Resolution 077-2003
MONROE COUNTY, FLORIDA
INFRASTRUCTURE SALES SURTAX
REVENUE BOND RESOLUTION
ADOPTED FEBRUARY 19, 2003
SECTION 1.01.
SECTION 1.02.
SECTION 1.03.
SECTION 1.04.
SECTION 1.05.
SECTION 2.01.
SECTION 2.02.
SECTION 2.03.
SECTION 2.04.
SECTION 2.05.
SECTION 2.06.
SECTION 2.07.
SECTION 2.08.
SECTION 2.09.
SECTION 2.10.
SECTION 3.01.
SECTION 3.02.
SECTION 3.03.
SECTION 3.04.
SECTION 3.05.
TABLE OF CONTENTS
Paf:e
ARTICLE I
GENERAL
DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 1
AUTHORITY FOR RESOLUTION ....................... 14
RESOLUTION TO CONSTITUTE CON1RACT . . . . . . . . . . . .. 14
FINDINGS ........................................... 14
AUTHORIZATION OF THE 2003 PROJECT............... 15
ARTICLE II
AUTHORIZATION, TERMS, SALE, EXECUTION
AND REGISTRATION OF BONDS
AUTHORIZATION OF BONDS. . . . . . . . . . . . . . . . . . . . . . . . .. 16
AUTHORIZATION AND DESCRIPTION OF THE
SERIES 2003 BONDS ............................ 16
APPLICATION OF SERIES 2003 BOND PROCEEDS........ 17
EXECUTION OF BONDS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
AUTHENTICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 19
TEMPORARY BONDS .................................19
BONDS MUTILA lED, DESTROYED, STOLEN OR LOST ... 19
INTERCHANGEABILITY, NEGOTIABILITY AND
TRANSFER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
FULL BOOK ENTRY FOR SERIES 2003 BONDS. . . . . . . . . . . 21
FORM OF BONDS .................................... 23
ARTICLE III
REDEMPTION OF BONDS
PRIVILEGE OF REDEMPTION. . . . . . . . . . . . . . . . . . . . . . . . . . 32
SELECTION OF BONDS TO BE REDEEMED. . . . . . . . . . . . . . 32
NOTICE OF REDEMPTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
REDEMPTION OF PORTIONS OF BONDS . . . . . . . . . . . . . . . . 34
PAYMENT OF REDEEMED BONDS . . . . . . . . . . . . . . . . . . . . . 34
SECTION 4.01.
SECTION 4.02.
SECTION 4.03.
SECTION 4.04.
SECTION 4.05.
SECTION 4.06.
SECTION 4.07.
SECTION 4.08.
ARTICLE IV
SECURITY, SPECIAL FUNDS AND
APPLICATION THEREOF
BONDS NOT TO BE INDEBTEDNESS OF ISSUER . . . . . . . . . 35
SECURITY FOR BONDS ...... . . . . . . . . . . . . . . . . . . . . . . . . . 35
CONSTRUCTION FUND ....... . . . . . . . . . . . . . . . . . . . . . . . . 36
FUNDS AND ACCOUNTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
DISPOSITION OF INFRASTRUCTURE SALES
S~T~RE\rE~S .... .... ....... ....... ......37
REBATE FUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
~S~NTS ....... ........... ...... .... ..........45
SEPARATE ACCOUNTS ............................... 46
ARTICLE V
SUBORDINATED INDEBTEDNESS, ADDITIONAL BONDS
AND CO\rENANTS OF ISSUER
SECTION 5.0l.
SECTION 5.02.
SECTION 5.03.
SECTION 5.04.
SECTION 5.05.
SECTION 5.06.
SECTION 5.07.
SECTION 5.08.
SECTION 5.09.
SECTION 6.0l.
SECTION 6.02.
SECTION 6.03.
SECTION 6.04.
SECTION 6.05.
SUBORDINATED INDEBTEDNESS .....................47
ISSUANCE OF ADDITIONAL BONDS ...................47
BONDANTICIPATIONNOTES .........................49
ACCESSION OF SUBORDINATED INDEBTEDNESS TO
PARITY STATUS WITII BONDS. . . . . . . . . . . . . . . . . . . 49
BOOKS AND RECORDS ............................... 49
NO IMPAIRMENT; LIMITATION ON MATURITY OF
BONDS ........................................ 49
FEDERAL INCOME T~ CO\rENANTS . . . . . . . . . . . . . . . . . . 49
RECEIPT OF INFRASTRUCTURE SALES SURTAX
RE\rE~S .................................... 50
OBLIGATIONS UNDER PRIOR RESOLUTION ............ 50
ARTICLE VI
DEFAULTS AND REMEDIES
EVENTS OF DEFAULT................................ 51
REMEDIES .......................................... 51
DIRECTIONS TO RECEIVER AS TO REMEDIAL
PROCEEDINGS ................................. 52
REMEDIES CUMULATIVE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
WAIVER OF DEF AUL T . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
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SECTION 6.06. APPLICATION OF MONEYS AFTER DEFAULT . . . . . . . . . . . 53
SECTION 6.07. CONTROL BY CREDIT FACILITY PROVIDER. . . . . . . . . . . . 54
ARTICLE VII
SUPPLEMENTAL RESOLUTIONS
SECTION 7.01. SUPPLEMENTAL RESOLUTION WITHOUT
BONDHOLDERS' CONSENT . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 7.02. SUPPLEMENTAL RESOLUTION WITH BONDHOLDERS'
AND CREDIT FACILITY PROVIDER'S CONSENT ... 56
SECTION 7.03. AMENDMENT WITH CONSENT OF CREDIT
FACILITY PROVIDER ONLY. . . . . . . . . . . . . . . . . . . . . 57
SECTION 8.01.
SECTION 8.02.
SECTION 8.03.
SECTION 8.04.
SECTION 8.05.
SECTION 8.06.
SECTION 8.07.
ARTICLE VIII
DEFEASANCE; MISCELLANEOUS
DEFEASANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
CAPITAL APPRECIATION BONDS. . . . . . . . . . . . . . . . . . . . . . 60
SALE OF BONDS ..................................... 60
GENERAL AUTHORITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SEVERABILITY OF INVALID PROVISIONS.............. 61
REPEAL OF INCONSISTENT RESOLUTIONS. . . . . . . . . . . . . 61
EFFECTIVE DATE ....................................62
III
RESOLUTION NO. 077-2003
A RESOLUTION OF THE BOARD OF COUNTY
COMMISSIONERS OF MONROE COUNTY, FLORIDA
AUTHORIZING THE ISSUANCE OF NOT EXCEEDING
$25,000,000 IN AGGREGATE PRINCIPAL AMOUNT OF
MONROE COUNTY, FLORIDA INFRASTRUCTURE SALES
SURTAX REVENUE BONDS, SERIES 2003, TO FINANCE
THE ACQUISITION, CONSTRUCTION AND EQUIPPING
OF CERTAIN CAPITAL IMPROVEMENTS WITHIN THE
COUNTY; PLEDGING MONEYS RECEIVED BY THE
COUNTY FROM THE ONE CENT LOCAL GOVERNMENT
INFRASTRUCTURE SALES SURTAX TO SECURE
PAYMENT OF THE PRINCIPAL OF AND INTEREST ON
SAID BONDS; PROVIDING FOR THE RIGHTS OF THE
HOLDERS OF SAID BONDS; MAKING CERTAIN OTHER
COVENANTS AND AGREEMENTS IN CONNECTION
WITH THE ISSUANCE OF SUCH BONDS; PROVIDING
CERTAIN TERMS AND DETAILS OF SAID BONDS; AND
PROVIDING FOR AN EFFECTIVE DATE FOR THIS
RESOLUTION.
BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF
MONROE COUNTY, FLORIDA:
ARTICLE I
GENERAL
SECTION 1.01. DEFINITIONS. When used in this Resolution, the following
terms shall have the following meanings, unless the context clearly otherwise requires:
"Accreted Value" shall mean, as of any date of computation with respect to any
Capital Appreciation Bond, an amount equal to the principal amount of such Capital
Appreciation Bond (the principal amount at its initial offering) plus the interest accrued on
such Capital Appreciation Bond from the date of delivery to the original purchasers thereof
to the Interest Date next preceding the date of computation, or the date of computation if an
Interest Date, such interest to accrue at a rate not exceeding the legal rate, compounded
semiannually, plus, with respect to matters related to the payment upon redemption or
acceleration of the Capital Appreciation Bonds, if such date of computation shall not be an
Interest Date, a portion of the difference between the Accreted Value as of the immediately
preceding Interest Date and the Accreted Value as of the immediately succeeding Interest
Date, calculated based on the assumption that Accreted Value accrues during any
semi-annual period in equal daily amounts on the basis of a 360-day year.
"Act" shall mean Chapter 125, Florida Statutes, Chapter 212, Florida Statutes, the
Monroe County Code, the Infrastructure Sales Surtax Ordinance, the Ordinance, and other
applicable provisions of law.
"Additional Bonds" shall mean the obligations (including, but not limited to, bond
anticipation notes or other similar short-term indebtedness) issued at any time under the
provisions of Section 5.02 hereof on a parity with the Series 2003 Bonds.
"Amortization Installment" shall mean an amount designated as such by, or
provided for pursuant to, Supplemental Resolution of the Issuer and established with respect
to the Term Bonds.
"Annual Debt Service" shall mean, at any time, the aggregate amount in the then
current Fiscal Year of (1) interest required to be paid on the Outstanding Bonds during such
Fiscal Year, except to the extent that such interest is to be paid from deposits in the Interest
Account or Construction Fund from Bond proceeds for such purpose, (2) principal of
Outstanding Serial Bonds maturing in such Fiscal Year, (3) the Amortization Installments
with respect to such Fiscal Year, and (4) any amounts owing to the issuer of a Reserve
Account Insurance Policy or Reserve Account Letter of Credit. F or purposes of this
definition, (A) all amounts payable on a Capital Appreciation Bond shall be considered a
principal payment due in the year of its maturity or date of redemption by Amortization
Installment, (B) with respect to debt service on any Bonds which are subject to a Qualified
Hedge Agreement, interest on such Bonds during the term of such Qualified Hedge
Agreement shall be deemed to be the Hedge Payments coming due during such period of
time, and (C) the amount on deposit in the Reserve Account (or any subaccount thereof) on
any date of calculation of Annual Debt Service shall be deducted from the amount of
principal due at the final maturity of the Bonds which are secured by such Reserve Account
(or subaccount thereof) and in each preceding year until such amount is exhausted.
"Authorized Investments" shall mean any of the following, if and to the extent that
the same are at the time legal for investment of funds of the Issuer:
A. Direct obligations of the United States of America (including obligations issued
or held in book-entry form on the books of the Department of the Treasury, and CATS and
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TIGRS) or obligations the principal of and interest on which are unconditionally guaranteed
by the United States of America.
B. Bonds, debentures, notes or other evidence of indebtedness issued or
guaranteed by any of the following federal agencies and provided such obligations are
backed by the full faith and credit of the United States of America (stripped securities are
only permitted if they have been stripped by the agency itself):
1. U.S. Export-Import Bank (Eximbank)
Direct obligations or fully guaranteed certificates of beneficial
ownership
2. Farmers Home Administration (FmHA)
Certificates of beneficial ownership
3. Federal Financing Bank
4. Federal Housing Administration Debentures (FHA)
5. General Services Administration
Participation certificates
6. Government National Mortgage Association (GNMA or "Ginnie Mae")
GNMA - guaranteed mortgage-backed bonds
GNMA - guaranteed pass-through obligations
7. U.S. Maritime Administration
Guaranteed Title XI financing
8. U.S. Department of Housing and Urban Development (HUD)
Project Notes
Local Authority Bonds
New Communities Debentures - U.S. government guaranteed debentures
U.S. Public Housing Notes and Bonds - U.S. government guaranteed
public housing notes and bonds
C. Bonds, debentures, notes or other evidence of indebtedness issued or
guaranteed by any of the following non-full faith and credit U.S. government agencies
(stripped securities are only permitted if they have been stripped by the agency itself):
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1. Federal Home Loan Bank System
Senior debt obligations
2. Federal Home Loan Mortgage Corporation (FHLMC or "Freddie Mac")
Participation Certificates
Senior debt obligations
3. Federal National Mortgage Association (FNMA or "Fannie Mae")
Mortgage-backed securities and senior debt obligations
4. Student Loan Marketing Association (SLMA or "Sallie Mae")
Senior debt obligations
5. Resolution Funding Corp. (REFCORP) obligations
6. Farm Credit System
Consolidated systemwide bonds and notes
D. Money market funds registered under the Federal Investment Company Act of
1940, whose shares are registered under the Federal Securities Act of 1933, and having a
rating by S&P of AAAm-G; AAA-m; or AA-m and ifrated by Moody's rated Aaa, Aal or
Aa2.
E. Certificates of deposit secured at all times by collateral described in (A) and/or
(B) above. Such certificates must be issued by commercial banks, savings and loan
associations or mutual savings banks. The collateral must be held by a third party and the
bondholders must have a perfected first security interest in the collateral.
F. Certificates of deposit, savings accounts, deposit accounts or money market
deposits which are fully insured by FDIC, including BIF and SAIF.
G. Investment Agreements, including Guaranteed Investment Contracts, Forward
Purchase Agreements and Reserve Fund Put Agreements acceptable to the Insurers
(Investment Agreement criteria is available upon request).
H. Commercial paper rated, at the time of purchase, "Prime - 1" by Moody's and
"A-I" or better by S&P.
I. Bonds or notes issued by any state or municipality which are rated by Moody's
and S&P in one of the two highest rating categories assigned by such agencies.
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J. Federal funds or bankers acceptances with a maximum term of one year of any
bank which has an unsecured, uninsured and unguaranteed obligation rating of "Prime - 1"
or "A3" or better by Moody's and "A-I" or "A" or better by S&P.
K. Repurchase Agreements for 30 days or less must follow the following criteria.
Repurchase Agreements which exceed 30 days must be acceptable to the Insurers (criteria
available upon request)
Repurchase agreements provide for the transfer of securities from a dealer bank or
securities firm (seller/borrower) to a municipal entity (buyer/lender), and the transfer of cash
from a municipal entity to the dealer bank or securities firm with an agreement that the dealer
bank or securities firm will repay the cash plus a yield to the municipal entity in exchange
for the securities at a specified date.
1. Repos must be between the municipal entity and a dealer bank or
securities firm
a. Primary dealers on the Federal Reserve reporting dealer list
which are rated A or better by Standard & Poor's and Moody's, or
b. Banks rated "A" or above by Standard & Poor's and Moody's.
2. The written repo contract must include the following:
a. Securities which are acceptable for transfer are:
(i) Direct U.S. governments, or
(ii) Federal agencies backed by the full faith and credit of the
U.S. government (and FNMA & FHLMC)
b. The term of the repo may be up to 30 days
c. The collateral must be delivered to the municipal entity, trustee
(if trustee is not supplying the collateral) or third party acting as agent for the
trustee (if the trustee is supplying the collateral) before/simultaneous with
payment (perfection by possession of certificated securities).
d. Valuation of Collateral
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(i) The securities must be valued weekly, marked-to-market
at current market price plus accrued interest
(ii) The value of collateral must be equal to 104% of the
amount of cash transferred by the municipal entity to the dealer bank or
security firm under the repo plus accrued interest. If the value of
securities held as collateral slips below 104% of the value of the cash
transferred by municipality, then additional cash and/or acceptable
securities must be transferred. If, however, the securities used as
collateral are FNMA or FHLMC, then the value of collateral must
equal 105%.
3. Legal opinion which must be delivered to the Issuer to the effect
that the repo meets guidelines under state law for legal investment of public
funds.
L. Units of participation in the Local Government Surplus Funds Trust Fund
established pursuant to Part IV, Chapter 218, Florida Statutes, or any similar common trust
fund which is established pursuant to law as a legal depository of public moneys and for
which the State Board of Administration acts as custodian.
M. Other investments that are approved in writing by the Insurers.
Rating categories when referred to herein shall be without regard to gradations within
such categories, such as "plus" or "minus."
"Authorized Issuer Officer" shall mean the Mayor, the County Administrator, the
Clerk or their designee( s), and when used in reference to any act or document also means any
other person authorized by resolution of the Issuer to perform such act or sign such
document.
"Bond Amortization Account" shall mean the separate account in the Debt Service
Fund established pursuant to Section 4.04 hereof.
"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.
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"Bond Insurance Policy" shall mean a municipal bond insurance policy issued by
an Insurer insuring the payment, when due, of the principal of and interest on a Series of
Bonds as provided therein. With respect to the Series 2003 Bonds, "Bond Insurance Policy"
shall mean the municipal bond insurance policy issued by MBIA Insurance Corporation
guaranteeing, when due, the scheduled principal of and interest on the Series 2003 Bonds.
"Bond Year" shall mean the period commencing on October 1 of each year and
ending on September 30 of each year.
"Bondholder" or "Holder" or "holder of Bonds" or any similar term, when used
with reference to a Bond or Bonds, shall mean any Person who shall be the registered owner
of any Outstanding Bond or Bonds as provided in the registration books of the Issuer.
"Bonds" shall mean the Series 2003 Bonds, together with any Additional Bonds,
issued pursuant to this Resolution and any Subordinated Indebtedness which accedes to the
status of Bonds pursuant to Section 5.04 hereof.
"Capital Appreciation Bonds" shall mean those Bonds, if any, so designated by
Supplemental Resolution ofthe Issuer, which may be either Serial Bonds or Term Bonds and
which shall bear interest payable at maturity or redemption. In the case of Capital
Appreciation Bonds that are convertible to Bonds with interest payable prior to maturity or
prior to redemption of such Bonds, such Bonds shall be considered Capital Appreciation
Bonds only during the period of time prior to such conversion.
"Clerk" shall mean the Clerk of the Circuit Court for Monroe County, Florida and
Ex-Officio Clerk 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.
"Code" shall mean the Internal Revenue Code of 1986, as amended, and the
regulations and rules promulgated thereunder.
"Construction Fund" shall mean the Monroe County, Florida Infrastructure Sales
Surtax Revenue Bonds Construction Fund established pursuant to Section 4.03 hereof.
"Cost" when used in connection with a Project and permitted by the Act, shall mean
(1) the Issuer's cost of physical construction; (2) costs of acquisition by or for the Issuer of
such Project or any portion thereof; (3) any costs ofland and interests therein and the costs
of the Issuer incidental to such acquisition (including, without limitation, title insurance and
related costs and costs associated with the examination, survey and any remediation required
with respect to such land); (4) the cost of any indemnity and surety bonds and premiums for
7
insurance during construction; (5) all interest due to be paid on the Bonds and other
obligations relating to the Project during the period of construction of the Project and a
reasonable period subsequent to completion of construction as the Issuer shall determine;
(6) engineering, architectural, legal, financial advisory and other consultant fees and
expenses; (7) costs and expenses of the financing incurred for the Project, including fees and
expenses of any Paying Agent, Registrar, Credit Facility Provider or depository;
(8) payments, when due (whether at the maturity of principal or the due date of interest or
upon redemption) on any interim or temporary indebtedness of the Issuer incurred for the
Project; (9) costs of machinery, equipment, technology, supplies, spare parts, furniture and
any other items required by the Issuer for the commencement of operation of the Project; and
(10) any other costs properly attributable to such construction or acquisition or to the
issuance of the Bonds which finance the Project, as determined by generally accepted
accounting principles applicable to the Project, and shall include reimbursement to the Issuer
for any such items of Cost paid by the Issuer prior to the issuance of the Bonds or other
obligations issued to finance the Project.
"Counterparty" shall mean the entity entering into a Hedge Agreement with the
Issuer. Counterparty would also include any guarantor of such entity's obligations under such
Hedge Agreement.
"Credit Facility" shall mean as to any particular Series of Bonds, a Bond Insurance
Policy, a letter of credit, a line of credit or another credit or liquidity enhancement facility,
as approved herein or in the Supplemental Resolution providing for the issuance of such
Series of Bonds. With respect to the Series 2003 Bonds, "Credit Facility" shall mean the
Bond Insurance Policy issued by MBIA Insurance Corporation.
"Credit Facility Provider" shall mean the Insurer, bank or other financial institution
issuing a Credit Facility for a particular Series of Bonds.
"Debt Service Fund" shall mean the Monroe County, Florida Infrastructure Sales
Surtax Revenue Bonds Debt Service Fund established pursuant to Section 4.04 hereof.
"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.
"Fitch" shall mean Fitch Ratings and any assigns or successors thereto.
"Hedge Agreement" shall mean an agreement in writing between the Issuer and the
Counterparty pursuant to which (1) the Issuer agrees to pay to the Counterparty an amount,
8
either at one time or periodically, which may, but is not required to, be determined by
reference to the amount of interest (which may be at a fixed or variable rate) payable on a
notional amount specified in such agreement in the period specified in such agreement and
(2) the Counterparty agrees to pay to the Issuer an amount, either at one time or periodically,
which may, but is not required to, be determined by reference to the amount of interest
(which may be at a fixed or variable rate) payable on all or a portion of a notional amount
specified in such agreement during the period specified in such agreement.
"Hedge Payments" shall mean any amounts payable by the Issuer as interest on the
related notional amount under a Qualified Hedge Agreement; excluding, however, any
payments due as a penalty or a fee or by virtue of termination of a Qualified Hedge
Agreement or any obligation of the Issuer to provide collateral.
"Hedge Receipts" shall mean any amounts receivable by the Issuer on the related
notional amount under a Qualified Hedge Agreement.
"Infrastructure Sales Surtax Ordinance" shall mean, collectively, Ordinance No.
013-1989 adopted by the Board on May 23, 1989, and Ordinance No. 01-2000 adopted by
the Board on January 19, 2000, authorizing the levy of a one cent local government
infrastructure surtax, as each Ordinance may be amended and supplemented.
"Infrastructure Sales Surtax Revenues" shall mean the proceeds received by the
Issuer from the levy of the one cent local government infrastructure sales surtax pursuant to
Section 212.055(2), Florida Statutes and other applicable provisions oflaw.
"Insurer" shall mean with respect to the Series 2003 Bonds, MBIA Insurance
Corporation and with respect to any other Series of Bonds, the Credit Facility Provider, if
any, issuing a Bond Insurance Policy with respect to such Series of Bonds.
"Interest Account" shall mean the separate account in the Debt Service Fund
established pursuant to Section 4.04 hereof.
"Interest Date" or "interest payment date" shall be such date or dates for the
payment of interest on the Bonds as provided pursuant to Sections 2.01 or 2.02 hereof.
"Issuer" or "County" shall mean Monroe County, Florida, a political subdivision
of the State of Florida.
"Maximum Annual Debt Service" shall mean the largest aggregate amount ofthe
Annual Debt Service becoming due in any Fiscal Year in which Bonds are Outstanding,
9
excluding all Fiscal Years which shall have ended prior to the Fiscal Year in which the
Maximum Annual Debt Service shall at any time be computed.
"Maximum Interest Rate" shall mean, with respect to any particular Variable Rate
Bonds, a numerical rate of interest, which shall be set forth in the Supplemental Resolution
of the Issuer delineating the details of such Bonds, that shall be the maximum rate of interest
such Bonds may at any particular time bear in the future in accordance with the terms of such
Supplemental Resolution.
"Mayor" shall mean the Chairman or the Mayor of the Board of County
Commissioners of the Issuer, and such other person as may be duly authorized to act on his
or her behalf.
"Moody's" shall mean Moody's Investors Service, and any assigns or successors
thereto.
"Ordinance" shall mean the ordinance adopted by the Board on February 19,2003,
authorizing the issuance of the Series 2003 Bonds.
"Outstanding" when used with reference to the Bonds and as of any particular date,
shall describe all of the Bonds theretofore and thereupon being authenticated and delivered
except, (1) any Bond in lieu of which another Bond or Bonds have been issued under
agreement to replace lost, mutilated or destroyed Bonds, (2) any Bond surrendered by the
Holder thereof in exchange for another Bond or Bonds under Sections 2.07 and 2.08 hereof,
(3) Bonds deemed to have been paid pursuant to Section 8.01 hereof, and (4) Bonds
cancelled after purchase in the open market or because of payment at maturity.
"Paying Agent" shall mean for each Series of Bonds, the paying agent appointed by
the Issuer for such Series of Bonds and its successors and assigns, if any.
"Person" shall mean an individual, a corporation, a partnership, an association, a
joint stock company, a trust, any unincorporated organization or governmental entity.
"Pledged Funds" shall mean (1) the Infrastructure Sales Surtax 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 except (A) for the
Unrestricted Revenue Account and the Rebate Fund and (B) any moneys set aside in a
particular subaccount of the Reserve Account if such moneys shall be pledged solely for the
payment of a different Series of Bonds for which it was established in accordance with the
provisions hereof.
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"Prerefunded Obligations" shall mean any bonds or other obligations of any state
of the United States of America or of any agency, instrumentality or local governmental unit
of any such state (1) which are (A) not callable at the option ofthe obligor prior to maturity
or (B) as to which irrevocable instructions have been given to the fiduciary for such bonds
or other obligations by the obligor to give due notice of redemption and to call such bonds
for redemption on the date or dates specified in such instructions, (2) which are fully secured
as to principal, redemption premium, if any, and interest by a fund consisting only of cash
or Refunding Securities, secured in the manner set forth in Section 8.01 hereof, which fund
may be applied only to the payment of such principal of, redemption premium, if any, and
interest on such bonds or other obligations on the maturity date or dates thereof or the
specified redemption date or dates pursuant to such irrevocable instructions, as the case may
be, (3) as to which the principal of and interest on the Refunding Securities, which have been
deposited in such fund along with any cash on deposit in such fund, are sufficient, as verified
by an independent certified public accountant, to pay principal of, redemption premium, if
any, and interest on the bonds or other obligations on the maturity date or dates thereof or on
the redemption date or dates specified in the irrevocable instructions referred to in clause (1)
above, and (4) which are rated in the highest rating category of Standard & Poor's, Fitch or
Moody's.
"Principal Account" shall mean the separate account in the Debt Service Fund
established pursuant to Section 4.04 hereof.
"Prior Bonds" shall mean the Issuer's outstanding Monroe County, Florida Sales Tax
Refunding Revenue Bonds, Series 1998, dated as of January 1, 1998.
"Prior Resolution" shall mean the Issuer's Resolution No. 206-1990, adopted on
March 10, 1990, as amended and supplemented.
"Project" shall mean the 2003 Project and the acquisition, construction and
equipping of such additional properties and facilities that are subsequently approved by the
Issuer and which may be lawfully financed with Infrastructure Sales Surtax Revenues
pursuant to the Act.
"Qualified Hedge Agreement" shall mean a Hedge Agreement with a Counterparty
which at the time it enters into such Qualified Hedge Agreement is rated "A-" or better by
Standard & Poor's and "A3" or better by Moody's.
"Rebate Fund" shall mean the Monroe County, Florida Infrastructure Sales Surtax
Revenue Bonds, Rebate Fund established pursuant to Section 4.04 hereof.
11
"Redemption Price" shall mean, with respect to any Bond or portion thereof, the
principal amount or portion thereof, plus the applicable premium, if any, payable upon
redemption thereof pursuant to such Bond or this Resolution.
"Refunding Securities" shall mean any of the items listed in paragraph A or B
(excluding paragraphs B( 4) and B( 6)) of the definition of Authorized Investments, and
Prerefunded Obligations.
"Registrar" shall mean for each Series of Bonds, any registrar appointed by the
Issuer for such Series of Bonds and its successors and assigns, if any.
"Reserve Account" shall mean the separate account in the Debt Service Fund
established pursuant to Section 4.04 hereof.
"Reserve Account Insurance Policy" shall mean an insurance policy or surety bond
deposited in the Reserve Account in lieu of or in partial substitution for cash on deposit
therein pursuant to Section 4.05(A)(4) hereof.
"Reserve Account Letter of Credit" shall mean an unconditional irrevocable letter
of credit or line of credit (other than a Reserve Account Insurance Policy) deposited in the
Reserve Account in lieu of or in partial substitution for cash on deposit therein pursuant to
Section 4.05(A)(4) hereof.
"Reserve Account Requirement" shall mean, as of any date of calculation for the
Reserve Account or any subaccount thereof, an amount equal to the lesser of (1) Maximum
Annual Debt Service for all Outstanding Bonds secured thereby, (2) one hundred twenty- five
percent (125%) of the average annual debt service for all Outstanding Bonds secured thereby,
or (3) such other amount as shall be designated by Bond Counsel as the maximum amount
of Bond proceeds which may be deposited in the Reserve Account without subjecting the
same to yield restriction under the Code, or causing interest on any of the Bonds (other than
Taxable Bonds) to be included in gross income for purposes of federal income taxation. For
the purpose of determining the Reserve Account Requirement on any Variable Rate Bonds,
the interest rate on the Variable Rate Bonds shall be assumed to be the rate calculated in
accordance with Section 5.02(B) hereof.
"Resolution" shall mean this Infrastructure Sales Surtax Revenue Bond Resolution,
as the same may from time to time be amended, modified or supplemented by Supplemental
Resolution.
12
"Restricted Revenue Account" shall mean the separate account in the Revenue Fund
established pursuant to Section 4.04 hereof.
"Revenue Fund" shall mean the Monroe County, Florida Infrastructure Sales Surtax
Revenue Bonds Revenue Fund established pursuant to Section 4.04 hereof.
"Serial Bonds" shall mean all of the Bonds other than Term Bonds.
"Series" shall mean all the Bonds delivered on original issuance in a simultaneous
transaction and identified pursuant to Sections 2.01 and 2.02 hereof or a Supplemental
Resolution authorizing the issuance by the Issuer as a separate Series, regardless of variations
in maturity, interest rate, amortization installments or other provisions.
"Series 2003 Bonds" shall mean the Monroe County, Florida Infrastructure Sales
Surtax Revenue Bonds, Series 2003, authorized and issued pursuant to Section 2.02 of this
Resolution.
"Standard & Poor's" shall mean Standard and Poor's Ratings Group, and any
assigns and successors thereto.
"State" shall mean the State of Florida.
"Subordinated Indebtedness" shall mean that indebtedness of the Issuer,
subordinate and junior to the Bonds, issued in accordance with the provisions of Section 5.01
hereof.
"Supplemental Resolution" shall mean any resolution of the Issuer amending or
supplementing this Resolution enacted and becoming effective in accordance with the terms
of Sections 7.01, 7.02 and 7.03 hereof.
"Taxable Bonds" shall mean any Bonds which state, in the body thereof, that the
interest income thereon is includable in the gross income of the Holder thereof for federal
income taxation purposes or that such interest is subject to federal income taxation.
"Term Bonds" shall mean Bonds which shall be designated as Term Bonds by
Supplemental Resolution of the Issuer and which are subject to mandatory redemption by
Amortization Installment.
"2003 Project" shall mean the acquisition, construction and equipping of various
capital improvements within the County, all as more particularly described in the capital
13
improvement program and the plans and specifications on file or to be on file with the Issuer,
as the same may be modified or amended from time to time. A general description of the
2003 Project is set forth in Exhibit A attached hereto.
"Unrestricted Revenue Account" shall mean the separate account in the Revenue
Fund established pursuant to Section 4.04 hereof.
"Variable Rate Bonds" shall mean Bonds issued with a variable, adjustable,
convertible or other similar rate which is not fixed in percentage for the entire term thereof
at the date of issue.
The terms "herein," "hereunder," "hereby," "hereto," "hereof," and any similar terms,
shall refer to this Resolution; the term "heretofore" shall mean before the date of adoption
of this Resolution; and the term "hereafter" shall mean after the date of adoption of this
Resolution.
Words importing the masculine gender include 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 the Act.
SECTION 1.03. RESOLUTION TO CONSTITUTE CONTRACT. In
consideration of the purchase and acceptance of any or all of the Bonds by those who shall
hold the same from time to time, the provisions of this Resolution shall be a part of the
contract of the Issuer with the Holders of the Bonds and the Insurer and shall be deemed to
be and shall constitute a contract between the Issuer and the Holders from time to time of the
Bonds and the Credit Facility Provider(s). The pledge made in this Resolution and the
provisions, covenants and agreements herein set forth to be performed by or on behalf of the
Issuer shall be for the equal benefit, protection and security of the Holders of any and all of
said Bonds and for the benefit, protection and security of the Insurer. All of the Bonds,
regardless of the time or times of their issuance or maturity, shall be of equal rank without
preference, priority or distinction of any of the Bonds over any other thereof except as
expressly provided in or pursuant to this Resolution.
SECTION 1.04.
FINDINGS. It is hereby ascertained, determined and declared:
14
(A) That the Issuer has heretofore enacted the Infrastructure Sales Surtax
Ordinance providing for the levy of a one cent local government infrastructure sales surtax
pursuant to Section 212.055(2), Florida Statutes.
(B) That the Issuer deems it desirable and in the best interest of the Issuer to
acquire, construct and equip the 2003 Project.
(C) That the most efficient and cost-effective method of acquiring, constructing
and equipping the 2003 Project is by the issuance of the Series 2003 Bonds secured by the
Pledged Funds.
(D) That the Pledged Funds are not pledged or encumbered in any manner, except
as provided in the Prior Resolution. Such Pledged Funds shall secure the payment of the
Series 2003 Bonds, in accordance with the terms hereof.
(E) That the estimated Pledged Funds will be sufficient to pay the principal of and
interest on the Series 2003 Bonds and the Prior Bonds, as the same become due, and all other
payments provided for in the Resolution and the Prior Resolution.
(F) The 2003 Project constitutes "infrastructure" within the meaning of Section
212.055(2), Florida Statutes.
(G) That the principal of and interest on the Bonds to be issued pursuant to this
Resolution, and all other payments provided for in this Resolution will be paid solely from
the Pledged Funds and any moneys received from Credit Facility Providers; and the ad
valorem taxing power of the Issuer will never be necessary or authorized to pay the principal
of and interest on the Bonds to be issued pursuant to this Resolution and, except as otherwise
provided herein, the Bonds shall not constitute a lien upon any property of the Issuer.
SECTION 1.05. AUTHORIZATION OF THE 2003 PROJECT. The Issuer
hereby authorizes and empowers the acquisition, construction and equipping of the 2003
Project.
15
ARTICLE II
AUTHORIZATION, TERMS, SALE, EXECUTION
AND REGISTRATION OF BONDS
SECTION 2.01. AUTHORIZATION OF BONDS. This Resolution creates an
issue of Bonds of the Issuer to be designated as "Monroe County, Florida Infrastructure Sales
Surtax Revenue Bonds" which may be issued in one or more Series as hereinafter provided.
The aggregate principal amount of the Bonds which may be executed and delivered under
this Resolution is not limited except as is or may hereafter be provided in this Resolution or
as limited by the Act or by law.
The Bonds may, if and when authorized by the Issuer pursuant to this Resolution, be
issued in one or more Series, with such further appropriate particular designations added to
or incorporated in such title for the Bonds of any particular Series as the Issuer may
determine and as may be necessary to distinguish such Bonds from the Bonds of any other
Series. Each Bond shall bear upon its face the designation so determined for the Series to
which it belongs.
The Bonds shall be issued for such purpose or purposes; shall bear interest at such rate
or rates not exceeding the maximum rate permitted by law; and shall be payable in lawful
money of the United States of America on such dates; all as determined hereby or by
Supplemental Resolution of the Issuer.
The Bonds shall be issued in such denominations and such form, whether coupon or
registered; shall be dated such date; shall bear such numbers; shall be payable at such place
or places; shall contain such redemption provisions; shall have such Paying Agents and
Registrars; shall mature in such years and amounts; and the proceeds shall be used in such
manner; all as determined by Supplemental Resolution of the Issuer in accordance with the
provisions of the Act. The Issuer may issue Bonds which may be secured by a Credit Facility
all as shall be determined hereby or by Supplemental Resolution of the Issuer.
SECTION 2.02. AUTHORIZATION AND DESCRIPTION OF THE SERIES
2003 BONDS. In accordance with the Act and the terms of this Resolution, this Resolution
hereby creates an issue of bonds of the Issuer to be designated as "Monroe County, Florida
Infrastructure Sales Surtax Revenue Bonds, Series 2003," to be issued in the aggregate
principal amount of not exceeding $25,000,000. The Series 2003 Bonds shall be issued for
the principal purposes of financing the acquisition, construction and equipping of the 2003
Project, funding the Reserve Account (whether with cash, investments, Reserve Account
16
Letter of Credit or Reserve Account Insurance Policy) and paying certain costs and expenses
incurred in connection with the issuance of the Series 2003 Bonds, including the Bond
Insurance Policy premium. The exact principal amount of the Series 2003 Bonds to be issued
by the Issuer shall be determined by Supplemental Resolution.
The Series 2003 Bonds shall be dated as of the first or fifteenth day of the month or
months in which occurs the delivery of the Series 2003 Bonds to the purchaser or purchasers
thereof, or such other date or dates as may be established or provided for by Supplemental
Resolution of the Issuer; shall initially be issued as one fully registered Bond for each
maturity; shall be numbered one preceded by the letter "R"; shall have such terms and shall
bear interest at a rate or rates not exceeding the maximum rate permitted by law, shall be
payable in such manner and on such dates; shall consist of such amounts of Serial Bonds,
Term Bonds, Variable Rate Bonds and Capital Appreciation Bonds; shall, subject to Section
5.06(2) hereof, mature in such installments and amounts and in such years not exceeding
forty (40) years from their date; shall be payable in such place or places; shall have such
Paying Agents and Registrars; and shall contain such redemption provisions; all as the Issuer
shall provide hereafter by Supplemental Resolution.
The principal of or Redemption Price, if applicable, on the Series 2003 Bonds is
payable upon presentation and surrender of the Series 2003 Bonds at the designated corporate
trust office ofthe Paying Agent. Interest payable on the Series 2003 Bonds on any Interest
Date will be paid by check or draft to the Holder in whose name such Bond shall be
registered at the close of business on the date which shall be the fifteenth day (whether or not
a business day) of the calendar month next preceding such Interest Date, or, at the request
of such Holder, by bank wire transfer for the account of such Holder. All payments of
principal of, Redemption Price, if applicable, and interest on the Series 2003 Bonds shall be
payable in any coin or currency ofthe United States of America which at the time of payment
is legal tender for the payment of public and private debts.
SECTION 2.03. APPLICATION OF SERIES 2003 BOND PROCEEDS.
(a) Except as otherwise provided by Supplemental Resolution of the Issuer, the
proceeds derived from the sale of the Series 2003 Bonds, including accrued interest and
premium, if any, shall be applied by the Issuer as follows:
(i) Accrued and any capitalized interest shall be deposited to the Interest
Account and shall be used only for the purpose of paying the interest which shall
thereafter become due on the Series 2003 Bonds. Accrued and any capitalized
interest shall be held in trust solely for the payment of the Series 2003 Bonds.
17
(ii) A sufficient amount of Series 2003 Bond proceeds shall be deposited
in the Reserve Account or used to pay the premium or fee for a Reserve Account
Insurance Policy and/or Reserve Account Letter of Credit the face amount of which,
together with any other moneys and securities on deposit therein and Reserve Account
Insurance Policies and/or Reserve Account Letters of Credit obtained in accordance
with Section 4 .05(A)( 4) hereof, shall equal the Reserve Account Requirement for the
Series 2003 Bonds.
(iii) A sufficient amount of the Series 2003 Bond proceeds shall be applied
to the payment of the premium of any Bond Insurance Policy applicable to the Series
2003 Bonds or reserves established therefor and to the payment of costs and expenses
relating to the issuance of the Series 2003 Bonds. Such amount or any portion thereof
may, at the option of the Issuer, be deposited in and disbursed from the Construction
Fund.
(iv) The balance of the Series 2003 Bond proceeds shall be deposited to an
account in the Construction Fund and shall be used to pay the Costs of the 2003
Project.
(b) The proceeds of any Series of Additional Bonds shall be applied by the Issuer
in accordance with the provisions of the Supplemental Resolution authorizing such Series
of Bonds.
SECTION 2.04. EXECUTION OF BONDS. The Bonds shall be executed in the
name of the Issuer with the manual or facsimile signature of the Mayor and the official seal
of the Issuer shall be imprinted thereon, attested and countersigned with the manual or
facsimile signature of the Clerk. In case anyone or more of the officers who shall have
signed or sealed any of the Bonds or whose facsimile signature shall appear thereon shall
cease to be such officer of the Issuer before the Bonds so signed and sealed have been
actually sold and delivered, such Bonds may nevertheless be sold and delivered as herein
provided and may be issued as if the person who signed or sealed such Bonds had not ceased
to hold such office. Any Bond may be signed and sealed on behalf of the Issuer by such
person who at the actual time of the execution of such Bond shall hold the proper office of
the Issuer, although at the date of such Bond such person may not have held such office or
may not have been so authorized. The Issuer may adopt and use for such purposes the
facsimile signatures of any such persons who shall have held such offices at any time after
the date of the adoption of this Resolution, notwithstanding that either or both shall have
ceased to hold such office at the time the Bonds shall be actually sold and delivered.
18
SECTION 2.05. AUTHENTICATION. No Bond shall be secured hereunder or
entitled to the benefit hereof or shall be valid or obligatory for any purpose unless there shall
be manually endorsed on such Bond a certificate of authentication by the Registrar or such
other entity as may be approved by the Issuer for such purpose. Such certificate on any Bond
shall be conclusive evidence that such Bond has been duly authenticated and delivered under
this Resolution. The form of such certificate shall be substantially in the form provided in
Section 2.10 hereof.
SECTION 2.06. TEMPORARY BONDS. Until the definitive Bonds are
prepared, the Issuer may execute, in the same manner as is provided in Section 2.04 hereof,
and deliver, upon authentication by the Registrar pursuant to Section 2.05 hereof, in lieu of
definitive Bonds, but subject to the same provisions, limitations and conditions as the
definitive Bonds, except as to the denominations thereof, one or more temporary Bonds
substantially of the tenor of the definitive Bonds in lieu of which such temporary Bond or
Bonds are issued, in denominations authorized by the Issuer by subsequent resolution, and
with such omissions, insertions and variations as may be appropriate to temporary Bonds.
The Issuer, at its own expense, shall prepare and execute definitive Bonds, which shall be
authenticated by the Registrar. Upon the surrender of such temporary Bonds for exchange,
the Registrar, without charge to the Holder thereof, shall deliver in exchange therefor
definitive Bonds, of the same aggregate principal amount and maturity as the temporary
Bonds surrendered. Until so exchanged, the temporary Bonds shall in all respects be entitled
to the same benefits and security as definitive Bonds issued pursuant to this Resolution. All
temporary Bonds surrendered in exchange for another temporary Bond or Bonds or for a
definitive Bond or Bonds shall be forthwith cancelled by the Registrar.
SECTION 2.07. BONDS MUTILATED, DESTROYED, STOLEN OR LOST.
In case any Bond shall become mutilated, or be destroyed, stolen or lost, the Issuer may, in
its discretion, issue and deliver, and the Registrar shall authenticate, a new Bond oflike tenor
as the Bond so mutilated, destroyed, stolen or lost, in exchange and substitution for such
mutilated Bond upon surrender and cancellation of such mutilated Bond or in lieu of and
substitution for the Bond destroyed, stolen or lost, and upon the Holder furnishing the Issuer
and the Registrar proof of his ownership thereof and satisfactory indemnity and complying
with such other reasonable regulations and conditions as the Issuer or the Registrar may
prescribe and paying such expenses as the Issuer and the Registrar may incur. All Bonds so
surrendered or otherwise substituted shall be cancelled by the Registrar. If any of the Bonds
shall have matured or be about to mature, instead of issuing a substitute Bond, the Issuer may
pay the same or cause the Bond to be paid, upon being indemnified as aforesaid, and if such
Bonds be lost, stolen or destroyed, without surrender thereof.
19
Any such duplicate Bonds issued pursuant to this Section 2.07 shall constitute original
contractual obligations on the part of the Issuer whether or not the lost, stolen or destroyed
Bond be at any time found by anyone, and such duplicate Bond shall be entitled to equal and
proportionate benefits and rights as to lien on the Pledged Funds to the same extent as all
other Bonds issued hereunder.
SECTION 2.08. INTERCHANGEABILITY, NEGOTIABILITY AND
TRANSFER. Bonds, upon surrender thereof at the office of the Registrar with a written
instrument of transfer satisfactory to the Registrar, duly executed by the Holder thereof or
his attorney duly authorized in writing, may, at the option of the Holder thereof, be
exchanged for an equal aggregate principal amount of registered Bonds of the same maturity
of any other authorized denominations.
The Bonds issued under this Resolution shall be and have all the qualities and
incidents of negotiable instruments under the law merchant and the Uniform Commercial
Code of the State of Florida, subject to the provisions for registration and transfer contained
in this Resolution and in the Bonds. So long as any ofthe Bonds shall remain Outstanding,
the Issuer shall maintain and keep, at the office of the Registrar, books for the registration
and transfer of the Bonds.
The transfer of any Bond shall be registered only upon the books of the Issuer, at the
office of the Registrar, under such reasonable regulations as the Issuer may prescribe, by the
Holder thereof in person or by his attorney duly authorized in writing upon surrender thereof
together with a written instrument oftransfer satisfactory to the Registrar duly executed and
guaranteed by the Holder or his duly authorized attorney. Upon the registration or transfer
of any such Bond, the Issuer shall issue, and cause to be authenticated, in the name of the
transferee a new Bond or Bonds of the same aggregate principal amount and maturity as the
surrendered Bond. The Issuer, the Registrar and any Paying Agent or fiduciary ofthe Issuer
may deem and treat the Person in whose name any Outstanding Bond shall be registered upon
the books of the Issuer as the absolute owner of such Bond, whether such Bond shall be
overdue or not, for the purpose of receiving payment of, or on account of, the principal and
interest on such Bond and for all other purposes, and all such payments so made to any such
Holder or upon his order shall be valid and effectual to satisfy and discharge the liability
upon such Bond to the extent of the sum or sums so paid and neither the Issuer nor the
Registrar nor any Paying Agent or other fiduciary of the Issuer shall be affected by any notice
to the contrary.
The Registrar, in any case where it is not also the Paying Agent with respect to the
Bonds, forthwith (A) following the fifteenth day prior to an Interest Date for the Bonds, and
(B) at any other time as reasonably requested by the Paying Agent, certify and furnish to the
20
Paying Agent the names, addresses and holdings ofthe Bondholders and any other relevant
information reflected in the registration books. Any Paying Agent of any fully registered
Bond shall effect payment of interest on such Bonds by mailing a check to the Holder entitled
thereto or may, in lieu thereof, upon the request and at the expense of such Holder, transmit
such payment by bank wire transfer for the account of such Holder.
In all cases in which the privilege of exchanging Bonds or the transfer of Bonds shall
be registered, the Issuer shall execute and the Registrar shall authenticate and deliver such
Bonds in accordance with the provisions of this Resolution. Execution of Bonds by the
Mayor and Clerk for purposes of exchanging, replacing or registering the transfer of Bonds
may occur at the time of the original delivery of the Bonds. All Bonds surrendered in any
such exchanges or registration of transfer shall be held by the Registrar for safekeeping until
directed by the Issuer to be cancelled by the Registrar. For every such exchange or
registration of transfer, the Issuer or the Registrar may make a charge sufficient to reimburse
it for any tax, fee, expense or other governmental charge required to be paid with respect to
such exchange or registration of transfer. The Issuer and the Registrar shall not be obligated
to make any such exchange or transfer of the Bonds during the period commencing on the
fifteenth day of the month immediately preceding an Interest Date on the Bonds and ending
on such Interest Date, or, in the case of any proposed redemption of Bonds of such Series,
then, for the Bonds subj ect to redemption, during the 15 days next preceding the date of the
first mailing of notice of such redemption and continuing until such redemption date.
The Issuer may elect to issue any Bonds as uncertificated registered public obligations
(not represented by instruments), commonly known as book-entry obligations, provided it
shall establish a system of registration therefor by Supplemental Resolution. In accordance
with Section 2.09 hereof, the Issuer elects to initially provide for a book entry only system
of registration for the Series 2003 Bonds.
SECTION 2.09. FULL BOOK ENTRY FOR SERIES 2003 BONDS.
Notwithstanding the provisions set forth in Section 2.08 hereof, the Series 2003 Bonds shall
be initially issued in the form of a separate single certificated fully registered Bond for each
of the maturities of the Series 2003 Bonds. Upon initial issuance, the ownership of each such
Bond shall be registered in the registration books kept by the Registrar in the name of Cede
& Co., as nominee of The Depository Trust Company ("DTC"). All of the Outstanding
Series 2003 Bonds shall be registered in the registration books kept by the Registrar in the
name of Cede & Co., as nominee of DTC. As long as the Series 2003 Bonds shall be
registered in the name of Cede & Co., all payments of principal on the Series 2003 Bonds
shall be made by the Paying Agent by check or draft or by bank wire transfer to Cede & Co.,
as Holder of the Series 2003 Bonds, upon presentation of the Series 2003 Bonds to be paid,
to the Paying Agent.
21
With respect to the Series 2003 Bonds registered in the registration books kept by the
Registrar in the name of Cede & Co., as nominee ofDTC, the Issuer, the Registrar and the
Paying Agent shall have no responsibility or obligation to any direct or indirect participant
in the DTC book-entry program (the "Participants"). Without limiting the immediately
preceding sentence, the Issuer, the Registrar and the Paying Agent shall have no
responsibility or obligation with respect to (A) the accuracy of the records ofDTC, Cede &
Co. or any Participant with respect to any ownership interest on the Series 2003 Bonds, (B)
the delivery to any Participant or any other Person other than a Bondholder, as shown in the
registration books kept by the Registrar, of any notice with respect to the Series 2003 Bonds,
including any notice of redemption, or (C) the payment to any Participant or any other
Person, other than a Bondholder, as shown in the registration books kept by the Registrar,
of any amount with respect to principal of, redemption premium, if any, or interest on the
Series 2003 Bonds. The Issuer, the Registrar and the Paying Agent may treat and consider
the Person in whose name each Bond is registered in the registration books kept by the
Registrar as the Holder and absolute owner of such Bond for the purpose of payment of
principal, redemption premium, if any, and interest with respect to such Bond, for the
purpose of giving notices of redemption and other matters with respect to such Bond, for the
purpose of registering transfers with respect to such Bond, and for all other purposes
whatsoever. The Paying Agent shall pay all principal of, redemption premium, if any, and
interest on the Series 2003 Bonds only to or upon the order of the respective Holders, as
shown in the registration books kept by the Registrar, or their respective attorneys duly
authorized in writing, as provided herein and all such payments shall be valid and effective
to fully satisfy and discharge the Issuer's obligations with respect to payment of principal,
redemption premium, if any, and interest on the Series 2003 Bonds to the extent of the sum
or sums so paid. No Person other than a Holder, as shown in the registration books kept by
the Registrar, shall receive a certificated Bond evidencing the obligation of the Issuer to
make payments of principal, redemption premium, if any, and interest pursuant to the
provisions of the Resolution. Upon delivery by DTC to the Issuer of written notice to the
effect that DTC has determined to substitute a new nominee in place of Cede & Co., and
subject to the provisions herein with respect to transfers during the 15 days next preceding
an Interest Date or mailing of notice of redemption, the words "Cede & Co." shall refer to
such new nominee ofDTC; and upon receipt of such notice, the Issuer shall promptly deliver
a copy of the same to the Registrar and the Paying Agent.
Upon (A) receipt by the Issuer of written notice from DTC (i) to the effect that a
continuation of the requirement that all of the Outstanding Series 2003 Bonds be registered
in the registration books kept by the Registrar in the name of Cede & Co., as nominee of
DTC, is not in the best interest ofthe beneficial owners of the Series 2003 Bonds or (ii) to
the effect that DTC is unable or unwilling to discharge its responsibilities and no substitute
depository willing to undertake the functions of DTC hereunder can be found which is
22
willing and able to undertake such functions upon reasonable and customary terms, or (B)
determination by the Issuer that such book-entry only system is burdensome to the Issuer, the
Series 2003 Bonds shall no longer be restricted to being registered in the registration books
kept by the Registrar in the name of Cede & Co., as nominee ofDTC, but may be registered
in whatever name or names Holders shall designate, in accordance with the provisions ofthis
Resolution. In such event, the Issuer shall issue, and the Registrar shall authenticate, transfer
and exchange the Series 2003 Bonds oflike principal amount and maturity, in denominations
of $5,000 or any integral multiple thereof to the Holders thereof. The foregoing
notwithstanding, until such time as participation in the book-entry only system is
discontinued, the provisions set forth in the Blanket Letter of Representations previously
executed by the Issuer and delivered to DTC shall apply to the payment of principal of and
interest on the Series 2003 Bonds.
SECTION 2.10. FORM OF BONDS. The text of the Bonds, except for Capital
Appreciation Bonds and Variable Rate Bonds, the form of which shall be provided by
Supplemental Resolution of the Issuer, shall be in substantially the following form with such
omissions, insertions and variations as may be necessary and/or desirable and approved by
the Mayor or the Clerk prior to the issuance thereof (which necessity and/or desirability and
approval shall be presumed by such officer's execution ofthe Bonds and the Issuer's delivery
of the Bonds to the purchaser or purchasers thereof):
23
No.R-
$
UNITED STATES OF AMERICA
STATE OF FLORIDA
MONROE COUNTY, FLORIDA
INFRASTRUCTURE SALES SURTAX
REVENUE BOND, SERIES _
Interest
Rate
Maturity
Date
Date of
Original Issue
CUSIP
Registered Holder:
Principal Amount:
KNOW ALL MEN BY THESE PRESENTS, that Monroe County, Florida, a
political subdivision of the State of Florida (the "Issuer"), for value received, hereby
promises to pay, solely from the Pledged Funds hereinafter described, to the Registered
Holder identified above, or registered assigns as hereinafter provided, on the Maturity Date
identified above, the Principal Amount identified above and to pay interest on such Principal
Amount from the Date of Original Issue identified above or from the most recent interest
payment date to which interest has been paid at the Interest Rate identified above on
I and 1 of each year commencing I, 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 Bond are payable in any coin or currency
of the United States of America which, on the respective dates of payment thereof, shall be
legal tender for the payment of public and private debts. Such Principal Amount on this
Bond is payable, upon presentation and surrender hereof, at the designated corporate trust
office of , as Paying Agent. Payment of each
installment of interest shall be made to the person in whose name this Bond shall be
24
registered on the registration books of the Issuer maintained by
, as Registrar, at the close of business on the date which shall be the fifteenth
day (whether or not a business day) of the calendar month next preceding each interest
payment date and shall be paid by a check or draft of such Paying Agent 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.
This Bond is one of an authorized issue of Bonds in the aggregate principal amount
of $ (the "Bonds") of like date, tenor and effect, except as to maturity date,
interest rate, denomination and number, issued for the principal purpose of providing moneys
for (all as more particularly
described in the hereinafter defined Resolution), under the authority of and in full compliance
with the Constitution and laws of the State of Florida, particularly Chapter 125, Florida
Statutes, Chapter 212, Florida Statutes, the Monroe County Code, the Ordinance, the
Infrastructure Sales Surtax Ordinance (as such terms are defined in the hereinafter defined
Resolution), and other applicable provisions of law (collectively, the "Act"), and an
Infrastructure Sales Surtax Revenue Bond Resolution of the Issuer adopted on February 19,
2003 (as amended and supplemented from time to time, the "Resolution"), and is subject to
all the terms and conditions of the Resolution.
This Bond and the interest hereon are payable from and secured by a pledge of and
lien upon (1) the Infrastructure Sales Surtax Revenues (as defined in the Resolution) and (2)
until applied in accordance with the provisions of the Resolution, all moneys, including
investments thereof, in certain of the funds and accounts established by the Resolution, all
in the manner and to the extent described in the Resolution (collectively, the "Pledged
Funds"); provided, however, the pledge of and lien upon the Infrastructure Sales Surtax
Revenues in favor of the Bonds (including this Bond) shall be junior and subordinate in all
respects to the pledge thereof and lien thereon granted with respect to the Issuer's Monroe
County, Florida Sales Tax Refunding Revenue Bonds, Series 1998, so long as such Series
1998 Bonds are outstanding under the Prior Resolution (as defined in the Resolution). The
Issuer hereby agrees not to issue any additional bonds or other obligations pursuant to the
Prior Resolution.
IT IS EXPRESSLY AGREED BY THE REGISTERED HOLDER OF THIS BOND
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 AND INTEREST ON THIS BOND 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
25
PAYMENT OF SUCH PRINCIPAL AND INTEREST. THIS BOND AND THE
OBLIGATION EVIDENCED HEREBY SHALL NOT CONSTITUTE A LIEN UPON ANY
PROPERTY OF THE ISSUER, BUT SHALL CONSTITUTE A LIEN ONLY ON, AND
SHALL BE PAYABLE SOLEL Y FROM, THE PLEDGED FUNDS TO THE EXTENT
PROVIDED IN THE RESOLUTION.
The transfer of this Bond is registrable in accordance with the terms of the Resolution
only upon the books of the Issuer kept for that purpose at the designated corporate trust office
of the Registrar by the Registered Holder hereof in person or by his attorney duly authorized
in writing, upon the surrender of this Bond together with a written instrument of transfer
satisfactory to the Registrar duly executed by the Registered Holder or his attorney duly
authorized in writing, and thereupon a new Bond or Bonds in the same aggregate principal
amount shall be issued to the transferee in exchange therefor, and upon the payment of the
charges, if any, therein prescribed. For every such exchange or registration of transfer, the
Issuer or the Registrar may make a charge sufficient to reimburse it for any tax, fee, expense
or other governmental charge required to be paid with respect to such exchange or
registration of transfer. The Bonds are issuable in the form of fully registered Bonds in the
denomination of $5,000 and any integral multiple thereof, not exceeding the aggregate
principal amount of the Bonds. The Issuer, the Registrar and any Paying Agent may treat the
Registered Holder of this Bond as the absolute owner hereof for all purposes, whether or not
this Bond shall be overdue, and shall not be affected by any notice to the contrary. The
Issuer and the Registrar shall not be obligated to make any exchange or transfer of the Bonds
during the period commencing on the 15th day of the month immediately preceding an
interest payment date on the Bonds and ending on such interest payment date, or, in the case
of any proposed redemption of Bonds of such Series, then, for the Bonds subject to
redemption, during the 15 days next preceding the date of the first mailing of notice of such
redemption and continuing until such redemption date.
[Insert Redemption Provisions]
Redemption of this Bond under the preceding paragraphs shall be made as provided
in the Resolution upon notice given by first class mail sent at least 30 days prior to the
redemption date to the Registered Holder hereof at the address shown on the registration
books maintained by the Registrar; provided, however, that failure to mail notice to the
Registered Holder hereof, or any defect therein, shall not affect the validity of the
proceedings for redemption of other Bonds as to which no such failure or defect has
occurred. In the event that less than the full principal amount hereof shall have been called
for redemption, the Registered Holder hereof shall surrender this Bond in exchange for one
26
or more Bonds in an aggregate principal amount equal to the unredeemed portion of
principal, as provided in the Resolution.
Reference to the Resolution and any and all resolutions supplemental thereto and
modifications and amendments thereof and to the Act is made for a description of the pledge
and covenants securing this Bond, the nature, manner and extent of enforcement of such
pledge and covenants, and the rights, duties, 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 this Bond, exist, have
happened and have been performed, in regular and due form and time as required by the laws
and Constitution of the State of Florida applicable thereto, and that the issuance of the Bonds
does not violate any constitutional or statutory limitations or provisions.
Neither the members of the Board of County Commissioners of the Issuer nor any
person executing this Bond shall be liable personally hereon or be subject to any personal
liability or accountability by reason of the issuance hereof.
This Bond shall not be valid or become obligatory for any purpose until the certificate
of authentication hereon shall have been signed by the Registrar.
[Remainder of page intentionally left blank]
27
IN WITNESS WHEREOF, the Monroe County, Florida has issued this Bond and
has caused the same to be executed by the manual or facsimile signature of the Mayor of the
Board of County Commissioners and countersigned and attested by the manual or facsimile
signature of the Clerk of such Board, and its official seal or a facsimile thereof to be affixed
or reproduced hereon, all as of the Date of Original Issue.
MONROE COUNTY, FLORIDA
(SEAL)
Mayor, Board of County Commissioners
ATTESTED AND COUNTERSIGNED:
Clerk, Board of County Commissioners
APPROVED AS TO FORM AND
LEGAL SUFFICIENCY:
County Attorney's Office
28
CERTIFICATE OF AUTHENTICATION
This Bond is one of the Bonds of the Issue described in the within-mentioned
Resolution.
DATE OF AUTHENTICATION:
, Registrar
Authorized Signatory
29
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned sells, assigns and transfers unto
Insert Social Security or Other Identifying Number of Assignee
(Name and Address of Assignee)
the within Bond and does hereby irrevocably constitute and appoint
, as attorneys to register the transfer of the said Bond on the books kept
for registration thereof with full power of substitution in the premises.
Dated:
Signature guaranteed:
NOTICE: Signature(s) must be
guaranteed by an institution which is a
participant in the Securities Transfer Agent
Medallion Program (STAMP) or similar
program.
NOTICE: The signature to this
assignment must correspond with the name
of the Registered Holder as it appears upon
the face of the within Bond in every
particular, without alteration or
enlargement or any change whatever and
the Social Security or other identifying
number of such assignee must be supplied.
30
The following abbreviations, when used in the inscription on the face of the within
Bond, shall be construed as though they were written out in full according to applicable laws
or regulations:
TEN COM -- as tenants in common
TEN ENT -- as tenants by the entireties
JT TEN -- as joint tenants with right of survivorship and not as tenants in common
UNIF TRANS MIN ACT --
(Cust. )
Custodian for
under Uniform Transfers to Minors Act of
(State)
Additional abbreviations may also be used though not in list above.
31
ARTICLE III
REDEMPTION OF BONDS
SECTION 3.01. PRIVILEGE OF REDEMPTION. The terms of this Article
III shall apply to redemption of Bonds other than Capital Appreciation Bonds or Variable
Rate Bonds. The terms and provisions relating to redemption of Capital Appreciation Bonds
and Variable Rate Bonds shall be provided by Supplemental Resolution.
SECTION 3.02. SELECTION OF BONDS TO BE REDEEMED. The Bonds
shall be redeemed only in the principal amount of$5,000 each and integral multiples thereof.
The Issuer shall, at least forty-five (45) days prior to the redemption date (unless a shorter
time period is satisfactory to the Registrar, but in no event less than thirty-five (35) days)
notify the Registrar of such redemption date and of the principal amount of Bonds to be
redeemed. For purposes of any redemption of less than all of the Outstanding Bonds of a
single maturity, the particular Bonds or portions of Bonds to be redeemed shall be selected
not more than forty-five (45) days and not less than thirty-five (35) days prior to the
redemption date by the Registrar from the Outstanding Bonds of the maturity or maturities
designated by the Issuer or by such method as the Registrar shall deem fair and appropriate
and which may provide for the selection for redemption of Bonds or portions of Bonds in
principal amounts of$5,000 and integral multiples thereof.
If less than all of the Outstanding Bonds of a single maturity are to be redeemed, the
Registrar shall promptly notify the Issuer and Paying Agent (if the Registrar is not the Paying
Agent for such Bonds) in writing ofthe Bonds or portions of Bonds selected for redemption
and, in the case of any Bond selected for partial redemption, the principal amount thereof to
be redeemed.
SECTION 3.03. NOTICE OF REDEMPTION. Notice of such redemption,
which shall specify the Bond or Bonds (or portions thereof) to be redeemed and the date and
place for redemption, shall be given by the Registrar on behalf of the Issuer, and (A) shall
be filed with the Paying Agent of such Bonds and (B) shall be mailed first class, postage
prepaid, at least thirty (30) days prior to the redemption date to all Holders of Bonds to be
redeemed at their addresses as they appear on the registration books kept by the Registrar as
of the date of mailing of such notice. Failure to mail notice to the Holders of the Bonds to
be redeemed, or any defect therein, shall not affect the proceedings for redemption of Bonds
as to which no such failure or defect has occurred.
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Each notice of redemption shall state: (1) the CUSIP numbers of all Bonds being
redeemed, (2) the original issue date of such Bonds, (3) the maturity date and rate of interest
borne by each Bond being redeemed, (4) the redemption date, (5) the Redemption Price, (6)
the date on which such notice is mailed, (7) if less than all Outstanding Bonds are to be
redeemed, the certificate number (and, in the case of a partial redemption of any Bond, the
principal amount) of each Bond to be redeemed, (8) that on such redemption date there shall
become due and payable upon each Bond to be redeemed the Redemption Price thereof, or
the Redemption Price of the specified portions of the principal thereof in the case of Bonds
to be redeemed in part only, together with interest accrued thereon to the redemption date,
and that from and after such date interest thereon shall cease to accrue and be payable, (9)
that the Bonds to be redeemed, whether as a whole or in part, are to be surrendered for
payment of the Redemption Price at the designated office of the Paying Agent at an address
specified, and (10) unless sufficient funds have been set aside by the Issuer for such purpose
prior to the mailing of the notice of redemption, that such redemption is conditioned upon
the deposit of sufficient funds for such purpose on or prior to the date set for redemption; and
provided, further, that such notice and the redemption set forth therein may be subject to the
satisfaction of one or more additional conditions set forth therein.
Within sixty (60) days of the date of redemption, the Registrar shall give a second
notice of redemption by mailing another copy of the redemption notice to the registered
Holders of Bonds called for redemption but which have not been presented for payment
within thirty (30) days after the date set for redemption; provided, however, the failure to
provide such further notice of redemption or to comply with the terms of this paragraph shall
not in any manner defeat the effectiveness of a call for redemption if notice thereof is given
as prescribed above.
In addition to the mailing of the notice described above, each notice of redemption
and payment of the redemption price shall meet the following requirement; provided,
however, the failure to provide such further notice of redemption or to comply with the terms
of this paragraph shall not in any manner defeat the effectiveness of a call for redemption if
notice thereof is given as prescribed above:
Each further notice of redemption shall be sent by certified mail or overnight
delivery service or telecopy to all registered securities depositories then in the
business of holding substantial amounts of obligations of types comprising the Bonds
(such depositories now being The Depository Trust Company, New York, New York
and Midwest Securities Trust Company, Chicago, Illinois) and to two or more
national information services which disseminate notices of prepayment or redemption
of obligations such as the Bonds (such information services now being Financial
Information, Inc.'s "Daily Called Bond Service," Jersey City, New Jersey, Kenny
33
Information Services "Called Bond Service," New York, New York, Moody's
"Municipal and Government," New York, New York and Standard & Poor's "Called
Bond Record," New York, New York).
SECTION 3.04. REDEMPTION OF PORTIONS OF BONDS. Any Bond
which is to be redeemed only in part shall be surrendered at any place of payment specified
in the notice of redemption (with due endorsement by, or written instrument of transfer in
form satisfactory to the Registrar duly executed by, the Holder thereof or his attorney duly
authorized in writing) and the Issuer shall execute and the Registrar shall authenticate and
deliver to the Holder of such Bond, without service charge, a new Bond or Bonds, of the
same interest rate and maturity, and of any authorized denomination as requested by such
Holder, in an aggregate principal amount equal to and in exchange for the unredeemed
portion of the principal of the Bonds so surrendered.
SECTION 3.05. PAYMENT OF REDEEMED BONDS. Notice of redemption
having been given substantially as aforesaid, the Bonds or portions of Bonds so to be
redeemed shall, on the redemption date, become due and payable at the Redemption Price
therein specified, and from and after such date (unless the Issuer shall default in the payment
of the Redemption Price) such Bonds or portions of Bonds shall cease to bear interest. Upon
surrender of such Bonds for redemption in accordance with said notice, such Bonds shall be
paid by the Registrar and/or Paying Agent at the appropriate Redemption Price, plus accrued
interest. Each check or other transfer of funds issued by the Paying Agent to pay the
Redemption Price of Bonds being redeemed shall bear the CUSIP number or numbers of
such Bonds and identify the payments applicable to each CUSIP number. All Bonds which
have been redeemed shall be cancelled by the Registrar and shall not be reissued.&
34
ARTICLE IV
SECURITY, SPECIAL FUNDS AND
APPLICATION THEREOF
SECTION 4.01. BONDS NOT TO BE INDEBTEDNESS OF ISSUER. The
Bonds shall not be or constitute general obligations or indebtedness of the Issuer as "bonds"
within the meaning of any constitutional or statutory provision, but shall be special
obligations of the Issuer, payable solely from and secured by a lien upon and pledge of the
Pledged Funds and moneys payable pursuant to the Bond Insurance Policy, with and to the
extent set forth in this Resolution. No Holder of any Bond or the Insurer shall ever have the
right to compel the exercise of any ad valorem taxing power to pay such Bond, or be entitled
to payment of such Bond from any moneys of the Issuer except from the Pledged Funds in
the manner provided herein.
SECTION 4.02. SECURITY FOR BONDS. Except as otherwise provided
herein or by Supplemental Resolution, the payment of the principal of and interest on the
Bonds shall be secured forthwith equally and ratably by a pledge of and lien upon the
Pledged Funds; provided, however, (i) a Series of Bonds may be further secured by a Credit
Facility in addition to the security provided herein; and (ii) a Series of Bonds may be secured
independently of any other Series of Bonds by the establishment of a separate subaccount in
the Reserve Account for such Series of Bonds. The Issuer does hereby irrevocably pledge
the Pledged Funds to the payment of the principal of and interest on the Bonds in accordance
with the provisions hereof. In addition, the Issuer does hereby irrevocably pledge and grant
a lien upon the Pledged Funds to the payment of any amounts owing to an issuer of a Credit
Facility in accordance with the provisions hereof; provided, however, such pledge and lien
shall be junior and subordinate in all respects to the pledge and lien upon such Pledged Funds
granted hereby to the Bondholders. The Pledged Funds shall immediately be subject to the
lien of this pledge without any physical delivery thereof or further act, and the lien of this
pledge shall be valid and binding as against all parties having claims of any kind in tort,
contract or otherwise against the Issuer. Notwithstanding the foregoing, the pledge of and
lien upon the Infrastructure Sales Surtax Revenues for the benefit of the Bonds shall be
junior and subordinate in all respects to the pledge thereof and lien thereon granted with
respect to the Prior Bonds under the Prior Resolution. Except as otherwise provided by
Supplemental Resolution, the obligation of the Issuer to make Hedge Payments to a
Counterparty pursuant to a Qualified Hedge Agreement shall be on parity with the Bonds as
to lien on and pledge of the Pledged Funds in accordance with the terms hereof (any other
payments related to a Qualified Hedge Agreement, including fees, penalties and termination
35
payments and the obligation of the Issuer to collateralize, shall be Subordinated Indebtedness
of the Issuer).
SECTION 4.03. CONSTRUCTION FUND. The Issuer covenants and agrees
to establish a special fund to be known as the "Monroe County, Florida Infrastructure Sales
Surtax Revenue Bonds Construction Fund," which shall be used only for payment of the
Costs of Projects. Moneys in the Construction Fund, until applied to payment of any item
of the Costs of a Project in the manner hereinafter provided, shall be held in trust by the
Issuer and shall be subject to a lien and charge in favor of the Holders of the Bonds and for
the further security of such Holders.
The Issuer shall establish within the Construction Fund a separate account for each
Project (including the 2003 Project), the Costs of which are to be paid in whole or in part out
of the Construction Fund.
The Issuer covenants that the acquisition, construction and equipping of each Project
will be completed without delay and in accordance with sound engineering practices. The
Issuer shall only make disbursements or payments from the applicable account of the
Construction Fund to pay Costs ofthe Project for which such account was established, except
as provided below with respect to any surplus proceeds in a particular account. The Issuer
shall keep records of such disbursements and payments and shall retain all such records for
six (6) years from the dates of such records.
Notwithstanding any of the other provisions of this Section 4.03, to the extent that
other moneys are not available therefor, amounts in an account of the Construction Fund
shall be applied to the payment of principal and interest on the Series of Bonds for which
such account was established or to reimburse a Credit Facility Provider for the payment of
such principal and interest.
The date of completion of acquisition, construction and equipping of a Project shall
be filed by the Clerk with the Issuer. Promptly after the date of the completion of a Project,
and after paying or making provisions for the payment of all unpaid items of the Costs of
such Project, the Issuer shall deposit in the following order of priority any balance of moneys
remaining in the Construction Fund in (A) any other account established in the Construction
Fund for which the Clerk certifies that there are insufficient moneys to pay the Costs of the
Project for which such account was established, (B) the Reserve Account to the extent of any
deficiency therein and (C) such other fund or account established hereunder as shall be
determined by the Issuer, provided the Issuer has received an opinion of Bond Counsel to the
effect that such transfer shall not adversely affect the exclusion, if any, of interest on the
36
Bonds (other than Taxable Bonds) from gross income for purposes of federal income
taxation.
SECTION 4.04. FUNDS AND ACCOUNTS. The Issuer covenants and agrees
to establish the following funds and accounts:
(A) The "Monroe County, Florida Infrastructure Sales Surtax Revenue Bonds
Revenue Fund." The Issuer shall maintain two separate accounts in the Revenue Fund, the
"Restricted Revenue Account" and the "Unrestricted Revenue Account."
(B) The "Monroe County, Florida Infrastructure Sales Surtax Revenue Bonds Debt
Service Fund." The Issuer shall maintain four separate accounts in the Debt Service Fund,
the "Interest Account," the "Principal Account," the "Bond Amortization Account" and the
"Reserve Account."
(C) The "Monroe County, Florida Infrastructure Sales Surtax Revenue Bonds
Rebate Fund."
Moneys in the aforementioned funds and accounts, other than the Rebate Fund and
the Unrestricted Revenue Account, until applied in accordance with the provisions hereof,
shall be subject to a lien and charge in favor of the Holders of the Bonds and for the further
security of such Holders.
The Issuer may at any time and from time to time appoint one or more depositories
to hold, for the benefit of the Bondholders, anyone or more of the funds, accounts and
subaccounts established hereby. Such depository or depositories shall perform at the
direction of the Issuer the duties of the Issuer in depositing, transferring and disbursing
moneys to and from each of such funds and accounts as herein set forth, and all records of
such depositary in performing such duties shall be open at all reasonable times to inspection
by the Issuer and its agent and employees. Any such depositary shall be a bank or trust
company duly authorized to exercise corporate trust powers and subject to examination by
federal or state authority, of good standing, and be qualified under applicable State law as
a depository.
SECTION 4.05. DISPOSITION OF INFRASTRUCTURE SALES SURTAX
REVENUES. (A) Prior to payment or defeasance of the Prior Bonds in accordance with the
Prior Resolution, the Issuer shall deposit into the Restricted Revenue Account all
Infrastructure Sales Surtax Revenues received by the Issuer after the Issuer has made the
required monthly deposits to the sinking fund, bond amortization account and reserve
account established by the Prior Resolution, in accordance with the Prior Resolution.
37
Subsequent to payment or defeasance of the Prior Bonds in accordance with the Prior
Resolution, the Issuer shall promptly deposit upon receipt from the State all of the
Infrastructure Sales Surtax Revenues into the Restricted Revenue Account. The moneys in
the Restricted Revenue Account shall be deposited or credited on or before the 25th day of
each month, commencing in the month immediately following delivery of any of the Bonds
to the purchasers thereof, or such later date as hereinafter provided, in the following manner
and in the following order of priority:
(1 ) Interest Account. The Issuer shall deposit or credit to the Interest Account the
sum which, together with the balance in said Account, shall equal the interest on all of the
Outstanding Bonds accrued and unpaid and to accrue to the end of the then current calendar
month (assuming that a year consists of twelve (12) equal calendar months of thirty (30) days
each). All Hedge Receipts shall be deposited directly to the Interest Account upon receipt.
With respect to interest on Bonds which are subject to a Hedge Payment, interest on such
Bonds during the term of the Qualified Hedge Agreement shall be deemed to include the
corresponding Hedge Payments. Moneys in the Interest Account shall be applied by the
Issuer (a) for deposit with the Paying Agent to pay the interest on the Bonds on or prior to
the date the same shall become due, whether by maturity, redemption or otherwise, and (b)
for Hedge Payments. The Issuer shall adjust the amount of the deposit to the Interest
Account not later than a month immediately preceding any Interest Date so as to provide
sufficient moneys in the Interest Account to pay the interest on the Bonds coming due on
such Interest Date. No further deposit need be made to the Interest Account when the
moneys therein are equal to the interest coming due on the Outstanding Bonds on the next
succeeding Interest Date. With respect to debt service on any Bonds which are subject to a
Qualified Hedge Agreement, any Hedge Payments due to the Counterparty to such Qualified
Hedge Agreement relating to such Bonds shall be paid to the Counterparty to such Qualified
Hedge Agreement on a parity basis with the aforesaid required payments into the Debt
Service Fund.
(2) Principal Account. Commencing in the month which is one year prior to the
first principal due date (or if the first principal due date is less than one year from the date
of issuance of the Bonds, the month immediately following the issuance of the Bonds), the
Issuer shall next deposit into the Principal Account the sum which, together with the balance
in said Account, shall equal the principal amount on the Outstanding Bonds due and unpaid
and that portion of the principal next due which would have accrued on such Bonds during
the then current calendar month if such principal amounts were deemed to accrue monthly
(assuming that a year consists of twelve (12) equal calendar months having thirty (30) days
each) in equal amounts from the next preceding principal payment due date, or, if there is no
such preceding payment due date from a date one year preceding the due date of such
principal amount. Moneys in the Principal Account shall be applied by the Issuer for deposit
38
with the Paying Agent to pay the principal of the Bonds on or prior to the date the same shall
mature, and for no other purpose. The Issuer shall adjust the amount of the deposit to the
Principal Account not later than the month immediately preceding any principal payment date
so as to provide sufficient moneys in the Principal Account to pay the principal on the Bonds
becoming due on such principal payment date. No further deposit need be made to the
Principal Account when the moneys therein are equal to the principal coming due on the
Outstanding Bonds on the next succeeding principal payment date.
(3) Bond Amortization Account. Commencing in the month which is one year
prior to any Amortization Installment due date, there shall be deposited or credited to the
Bond Amortization Account an amount which, together with the balance in said Account,
shall equal the Amortization Installments of all Bonds Outstanding due and unpaid and that
portion of the Amortization Installment next due which would have accrued on said Bonds
during the then current calendar month if such Amortization Installment were deemed to
accrue daily (assuming that a year consists of twelve (12) months of thirty (30) days each),
in equal amounts from the next preceding Amortization Installment due date, or if there is
no such preceding Amortization Installment due date, from a date one year preceding the due
date of such Amortization Installment. Moneys in the Bond Amortization Account shall be
used to purchase or redeem Term Bonds in the manner herein provided or as provided by
Supplemental Resolution, and for no other purpose. The Issuer shall adjust the amount of
the deposit into the Bond Amortization Account not later than the month immediately
preceding any date for payment of an Amortization Installment so as to provide sufficient
moneys in the Bond Amortization Account to pay the Amortization Installments on the
Bonds coming due on such date. No further deposit need be made to the Bond Amortization
Account when the moneys therein are equal to the Amortization Installments coming due on
the Outstanding Bonds on the next succeeding Amortization Installment due date. Payments
to the Bond Amortization Account shall be on a parity with payments to the Principal
Account.
Amounts accumulated in the Bond Amortization Account with respect to any
Amortization Installment (together with amounts accumulated in the Interest Account with
respect to interest, if any, on the Term Bonds for which such Amortization Installment was
established) may be applied by the Issuer, on or prior to the sixtieth (60th) day preceding the
due date of such Amortization Installment, (a) to the purchase of Term Bonds of the Series
and maturity for which such Amortization Installment was established at a price not
exceeding par plus accrued interest, or (b) to the redemption at the applicable Redemption
Prices of such Term Bonds, if then redeemable by their terms at a price not exceeding par
plus accrued interest. The applicable Redemption Price (or principal amount of maturing
Term Bonds) of any Term Bonds so purchased or redeemed shall be deemed to constitute
part of the Bond Amortization Account until such Amortization Installment date, for the
39
purposes of calculating the amount of such Account. As soon as practicable after the sixtieth
(60th) day preceding the due date of any such Amortization Installment, the Issuer shall
proceed to call for redemption on such due date, by causing notice to be given as provided
in Section 3.03 hereof, Term Bonds of the Series and maturity for which such Amortization
Installment was established (except in the case of Term Bonds maturing on an Amortization
Installment date) in such amount as shall be necessary to complete the retirement of the
unsatisfied balance of such Amortization Installment. The Issuer shall payout of the Bond
Amortization Account and the Interest Account to the appropriate Paying Agents, on or
before the day preceding such redemption date (or maturity date), the amount required for
the redemption (or for the payment of such Term Bonds then maturing), and such amount
shall be applied by such Paying Agents to such redemption (or payment). All expenses in
connection with the purchase or redemption of Term Bonds shall be paid by the Issuer from
the Restricted Revenue Fund.
(4) Reserve Account. There shall be deposited to the Reserve Account an amount
which shall not be less than one twelfth (1/12) of the amount which would enable the Issuer
to restore the funds on deposit in the Reserve Account to an amount equal to the Reserve
Account Requirement applicable thereto in one (1) year from the date of any deficiency
caused by decreased market value of the investments on deposit therein or withdrawal
therefrom. On or prior to each principal payment date and Interest Date for the Bonds,
moneys in the Reserve Account shall be applied by the Issuer to the payment of the principal
of or Redemption Price, if applicable, and interest on the Bonds to the extent moneys in the
Interest Account, the Principal Account and the Bond Amortization Account shall be
insufficient for such purpose. Whenever there shall be surplus moneys in the Reserve
Account by reason of (i) investment income, shall be deposited into the Interest Account as
provided in Section 4.07 hereof and (ii) a decrease in the Reserve Account Requirement,
such surplus moneys shall be deposited by the Issuer into the Unrestricted Revenue Account,
subject to receiving an opinion of Bond Counsel that such application will not have an
adverse effect on the tax-exempt status on the Bonds (other than Taxable Bonds), and
otherwise to the Debt Service Fund. The Issuer shall inform each Credit Facility Provider
of any draw upon the Reserve Account for purposes of paying the principal of and interest
on the Bonds.
Upon the issuance of any Series of Bonds under the terms, limitations and conditions
as herein provided, the Issuer shall, on the date of delivery of such Series of Bonds, fund the
Reserve Account in an amount at least equal to the Reserve Account Requirement, if so
required. Such required amount may be paid in full or in part from the proceeds of such
Series of Bonds.
40
Notwithstanding the foregoing provisions, in lieu or substitution of the required
deposits into the Reserve Account, the Issuer may cause to be deposited into the Reserve
Account a Reserve Account Insurance Policy and/or Reserve Account Letter of Credit for
the benefit of the Bondholders in an amount equal to the difference between the Reserve
Account Requirement applicable thereto and the sums then on deposit in the Reserve
Account, if any. The Issuer may also substitute a Reserve Account Insurance Policy and/or
Reserve Account Letter of Credit for cash on deposit in the Reserve Account upon
compliance with the terms of this Section 4.05(A)(4). Such Reserve Account Insurance
Policy and/or Reserve Account Letter of Credit shall be payable to the Paying Agent (upon
the giving of notice as required thereunder) on any principal payment date or Interest Date
on which a deficiency exists which cannot be cured by moneys in any other fund or account
held pursuant to this Resolution and available for such purpose. The issuer providing such
Reserve Account Insurance Policy shall be an insurer whose municipal bond insurance
policies insuring the payment, when due, of the principal of and interest on municipal bond
issues results in such issues being rated in the highest rating category (without regard to
gradations, such as "plus" or "minus" of such category) by Standard & Poor's and Moody's,
and, if rated by A.M. Best & Company, in the highest rating category of A.M. Best &
Company. The issuer providing such Reserve Account Letter of Credit shall be a
commercial bank, insurance company or other financial institution the obligations payable
or guaranteed by which have been assigned a rating by each rating agency rating the Bonds
secured by such Account in one of the two highest rating categories (without regard to
gradations, such as "plus" or "minus" of such categories); provided, that notwithstanding the
foregoing, such insurer or commercial bank must be rated by any rating agency or agencies
providing a rating on the Bonds secured by such Reserve Account Insurance Policy or
Reserve Account Letter of Credit.
In the event the Reserve Account contains both a Reserve Account Insurance Policy
or Reserve Account Letter of Credit and cash and separate subaccounts have not been
established in the Reserve Account, the cash shall be drawn down completely prior to any
draw on the Reserve Account Insurance Policy or Reserve Account Letter of Credit. In the
event more than one Reserve Account Insurance Policy or Reserve Account Letter of Credit
is on deposit in the Reserve Account, amounts required to be drawn thereon shall be done
on a pro-rata basis. The Issuer agrees to pay all amounts owing in regard to any Reserve
Account Insurance Policy or Reserve Account Letter of Credit from the Pledged Funds.
Pledged Funds shall be applied in accordance with this Section 4.05(A)( 4), first, to reimburse
the issuer of the Reserve Account Insurance Policy or Reserve Account Letter of Credit for
amounts advanced under such instruments, second, replenish any cash deficiencies in the
Reserve Account, and third, to pay the issuer of the Reserve Account Insurance Policy or
Reserve Account Letter of Credit interest on amounts advanced under such instruments. This
Resolution shall not be discharged or defeased while any obligations are owing in regard to
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a Reserve Account Insurance Policy or Reserve Account Letter of Credit on deposit in the
Reserve Account. The Issuer agrees not to optionally redeem or refund Bonds unless all
amounts owing in regard to a Reserve Account Insurance Policy or Reserve Account Letter
of Credit on deposit in the Reserve Account have been paid in full.
If two (2) business days prior to an interest payment or redemption date or such other
period of time as shall be established pursuant to Supplemental Resolution, the Issuer shall
determine that a deficiency exists in the amount of moneys available to pay in accordance
with the terms hereof interest and/or principal due on the Bonds on such date, the Issuer shall
immediately notify (a) the issuer ofthe applicable Reserve Account Insurance Policy and/or
the issuer of the Reserve Account Letter of Credit and submit a demand for payment pursuant
to the provisions of such Reserve Account Insurance Policy and/or Reserve Account Letter
of Credit, (b) the Paying Agent, and (c) the Insurer, if any, of the amount of such deficiency
and the date on which such payment is due, and shall take all action to cause such Issuer or
Insurer to provide moneys sufficient to pay all amounts due on such Interest Date including,
if necessary, directing the Paying Agent to draw on the Reserve Account Insurance Policy
or Reserve Account Letter of Credit.
The Issuer may evidence its obligation to reimburse the issuer of any Reserve Account
Letter of Credit or Reserve Account Insurance Policy by executing and delivering to such
issuer a promissory note or agreement therefore; provided, however, any such note (a) shall
not be a general obligation of the Issuer the payment of which is secured by the full faith and
credit or taxing power of the Issuer, and (b) shall be payable solely from the Pledged Funds
in the manner provided herein.
To the extent the Issuer causes to be deposited into the Reserve Account, a Reserve
Account Insurance Policy and/or a Reserve Account Letter of Credit for a term of years
shorter than the life of the Series of Bonds so insured or secured, then the Reserve Account
Insurance Policy and/or the Reserve Account Letter of Credit shall provide, among other
things, that the issuer thereof shall provide the Issuer with notice as of each anniversary of
the date ofthe issuance ofthe Reserve Account Insurance Policy and/or the Reserve Account
Letter of Credit of the intention of the issuer thereof to either (a) extend the term of the
Reserve Account Insurance Policy and/or the Reserve Account Letter of Credit beyond the
expiration dates thereof, or (b) terminate the Reserve Account Insurance Policy and/or the
Reserve Account Letter of Credit on the initial expiration dates thereof or such other future
date as the issuer thereof shall have established. If the issuer of the Reserve Account
Insurance Policy and/or the Reserve Account Letter of Credit notifies the Issuer pursuant to
clause (b) of the immediately preceding sentence or if the Issuer terminates the Reserve
Account Letter of Credit and/or Reserve Account Insurance Policy, then the Issuer shall
deposit into the Reserve Account, on or prior to the end of the first full calendar month
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following the date on which such notice is received by the Issuer, such sums as shall be
sufficient to pay an amount equal to a fraction, the numerator of which is one (1) and the
denominator of which is equal to the number of months remaining in the term of the Reserve
Account Insurance Policy and/or the Reserve Account Letter of credit of the Reserve
Account Requirement on the date such notice was received (the maximum amount available,
assuming full reimbursement by the Issuer, under the Reserve Account Letter of Credit
and/or the Reserve Account Insurance Policy to be reduced annually by an amount equal to
the deposit to the Reserve Account during the previous twelve (12) month period) until
amounts on deposit in the Reserve Account, as a result of the aforementioned deposits, and
no later than upon the expiration of such Reserve Account Insurance Policy and/or such
Reserve Account Letter of Credit, shall be equal to the Reserve Account Requirement
applicable thereto.
If any Reserve Account Letter of Credit or Reserve Account Insurance Policy shall
terminate prior to the stated expiration date thereof, the Issuer agrees that it shall fund the
Reserve Account over a period not to exceed twenty-four (24) months during which it shall
make consecutive equal monthly payments in order that the amount on deposit in the Reserve
Account shall equal the Reserve Account Requirement; provided, the Issuer may obtain a
new Reserve Account Letter of Credit or a new Reserve Account Insurance Policy in lieu of
making the payments required by this paragraph.
Whenever the amount of cash or securities in the Reserve Account, together with the
other amounts in the Debt Service Fund, are sufficient to fully pay all Outstanding Bonds in
accordance with their terms (including principal or applicable Redemption Price and interest
thereon), the funds on deposit in the Reserve Account may be transferred to the other
Accounts of the Debt Service Fund for the payment of the Bonds.
The Issuer may also establish a separate subaccount in the Reserve Account for any
Series of Bonds and provide a pledge of such subaccount to the payment of such Series of
Bonds apart from the pledge provided herein. To the extent a Series of Bonds is secured
separately by a subaccount of the Reserve Account, the Holders of such Bonds shall not be
secured by any other moneys in the Reserve Account. Moneys in a separate subaccount of
the Reserve Account shall be maintained at the Reserve Account Requirement applicable to
such Series of Bonds secured by the subaccount unless otherwise provided by Supplemental
Resolution. Moneys shall be deposited to separate subaccounts in the Reserve Account on
a pro-rata basis. In the event the Issuer shall maintain a Reserve Account Insurance Policy
or Reserve Account Letter of Credit and moneys in such subaccount, the moneys shall be
used prior to making any disbursements under such Reserve Account Insurance policy or
Reserve Account Letter of Credit.
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(5) Unrestricted Revenue Account. The balance of any moneys after the deposits
required by Sections 4.05(A)(I) through (A)(4) hereof may be transferred, at the discretion
ofthe Issuer, to the Unrestricted Revenue Account or any other appropriate fund and account
of the Issuer and may be used for any lawful purpose including, without limitation, the early
redemption of Bonds. In the event moneys on deposit in the Interest Account and the
Principal Account on the third day prior to an Interest Date are not sufficient to pay the
principal of and interest on the Bonds coming due on such Interest Date, the Issuer shall
transfer moneys from the Unrestricted Revenue Account, if any, to the appropriate Account
of the Debt Service Fund to provide for such payment. Any moneys remaining in the
Unrestricted Revenue Account on each Interest Date may be used for any lawful purpose.
(B) The Issuer, in its discretion, may use moneys in the Principal Account, the
Bond Amortization Account and the Interest Account to purchase or redeem Outstanding
Bonds coming due on the next principal payment date, provided such purchase does not
adversely affect the Issuer's ability to pay the principal or interest coming due on such
principal payment date on the Bonds not so purchased.
(C) At least two business days prior to the date established for payment of any
principal of or interest on the Bonds, the Issuer shall withdraw from the appropriate Account
of the Debt Service Fund sufficient moneys to pay such principal or interest and deposit such
moneys with the Paying Agent. Such deposits with the Paying Agent shall be made in
moneys available to make payments of the principal of and interest on the Bonds as the same
becomes due.
(D) In the event the Issuer shall issue a series of Bonds secured by a Credit Facility,
the Issuer may establish such separate subaccounts in the Interest Account, the Principal
Account and the Bond Amortization Account to provide for payment ofthe principal of and
interest on such Series as may be required by the Credit Facility Provider; provided one
Series of Bonds shall not have preference in payment from Pledged Funds over any other
Series of Bonds. The Issuer may also deposit moneys in such subaccounts at such other
times and in such other amounts from those provided in this Section 4.05 as shall be
necessary to pay the principal of and interest on such Bonds as the same shall become due,
all as provided by the Supplemental Resolution authorizing such Bonds. In the case of
Bonds secured by a Credit Facility, amounts on deposit in any subaccounts established for
such Bonds may be applied as provided in the applicable Supplemental Resolution to
reimburse the Credit Facility Provider for amounts drawn under such Credit Facility to pay
the principal of or redemption price, if applicable, and interest on such Bonds or to pay the
purchase price of any such Bonds which are tendered by the Holders thereof for payment.
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(E) The Issuer agrees that at the time of issuing any Variable Rate Bonds it shall
establish the Maximum Interest Rate with respect thereto and a Maximum Interest Rate with
respect to amounts owed to the Credit Facility Provider which provides liquidity for such
Bonds. Any Credit Facility Provider which provides a Credit Facility for liquidity purposes
must be rated in one of the two highest short-term rating categories assigned by each rating
agency rating the Bonds secured by such Credit Facility. Any accelerated principal payments
due to a Credit Facility Provider or any interest due in excess of the interest rate on the
Variable Rate Bonds to a Credit Facility Provider must be subordinate to the payment of the
scheduled debt service on the Bonds.
SECTION 4.06. REBATE FUND. Amounts on deposit in the Rebate Fund shall
be held in trust by the Issuer and used solely to make required rebates to the United States
(except to the extent the same may be transferred to the Issuer) and the Bondholders shall
have no right to have the same applied for debt service on the Bonds. If the rebate
requirements of Section 148(f) of the Code are applicable, the Issuer agrees to undertake all
actions required of it in its arbitrage certificate related to the Bonds, including, but not
limited to:
(A) making a determination in accordance with the Code of the amount required
to be deposited in the Rebate Fund;
(B) depositing the amount determined in clause (A) above into the Rebate Fund;
(C) paying on the dates and in the manner required by the Code to the United States
Treasury from the Rebate Fund and any other legally available moneys of the Issuer such
amounts as shall be required by the Code to be rebated to the United States Treasury; and
(D) keeping such records of the determinations made pursuant to this Section 4.06
as shall be required by the Code, as well as evidence of the fair market value of any
investments purchased with proceeds of the Bonds.
The provisions of the above-described arbitrage certificate may be amended without
the consent of any Holder or the Credit Facility Provider 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. INVESTMENTS. Moneys on deposit in the Construction Fund,
the Restricted Revenue Account and the Debt Service Fund shall be continuously secured in
the manner by which the deposit of public funds are authorized to be secured by the laws of
the State. Moneys on deposit in the Construction Fund, the Restricted Revenue Account and
the Debt Service Fund, other than the Reserve Account, may be invested and reinvested in
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Authorized Investments maturing not later than the date on which the moneys therein will
be needed for the purposes of such Fund or Account. Moneys on deposit in the Reserve
Account may be invested and reinvested in Authorized Investments which mature no later
than ten (10) years from the date of investment. All investments shall be valued at market
at least semi-annually.
Any and all income received by the Issuer from the investment of moneys in the
Construction Fund, the Interest Account, the Principal Account, the Bond Amortization
Account, the Restricted Revenue Account and the Reserve Account (to the extent such
income and the other amounts in the Reserve Account does not exceed the Reserve Account
Requirement) shall be retained in such respective Fund or Account. Any and all income
received by the Issuer from the investment of moneys in the Reserve Account (only to the
extent such income and other amounts in the Reserve Account exceeds the Reserve Account
Requirement) shall be deposited in the Interest Account.
Nothing contained in this Resolution shall prevent any Authorized Investments
acquired as investments of or security for funds held under this Resolution from being issued
or held in book-entry form on the books of the Department of the Treasury of the United
States.
SECTION 4.08. 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 sub accounts as herein provided.
The designation and establishment of the various funds, accounts and subaccounts in
and by this Resolution shall not be construed to require the establishment of any completely
independent, self-balancing funds as such 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.
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ARTICLE V
SUBORDINATED INDEBTEDNESS, ADDITIONAL BONDS
AND COVENANTS OF ISSUER
SECTION 5.01. SUBORDINATED INDEBTEDNESS. The Issuer will not
issue any other obligations payable from the Pledged Funds or voluntarily create or cause to
be created any debt, lien, pledge, assignment, encumbrance or other charge having priority
to or being on a parity with the lien thereon in favor of the Bonds and the interest thereon
except in compliance with the provisions of Section 5.02. The Issuer may at any time or
from time to time issue evidences of indebtedness payable in whole or in part out of the
Pledged Funds and which may be secured by a pledge of the Pledged Funds; provided,
however, that such pledge shall be, and shall be expressed to be, subordinated in all respects
to the pledge of the Pledged Funds created by this Resolution and shall not be subject to
acceleration prior to maturity. The Issuer shall have the right to covenant with the holders
from time to time of any Subordinated Indebtedness to add to the conditions, limitations and
restrictions under which any Additional Bonds may be issued pursuant to Section 5.02
hereof. The Issuer agrees to pay promptly any Subordinated Indebtedness as the same shall
become due.
SECTION 5.02. ISSUANCE OF ADDITIONAL BONDS. No Additional
Bonds, payable on a parity with the Bonds then Outstanding pursuant to this Resolution, shall
be issued except upon the conditions and in the manner herein provided.
The Issuer may issue one or more Series of Additional Bonds for anyone or more of
the following purposes: financing or refinancing the Costs of a Project, or the completion
thereof, or refunding any or all Outstanding Bonds or of any Subordinated Indebtedness of
the Issuer . No such Additional Bonds shall be issued unless (1) no Event of Default (as
specified in Section 6.01 hereof) shall have occurred and be continuing hereunder and (2) the
following conditions are complied with:
(A) Except as otherwise provided in Section 5.02(D) hereof, there shall have been
obtained and filed with the Issuer a statement of the Clerk or his/her designee: (1) stating
that he or she has examined the books and records of the Issuer relating to the Infrastructure
Sales Surtax Revenues which have been received by the Issuer for deposit to the Restricted
Revenue Account; (2) setting forth the amount of such Infrastructure Sales Surtax Revenues
during any twelve (12) consecutive months designated by the Issuer within the twenty-four
(24) months immediately preceding the date of delivery of such Additional Bonds with
respect to which such statement is made; and (3) stating that the amount of such
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Infrastructure Sales Surtax Revenues received during the aforementioned 12-month period
equals at least 1.30 times the Maximum Annual Debt Service on the Prior Bonds and all
Bonds then Outstanding and such Additional Bonds with respect to which such statement is
made. Such report may be partially based upon a certification of certain matters related to
the calculation of the Maximum Annual Debt Service by the Issuer's financial advisor.
(B) For the purpose of determining the Maximum Annual Debt Service under
Section 5.02(A) hereof and for determining the Reserve Account Requirement for any
Variable Rate Bonds, the interest rate on any Variable Rate Bonds then proposed to be issued
and on any Outstanding Variable Rate Bonds shall be deemed to be the lesser of (1) the
interest rate for 20-year revenue bonds published by The Bond Buyer no more than two
weeks prior to the sale ofthe Variable Rate Bonds, or (2) the Maximum Interest Rate.
(C) Additional Bonds shall be deemed to have been issued pursuant to this
Resolution the same as the Outstanding Bonds, and all of the other covenants and other
provisions of this Resolution (except as to details of such Additional Bonds inconsistent
therewith) shall be for the equal benefit, protection and security of the Holders of all Bonds
issued pursuant to this Resolution. Except as provided in Sections 4.02 and 4.05 hereof, all
Bonds, regardless of the time or times of their issuance, shall rank equally with respect to
their lien on the Pledged Funds and their sources and security for payment therefrom without
preference of any Bonds over any other; provided, however, that the Issuer shall include a
provision in any Supplemental Resolution authorizing the issuance of Variable Rate
Additional Bonds pursuant to this Section 5.02 that in the event the principal thereof is
accelerated due to such Bonds being held by the Credit Facility Provider, the lien of any
accelerated debt due and owing such Credit Facility Provider on the Pledged Funds shall be
subordinate in all respects to the pledge of the Pledged Funds created by this Resolution.
(D) In the event any Additional Bonds are issued for the purpose of refunding any
Bonds then Outstanding, the conditions of Section 5.02 hereof shall not apply, provided that
the issuance of such Additional Bonds shall result in a reduction of aggregate debt service.
The conditions of Section 5.02(A) hereof shall apply to Additional Bonds issued to refund
Subordinated Indebtedness and to Additional Bonds issued for refunding purposes which
cannot meet the conditions of this paragraph.
(E) In the event the Act is amended to provide for additional Infrastructure Sales
Surtax Revenues to be distributed to the Issuer, the Issuer may, by Supplemental Resolution,
extend the pledge of the Infrastructure Sales Surtax Revenues created pursuant to the terms
of this Resolution to include such additional Infrastructure Sales Surtax Revenues and may
then for the purpose of determining whether there are sufficient Infrastructure Sales Surtax
Revenues to meet the coverage tests specified in Section 5 .02(A), assume that such additional
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Infrastructure Sales Surtax Revenues were in effect during the applicable twelve (12)
consecutive month period.
SECTION 5.03. BOND ANTICIPATION NOTES. The Issuer may issue notes
in anticipation of the issuance of Bonds which shall have such terms and details and be
secured in such manner, not inconsistent with this Resolution, as shall be provided by
resolution of the Issuer.
SECTION 5.04. ACCESSION OF SUBORDINATED INDEBTEDNESS TO
PARITY STATUS WITH BONDS. The Issuer may provide for the accession of
Subordinated Indebtedness to the status of complete parity with the Bonds, if (A) the Issuer
shall meet all the requirements imposed upon the issuance of Additional Bonds by Section
5.02 hereof, assuming, for purposes of said requirements, that such Subordinated
Indebtedness shall be Additional Bonds and (B) the Reserve Account, upon such accession,
shall contain an amount equal to the Reserve Account Requirement in accordance with
Section 4.05(A)( 4) hereof. If the aforementioned conditions are satisfied, the Subordinated
Indebtedness shall be deemed to have been issued pursuant to this Resolution the same as the
Outstanding Bonds, and such Subordinated Indebtedness shall be considered Bonds for all
purposes provided in this Resolution.
SECTION 5.05. BOOKS AND RECORDS. The Issuer will keep books and
records of the receipt of the Infrastructure Sales Surtax Revenues in accordance with
generally accepted accounting principles, and any Credit Facility Provider, or Holder or
Holders of at least $1,000,000 aggregate principal amount of Bonds shall have the right at
all reasonable times to inspect the records, accounts and data of the Issuer relating thereto.
SECTION 5.06. NO IMPAIRMENT; LIMITATION ON MATURITY OF
BONDS. The pledging of the Pledged Funds in the manner provided herein shall not be
subject to repeal, modification or impairment by any subsequent ordinance, resolution,
agreement or other proceedings of the Issuer. The Issuer shall not (1) permit the
Infrastructure Sales Surtax Ordinance to be terminated or expire while any Bonds remain
Outstanding or (2) issue any Bonds maturing after the stated expiration date of the one-cent
local government infrastructure sales surtax authorized by the Infrastructure Sales Surtax
Ordinance, as the same may be extended in accordance with the Act.
SECTION 5.07. FEDERAL INCOME TAX COVENANTS. (A) The Issuer
covenants with the Holders of the Bonds (other than Taxable Bonds) that it shall not use the
proceeds of the Bonds in any manner which would cause the interest on the Bonds to be or
become includable in gross income for purposes of federal income taxation.
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(B) The Issuer covenants with the Holders of the Bonds (other than Taxable
Bonds) that neither the Issuer nor any Person under its control or direction will make any use
of the proceeds of the Bonds (or amounts deemed to be proceeds under the Code) in any
manner which would cause the Bonds to be "arbitrage bonds" within the meaning 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 Bonds to become includable in gross income for purposes of
federal income taxation.
(C) The Issuer hereby covenants with the Holders of the Bonds (other than Taxable
Bonds) that it will comply with all provisions of the Code necessary to maintain the exclusion
of interest on the Bonds 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 5.08. RECEIPT OF INFRASTRUCTURE SALES SURTAX
REVENUES. The Issuer covenants to do all things necessary or required on its part by the
Act or otherwise to maintain the levy and receipt ofthe Infrastructure Sales Surtax Revenues.
The Issuer shall exercise all legally available remedies to enforce such levy, collection and
receipt now or hereafter available under law. The Issuer will not take any action, including
amending or supplementing the Infrastructure Sales Surtax Ordinance, or enter into any
agreement that shall result in reducing the level of Infrastructure Sales Surtax Revenues
received by the Issuer from that level prevailing at the time the Issuer takes such action or
enters into such agreement.
SECTION 5.09. OBLIGATIONS UNDER PRIOR RESOLUTION. The Issuer
hereby agrees to issue no bonds or other obligations pursuant to the Prior Resolution that
have a lien on the Infrastructure Sales Surtax Revenues which is senior to the lien thereto
granted hereunder with respect to the Bonds.
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ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT. The following events shall each
constitute an "Event of Default":
(A) Default shall be made in the payment of the principal of or interest on any
Bond when due. In determining whether a payment default has occurred, no effect shall be
given to payment made under a Bond Insurance Policy.
(B) There shall occur the dissolution or liquidation of the Issuer, or the filing by
the Issuer of a voluntary petition in bankruptcy, or the commission by the Issuer of any act
of bankruptcy, or adjudication of the Issuer as bankrupt, or assignment by the Issuer for the
benefit of its creditors, or appointment of a receiver for the Issuer, or the entry by the Issuer
into an agreement of composition with its creditors, or the approval by a court of competent
jurisdiction of a petition applicable to the Issuer in any proceeding for its reorganization
instituted under the provisions of the Federal Bankruptcy Act, as amended, or under any
similar act in any jurisdiction which may now be in effect or hereafter enacted.
(C) The Issuer shall default in the due and punctual performance of any other of
the covenants, conditions, agreements and provisions contained in the Bonds or in this
Resolution on the part of the Issuer to be performed, and such default shall continue for a
period of thirty (30) days after written notice of such default shall have been received from
the Holders of not less than twenty-five percent (25%) of the aggregate principal amount of
the Outstanding Bonds or the Insurer. 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.
SECTION 6.02. REMEDIES. Any Holder ofthe Bonds or any trustee or receiver
acting for such Bondholders may either at law or in equity, by suit, action, mandamus or
other proceedings in any court of competent jurisdiction, protect and enforce any and all
rights under the laws of the State of Florida, or granted and contained in this Resolution, and
may enforce and compel the performance of all duties required by this Resolution or by any
applicable statutes to be performed by the Issuer or by any officer thereof; provided,
however, that no Holder, Credit Facility Provider, trustee or receiver shall have the right to
declare the Bonds immediately due and payable.
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The Holder or Holders of Bonds in an aggregate principal amount of not less than
twenty- five per cent (25%) ofthe Bonds then Outstanding may by a duly executed certificate
in writing appoint a trustee for Holders of Bonds issued pursuant to this Resolution with
authority to represent such Bondholders in any legal proceedings for the enforcement and
protection of the rights of such Bondholders and such certificate shall be executed by such
Bondholders or their duly authorized attorneys or representatives, and shall be filed in the
office of the Clerk. Notice of such appointment, together with evidence of the requisite
signatures of the Holders of not less than twenty-five percent (25%) in aggregate principal
amount of Bonds Outstanding and the trust instrument under which the trustee shall have
agreed to serve shall be filed with the Issuer and the trustee and notice of appointment shall
promptly be given to all Holders of Bonds by first class mail, postage prepaid. After the
appointment of the first trustee hereunder, no further trustees may be appointed; however,
the holders of a majority in aggregate principal amount of all the Bonds then Outstanding
may remove the trustee initially appointed and appoint a successor and subsequent successors
at any time.
SECTION 6.03. DIRECTIONS TO RECEIVER AS TO REMEDIAL
PROCEEDINGS. The Holders of a majority in principal amount of the Bonds then
Outstanding (or the Credit Facility Provider for any Series of Outstanding Bonds) have the
right, by an instrument or concurrent instruments in writing executed and delivered to any
receiver, to direct the method and place of conducting all remedial proceedings to be taken
by any receiver hereunder, provided that such direction shall not be otherwise than in
accordance with law or the provisions hereof, and that the trustee shall have the right to
decline to follow any such direction which in the opinion of such receiver would be unjustly
prejudicial to Holders of Bonds not parties to such direction.
SECTION 6.04. REMEDIES CUMULATIVE. No remedy herein conferred
upon or reserved to the Bondholders is intended to be exclusive of any other remedy or
remedies, and each and every such remedy shall be cumulative, and shall be in addition to
every other remedy given hereunder or now or hereafter existing at law or in equity or by
statute.
SECTION 6.05. WAIVER OF DEFAULT. No delay or omission of any
Bondholder to exercise any right or power accruing upon any default shall impair any such
right or power or shall be construed to be a waiver of any such default, or an acquiescence
therein; and every power and remedy given by this Section 6.05 to the Bondholders may be
exercised from time to time, and as often as may be deemed expedient. No Event of Default
may be waived without the consent of each Credit Facility Provider, which has honored all
its obligations under its Credit Facility.
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SECTION 6.06. APPLICATION OF MONEYS AFTER DEFAULT. Ifan
Event of Default shall happen and shall not have been remedied, the Issuer or a trustee or
receiver appointed for the purpose shall apply all Pledged Funds as follows and in the
following order:
A. To the payment ofthe reasonable and proper charges, expenses and liabilities
of the trustee or receiver, Registrar and Paying Agent hereunder; and
B. To the payment of the interest and principal then due on the Bonds (provided
such payments are made in accordance with applicable law), as follows:
(1) Unless the principal of all the Bonds shall have become due and
payable, all such moneys shall be applied:
FIRST: to the payment to the Persons entitled thereto of all
installments of interest then due, in the order of the maturity of such
installments, and, ifthe amount available shall not be sufficient to pay in full
any particular installment, then to the payment ratably, according to the
amounts due on such installment, to the Persons entitled thereto, without any
discrimination or preference; and
SECOND: to the payment to the Persons entitled thereto of the unpaid
principal of any of the Bonds which shall have become due at maturity in the
order of their due dates, with interest upon such Bonds from the respective
dates upon which they became due, and, if the amount available shall not be
sufficient to pay in full Bonds due on any particular date, together with such
interest, then to the payment first of such interest, ratably according to the
amount of such interest due on such date, and then to the payment of such
principal, ratably according to the amount of such principal due on such date,
to the Persons entitled thereto without any discrimination or preference.
(2) If the principal of all the Bonds shall have become due and payable, all
such moneys shall be applied first, to payment of any unfunded rebatable arbitrage,
and second, to the payment of the principal and interest then due and unpaid upon the
Bonds, with interest thereon as aforesaid, without preference or priority of principal
over interest or of interest over principal, or of any installment of interest over any
other installment of interest, or of any Bond over any other Bond, ratably, according
to the amounts due respectively for principal and interest, to the Persons entitled
thereto without any discrimination or preference.
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SECTION 6.07. CONTROL BY CREDIT FACILITY PROVIDER. To the
extent a Credit Facility Provider makes any payment of principal of or interest on Bonds in
accordance with its Bond Insurance Policy, such Credit Facility Provider shall become
subrogated to the rights of the recipients of such payments in accordance with the terms of
its Bond Insurance Policy. Upon the occurrence and continuance of an Event of Default, a
Credit Facility Provider of a Series of Bonds, if such Credit Facility Provider shall not be in
payment default under its Bond Insurance Policy, shall be deemed to be the sole owner of
such Bonds for purposes of (A) directing and controlling the enforcement of all rights and
remedies with respect to such Series of Bonds, including any waiver of an Event of Default
and removal of any trustee, and (B) exercising any voting right or privilege or giving any
consent or direction or taking any other action that the Holders of such Bonds are entitled to
take pursuant to this Article VI hereof. No provision expressly recognizing or granting rights
in or to a Credit Facility Provider shall be modified without the consent of such Credit
Facility Provider. A Credit Facility Provider's rights under this Section 6.07 shall be
suspended during any period in which such Credit Facility Provider is in default in its
payment obligations under its Bond Insurance Policy (except to the extent of amounts
previously paid by such Credit Facility Provider and due and owing to such Credit Facility
Provider) and shall be of no force or effect ifits Bond Insurance Policy is no longer in effect
or if the Credit Facility Provider asserts that its Bond Insurance Policy is not in effect or if
the Credit Facility Provider waives such rights in writing. The rights granted to a Credit
Facility Provider under this Section 6.07 are granted in consideration of such Credit Facility
Provider issuing its Bond Insurance Policy. The Issuer shall provide each Credit Facility
Provider immediate notice of any Event of Default described in Section 6.01(A) hereof and
notice of any other Event of Default occurring hereunder within five days of the occurrence
thereof. Each Credit Facility Provider of any Bonds hereunder shall be considered a third-
party beneficiary to the Resolution with respect to such Bonds.
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ARTICLE VII
SUPPLEMENTAL RESOLUTIONS
SECTION 7.01. SUPPLEMENTAL RESOLUTION WITHOUT
BONDHOLDERS' CONSENT. The Issuer, from time to time and at any time, may adopt
such Supplemental Resolutions without the consent of the Bondholders (which Supplemental
Resolution shall thereafter form a part hereof) for any of the following purposes:
(A) To cure any ambiguity or formal defect or omission or to correct any
inconsistent provisions in this Resolution or to clarify any matters or questions arising
hereunder.
(B) To grant to or confer upon the Bondholders any additional rights, remedies,
powers, authority or security that may lawfully be granted to or conferred upon the
Bondholders.
(C) To add to the conditions, limitations and restrictions on the issuance of Bonds
under the provisions of this Resolution other conditions, limitations and restrictions thereafter
to be observed.
(D) To add to the covenants and agreements of the Issuer in this Resolution other
covenants and agreements thereafter to be observed by the Issuer or to surrender any right
or power herein reserved to or conferred upon the Issuer.
(E) To specify and determine any matters and things relative to such Bonds which
are not contrary to or inconsistent with this Resolution as theretofore in effect, or to amend,
modify or rescind any such authorization, specification or determination at any time prior to
the first delivery of such Bonds.
(F) To specify and determine the matters and things referred to in Sections 2.01,
2.02,2.10 or 5.02 hereof, and also any other matters and things relative to such Bonds which
are not contrary to or inconsistent with this Resolution as theretofore in effect, or to amend,
modify or rescind any such authorization, specification or determination at any time prior to
the first delivery of such Bonds.
(G) To authorize Additional Bonds or Projects.
55
(H) To provide for the establishment of a separate subaccount or subaccounts in
the Reserve Account which shall independently secure one or more Series of Bonds issued
hereunder.
(I) To make any other change that, in the opinion of the Issuer, would not
materially adversely affect the security for the Bonds.
SECTION 7.02. SUPPLEMENTAL RE SOL UTION WITH
BONDHOLDERS' AND CREDIT FACILITY PROVIDER'S CONSENT. Subject to
the terms and provisions contained in this Section 7.02 and Sections 7.01 and 7.03 hereof,
the Holder or Holders of not less than a maj ority in aggregate principal amount of the Bonds
then Outstanding shall have the right, from time to time, anything contained in this
Resolution to the contrary notwithstanding, to consent to and approve the adoption of such
Supplemental Resolution or Resolutions hereto as shall be deemed necessary or desirable by
the Issuer for the purpose of supplementing, modifying, altering, amending, adding to or
rescinding, in any particular, any of the terms or provisions contained in this Resolution;
provided, however, that if such modification or amendment will, by its terms, not take effect
so long as any Bonds of any maturity remain Outstanding, the consent of the Holders of such
Bonds shall not be required and such Bonds shall not be deemed to be Outstanding for the
purpose of any calculation of Outstanding Bonds under this Section 7.02. Any Supplemental
Resolution which is adopted in accordance with the provisions ofthis Section 7.02 shall also
require the written consent of the Insurer. No Supplemental Resolution may be approved or
adopted which shall permit or require (A) an extension ofthe maturity of the principal of or
the payment of the interest on any Bond issued hereunder, (B) reduction in the principal
amount of any Bond or the rate of interest thereon, (C) the creation of a lien upon or a pledge
of the Pledged Funds other than the lien and pledge created by this Resolution or as
otherwise permitted hereby, (D) a preference or priority of any Bond or Bonds over any other
Bond or Bonds (except as to the establishment of separate subaccounts in the Reserve
Account as permitted hereby), or (E) a reduction in the aggregate principal amount of the
Bonds required for consent to such Supplemental Resolution. Nothing herein contained,
however, shall be construed as making necessary the approval by Bondholders or a Credit
Facility Provider of the adoption of any Supplemental Resolution as authorized in Section
7.01 hereof.
If at any time the Issuer shall determine that it is necessary or desirable to adopt any
Supplemental Resolution pursuant to this Section 7.02, the Clerk shall cause the Registrar
to give notice of the proposed adoption of such Supplemental Resolution and the form of
consent to such adoption to be mailed, postage prepaid, to all Bondholders at their addresses
as they appear on the registration books and to all Insurers of Bonds Outstanding. Such
notice shall briefly set forth the nature of the proposed Supplemental Resolution and shall
56
state that copies thereof are on file at the offices ofthe Clerk and the Registrar for inspection
by all Bondholders. The Issuer shall not, however, be subject to any liability to any
Bondholder by reason of its failure to cause the notice required by this Section 7.02 to be
mailed and any such failure shall not affect the validity of such Supplemental Resolution
when consented to and approved as provided in this Section 7.02.
Whenever the Issuer shall deliver to the Clerk an instrument or instruments in writing
purporting to be executed by the Holders of not less than a majority in aggregate principal
amount of the Bonds then Outstanding, which instrument or instruments shall refer to the
proposed Supplemental Resolution described in such notice and shall specifically consent to
and approve the adoption thereof in substantially the form of the copy thereof referred to in
such notice, thereupon, but not otherwise, the Issuer may adopt such Supplemental
Resolution in substantially such form, without liability or responsibility to any Holder of any
Bond, whether or not such Holder shall have consented thereto.
If the Holders of not less than a majority in aggregate principal amount of the Bonds
Outstanding at the time of the adoption of such Supplemental Resolution shall have
consented to and approved the adoption thereof as herein provided, no Holder of any Bond
shall have any right to object to the adoption of such Supplemental Resolution, or to object
to any of the terms and provisions contained therein or the operation thereof, or in any
manner to question the propriety of the adoption thereof, or to enjoin or restrain the Issuer
from adopting the same or from taking any action pursuant to the provisions thereof.
Upon the adoption of any Supplemental Resolution pursuant to the provisions of this
Section 7.02, this Resolution shall be deemed to be modified and amended in accordance
therewith, and the respective rights, duties and obligations under this Resolution of the Issuer
and all Holders of Bonds then Outstanding shall thereafter be determined, exercised and
enforced in all respects under the provisions of this Resolution as so modified and amended.
SECTION 7.03. AMENDMENT WITH CONSENT OF CREDIT FACILITY
PROVIDER ONLY. For purposes of amending the Resolution pursuant to Section 7.02
hereof, a Credit Facility Provider of a Series of Bonds shall be considered the Holder thereof,
provided such Series of Bonds, at the time of the adoption of the amendment, shall be rated
by the rating agencies which shall have rated the Bonds no lower than the initial ratings
assigned thereto by such rating agencies. The consent of the Holders of Bonds shall not be
required if the Credit Facility Provider shall consent to the amendment as provided by this
Section 7.03. The foregoing right of amendment, however, does not apply to any amendment
to Section 5.07 hereof with respect to the exclusion of interest on the Bonds from gross
income for purposes of federal income taxation. Prior to adoption of any amendment made
pursuant to this Section 7.03, notice of such amendment shall be delivered to the rating
57
agencies rating the Bonds. Upon filing with the Clerk of evidence of such consent of a
Credit Facility Provider as aforesaid, the Issuer may adopt such Supplemental Resolution.
After the adoption by the Issuer of such Supplemental Resolution, notice thereof shall be
mailed in the same manner as notice of an amendment under Section 7.02 hereof.
58
ARTICLE VIII
DEFEASANCE; MISCELLANEOUS
SECTION 8.01. DEFEASANCE. If(A) the Issuer shall payor cause to be paid
or there shall otherwise be paid to the Holders of any Series of Bonds the principal and
interest or redemption price due or to become due thereon, at the times and in the manner
stipulated therein and in this Resolution, and (ii) the Issuer shall pay all amounts owing to
any Credit Facility Provider issuing a Credit Facility with respect to such Series of Bonds,
and all covenants, agreements and other obligations of the Issuer to the holders of such Series
of Bonds, shall thereupon cease, terminate and become void and be discharged and satisfied.
In such event, the Paying Agents shall pay over or deliver to the Issuer all money or securities
held by them pursuant to the Resolution which are not required for payment or redemption
of any Series of Bonds not theretofore surrendered for such payment or redemption.
Any Bonds or interest installments appertaining thereto shall be deemed to have been
paid within the meaning of this Section 8.01 ifthere shall have been deposited in irrevocable
trust with a banking institution or trust company by or on behalf ofthe Issuer either moneys
in an amount which shall be sufficient, or Refunding Securities verified by an independent
certified public accountant to be in such amount that the principal of and the interest on or
redemption price which when due will provide moneys which, together with the moneys, if
any, deposited with such banking institution or trust company at the same time shall be
sufficient, to pay the principal of and interest due and to become due on said Bonds on and
prior to the maturity date thereof. Except as hereafter provided, neither the Refunding
Securities nor any moneys so deposited with such banking institution or trust company nor
any moneys received by such bank or trust company on account of principal of or redemption
price, if applicable, or interest on said Refunding Securities shall be withdrawn or used for
any purpose other than, and all such moneys shall be held in trust for and be applied to, the
payment, when due, of the principal of or redemption price of the Bonds for the payment of
which they were deposited and the interest accruing thereon to the date of maturity. Upon
any such defeasance, the Issuer shall provide an opinion of Bond Counsel to the Credit
Facility Provider of such Bonds, if any, that the Bonds have been defeased in accordance
with this Section 8.01.
F or purposes of determining whether variable rate Bonds shall be deemed to have
been paid prior to the maturity or the redemption date thereof, as the case may be, by the
deposit of moneys, or specified Refunding Securities and moneys, if any, in accordance with
this Section 8.01, the interest to come due on such variable rate Bonds on or prior to the
maturity or redemption date thereof, as the case may be, shall be calculated at the Maximum
59
Interest Rate; provided, however, that if on any date, as a result of such variable rate Bonds
having borne interest at less than the Maximum Interest Rate for any period, the total amount
of moneys and specified Refunding Securities on deposit for the payment of interest on such
variable rate Bonds is in excess of the total amount which would have been required to be
deposited on such date in respect of such variable rate Bonds in order to satisfy this Section
9.01, such excess shall be paid to the Issuer free and clear of any trust, lien, pledge or
assignment securing the Bonds or otherwise existing under this Resolution.
If Bonds are not to be redeemed within 60 days after any such defeasance described
in this Section 8.01, the Issuer shall cause the Registrar to mail a notice to the Holders of
such Bonds that the deposit required by this Section 8.01 of moneys or Refunding Securities
has been made and said Bonds are deemed to be paid in accordance with the provisions of
this Section 8.01 and stating such maturity date upon which moneys are to be available for
the payment of the principal of and interest on or redemption price of said Bonds. Failure
to provide said notice shall not affect the Bonds being deemed to have been paid in
accordance with the provisions of this Section 8.01.
Notwithstanding anything herein to the contrary, in the event that the principal of or
interest due on the Bonds shall be paid by a Credit Facility Provider, such Bonds shall remain
Outstanding, shall not be defeased or otherwise satisfied and shall not be considered paid by
the Issuer, and the pledge of the Pledged Funds and all covenants, agreements and other
obligations of the Issuer to the Bondholders shall continue to exist and Credit Facility
Provider shall be subrogated to the rights of such Bondholders.
SECTION 8.02. CAPITAL APPRECIATION BONDS. For the purposes of (A)
receiving payment of the Redemption Price if a Capital Appreciation Bond is redeemed prior
to maturity, or (B) receiving payment of a Capital Appreciation Bond if the principal of all
Bonds becomes due and payable under the provisions of this Resolution, or (C) computing
the amount of Bonds held by the Holder of a Capital Appreciation Bond in giving to the
Issuer or any trustee or receiver appointed to represent the Bondholders any notice, consent,
request or demand pursuant to this Resolution for any purpose whatsoever, the principal
amount of a Capital Appreciation Bond shall be deemed to be its Accreted Value.
SECTION 8.03. SALE OF BONDS. The Bonds shall be issued and sold at
public or private sale at one time or in installments from time to time and at such price or
prices as shall be consistent with the provisions of the Act, the requirements of this
Resolution and other applicable provisions of law.
SECTION 8.04. GENERAL AUTHORITY. The members of the Board of
County Commissioners of the Issuer and the officers, attorneys and other agents or
60
employees of the Issuer are hereby authorized to do all acts and things required of them by
this Resolution or the Bond Insurance Policy or which are desirable or consistent with the
requirements of the Resolution or the Bond Insurance Policy for the full punctual and
complete performance of all the terms, covenants and agreements contained herein or in the
Bonds and the Resolution, including the execution of any documents or instruments relating
to insuring payment of the Bonds, and each member, employee, attorney and officer of the
Issuer or the Issuer 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 8.05. SEVERABILITY OF INVALID PROVISIONS. If anyone
or more ofthe 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 Bonds issued hereunder.
SECTION 8.06. REPEAL OF INCONSISTENT RESOLUTIONS. All
ordinances, resolutions or parts thereof in conflict herewith are hereby superseded and
repealed to the extent of such conflict.
[Remainder of page intentionally left blank]
61
SECTION 8.07. EFFECTIVE DATE. This Resolution shall take effect
immediately upon its adoption.
PASSED AND ADOPTED by the Board of County Commissioners of Monroe
County, Florida, at a regular meeting of said Board held on the 19th day of February, 2003.
Yes
Yes
Yes
YeR
Yes
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
By:IlabJc LWl~ By: J., ~ ~
Deputy Clerk #,~~ai on
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62
EXHIBIT A
GENERAL DESCRIPTION OF THE 2003 PROJECT
The Project generally includes the acquisition, constructing, eqmppmg and/or
renovation, as the case may be, of all or a portion of the following:
.
Stock Island Fire Rescue Facility Storage
.
Big Pine Fire/EMS Facility
.
Conch Key Fire/EMS Facility
.
CudJoe Key Fire/EMS Facility
.
Key Largo North Fire Station
.
Tavernier Fire Rescue Facility
.
Ocean Reef Fire/Ambulance Replacement
.
Upper Keys Government Center
.
Plantation Key Courtroom
.
Marathon Courtroom Renovations
.
Medical Examiner Facility
.
Crawl Key Fire Rescue Training Facility Additions
.
Dedicated EOC