2.03 Clerk's Certificate as to Resolution No. 206B-2022 2.3
CLERK'S CERTIFICATE AS TO RESOLUTION NO. 206B-2022
I,Pamela G.Hancock,Deputy Clerk of the Circuit Court of Monroe County,Florida
and Ex-Officio Deputy Clerk to the Board of County Commissioners (the "County"), DO
HEREBY CERTIFY that attached hereto is a copy of "A RESOLUTION OF THE
BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA
SUPPLEMENTING A RESOLUTION ENTITLED, 'A RESOLUTION OF THE BOARD
OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA,
AUTHORIZING THE ISSUANCE OF MONROE COUNTY, FLORIDA AIRPORT
REVENUE BONDS FROM TIME TO TIME TO FINANCE AND REFINANCE
VARIOUS COSTS OF CAPITAL IMPROVEMENTS TO THE KEY WEST
INTERNATIONAL AIRPORT; PROVIDING A PLEDGE OF THE NET REVENUES
DERIVED FROM THE OPERATION OF THE KEY WEST INTERNATIONAL
AIRPORT AND CERTAIN ELIGIBLE PFC REVENUES TO SECURE PAYMENT OF
THE PRINCIPAL OF AND INTEREST ON SAID BONDS; PROVIDING FOR THE
RIGHTS OF THE HOLDERS OF SAID BONDS; AND PROVIDING FOR AN
EFFECTIVE DATE FOR THIS RESOLUTION;' AUTHORIZING THE ACQUISITION,
CONSTRUCTION AND EQUIPPING OF VARIOUS CAPITAL IMPROVEMENTS TO
THE KEY WEST INTERNATIONAL AIRPORT;AUTHORIZING THE ISSUANCE OF
NOT TO EXCEED $50,000,000 IN AGGREGATE PRINCIPAL AMOUNT OF
MONROE COUNTY, FLORIDA AIRPORT REVENUE BONDS (KEY WEST
INTERNATIONAL AIRPORT), SERIES 2022 IN ONE OR MORE SERIES,IN ORDER
TO FINANCE COSTS OF SUCH CAPITAL IMPROVEMENTS; MAKING CEIZF AIN
COVENANTS AND AGREEMENTS IN CONNECTION WI:FH THE ISSUANCE OF
SUCH SERIES 2022 BONDS; AUTHORIZING A NEGOTIATED SALE;
DELEGATING CERTAIN AUTHORITY TO THE MAYOR FOR THE
AUTHORIZATION, EXECUTION AND DELIVERY OF A CONTRACT OF
PURCHASE WITH RESPECT THERETO, AND THE APPROVAL OF THE TERMS
AND DETAILS OF SAID SERIES 2022 BONDS; AUTHORIZING THE
DISTRIBUTION OF A PRELIMINARY OFFICIAL STATEMENT AND THE
EXECUTION AND DELIVERY OF AN OFFICIAL STATEMENT WITH RESPECT
THERETO; ESTABLISHING A BOOK-ENTRY SYSTEM: OF REGISTRATION FOR
THE SERIES 2022 BONDS; APPOINTING THE PAYING AGENT AND REGISTRAR
FOR SAID SERIES 2022 BONDS; AUTHORIZING THE EXECUTION AND
DELIVERY OF A CONTINUING DISCLOSURE CERTIFICATE; DELEGATING
CERTAIN AUTHORITY TO THE MAYOR TO DETERMINE WHETHER TO
UTILIZE MUNICIPAL BOND INSURANCE FOR THE BONDS; AND PROVIDING
AN EFFECTIVE DATE," adopted at a meeting of the Board of County Commissioners
duly called and held on August 17, 2022, at which meeting a quorum was present and
acting throughout, which resolution has been compared.by me with the original thereof as
recorded in the Minute Book of said County and that said resolution is a true, complete and
correct copy thereof and said resolution has been duly adopted and has not been further
modified, amended or repealed, and is in full force and effect on and as of the date hereof
in the form attached hereto.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official
seal of the County as of the 15th day of September, 2022.
(SEAT,)
Kevin Madok, Clerk of the Circuit Court and
Comptroller in and for Monroe County, Florida
and Ex-®fficio Clerk to the Board of County
Commissioners of Monroe County, Florida.
Pamela G. Hancock, Deputy Clerk
RESOLUTION No. 206B -2022
A RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA SUPPLEMENTING A
RESOLUTION ENTITLED, 'A RESOLUTION OF THE BOARD OF
COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA,
AUTHORIZING THE ISSUANCE OF MONROE COUNTY, FLORIDA
AIRPORT REVENUE BONDS FROM TIME TO TIME TO FINANCE
AND REFINANCE VARIOUS COSTS OF CAPITAL IMPROVEMENTS
TO THE KEY WEST INTERNATIONAL AIRPORT; PROVIDING A
PLEDGE OF THE NET REVENUES DERIVED FROM THE
OPERATION OF THE KEY WEST INTERNATIONAL AIRPORT AND
CERTAIN ELIGIBLE PFC REVENUES TO SECURE PAYMENT OF
THE PRINCIPAL OF AND INTEREST ON SAID BONDS; PROVIDING
FOR THE RIGHTS OF THE HOLDERS OF SAID BONDS; AND
PROVIDING FOR AN EFFECTIVE DATE FOR THIS RESOLUTION;"
AUTHORIZING THE ACQUISITION, CONSTRUCTION AND
EQUIPPING OF VARIOUS CAPITAL IMPROVEMENTS TO THE KEY
WEST INTERNATIONAL AIRPORT; AUTHORIZING THE ISSUANCE
OF NOT TO EXCEED $50,000,000 IN AGGREGATE PRINCIPAL
AMOUNT OF MONROE COUNTY, FLORIDA AIRPORT REVENUE
BONDS (KEY WEST INTERNATIONAL AIRPORT), SERIES 2022 IN
ONE OR MORE SERIES, IN ORDER TO FINANCE COSTS OF SUCH
CAPITAL IMPROVEMENTS; MAKING CERTAIN COVENANTS AND
AGREEMENTS IN CONNECTION WITH THE ISSUANCE OF SUCH
SERIES 2022 BONDS; AUTHORIZING A NEGOTIATED SALE;
DELEGATING CERTAIN AUTHORITY TO THE MAYOR FOR THE
AUTHORIZATION, EXECUTION AND DELIVERY OF A CONTRACT
OF PURCHASE WITH RESPECT THERETO, AND THE APPROVAL
OF THE TERMS AND DETAILS OF SAID SERIES 2022 BONDS;
AUTHORIZING THE DISTRIBUTION OF A PRELIMINARY
OFFICIAL STATEMENT AND THE EXECUTION AND DELIVERY
OF AN OFFICIAL STATEMENT WITH RESPECT THERETO,
ESTABLISHING A BOOK-ENTRY SYSTEM OF REGISTRATION FOR
THE SERIES 2022 BONDS; APPOINTING THE PAYING AGENT AND
REGISTRAR FOR SAID SERIES 2022 BONDS; AUTHORIZING THE
EXECUTION AND DELIVERY OF A CONTINUING DISCLOSURE
CERTIFICATE; DELEGATING CERTAIN AUTHORITY TO THE
MAYOR TO DETERMINE WHETHER TO UTILIZE MUNICIPAL
BOND INSURANCE FOR THE BONDS; AND PROVIDING AN
EFFECTIVE DATE.
BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF
MONROE COUNTY,FLORIDA:
SECTION 1. FINDINGS AND AUTHORIZATIONS. It is hereby found
and determined that:
(A) That Monroe County, Florida (the "Issuer") owns, operates and maintains
the Airport (as defined in the hereinafter defined Bond Resolution) for the benefit of the
citizens of Monroe County, Florida.
(B) That it is necessary and desirable and in the best interests of the Issuer to
make capital. improvements to the Airport, which capital improvements are generally
described in Exhibit A hereto, as more particularly described in the plans and
specifications on file with the Issuer, as the same may be amended and suppler .tinted
from time to time(the "Series 2022 Project").
(C) The Issuer previously secured a line of credit from PNC Batik, National
Association (the "Line of Credit Provider"), pursuant to which the Issuer has borrowed
funds (the "Interim Indebtedness") to finance certain costs of the Series 2022 Project on
an interim basis.
(D) On the date hereof, the Issuer adopted a master bond resolution (as it may
be amended and supplemented from time to time, the "Bond Resolution") authorizing the
issuance of Monroe County, Florida Airport Revenue Bonds (Key West International
Airport) ftorn time to time to finance and refinance capital improvements to the Airport,
(E) The Issuer deems it to be in its best interest to issue its Monroe County,
Florida Airport Revenue Bonds, Series 2022 (the "Series 2022 Bonds") pursuant to the
Bond Resolution for the principal purposes of financing costs of the acquisition,
construction and equipping of the Series 2022 Project and refinancing the Interim.
Indebtedness.
(F) Due to the potential volatility of the market for tax-exempt municipal
obligations such as the Series 2022 Bonds and the complexity of the transactions relating
to such Series 2022 Bonds, it is in the best interest of the Issuer to sell the Series 2022
Bonds by a negotiated sale, allowing the Issuer to enter the market at the most
advantageous time for such Series 2022 Bonds, rather than at a specified advertised date,
thereby permitting the Issuer to obtain the best possible prices and interest rates for the
Series 2022 Bonds.
(G) The Issuer anticipates receiving a favorable offer to purchase the Series
2022 Bonds from BofA Securities, Inc. and PNC Capital Markets LLC (the
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"Underwriters"), pursuant to the hereinafter defined Purchase Contract, all within the
parameters set forth herein.
(H) Inasmuch as the Issuer desires to sell the Series 2022 Bonds at the most
advantageous time to obtain favorable financing terms and not wait for a scheduled
meeting of the Board of County Commissioners, so long as the herein described
parameters are met, the Issuer hereby determines to delegate the award and sale of the
Series 2022 Bonds and certain other responsibilities to the Mayor in accordance with the
parameters herein provided.
(1) The Bond Resolution provides that the Series 2022 Bonds shall mature on
such dates and in such amounts, shall bear such rates of interest, shall be payable in such
places and shall be subject to such redemption provisions as shall be determined by
Supplemental Resolution (as defined in the Bond Resolution) adopted by the Issuer; and
it is now appropriate that the Issuer determine with respect to the Series 2022 Bonds
certain of such provisions, terms and details and establish parameters and the
mechanisms for determining the remaining provisions,term and details.
(J) The Series 2022 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 (as defined in the Bond
Resolution), in the manner and to the extent provided in the Bond Resolution. No holder
of a Series 2022 Bond shall ever have the right to compel the exercise of any ad valorem
taxing power to pay such Series 2022 Bond or be entitled to payment of such Series 2022
Bond from any moneys of the Issuer except from the Pledged Funds in the manner and to
the extent provided in the Bond Resolution.
(K) The covenants, pledges and conditions in the Bond Resolution shall be
applicable to the Series 2022 Bonds herein authorized and said Series 2022 Bonds shall
constitute "Bonds" within the meaning of the Bond Resolution.
(L) In order to satisfy certain of the requirements of Section. 147(o of the
Internal Revenue Code of 1986, as amended, the Issuer did, on the date hereof, hold a
public hearing on the proposed issuance of the Series 2022 Bonds for the purposes herein
stated which date is more than seven days following the first publication of notice of such
public hearing in a. newspaper of general circulation in Monroe County, Florida, and
which public hearing was conducted in a manner that provided a reasonable opportunity
for persons with diff.ering views to be heard, both orally and in writing, on the issuance of
such Series 2022 Bonds and the location and nature of the Series 2022 Project. A copy of
the affidavit of publication of the notice of public hearing is attached hereto as Exhibit B.
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SECTION 2. DEFINITIONS. When used in this Supplemental
Resolution, the terms defined in the Bond Resolution shall have the meanings ascribed
thereto,unless the context clearly provides otherwise.
SECTION 3. AUTHORITY FOR, THIS SUPPLEMENTAL
RESOLUTION. This Supplemental Resolution is enacted pursuant to the Provisions Of
the Bond Resolution and the Act.
SECTION 4. AUTHORIZATION OF THE SERIES 2022 PROJECT
AND REFINANCING OF INTERIM INDEBTEDNESS. The Issuer hereby
authorizes the acquisition, construction and equipping of the Series 2022 Project and the
refinancing of the Interim Indebtedness.
SECTION S. AUTHORIZATION AND DESCRIPTION OF THE
SERIES 2022 BONDS. The Issuer hereby authorizes the issuance of a Series of Bonds
in the aggregate principal amount of not exceeding $50,000,000 to be known as the
"Monroe County, Florida Airport Revenue Bonds (Key West International Airport),
Series 2022," (or such other designation as the Mayor may determine) for the principal
purposes of providing moneys to finance costs of the acquisition, construction and
equipping of the Series 2022 Project and refinancing the Interim Indebtedness. The
Series 2022 Bonds may be issued in one or more Series and may be issued as tax-exempt
(AMT), tax-exempt (Don-AMT) and/or taxable, such determination to be determined by
the Mayor upon the advice of Bond Counsel. The actual aggregate principal amount of
Series 2022 Bonds to be issued shall be determined by the Mayor provided such.
aggregate principal amount of all Series does not exceed$50,000,000.
The Series 2022 Bonds shall be dated as of their date of delivery (or such earlier or
later date as may be determined by the Mayor), shall be issued in the form of fully
registered Bonds in the denomination of$5,000 principal amount or any integral multiple
thereof, shall be numbered consecutively from one upward in order of maturity preceded
by the letter "R," and shall bear interest from their date of delivery (or such other earlier
or later date as may be determined by the Mayor), payable semi-annually on each April.I
and October I (each date an "Interest Date"), commencing on April 1, 2023 (or such later
date as may be determined by the Mayor). The Series 2022 Bonds shall bear interest
computed on the basis of a 360-day year consisting of twelve 30-day months.
The Series 2022 Bonds shall. bear interest at such rates and yields, shall mature on
October I of each of the years and in the principal amounts corresponding to Such years,
and shall have such redemption provisions as determined by the Mayor, upon the advice
of the Financial Advisor, subject to the conditions set forth in Section 6 hereof. All of the
terms of the Series 2022 Bonds will be included in,a Contract of Purchase betweCD the
County and the Underwriters which shall be in substantially the form attached hereto and
made a part hereof as Exhibit C (the "Purchase Contract"). The Mayor is hereby
authorized to execute, and the Clerk is hereby authorized to attest and affix the official
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seal of the Issuer to the Purchase Contract in substantially the form attached hereto as
Exhibit C with such modifications as the Mayor deems appropriate upon satisfaction of
the conditions described in. Section 6 hereof, the Mayor's execution thereof being
evidence of his approval of the Purchase Contract.
Interest on the Series 2022 Bonds shall be payable by check or draft of The Bank
of New York Mellon Trust Company, N.A., as Paying Agent, made payable and mailed
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 the applicable Interest Date, or, at the request of such Holder, by
bank wire transfer to the account of such Holder. Except as otherwise provided in
Section 8 hereof, the principal of and premium, if applicable, on the Series 2022 Bonds is
payable to the Holder upon presentation, when due, at the designated corporate trust
office of The Bank of New York Mellon Trust Company, N.A., Dallas, Texas, as Paying
Agent, All payments of principal,premium, if applicable, and interest on the Series 2022
Bonds shall be payable in any coin or currency of the United States of America which at
the time of payment is legal tender for the payment of public and private debts.
SECTION 6. CONDITIONS TO EXECUTION OF PURCHASE
CONTRACT. The Purchase Contract shall not be executed by the Mayor until such
time as all of the following conditions have been. satisfied:
(A) Receipt by the Mayor of a written offer to purchase the Series 2022 Bonds
by the Underwriters substantially in the form of the Purchase Contract attached hereto as
Exhibit C, said offer to provide for, among other things, (i) the purchase of not exceeding
$50,000,000 aggregate principal amount of Series 2022 Bonds, (ii.) an underwriting
discount (including management fee and expenses) with respect to the Series 2022 Bonds
not in excess of 1,00% of the aggregate principal amount of the Series 2022 Bonds, (iii) a
true interest cost for the Series 2022 Bonds not exceeding 6.50%, and (iv)the maturities
of the Series 2022 Bonds, with the final maturity being not later October 1,2052.
(B) With respect to optional redemption terms for the Series 2022 Bonds, if
any, the first call date may be no later than October 1, 2032 and there may be no call.
premium.
(C) Receipt by the Mayor of a disclosure statement and a truth-in-bonding
statement of the Underwriters dated the date of the Purchase Contract and complying
with Section 218.385,Florida Statutes.
(D) Receipt by the Issuer from the Underwriters of a good faith.deposit in. all
amount equal to 1.00% of the preliminary par amount of the Series 2022 Bonds set forth
on the cover page of the Preliminary Official Statement (as described in Section 1.1
hereof).
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(E) The Mayor shall have determined, upon the advice of Frasca & Associates,
LLC (the "Financial Advisor"), whether any portion of the Series 2022 Bonds shall. be
insured by a Bond Insurance Policy described in Section 15 hereof, or whether all of the
Series 2022 will be issued uninsured. If it is determined to insure any of the Series 2022
Bonds, the Mayor shall also determine, upon the advice of the Financial Advisor and
Bond Counsel to the Issuer, which entity shall issue the Bond Insurance Policy pursuant
to Section 15 hereof.
Upon satisfaction of all the requirements set forth in this Section 6, the Mayor is
authorized to execute and deliver the Purchase Contract containing terms complying with
the provisions of this Section 6 and the Series 2022 Bonds shall be sold to the
Underwriters pursuant to the provisions of such Purchase Contract. The Mayor may rely
upon the advice of the Financial Advisor regarding satisfaction of the conditions set forth
in this Section 6. The execution and delivery of the Purchase Contract to the
Underwriters shall be deemed to be conclusive evidence of the satisfaction of the
conditions of this Section 6 and any changes, amendments, modifications, omissions or
additions to the Purchase Contract.
SECTION 7. REDEMPTION PROVISIONS. The Series 2022 Bonds
may be redeemed prior to their respective maturities from any moneys legally available
therefor, upon notice as provided in the Bond Resolution, upon the terms and provisions
as determined by the Mayor, in his discretion and upon the advice of the Financial
Advisor; provided, however, with respect to optional redemption terms for the Series
2022 Bonds, if any, the parameters set forth in Section 6(B) must be satisfied. The
Mayor shall determine, upon the advice of the Financial Advisor, whether all, a portion
or none of the Series 2022 Bonds shall be subject to optional redemption. Term Bonds
may be established with such Sinking Fund Installments as the Mayor deems appropriate
and upon the advice of the Financial Advisor. The redemption provisions for the; Serie's
2022 Bonds, if any, shall be set forth in the Purchase Contract.
SECTION 8. 1 BOOK-ENTRY. Notwithstanding the provisions set forth irl
Section 2.06 of the Bond Resolution, the Series 2022 Bonds shall be initially issued in the
form of a separate single certificated fully registered Bond for each maturity of each
Series of the Series 2022 Bonds. Upon initial issuance, the ownership of the Series 2022
Bonds shall be registered in the registration books kept by the Registrar in the name of
Cede & Co., as nominee of The Depository Trust Company ("D,rc"), As long as the
Series 2022 Bonds shall be registered in the name of Cede & Co., all payments on the
Series 2022 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 2022 Bonds.
With respect to Series 2022 Bonds registered in the registration books kept by the
Registrar in the name of Cede & Co., as nominee of DTC, 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 (a "Participant"). Without limiting the
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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 of
DTC, Cede & Co, or any Participant with respect to any ownership interest on the Series
2022 Bonds, (B) the delivery to any Participant or any other person other than a Series
2022 Bondholder, as shown in the registration books kept by the Registrar, of any notice
with respect to the Series 2022 Bonds, or(C) the payment to any Participant or any other
person, other than a Series 2022 Bondholder, as shown in the registration books kept by
the Registrar, of any amount with respect to principal or interest of the Series 2022
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 Series 2022 Bond for the purpose of payment of
principal or interest with respect to such Series 2022 Bond, for the purpose of giving
notices and other matters with respect to such Series 2022 Bond, for the purpose of
registering transfers with respect to such Series 2022 Bond, and for all other purposes
whatsoever. The Paying Agent shall pay all principal or interest of the Series 2022
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 in the Bond Resolution and all such payments shall be valid and
effective to fully satisfy and discharge the Issuer's obligations with respect to payment of
principal or interest of the Series 2022 Bonds to the extent of the sum or sums so paid.
No person other than a Series 2022 Bondholder, as shown in the registration books kept
by the Registrar, shall receive a certificated Series 2022 Bond evidencing the obligation
of the Issuer to make payments of principal or interest pursuant to the provisions of the
Bond Resolution and hereof. Upon delivery by Urc to the Issuer of written notice to the
effect that DTC has determined to substitute a new nominee in place of Cede & C'o., and
subject to the provisions in Section 2.06 of the Bond Resolution with respect to transfers
during certain periods next preceding an Interest Date or the date a Series 2022 Bond has
been selected for redemption, the words "Cede & Co." in the Bond Resolution and herein
shall refer to'such new nominee of DTC; 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 2022 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 of the beneficial owners of such Series or (ii)
to the eff"ect that DTC is unable or unwilling to discharge its responsibilities arad no
substitute depository willing to undertake the functions of DTC hereunder can be found
which is willing and able to undertake such functions upon reasonable and customary
terms, or(B) determination by the Issuer, in its sole discretion, that such book-entry only
system should be discontinued by the Issuer, such Series 2022 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 of DTC, but shall be registered in whatever name or names
Holders shall designate, in accordance with the provisions of the Bond Resolution, In
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such event, the Issuer shall issue, and the Registrar shall authenticate, transfer and
exchange the Series 2022 Bonds consistent with the terms of the Bond Resolution, 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 existing Blaaket Issuer Letter of
Representations previously executed by the Issuer and delivered to DTC shall apply to
the payment of principal and interest on the Series 2022 Bonds.
SECTION 9. FORM OF SERIES 2022 BONDS. The text of the Series
2022 Bonds, together with the Registrar's Certificate of Authentication, shall be
substantially in the form set forth in Section 2.07 of the Bond Resolution, with such
omissions, insertions and variations as may be necessary or desirable and authorized or
permitted by the Bond Resolution, or as may be necessary to comply with applicable
laws, rules and regulations of the United States, the State of Florida and the Issuer in
effect upon the issuance thereof,
SECTION M APPLICATION OF SERIES 2022 BOND PROCEEDS.
Subject in all respects to the satisfaction of the conditions set 'forth in Section 6 hereof,
the proceeds derived from the sale of the Series 2022 Bonds shall be applied by the Issuer
simultaneously with the delivery thereof as follows:
(A) 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 2022 Bonds. Any capitalized interest shall be held in trust solely for the
payment of the Series 2022 Bonds.
(B) A sufficient amount of proceeds of the Series 2022 Bonds shall be
deposited into the Reserve Account, such that the moneys therein shall equal the Reserve
Account Requirement for the Series 2022 Bonds.
(C) A sufficient amount of proceeds of the Series 2022 Bonds shall be paid to
the Line of Credit Provider to pay the Interim Indebtedness in full.
I (D) A sufficient amount of the proceeds of the Series 2022 Bonds shall be
applied to the payment of costs and expenses relating to the issuance of the Series 2022
Bonds,including the premium for a Bond Insurance Policy, if any,
(E) All remaining proceeds of the Series 2022 Bonds shall be deposited to a
separate account within the Construction Fund which is hereby established as the "Series
2022 Bonds Account" and such proceeds shall be used to pay and/or reimburse Costs of
the Series 2022 Project, in accordance with Section 4.03 of the Bond Resolution. Any
remaining proceeds of the Series 2022 Bonds shall be applied to pay scheduled interest
on the Series 2022 Bonds.
SECTION 11. PRELIMINARY OFFICIAL STATEMENT. The Issuer
hereby authorizes the distribution and use of a Preliminary Official Statement in
substantially the form attached hereto as Exhibit D (the "Preliminary Official Statement")
in connection with offering the Series 2022 Bonds for sale. If between the date hereof
and the mailing of the Preliminary Official Statement, it is necessary to make insertions,
modifications or changes in the Preliminary Official Statement, the Mayor and the
Airport Director hereby authorized to approve such insertions, changes and
modifications. The Mayor and the Airport Director are hereby authorized to deem the
Preliminary Official Statement "final" within the meaning of Rule 15c2-12(b) under the
Securities Exchange Act of 1934 (the "Rule") in the form as mailed. Execution of a
certificate by the Mayor or the Airport Director deeming the Preliminary Official.
Statement "final" as described above shall be conclusive evidence of the approval of any
insertions, changes or modifications.
SECTION 12. OFFICIAL STATEMENT. Subject in all respects to the
satisfaction of the conditions set forth in Section 6 hereof, the Mayor and the Airport
Director are hereby authorized and directed to execute and deliver a final Official
Statement, dated the date of the Purchase Contract, which shall be in substantially the
form of the Preliminary Official Statement, in the name and on behalf of the Issuer, and
thereupon to cause such Official Statement to be delivered to the Underwriters with such
changes, amendments, modifications, omissions and additions as may be approved by the
Mayor and the Airport Director. Said Official Statement, including any such changes,
amendments, modifications, omissions and additions as approved by the Mayor and the
Airport Director, and the information contained therein are hereby authorized to be used
in connection with the sale of the Series 2022 Bonds to the public. Execution by the
Mayor and the Airport Director of the Official Statement shall be deemed to be
conclusive evidence of approval of such changes.
SECTION 13. APPOINTMENT OF PAYING AGENT AND
REGISTRAR. Subject in all respects to the satisfaction of the conditions set forth in
Section 6 hereof, The Bank of New York. Mellon Trust Company, N.A. is hereby
designated Registrar and Paying Agent for the Series 2022 Bonds. The Mayor is hereby
authorized to enter into any agreement which may be necessary to effect the transactions
contemplated by this Section 13 and by the Bond Resolution.
SECTION 14. SECONDARY MARKET DISCLOSURE. Subject in all.
respects to the satisfaction of the conditions set forth in Section 6 hereof', the Issuer
hereby covenants and agrees that, in. order to provide for compliance by the Issuer wich
the secondary market disclosure requirements of the Rule, it will comply with and carry
out all of the provisions of the Continuing Disclosure Certificate to be executed by the
Issuer and dated the dated date of the Series 2022 Bonds, as it may be amended fi-okyl tinle
to time in accordance with the terms thereof. The Continuing Disclosure Certificate shall
be substantially in the form of Exhibit E hereto with such changes, amendments,
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modifications, omissions and additions as shall be approved by the Mayor who is hereby
authorized to execute and deliver such Certificate. Notwithstanding any other provision.
of the Bond Resolution, failure of the Issuer to comply with such Continuing Disclosure
Certificate shall not be considered an Event of Default under the Bond Resolution;
provided, however, to the extent permitted by law, the sole and exclusive remedy of any
Series 2022 Bondholder for the enforcement of the provisions of the Continuing
Disclosure Certificate shall be an action for mandamus or specific performance, as
applicable, by court order, to cause the Issuer to comply with its obligations under this
Section 14 and the Continuing Disclosure Certificate. For purposes of this Secti(an 14,
"Series 2022 Bondholder" shall mean any person who (A) has the power, directly or
indirectly, to vote or consent with respect to, or to dispose of ownership of, any Series
2022 Bonds (including persons holding such Bonds through nominees, depositories or
other inten-nediaries), or (B) is treated as the owner of any such Bond for federal income
tax purposes. Digital Assurance Certification, LLC is hereby appointed as the initial
Dissemination Agent for the Series 2022 Bonds.
SECTION 15. MUNICIPAL BOND INSURANCE. It the Mayor
determines, upon the advice of the Financial Advisor, that all or any portion of tile Series
2022 Bonds (the "Insured Bonds") will be insured by a Bond Insurance Policy, then the
Mayor, upon the advice of the Financial Advisor and Bond Counsel to the Issuer, shall
select either Assured Guaranty Municipal Corp. ("AGM") or Build America Mutual
Assurance Company ("BAM") as the Insurer with respect to the Insured Bonds and a
sufficient portion of the proceeds of the Series 2022 Bonds shall be applied to the
payment of the premium for the Insurer's standard form of municipal bond insurance
policy in accordance with the provisions of Section 10(D) hereof. 'The Mayor is
authorized and directed to execute, and the Clerk is authorized to attest, any insurance
agreement(the "Bond Insurance Agreement") that is necessary or desirable to incorporate
the standard municipal bond insurance provisions required by the Insurer, such Bond
Insurance Agreement to be subject to the approval of the Issuer's Bond Counsel and the
County Attorney, such approval being evidenced by the Mayor's execution thereof,
Exhibits F and G hereto contain the respective standard municipal bond insurance
provisions of Assured Guaranty and BAM, respectively, and the Bond Insurance
Agreement shall contain substantially the same provisions of the selected Insurer with
such changes as are approved by Issuer's Bond Counsel and the County Attorney, such
approval being evidenced by the Mayor's execution thereof. So long as the Bond
Insurance Policy issued by the Insurer is in full force and effect and the Insurer has not
defaulted in its payment obligations under the Bond Insurance Policy, the Issuer agrees to
comply with the provisions of any Insurance Agreement executed in accordance with this
Section 15.
SECTION 16. GENERAL AUTHORITY. The Mayor, the County
Administrator, the Clerk, the County Attorney, the Airport Director and the other
officers, attorneys and other agents or employees of the Issuer are, hereby authorized to
10
do all acts and things required of them by this Supplemental Resolution, the Bond
Resolution, the Official Statement, the Continuing Disclosure Certificate, the Bond
Insurance Agreement, if any, or the Purchase Contract or desirable or consistent with the
requirements hereof or of the Bond Resolution, the Official Statement, the Continuing
Disclosure Certificate, the Bond Insurance Agreement, if any, or the Purchase Contract
for the full punctual and complete performance of all the terms, covenants and
agreements contained herein or in the Series 2022 Bonds, the Bond Resolution, the
Official Statement, the Continuing Disclosure Certificate, the Bond Insurance
Agreement, if any, and the Purchase Contract and each member, employee, attorney and
officer of the Issuer is 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. It' the
Mayor is unavailable or unable at any time to perform any duties or functions hereunder,
the Mayor Pro Tom is each hereby authorized to act on his behalf
SECTION 17. SEVERABILITY AND INVALID PROVISIONS. If any
one or more of the covenants, agreements or provisions herein contained shall be held
contrary to any express provision of law or contrary to the policy of express law, though
not expressly prohibited or against public policy, or shall for any reason whatsoever be
held invalid, then such covenants, agreements or provisions shall be null and void and
shall be deemed separable from the remaining covenants, agreements or provisions and
shall in no way affect the validity of any of the other provisions hereof or, of the Series
2022 Bonds.
SECTION 18. RESOLUTION TO CONTINUE IN FORCE. 1Except as
herein expressly provided, the Bond Resolution. and all the terms and provisions thereof
are and shall remain in full force and effect.
SECTION 19. EFFECTIVE DATE. This Supplemental Resolution shall
become effective immediately upon its adoption.'
[Remainder of page intentionally left blank]
11
PASSED AND ADOPTED by the Board of County Commissioners of M.(.x1r e
County,Florida, at a regular meeting of said Board held on the 17th,day of August, 2022.
Mayor David Rice Yes
Mayor Pro Tears Craig Cates Yes
Commissioner Michelle Coldiron Yes
Commissioner holly Raseliein Yes
,,,4yCommissioner James K. Scholl Yes
G ff BOARD OF COUNTY COMMISSION E S
(seal) °.. OF MONROE COUNT?,FLORIDA
Attest: Kevin Madok, Clerk
DeP. ty Cler ,i ?.wy Mayor ` ,;�
NROE COUNTY ATTOnNEV`
P.EQ J dW
ASSi c Cp OUNTY ATTORNEY
Mte__.,__._8/2/22
FILED FOR RECORD
2022 AUG 17 rv�.._;?(
CLERK CIR.CT.
MONROE COUNTY,FL
12
EXHIBIT A
SERIES 2022 PROJECT
The Series 2022 Project generally includes the following, as more particularly
described in the plans and specification on file with the Issuer and as the same may be
modified from time to time:
The development, construction and equipping of a new second-level concoulse of
approximately 48,805 square feet("Concourse A") consisting of. (1) seven gates all fitted
with passenger boarding bridges, bold-room areas, passenger circulation space,
concession areas, restrooms, a nursing room, a pet relief area, building support areas,
including mechanical rooms, IT/Communication rooms, an electrical room, elevator,
storage,janitors closet and stair areas, and (2) a ground (apron) level below Concourse A
to support a new baggage make-up area and devices, tug lanes, airline ramp space, rarnp
equipment storage and circulation space.
EXHIBIT B
AFFIDAVIT OF PUBLICATION
[See Tab No. 5.4]
EXHIBIT C
FORM OF PURCHASE CONTRACT
[See Tab No. 1.3]
EXHIBIT D
FORM OF PRELIMINARY OFFICIAL STATEMENT
[See Tab No. 1.1]
EXHIBIT E
FORM OF CONTINUING DISCLOSURE CERTIFICATE
[See Tab No. 2.10]
EXHIBIT F
INSURANCE PROVISIONS FOR AGM
INSURANCE PROVISIONS FOR AGM
Any Bond Insurance Agreement between the Issuer and AGM relating to the
Insured Bonds shall incorporate the following requirements with such changes as the
Issuer's representatives and AGM may agree to, the provisions of which shall be stated to
govern, notwithstanding anything to the contrary set forth in the Bond Resolution.
"AGM or Insurer" shall mean Assured Guaranty Municipal Corp... a New York stock
insurance company, or any successor thereto or assignee thereof'.
"Bond Insurance Policy" shall mean the insurance policy issued by the Insurer
guaranteeing the scheduled payment of principal of and interest on the Insured Bonds when
due".
,'Insured Bonds" shall mean Series 2022 Bonds insured by the Insurer".
(a) The prior written consent of the Insurer shall be a condition precedent to the
deposit of any credit instrument provided in lieu of a cash deposit into the Reserve Account
relating to the Series 2022 Bonds. Notwithstanding anything to the contrary set forth in the
Bond Resolution, amounts on deposit in the Reserve Account shall be applied solely to the
payment of debt service due on the Series 2022 Bonds.
(b) The Insurer shall be deemed to be the sole holder of the Insured Bonds for the
purpose of exercising any voting right or privilege or giving any consent or direction or
taking any other action that the holders of the Insured Bonds are entitled to take pursuant
to the Bond Resolution pertaining to (i) defaults and remedies and (ii) the duties and
obligations of the Paying Agent. In furtherance thereof and as a term of the Bond
Resolution and each Insured Bond, each Insured Series 2022 Bondholder appoints the
Insurer as its agent and attorney-in-fact and agrees that the Insurer may at any time during
the continuation of any proceeding by or against the Issuer under the United States
Bankruptcy Code or any other applicable bankruptcy, insolvency, receivership,
rehabilitation or similar law(an "Insolvency Proceeding")direct all matters relating to such
Insolvency Proceeding, including without limitation, (A) all matters relating to any claim
or enforcement proceeding in connection with an Insolvency Proceeding (a "Claim"), (B)
the direction of any appeal of any order relating to any Claim, (C)the posting of any surety,
supersedeas or performance bond pending any such appeal, and (D) the right to vote to
accept or reject any plan of adjustment. In addition, each Insured. Series 2022 Bondholder
delegates and assigns to the Insurer, to the fullest extent permitted by law, its rights in the
conduct of any Insolvency Proceeding, including,without limitation, all rights of any party
to an adversary proceeding or action with respect to any court order issued in connection
with any such Insolvency Proceeding. The Paying Agent will acknowledge such
appointment, delegation and assignment by each Series 2022 Bondholder for the Insurer's
benefit and will agree to cooperate with the Insurer in taking any action reasonably
necessary or appropriate in connection with such appointment, delegation and assignment.
Remedies granted to the Series 2022 Bondholders shall expressly include mandamus.
(c) The maturity of Insured Bonds shall not be accelerated without the consent
of the Insurer and in the event the maturity of the Insured Bonds is accelerated, the Insurer
may elect, in its sole discretion, to pay accelerated principal and interest accrued, on such
principal to the date of acceleration (to the extent unpaid by the Issuer) and the Paying
Agent shall be required to accept such amounts. Upon payment of such accelerated
principal and interest accrued to the acceleration date as provided above, the Insurer's
obligations under the Bond Insurance Policy with respect to such Insured Bonds shall be
fully discharged.
(d) No grace period for a covenant default shall exceed thirty (30) days or be
extended for more than sixty (60) days, without the prior written consent of the Insurer.
No grace period shall be permitted for payment defaults.
(e) The Insurer shall be included as a third-party beneficiary to the Bond
Resolution.
(f) Upon the occurrence of an extraordinary optional, special or extraordinary
mandatory redemption in part, the selection of Insured Bonds to be redeemed. shall be
subject to the approval of the Insurer. The exercise of any provision of the Bond Resolution
which permits the purchase of Insured Bonds in lieu of redemption shall require the prior
written approval of the Insurer if any Insured Bond so purchased is not cancelled upon
purchase.
(g) Unless the Insurer otherwise directs, upon the occurrence and continuance of
an Event of Default or an event which with notice or lapse of time would constitute an
Event of Default, amounts on deposit in the Construction Fund shall not be disbursed, but
shall instead be applied to the payment of debt service or redemption price of the Series
2022 Bonds.
(h) Any amendment, supplement, modification to, or waiver of, the Bond
Resolution or any other transaction document, including any underlying security
agreement (each a "Related Document"), that requires the consent of Insured Bondholders
or adversely affects the rights and interests of the Insurer shall be subject to the prior written
consent of the Insurer.
(i) The rights granted to the Insurer under the Bond Resolution or any other
Related Document to request, consent to or direct any action are rights granted to the
Insurer in consideration of its issuance of the Bond Insurance Policy. Any exercise by the
Insurer of such rights is merely an exercise of the Insurer's contractual rights and shall not
be construed or deemed to be taken for the benefit, or on behalf, of the holders of the
Insured Bonds and such action does not evidence any position of the Insurer, affirmative
2
or negative, as to whether the consent of the owners of the Insured Bonds or any other
person is required in addition to the consent of the Insurer.
0) Only (1) cash, (2) non-callable direct obligations of the United States of
America ("Treasuries"), (3) evidences of ownership of proportionate interests in future
interest and principal payments on Treasuries held by a bank or trust company as custodian,
under which the owner of the investment is the real party in interest and has the right to
proceed directly and individually against the obligor and the underlying Treasuries are not
available to any person claiming through the custodian or to whom the custodian may be
obligated, (4) subject to the prior written consent of the Insurer, pre-refunded municipal
obligations rated "AAA" and "Aaa" by Standard & Poor's and Moody's, respectively, or
(5) subject to the prior written consent of the Insurer, securities eligible for "AAA"
defeasance under then existing criteria of Standard & Poor's or any combination thereof,
shall be used to effect defeasance of the Insured Bonds unless the Insurer otherwise
approves.
To accomplish defeasance, the Issuer shall cause to be delivered to the Insurer (i) a
report of either a nationally-recognized verification agent or a report of an independent
firm of nationally recognized certified public accountants or such other accountant as shall
be acceptable in form and substance to the Insurer("Accountant")verifying the sufficiency
of the escrow established to pay the Insured Bonds in full on the maturity or redemption
date ("Verification"), (ii) an escrow deposit agreement or other irrevocable written
instructions to the Paying Agent (each of which shall be acceptable in form and substance
to the Insurer), (iii) an opinion of nationally recognized bond counsel to the effect that the
Insured Bonds are no longer "Outstanding" under the Bond Resolution and (iv) if required,
a certificate of discharge of the Paying Agent with respect to the Insured Bonds. Each
Verification and defeasance opinion shall be addressed to the Issuer, Paying Agent and
Insurer. The Insurer shall be provided with final drafts of the above-referenced
documentation not less than five (5) business days prior to the funding of the escrow.
Insured Bonds shall be deemed "Outstanding" under the Bond Resolution unless
and until they are in fact paid and retired or the above criteria are met.
(k) Amounts paid by the Insurer under the Bond Insurance Policy shall not be
deemed. paid for purposes of the Bond Resolution and the Insured Bonds relating to such
payments shall remain Outstanding and continue to be due and owing until paid by the
Issuer in accordance with the Bond Resolution. The Bond Resolution shall not be
discharged unless all amounts due or to become due to the Insurer have been paid in full
or duly provided for.
(1) Each of the Issuer and Paying Agent will covenant and agree to take such
action (including, as applicable, filing of UCC financing statements and continuations
thereof) as is necessary from time to time to preserve the priority of the pledge of the
Pledged Funds under applicable law.
3
(in) Claims Upon the Bond Insurance Policy and Payments by and to the Insurer.
If, on the third business day prior to the related scheduled interest payment date or
principal payment date ("Payment Date") there are not moneys sufficient to pay the
principal of and interest on the Insured Bonds due on such Payment Date, the Issuer or the
Paying Agent shall give notice to the Insurer and to its designated agent (if any) (the
"Insurer's Fiscal Agent") by telephone or telecopy of the amount of such deficiency by
12:00 noon,New York City time, on such business day. If, on the second business day prior
to the related Payment Date, there continues to be a deficiency in the amount available to
pay the principal of and interest on the Insured Bonds due on such Payment Date, the
Paying Agent shall make a claim under the Bond Insurance Policy and give notice to the
Insurer and the Insurer's Fiscal Agent(if any)by telephone of the amount of such deficiency,
and the allocation of such deficiency between the amount required to pay interest on the
Bonds and the amount required to pay principal of the Insured Bonds, confirmed in writing
to the Insurer and the Insurer's Fiscal Agent by 12:00 noon, New York City time, on such
second business day by filling in the form of Notice of Claim and Certificate delivered with
the Bond Insurance Policy.
The Paying Agent shall designate any portion of payment of principal on Insured
Bonds paid by the Insurer, whether by virtue of mandatory sinking fund redemption,
maturity or other advancement of maturity, on its books as a reduction in the principal
amount of Insured Bonds registered to the then current Insured Series 2022 Bondholder,
whether DTC or its nominee or otherwise, and shall issue a replacement Insured Bond to
the Insurer, registered in the name of Assured Guaranty Municipal Corp., in a principal
amount equal to the amount of principal so paid (without regard to authorized
denominations); provided that the Paying Agent's failure to so designate any payment or
issue any replacement Insured Bond shall have no effect on the amount of principal. or
interest payable by the Issuer on any Insured Bond or the subrogation rights of the Insurer.
The Paying Agent shall keep a complete and accurate record of all funds deposited
by the Insurer into the Policy Payments Account(defined below) and the allocation of such
funds to payment of interest on and principal of any Insured Bond. The Insurer shall have
the right to inspect such records at reasonable times upon reasonable notice to the Paying
Agent.
Upon payment of a claim under the Bond Insurance Policy, the Paying Agent shall
establish a separate special purpose trust account for the benefit of Insured Series 2022
Bondholders referred to herein as the "Policy Payments Account" and over which the
Paying Agent shall have exclusive control and sole right of withdrawal. The Paying Agent
shall receive any amount paid under the Bond Insurance Policy in trust on behalf of Insured
Series 2022 Bondholders and shall deposit any such amount in the Policy Payments
Account and distribute such amount only for purposes of making the payments for which
a claim was made. Such amounts shall be disbursed by the Paying Agent to Insured Series
2022 Bondholders in the same manner as principal and interest payments are to be made
4
with respect to the Insured Bonds under the sections hereof regarding payment of Insured
Bonds. It shall not be necessary for such payments to be made by checks or wire transfers
separate from the check or wire transfer used to pay debt service with other funds available
to make such payments. Notwithstanding anything herein to the contrary, the Issuer agrees
to pay to the Insurer (i) a sum equal to the total of all amounts paid by the Insurer under the
Bond Insurance Policy (the "Insurer Advances"); and(ii) interest on such Insurer Advances
from the date paid by the Insurer until payment thereof in full, payable to the Insurer at the
Late Payment Rate per annum (collectively, the "Insurer Reimbursement Amounts").
"Late Payment Rate" means the lesser of(a)the greater of(i) the per annum rate of interest,
publicly announced from time to time by JPMorgan Chase Bank at its principal office in
The City of New York, as its prime or base lending rate (any change in such rate of interest
to be effective on the date such change is announced by JPMorgan Chase Bank) plus 3%,
and (ii) the then applicable highest rate of interest on the Insured Bonds and (b) the
maximum rate permissible under applicable usury or similar laws limiting interest rates.
The Late Payment Rate shall be computed on the basis of the actual number of days elapsed
over a year of 360 days. The Issuer hereby covenants and agrees that the Insurer
Reimbursement Amounts are secured by a lien on and pledge of the Pledged Funds and
payable from such Pledged Funds on a parity with debt service due on the Insured Bonds.
Funds held in the Policy Payments Account shall not be invested by the Paying
Agent and may not be applied to satisfy any costs, expenses or liabilities of the Paying
Agent. Any funds remaining in the Policy Payments Account following an Insured Bond
payment date shall promptly be remitted to the Insurer.
(n) The Insurer shall,to the extent it makes any payment of principal of or interest
on the Insured Bonds, become subrogated to the rights of the recipients of such payments in
accordance with the terms of the Bond Insurance Policy(which subrogation rights shall also
include the rights of any such recipients in connection with any Insolvency Proceeding).
Each obligation of the Issuer to the Insurer under the Related Documents shall survive
discharge or termination of such Related Documents.
(o) The Issuer shall pay or reimburse the Insurer, from Pledged Funds, any and
all charges, fees, costs and expenses that the Insurer may reasonably pay or incur in
connection with (i) the administration, enforcement, defense or preservation of any rights
or security in any Related Document; (ii) the pursuit of any remedies under the Bond
Resolution or any other Related Document or otherwise afforded by law or equity, (iii) any
amendment, waiver or other action with respect to, or related to, the Bond Resolution or
any other Related Document whether or not executed or completed, or (iv) any litigation
or other dispute in connection with the Bond Resolution or any other Related Document or
the transactions contemplated thereby, other than costs resulting from the failure of the
Insurer to honor its obligations under the Bond Insurance Policy. The Insurer reserves the
right to charge a reasonable fee as a condition to executing any amendment, waiver or
consent proposed in respect of the Bond Resolution or any other Related Document.
5
(p) After payment of reasonable expenses of the Paying Agent, the application
of funds realized upon default shall be applied to the payment of expenses of the Issuer or
rebate only after the payment of past due and current debt service on the Insured Bonds
and amounts required to restore the Reserve Account to the Reserve Requirement.
(q) The Insurer shall be entitled to pay principal or interest on the Insured Bonds
that shall become Due for Payment but shall be unpaid by reason of Nonpayment by the
Issuer (as such terms are defined in the Bond Insurance Policy) and any amounts due on
the Insured Bonds as a result of acceleration of the maturity thereof, whether or not the
Insurer has received a Notice of Nonpayment (as such terms are defined in the Bond
Insurance Policy) or a claim upon the Bond Insurance Policy.
(r) The notice address of the Insurer is: Assured Guaranty Municipal Corp.,
1633 Broadway, New York, New York 10019, Attention: Managing Director —
Surveillance, Re:Policy No. , Telephone: (212) 974- 0100; Telecopier: (212) 339-
3556. In each case in which notice or other communication refers to an Event of Default,
then a copy of such notice or other communication shall also be sent to the attention of the
Deputy General Counsel — Public Finance and shall be marked to indicate "URGENT
MATERIAL ENCLOSED."
(s) The Insurer shall be provided with the following information by the Issuer or
Paying Agent, as the case may be:
(i) To the extent not otherwise filed with the Municipal Securities
Rulemaking Board's EMMA system, annual audited financial statements within
[180] days after the end of the Issuer's fiscal year(together with a certification of the
Issuer that it is not aware of any default or Event of Default under the Bond
Resolution), and the Issuer's annual budget within thirty (30) days after the approval
thereof together with such other information, data or reports as the Insurer shall
reasonably request from time to time;
(ii) Notice of any draw upon the Reserve Account within two (2)business
days after knowledge thereof other than (i) withdrawals of amounts in excess of the
Reserve Requirement and (ii) withdrawals in. connection with a refunding of Series
2022 Bonds;
(iii) Notice of any default known to the Paying Agent or Issuer within five
business days after knowledge thereof;
(iv) Prior notice of the advance refunding or redemption of any of the
Insured Bonds, including the principal amount, maturities and CUSIP numbers
thereof;
6
(v) Notice of the resignation or removal of the Paying Agent and
Registrar and the appointment of, and acceptance of duties by, any successor
thereto;
(vi) Notice of the commencement of any Insolvency Proceeding;
(vii) Notice of the making of any claim in connection with any Insolvency
Proceeding seeking the avoidance as a preferential transfer of any payment of
principal of, or interest on, the Insured Bonds;
(viii) A full original transcript of all proceedings relating to the execution
of any amendment, supplement, or waiver to the Related Documents;
(ix) All reports, notices and correspondence to be delivered to holders of
Insured Bonds under the terms of the Related Documents; and
(x) To the extent that the Issuer has entered into a continuing disclosure
agreement, covenant or undertaking with respect to the Bonds, all information
furnished pursuant to such agreements shall also be provided to the Insurer,
simultaneously with the furnishing of such information.
(t) The Insurer shall have the right to receive such additional information as it
may reasonably request.
(u) The Issuer will permit the Insurer to discuss the affairs, finances and accounts
of the Issuer or any information the Insurer may reasonably request regarding the security
for the Series 2022 Bonds with appropriate officers of the Issuer and will use commercially
reasonable efforts to enable the Insurer to have access to the facilities, books and records of
the Issuer on any business day upon reasonable prior notice.
(v) The Paying Agent shall notify the Insurer of any failure of the Issuer to
provide notices, certificates and other information under the transaction documents.
(w) Notwithstanding satisfaction of the other conditions to the issuance of
Additional Bonds set forth in the Bond Resolution, no such issuance may occur (1) if an
Event of Default (or any event which, once all notice or grace periods have passed, would
constitute an Event of Default) exists unless such default shall be cured upon such issuance
and (2) unless the Reserve Account, including all accounts therein, is fully funded at the
Reserve Requirement (including the proposed issue) upon the issuance of such Additional
Bonds, in either case unless otherwise permitted by the Insurer.
(x) In determining whether any amendment, consent, waiver or other action to
be taken, or any failure to take action, under the Bond Resolution would adversely affect
the security for the Insured Bonds or the rights of the holders of Insured Bonds, the Paying
7
Agent shall consider the effect of any such amendment, consent, waiver, action or inaction
as if there were no Bond Insurance Policy.
(y) No contract shall be entered into or any action taken by which the rights of the
Insurer or security for or sources of payment of the Series 2022 Bonds may be impaired or
prejudiced in any material respect except upon obtaining the prior written consent of the
Insurer.
(z) So long as any Insured Bonds remain outstanding or any amounts are owed
to the Insurer, the Issuer shall not issue or incur indebtedness payable from or secured in
whole or in part by the Pledged Funds that (i) bears interest at other than fixed rates or (ii)
permits the holder to tender such indebtedness for purchase prior to the stated maturity
thereof, in either case without the prior written consent of the Insurer.
(aa) So long as any Insured Bonds Insurer remain outstanding or any amounts are
owed to the Insurer, the Issuer shall not enter into any interest rate exchange agreement,
cap, collar, floor ceiling or other agreement or instrument involving reciprocal payment
obligations between the Issuer and a counterparty secured by and payable from Pledged
Funds and based on interest rates applied to a notional amount of principal,without the prior
written consent of the Insurer.
EXHIBIT G
INSURANCE PROVISIONS FOR BAM
INSURANCE PROVISIONS FOR BAM
Any Bond Insurance Agreement between the Issuer and BAM relating to the Insured
Bonds shall incorporate the following requirements with such changes as the Issuer's
representatives and BAM may agree to, the provisions of which shall be stated to govern,
notwithstanding anything to the contrary set forth in the Bond Resolution.
I) Notice and Other Information to be given to BAM. The Issuer will provide
BAM with all notices and other information it is obligated to provide (i) under its
Continuing Disclosure Certificate and (ii) to the holders of Insured Bonds or the Paying
Agent under the Bond Resolution.
The notice address of BAM is: Build America Mutual Assurance Company, 200
Liberty Street, 27 1h Floor, New York, NY 10281, Attention: Surveillance, Re: Policy No.
, Telephone: (212) 235-2500, Telecopier: (212) 235-1542, Email:
notices-Qabuildameri ca.com. In each case in which notice or other communication refers to
an event of default or a claim on the Bond Insurance Policy, then a copy of such notice or
other communication shall also be sent to the attention of the General Counsel at the same
address and at claims(&buildamerica..com or at Telecopier: (212) 235-5214 and shall be
marked to indicate "URGENT MATERIAL ENCLOSED."
2) Defeasance. The investments in the defeasance escrow relating to Insured
Bond shall be limited to non-callable, direct obligations of the United States of America
and securities fully and unconditionally guaranteed as to the timely payment of principal
and interest by the United States of America, or as otherwise maybe authorized under State
law and approved by BAM.
At least (three) 3 Business Days prior to any defeasance with respect to the Insured
Bonds, the Issuer, unless waived by BAM, shall deliver to BAM draft copies of an escrow
agreement, an opinion of bond counsel regarding the validity and enforceability of the
escrow agreement and the defeasance of the Insured Bonds, a verification report (a
"Verification Report") prepared by a nationally recognized independent financial analyst
or firm of certified public accountants regarding the sufficiency of the escrow fund. Such
opinion shall be addressed to BAM and shall be in form and substance satisfactory to BAM.
Such Verification Report shall be in the form and substance satisfactory to BAM and,
unless waived by BAM, shall either be addressed to BAM or shall include a statement to
the effect that such Verification Report may be relied upon by BAM. In addition, the
escrow agreement shall provide that:
a) Any substitution of securities following the execution and delivery of
the escrow agreement shall require the delivery of a Verification Report, an opinion of
bond counsel that such substitution will not adversely affect the exclusion (if interest on
the Insured Bonds is excludable) from gross income of the holders of the Insured Bonds of
the interest on the Insured Bonds for federal income tax purposes and the prior written
consent of BAM, which consent will not be unreasonably withheld.
b) The Issuer will not exercise any prior optional redemption of Insured
Bonds secured by the escrow agreement or any other redemption other than mandatory
sinking fund redemptions unless (i) the right to make any such redemption has been
expressly reserved in the escrow agreement and such reservation has been disclosed in
detail in the official statement for the refunding bonds, and (ii) as a condition to any such
redemption there shall be provided to BAM a Verification Report as to the sufficiency of
escrow receipts without reinvestment to meet the escrow requirements remaining following
any such redemption.
c) The Issuer shall not amend the escrow agreement or enter into a
forward purchase agreement or other agreement with respect to rights in the escrow without
the prior written consent of BAM.
3) Paying Agent.
a) BAM shall receive prior written notice of any name change of the the
paying agent (the "Paying Agent") for the Insured Bonds or the resignation or removal of
the Paying Agent.
b) No removal, resignation or termination of the Paying Agent shall take
effect until a successor, acceptable to BAM, shall be qualified and appointed.
4) Amendments, Supplements and Consents. BAM's prior written consent is
required for all amendments and supplements to the Bond Resolution, with.the exceptions
noted below. The Issuer shall send copies of any such amendments or supplements to
BAM and the rating agencies which have assigned a rating to the Insured Bonds.
a) Consent of BAM. Any amendments or supplements to the Bond
Resolution shall require the prior written consent of BAM with the exception of
amendments or supplements:
L To cure any ambiguity or formal defect or omissions or to
correct any inconsistent provisions in the transaction documents or in any supplement
thereto, or
ii. To grant or confer upon the holders of the Insured Bonds any
additional rights, remedies, powers, authority or security that may lawfully be granted to
or conferred upon the holders of the Insured Bonds, or
2
iii. To add to the conditions, limitations and restrictions on the
issuance of bonds or other obligations under the provisions of the Bond Resolution other
conditions, limitations and restrictions thereafter to be observed, or
iv. To add to the covenants and agreements of the Issuer in the
Bond Resolution other covenants and agreements thereafter to be observed by the Issuer
or to surrender any right or power therein reserved to or conferred upon the Issuer, or
V. To issue additional parity debt in accordance with the
requirements set forth in the Bond Resolution.
b) Consent of BAM in Addition to Bondholder Consent. Any
amendment, supplement, modification to, or waiver of, the Bond Resolution that requires
the consent of holders of the Insured Bonds or adversely affects the rights or interests of
BAM shall be subject to the prior written consent of BAM.
c) Insolvency. Any reorganization or liquidation plan with respect to the
Issuer must be acceptable to BAM. The Paying Agent and each owner of the Insured Bonds
hereby appoint BAM as their agent and attorney-in-fact with respect to the Insured Bonds
and agree that BAM may at any time during the continuation of any proceeding by or
against the Issuer under the United States Bankruptcy Code or any other applicable
bankruptcy, insolvency, receivership, rehabilitation or similar law (an "Insolvency
Proceeding") direct all matters relating to such Insolvency Proceeding, including without
limitation, (A) all matters relating to any claim or enforcement proceeding in connection
with an Insolvency Proceeding (a "Claim"), (B) the direction of any appeal of any order
relating to any Claim, (C) the posting of any surety, supersedeas or performance bond
pending any such appeal, and (D) the right to vote to accept or reject any plan of
adjustment. In addition, the Paying Agent and each owner of the Insured Bonds shall
delegate and assign to BAM,to the fullest extent permitted by law, the rights of the Paying
Agent and each owner of the Insured Bonds with respect to the Insured Bonds in the
conduct of any Insolvency Proceeding, including,without limitation, all rights of any party
to an adversary proceeding or action with respect to any court order issued in connection
with any such Insolvency Proceeding.
d) Control by BAM Upon Default. Anything in the Bond Resolution to
the contrary notwithstanding, upon the occurrence and continuance of a default or an event
of default, BAM shall be entitled to control and direct the enforcement of all rights and
remedies granted to the holders of the Insured Bonds or the Paying Agent for the benefit
of the holders of the Insured Bonds under the Bond Resolution. No default or event of
default may be waived without BAM's written consent.
e) BAMas Owner. Upon the occurrence and continuance of a.default or
an event of default, BAM shall be deemed to be the sole owner of the Insured Bonds for
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all purposes under the Bond Resolution, including, without limitations, for purposes of
exercising remedies and approving amendments.
f) Grace Period for Payment Defaults. No grace period shall be
permitted for payment defaults on the Insured Bonds. No grace period for a covenant
default shall exceed 30 days without the prior written consent of BAM.
g) Special Provisions for Insurer Default. If an Insurer Default shall
occur and be continuing, then, notwithstanding anything in paragraphs 4(a)-(e) above to
the contrary, (1) if at any time prior to or following an Insurer Default, BAM has made
payment under the Bond Insurance Policy, to the extent of such payment BAM shall be
treated like any other holder of the Insured Bonds for all purposes, including giving of
consents, and (2) if BAM has not made any payment under the Bond Insurance Policy,
BAM shall have no further consent rights until the particular Insurer Default is no longer
continuing or BAM makes a payment under the Bond Insurance Policy, in which event,
the foregoing clause (1) shall control. For purposes of this paragraph, "Insurer Default"
means: (A) BAM has failed to make any payment under the Bond Insurance Policy when
due and owing in accordance with its terms; or (B) BAM shall (i) voluntarily commence
any proceeding or file any petition seeking relief under the United States Bankruptcy Code
or any other Federal, state or foreign bankruptcy, insolvency or similar law, (ii) consent to
the institution of or fail to controvert in a timely and appropriate manner, any such
proceeding or the filing of any such petition, (iii) apply for or consent to the appointment
of a receiver, trustee, custodian, sequestrator or similar official for such party or for a
substantial part of its property, (iv) file an answer admitting the material allegations of a
petition filed against it in any such proceeding, (v) make a general assignment for the
benefit of creditors, or (vi) take action for the purpose of effecting any of the foregoing; or
(C) any state or federal agency or instrumentality shall order the suspension of payments
on the Bond Insurance Policy or shall obtain an order or grant approval for the
rehabilitation, liquidation, conservation or dissolution of BAM (including without
limitation under the New York Insurance Law).
5) BAM As Third Party Beneficiary. BAM is recognized as and shall be
deemed to be a third party beneficiary of the Bond Resolution and may enforce the
provisions of the Bond Resolution as if it were a party thereto.
6) Payment Procedure Under the Bond Insurance Policy.
In the event that principal and/or interest due on the Insured Bonds shall be paid by
BAM pursuant to the Bond Insurance Policy, the Insured Bonds shall remain Outstanding
for all purposes, not be defeased. or otherwise satisfied and not be considered paid by the
Issuer, the assignment and pledge of the trust estate and all covenants, agreements and
other obligations of the Issuer to the registered owners shall continue to exist and shall run
to the benefit of BAM, and BAM shall be subrogated to the rights of such registered
owners.
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In the event that on the second (2") business day prior to any payment date on the
Insured Bonds, there are not sufficient moneys to pay all principal of and interest on the
Insured Bonds due on such payment date, the Paying Agent or the Issuer shall immediately
notify BAM or its designee on the same business day by telephone or electronic mail, of
the amount of the deficiency. If any deficiency is made up in whole or in part prior to or
on the payment date, the Paying Agent or the Issuer shall so notify BAM or its designee.
In addition, if the Paying Agent has notice that any holder of the Insured Bonds has
been required to disgorge payments of principal of or interest on the Insured Bonds
pursuant to a final, non-appealable order by a court of competent Jurisdiction that such
payment constitutes an avoidable preference to such holder within the meaning of any
applicable bankruptcy law,then the Paying Agent shall notify BAM or its designee of such
fact by telephone or electronic mail, or by overnight or other delivery service as to which
a delivery receipt is signed by a person authorized to accept delivery on behalf of BAM.
The Paying Agent shall irrevocably be designated, appointed, directed and
authorized to act as attorney-in-fact for holders of the Insured Bonds as follows:
a) If there is a deficiency in amounts required to pay interest and/or
principal on the Insured Bonds, the Paying Agent shall (i) execute and deliver to BAM, in
form satisfactory to BAM, an instrument appointing BAM as agent and attorney-in-fact for
such holders of the Insured Bonds in any legal proceeding related to the payment and
assignment to BAM of the claims for interest on the Insured Bonds, (ii)receive as designee
of the respective holders (and not as Paying Agent) in accordance with the tenor of the
Bond Insurance Policy payment from BAM with respect to the claims for interest so
assigned, (iii)segregate all such payments in a separate account(the "BAM Policy Payment
Account") to only be used to make scheduled payments of principal of and interest on the
Insured Bond, and (iv) disburse the same to such respective holders; and
b) If there is a deficiency in amounts required to pay principal of the
Insured Bonds, the Paying Agent shall (i) execute and deliver to BAM, in form satisfactory
to BAM, an instrument appointing BAM as agent and attorney-in-fact for such holder of
the Insured Bonds in any legal proceeding related to the payment of such principal and an
assignment to BAM of the Insured Bonds surrendered to BAM, (ii) receive as designee of
the respective holders (and not as Paying Agent) in accordance with the tenor of the Bond
Insurance Policy payment therefore from BAM, (iii) segregate all such payments in the
BAM Policy Payment Account to only be used to make scheduled payments of principal
of and interest on the Insured Bond, and (iv) disburse the same to such holders.
The Paying Agent shall designate any portion of payment of principal on Insured
Bonds paid by BAM, whether by virtue of mandatory sinking fund redemption, maturity
or other advancement of maturity, on its books as a reduction in the principal an'lount of
Insured Bonds registered to the then current holder, whether DTC or its nominee or
otherwise, and shall issue a replacement Insured Bond to BAM, registered in the name
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directed by BAM, in a principal amount equal to the amount of principal so paid (without
regard to authorized denominations); provided that the Paying Agent's failure to so
designate any payment or issue any replacement Insured Bond shall have no effect on the
amount of principal or interest payable by the Issuer on any Insured Bond or the
subrogation or assignment rights of BAM.
Payments with respect to claims for interest on and principal of Insured Bonds
disbursed by the Paying Agent from proceeds of the Bond Insurance Policy shall not be
considered to discharge the obligation of the Issuer with respect to such Insured Bonds,
and BAM shall become the owner of such unpaid Insured Bonds and claims for the interest
in accordance with the tenor of the assignment made to it under the provisions of the
preceding paragraphs or otherwise. The Bond Resolution shall not be discharged or
terminated unless all amounts due or to become due to BAM have been paid in full or duly
provided for.
Irrespective of whether any such assignment is executed and delivered, the Issuer
and the Paying Agent agree for the benefit of BAM that:
a) They recognize that to the extent BAM makes payments directly or
indirectly (e.g., by paying through the Paying Agent), on account of principal of or interest
on the Insured Bonds, BAM will be subrogated to the rights of such holders to receive the
amount of such principal and interest from the Issuer, with interest on bond principal (but
not bond interest), as provided and solely from the sources stated in the Bond Resolution
and the Insured Bonds; and
b) They will accordingly pay to BAM the amount of such principal and
interest, with interest on bond principal (but not bond interest) as provided in the
transaction documents and the Insured Bonds, but only from the sources and in the manner
provided therein for the payment of principal of and interest on the Insured Bonds to
holders, and will otherwise treat BAM as the owner of such rights to the amount of such
principal and interest.
7) Additional Payments. The Issuer agrees unconditionally that it will pay or
reimburse BAM on demand any and all reasonable charges, fees, costs, losses, liabilities
and expenses that BAM may pay or incur, including, but not limited to, fees and expenses
of BAM's agents, attorneys, accountants, consultants, appraisers and auditors and
reasonable costs of investigations, in connection with the administration (including waivers
and consents, if any), enforcement, defense, exercise or preservation of any rights and
remedies in respect of the Bond Resolution ("Administrative Costs"). For purposes of the
foregoing, costs and expenses shall include a reasonable allocation of compensation and
overhead attributable to the time of employees of BAM spent in connection with the actions
described in the preceding sentence.
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Notwithstanding anything herein to the contrary, the Issuer agrees to pay to BAM
(i) a sum equal to the total of all amounts paid by BAM under the Bond Insurance Policy
("BAM Policy Payment"); and (ii) interest on the Bond principal paid under the Bond
Insurance Policy from the date paid by BAM until payment thereof in full by the Issuer,
payable to BAM at the stated interest rate for each such Bond (collectively, "BAM
Reimbursement Amounts") compounded semi-annually. The Issuer hereby covenants and
agrees that the BAM Reimbursement Amounts are payable from and secured by a lien on
and pledge of the same revenues and other collateral pledged to the Insured Bonds on a
parity with debt service due on the Insured Bonds.
8) Reserve Account. The prior written consent of BAM shall be a condition
precedent to the deposit of any credit instrument provided in lieu of a cash deposit into the
Reserve Account, if any (other than a municipal bond debt service reserve insurance policy
issued by BAM). Amounts on deposit in the Reserve Account shall be applied solely to
the payment of debt service due on the Insured Bonds.
9) Exercise of Rights by BAM. The rights granted to BAM under the Bond
Resolution to request, consent to or direct any action are rights granted to BAM in
consideration of its issuance of the Bond Insurance Policy. Any exercise by BAM of such
rights is merely an exercise of the BAM's contractual rights and shall not be construed or
deemed to be taken for the benefit, or on behalf, of the holders of the Insured Bonds and
such action does not evidence any position of BAM, affirmative or negative, as to whether
the consent of the holders of the Insured Bonds or any other person is required in addition
to the consent of BAM.
10) BAM shall be entitled to pay principal or interest on the Insured Bonds that
shall become Due for Payment but shall be unpaid by reason of Nonpayment by the Issuer
(as such terms are defined in the Bond Insurance Policy) in accordance with the Bond
Resolution, whether or not BAM has received a claim upon the Bond Insurance Policy.
11) So long as the Insured Bonds are outstanding or any amounts are due and
payable to BAM,the Issuer shall not sell, lease,transfer, or otherwise dispose of the Airport
or any material portion thereof, except upon obtaining the prior written consent of BAM.
12) Definitions.
"BAM" shall mean Build America Mutual Assurance Company, or any successor
thereto.
"Insured Bonds" shall mean the Monroe County, Florida Airport Revenue Bonds
(Key West International Airport), Series 2022.
"Issuer" shall mean Monroe County, Florida.
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"Late Payment Rate" means the lesser of(a) the greater of(i) the per annum rate of
interest, publicly announced from time to time by JPMorgan Chase Bank, N.A., at its
principal office in The City of New York, New York, as its prime or base lending rate
("Prime Rate") (any change in such Prime Rate to be effective on the date such change is
announced by JPMorgan Chase Bank, N.A.) plus 5%, and (ii) the then applicable highest
rate of interest on the Insured Bonds and (b) the maximum rate permissible under
applicable usury or similar laws limiting interest rates. In the event JPMorgan Chase Bank,
N.A., ceases to announce its Prime Rate, the Prime Rate shall be the prime or base lending
rate of such other bank, banking association or trust company as BAM, in its sole and
absolute discretion., shall designate. Interest at the Late Payment Rate on any amount
owing to BAM shall be computed on the basis of the actual number of days elapsed in a
year of 360 days.
"Bond Insurance Policy" shall mean the Municipal Bond Insurance Policy issued by
BAM that guarantees the scheduled payment of principal of and interest on the Insured
Bonds when due.
"Bond Resolution" shall mean Resolution No.—adopted by the Board of County
Commissioners of the Issuer on August 17, 2022, as supplemented.
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