrow Agent may, without the consent of, or notice to, such holders, enter into such
agreements supplemental to this Agreement as shall not adversely affect the rights of such
holders and as shall not be inconsistent with the terms and provisions of this Agreement, for
anyone or more of the following purposes:
(a) to cure any ambiguity or formal defect or omission in this Agreement;
(b) to grant, or confer upon, the Escrow Agent for the benefit of the holders of the
Refunded Bonds, any additional rights, remedies, powers or authority that may
lawfully be granted to, or conferred upon, such holders or the Escrow Agent;
and
(c) to subject to this Agreement additional funds, securities or properties.
The Escrow Agent shall be entitled to rely exclusively upon an unqualified opinion
of nationally recog --;red Bond COUtlsel with respect to compliance with this Section 13,
. including the exter:. ;' any, to which any change, modification or addition affects the rights
of the holders ofth Aefunded Bonds, or that any instrument executed hereunder complies
with the conditions and provisions of this Section 13.
SECfION 14. FEES AND EXPENSES OF ESCROW AGENT;
INDEMNIFICATION. In consideration of the services rendered by the Escrow Agent
under this Agreement, the County agrees to and shall pay to the Escrow Agent the fees and
expenses as shall be agreed to in writing by the parties hereto. The Escrow Agent shall have
no lien whatsoever upon any of the Escrow Securities in said Escrow Fund for the paYment
of such proper fees and expenses. The County further agrees to indemnify and save the
Escrow Agent harmless, to the extent allowed by law, against any liabilities which it may
incur in the exercise and performance ofits powers and duties hereunder, and which are not
due to its negligence or misconduct. .Indemnification provided under this Section 14 shall
survive the termination of this Agreement.
Whenever the Escrow Agent shall deem it necessary or desirable that a matter be
proved or established prior to taking, suffering or omitting any action under this Agreement,
6
such matter may be deemed to be conclusively established by a certificate signed by an
authorized officer of the City. The Escrow Agent may conclusively rely, as to the correctness
of statements, conclusions and opinions therein, upon any certificate, report, opinion or other
document furnished to the Escrow Agent pursuant to any provision of this Agreement; the
Escrow Agent shall be protected and shall not be liable for acting or proceeding, in good
faith, upon such reliance; and the Escrow Agent shall be under no duty to make any
investigation or inquiry as to any statements contained or matters referred to in any such
instrument The Escrow Agent may consult with counsel, who may be counsel to the County
or independent counsel, withregard to legal questions, and the opinion of such counsel shall
be full and complete authorization and protection in respect of any action taken or suffered
by it hereunder in good faith in accordance herewith. Prior to retaining such independent
counsel, the Escrow Agent shall notifY the County of its intention.
The Escrow Agent and its successors, agents and servants shall not be held to any
personal liability whatsoever, in tort, contract or otherwise, by reason of the execution and
delivery of this Agreement, the' establishment of the Escrow Fund, the acceptance and
disposition of the various moneys and funds described herein, the purchase, retention or
payment, transfer or. other application of funds or securities by the Escrow Agent in
accordance with the provisions of this Agreement or any non-negligent act, omission or error
of the Escrow Agent made ingood faith in the conduct of its duties. The Escrow Agent shall,
however, be liable to the County and to holders of the Refunded Bonds to the extent of their
respective damages for negligent or willful acts, omissions or errors of the Escrow Agent
which violate or fail to comply ,'",';+h the tenns of this Agreement. The duties and obligations
of the Escrow Agent shall be detr:tnined by the express provisions of this Agreement.
SECTION IS. REPORTING REQUIREMENTS OF ESCROW AGENT.
As soon as practicable after January 28, 2003, the Escrow Agent shall forward in writing to
the County a statement in detail of the activity of the Escrow Fund.
SECTION 16. RESIGNATION OR REMOVAL OF ESCROW AGENT.
The Escrow Agent, at the time acting hereunder, may at any time resign and be discharged
from the duties and obligations hereby created by giving not less than 20 days written notice
to the Copoty and mailing notice'thereo!: specifYing the date when such resignation will take
effect to the holders of all Refurtded Bonds then outstanding, but no such resignation shall
take effect unless a successor Escrow Agent shall ,have been appointed by the holders of a
majority in aggregate principal amount of the Refunded Bonds then outstanding or by the
County as hereinafterprovided and such successor Escrow Agent shall have accepted such
appointment, in which event such resignation shall take effect immediately upon the
appointment and acceptance of a successor Escrow Agent.
7
The Escrow Agent may be replaced at any time by an instrument or concurrent
instruments in writing, delivered to the Escrow Agent and signed by either the County or the
holders of a majority in aggregate principal amount of the Refunded BOIids then outstanding.
Such instrument shall provide for the appointment of a successor Escrow Agent, which
appointment shall occur simultaneously with the removal of the Escrow Agent.
In the event the Escrow Agent hereunder shall resign or be removed, or be dissolved,
or shall be in the course of dissolution or liquidation, or otherwise become incapable of
acting hereunder, or in case the Escrow Agent shall be taken under the control of any public
officer or officers, or of a receiver appointed by a court, a successor may be appointed by the
holders of a majority in aggregate principal amount of the Refunded Bonds then outstanding
by an instrunlent or concurrent iristruments in writing,. signed by such holders, or by their
attomeys.in fact, duly authorized. in writing; provided, nevertheless, that in any such event,
the County shall appoint a temporary Escrow Agent to fill such vacancy until a successor
Escrow Agent shall be appointed by the holders of a majority in aggregate principal amount
of the Refunded Bonds then outstanding in the manner above provided, and any such
temporary Escrow Agent so appointed by the County shall immediately and without further
act be superseded by the EsCrow Agent so appointed by such holders. The County shall mail
notice of any such appointment made by it at the times and in the manner described in the
fIrst paragraph of this Section 16.
In the event that no appointment of a successor Escrow Agent or a temporary
successor Escrow Agent shall have been mad~ by such holders or the County pursuant to the
foregoing provisions of this Section 16 witJ..in "~O days after written notice of resignation of
the Escrow Agent has been given to the City ~' .~ holder of any of the Refunded Bonds or any
retiring Escrow Agent may apply to any court of competent jurisdiction for the appointment
of a successor Escrow Agent, and such court may thereupon, after such notice, if any, as it
shall deem proper, appoint a successor Escrow Agent.
In the event of replacement or resignation of the Escrow Agent, the Escrow Agent
shall remitto the County the prorated portion of prepaid fees not yet incurred or payable, less
~y termination fees and expenses atthe time of discharge, and shall have no further liability
hereunder and the County shall indemnity and hold harmless Escrow Agent from any such
liability, including costs or expenses incurred by Escrow Agent or its counsel.
No successor Escrow Agent shall be appointed unless such successor Escrow Agent
shall be a corporation with trust powers organized under the banking laws of the United
States or any State, and shall have at the time of appointment capital and surplus of not less
than $30,000,000.
8
Every successor Escrow Agent appointed hereunder shall execute, acknowledge and
deliver to its predecessor and to the County an instrument in writing accepting such
appointment hereWlder and thereupon such successor Escrow Agent, without any further act,
deed or conveyance, shall become fully vested with all the rights, immunities, powers, trusts,
duties and obligations of its predecessor; but such predecessor shall nevertheless, on the
written request of such successor Escrow Agent or the County execute and deliver an
instrument transferring to such successor Escrow Agent all the estates, properties, rights,
powers and trust of such predecessor hereunder; and every predecessor Escrow Agent shall
deliver all securities and moneys held by it to its successor; provided, however, that before
any such delivery is required to be made, all fees, advances and expenses of the retiring or
removed Escrow Agent shall be paid in full. Should any transfer, assignment or instrument
. in writing from the County be required by any successor Escrow Agent for more fully and
certainly vesting in such successor Escrow Agent the estates, rights, powers and duties
hereby vested or interided to be vested in the predecessor Escrow Agent, any such transfer,
assignment and instruments in writing shall, on request, be executed, acknowledged and
delivered by the City.
Any corporation into which the Escrow Agent, or any successor to it in the trusts
created by this Agreement, may be merged or converted or with which it or any successor to
it may be consolidated, or any corporation resulting from any merger, conversion,
consolidation or tax-free reorganization to which the Escrow Agent or any successor to it
shall be a party shall be the successor Escrow Agent under this Agreement without the
exec_ution or filing of any paper Of any other act on the ~art of any of the parties hereto,
anything herein to the contrary notwithstanding.
SECTION 17. TERMINATION OF AGREEMENT. This Agreement shall
terminate when all transfers and paYments required to be made by the Escrow Agent under
the provisions hereof shall have been made. Upon such termination, all moneys remaining
in the Escrow Fund shall be released to the City.
SECTION 18. GOVERNING LAW. This Agreement shall be governed by the
applicable laws of the State of Florida.
SECTION 19. SEVERABILITY. If anyone or more of the covenants or
agreements provided in this Agreement on the part of the County or the Escrow Agent to be
performed should be detennined by a court of competent jurisdiction to be contrary to law,
such covenant or agreement shall be deemed and construed to be severable from the
remaining covenants and agreements herein contained and shall in no way affect the validity
of the remaining provisions of this Agreement.
9
SECTION 20. COUNTERPARTS. This Agreement may be executed in
several counterparts, all or any of which shall be regarded for all purposes as one original and
shall constitute and be but one and the same instrument.
SECTION 21. NOTICES. Any notice, authorization, request or demand
required or permitted to be given in accordance with the terms of this Agreement shall be in
writing and sent by registered or certified mail addressed to:
Monroe County, Florida
1100 Simonton Street, Suite 2-205
Key West, Florida 33040
Attn: County Administrator
The Bank of New York Trust Company
of Florida, N .A.
Towermarc Plaza
10161 Centurion Parkway
Jacksonville, Florida 32256
Attn: Corporate Trust Department
[Remainder of page intentionally left blank]
10
IN WITNESS WHEREOF, the parties hereto have each caused this Escrow Deposit
Agreement to be executed by their duly authorized officers and appointed officials and their
seals to be hereunder affixed and attested as of the date first written herein.
(SEAL)
MONROE COUNTY, FLORIDA
Mayor, Board of County Commissioners
ATTEST:
Clerk, Board of County Commissioners
THE BANK.OF NEW YORK TRUST
COMPANY OF FLORIDA, N.A., as Escrow
Agent
(SEAL)
By:
Authorized Signatory
1I
Type
SLG
ESCROW SECURITIES
Settlement Maturity
Date Date
12/19/02 01/28/03
Par
Amount
$5,776,636
A-I
Interest
Rate
1.15%
SCHEDULE A
Purchase
Price
$5,776,636
SCHEDULE B
DEBT SERVICE REQUIREMENTS FOR REFUNDED BONDS
Payment Date Principal Interest
01/28/03 $5,660,000.00 $123,917.63
Premium
-0-
Total
$5,783,917.63
B-1
SCHEDULE C
FORM OF NOTICE OF DEFEASANCE
Notice is hereby given pursuant to Resolution No. 061-1991 adopted by the Board
of County Commissioners of Monroe County, Florida on March 12, 1991, as amended and
supplemented (the "Refunded.Bonds Resolution"), that all of the outstanding Monroe County
Municipal Service District . Refunding Improvement Bonds, Series 1991 (the "Refunded
Bonds") are deemed to be pa~d within the meaning of the Refunded Bonds Resolution and
sha!l DO longer be secured from the. Pledged Funds (as defmed in the Refunded Bonds
Resolution) and shall be secured solely from the irrevocable deposit of U.S. Treasury
obligations made by the County with The lJank of New York Trust Company of Florida,
N.A., Jacksonville, FlQrida, as Escrow Agent, in accordance with Section 6.05 of the
Refunded Bonds Resolution. The Refunded Bonds shall be redeemed on January 28, 2003
at the offices of the paying agent for the Refunded Bonds (The Bank of New York) at a
redemption price equal to 100% of the principal amount thereof plus interest accrued to the
redemption date.
C-I