Paying Agent/Registrar
PAYING AGENT/REGISTRAR AGREEMENT
relating to
Monroe County, Florida
$1,185,000 Refunding Improvement Revenue
Bonds, Series 1993
and
Monroe County, Florida
$4,585,000 Card Sound Road and Bridge Improvement
Revenue Bonds, Series 1993
This Paying Agent/Registrar Agreement entered into. as of
February 4, 1993 (the "Agreement"), by and between Monroe County,
Florida (the "County"), and Barnett Banks Trust Company, N,.}\..,
Jacksonville, Florida, a bank duly organized and ex~~tin~.. ~er!
the laws of the United States of America (the "Bank") ,:;au~or:h;ed .
, ) rr,
under such laws to exercise trust powers subject to supe~~iQnlor 1
examination by federal or state authority, and registerred~Wit~~he1
Securities and Exchange Commission. ~~ ~ ~ IV
::;:; ~
---f ;-.J
-u
:3
: -1
)
RECITALS
:' c r~
; ~ :. ~.;
C--)
lei
-C
."_ J
. T]
,- .J
~
WHEREAS, the County has duly authorized and p~ovided-=for
the issuance of its Refunding Improvement Revenue Bonds, Series
1993 (the "Refunding BOnds"), and Card Sound Road and Bridge
Improvement Revenue Bonds, Series 1993 (the "Improvement Bonds"
and collectively with the Refunding Bonds, the "BOnds") by
resolutions duly adopted on January 13, 1993, as amended and
supplemented (collectively the "Resolutions"); and
WHEREAS, all things necessary to make the Bonds the valid
obligations of the County, in accordance with their terms, will be
taken upon the issuance and delivery thereof; and
WHEREAS, the County desires that the Bonds be issued in
fully registered form with rights of transfer and exchange as
provided in the Resolutions and this Agreement, and to assure the
exclusion from gross income for federal income tax purposes
pursuant to Section 149(a) of the Internal Revenue Code of 1986,
as amended;
WHEREAS, the County has by resolutions adopted January
13, 1993, appointed the Bank (a) paying agent of the County to
receive moneys from the County and to pay the principal of,
premium, if any, and interest on the Bonds, in accordance with the
terms thereof, and (b) registrar to maintain the books for the
registration of ownership and transfer of the Bonds; and
WHEREAS, the Bank has represented it is duly qualified to
perform the duties described herein, including in particular that
it meets the standards set forth in Section 8.10 for any successor
paying agent and registrar;
WHEREAS, the County and the Bank each have duly
authorized the execution and delivery of this Agreement; and all
things necessary to make this agreement the valid agreement of the
County and the Bank, in accordance with its terms, have been done.
NOW, THEREFORE, for and in consideration of the premises
and the covenants herein contained the County and the Bank agree
as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions.
For all purposes of this Agreement, except as otherwise
expressly provide, or unless the context otherwise requires:
"Authorized Representative" shall mean an authorized
representative of the Board of County Commissioners of the County,
as designated by the Board from time to time, and shall include
the Mayor, the County Administrator, the Clerk of the Circuit
Court and the County Attorney.
"Commitments" means, collectively, the Commitment for
Municipal Bond Insurance of AMBAC Indemnity Corporation, dated
November 24, 1992, with respect to the Refunding Bonds; and the
Commitment to Issue a Financial Guaranty Insurance policy, Revised
as of January 18, 1993, of Municipal Bond Investors Assurance
Corporation with respect to the Improvement Bonds.
"Owner" and "Security Owner" each mean a person in whose
name a bond is registered on the Bond Register.
"Person" shall mean any individual, corporation,
partnership, joint venture, association, joint stock company,
trust, unincorporated organization or government or any agency or
political subdivision of a government.
-"Predecessor Bond" of any particular Bond means every
previous Bond evidencing all or a portion of the same obligation
as that evidenced by such particular Bond (and, for the purposes
of this definition, any Bond registered and delivered under
Section 6.06 hereof in lieu of a mutilated, lost, destroyed, or
stolen bond shall be deemed to evidence the same obligation as the
mutilated, lost, destroyed, or stolen BOnd).
2
3247/MON59008/AD2
"Receipted Delivery" means any method or medium of
delivery of written notices hereunder which provide a method of
verification of receipt of the notice by the addressee or by the
office of the addressee, including: (a) registered or certified
u.s. Mail, return receipt requested; (b) overnight courier by
Federal Express or other courier service delivering only upon
receipt; and (c) facsimile transmission where acknowledgement of
receipt is by return facsimile transmission, thereof.
"Record Date" means, when used with respect to the Bonds,
the fifteenth day (whether or not a business day) of the calendar
month next preceding an interest payment date, or such other date
as may be specified by subsequent resolution of the Board.
"Responsible Officer" when used with respect to the Bank
means the President, any Vice President, any Trust Officer or
Assistant Trust Officer, or any other officer of the Bank
customarily performing functions similar to those performed by any
of the above designated officers, and also means, with respect to
a particular corporate trust matter, any other officer to whom
such matter is referred because of his knowledge of and
familiarity with the particular subject.
"Stated Maturity" means the date specified as the fixed
date on which the principal of the Bond is due and payable.
SECTION 1.02. Other Definitions.
The terms "Bank," "County," and "Bonds" have the meanings
assigned to them in the opening paragraph of this Agreement or in
the Recitals.
The term "Paying Agent and Registrar" refers to the Bank
when it is performing the functions associated with such terms in
this Agreement.
The term Bond Register shall have the meaning assigned to
it in Section 6.01 of this Agreement.
ARTICLE I
AGREEMENT OF BANK TO ACT AS
PAYING AGENT AND REGISTRAR
-SECTION 2.01. Appointment.
The Bank hereby accepts its appointment, and the County
and the Bank agree that the Bank will act as the Paying Agent and
Registrar, and as such will perform the functions of Paying Agent
and Registrar as described herein, in the applicable portions of
the excerpts from the Commitments attached as Exhibit B, and in
Section 2.06 of the Resolutions, and in the event of conflict, the
terms of the Resolutions shall govern.
3
3247/MON59008/AD2
SECTION 2.02. Compensation.
As compensation for the Bank's services as Paying Agent
and Registrar, the County hereby agrees to pay the Bank the fees
and amounts set forth in Exhibit A hereto.
In addition, the County agrees to reimburse the Bank upon
its request for all reasonable expenses, disbursements, and
advances incurred or made by the Bank in accordance with any of
the provisions hereof (including the reasonable compensation and
the expenses and disbursements of its agent and counsel);
provided, however, that reimbursement for postage, long distance
telephone calls and telecopier expenses shall be limited as set
forth in Exhibit A hereto.
ARTICLE III
THE BONDS
SECTION 3.01. Forms Generally.
The Bonds, the certificate of authentication, and the
assignment to be printed on each of the Bonds, shall be in the
forms set forth in the Resolutions, with such appropriate
insertions, omissions, substitutions, and other variations as are
permitted or required by Section 2.10 of the Resolutions.
SECTION 3.02. Execution, Registration, Delivery, and
Dating.
The Bonds shall be executed on behalf of the County as
directed by Section 2.04 of the Resolutions. The signature of any
of these officers on the Bonds may be manual or facsimile. Bonds
bearing the manual or facsimile signatures of individuals who were
at the time the proper officers of the County shall bind the
County, notwithstanding that such individuals or any of them shall
cease to hold such offices prior to the delivery of the Bonds, or
shall not have held such offices on the date of the Bonds.
At any time, and from time to time, after the execution
and delivery of this Agreement, any Owner may deliver to the Bank
for transfer or exchange Bonds accompanied by instructions
designating the Persons to whom, and the maturities and principal
amounts in which, such Bonds are to be transferred, and the Bank
shall thereupon, within not more than 3 business days after
receipt of such Bonds and instructions, register and deliver such
Bonds as provided herein and in such instructions. Every Bond
surrendered for transfer or exchange shall be duly endorsed or be
accompanied by a written instrument of transfer, the signature on
which has been guaranteed by an officer of a federal or state bank
4
3247/MON59008/AD2
or a member of the National Association of Securities Dealers, in
form satisfactory to the Bank, duly executed by the Owner thereof
or his attorney duly authorized in writing.
No Bond shall be entitled to any right or benefit under
this Agreement, or be valid or obligatory for any purpose, unless
there appears on such Bond a certificate of authentication as
provided in Section 2.04 of the Resolutions, and substantially in
the form provided in Section 2.10 of the Resolutions, executed by
the Bqnk by manual signature, and such certificate upon any Bond
shall be conclusive evidence, and the only evidence, that such
Bond has been duly authenticated.
SECTION 3.03. Persons Deemed Owners.
The County, the Bank, and any agent of the County or the
Bank may treat the Person in whose name any Bond is registered as
the owner of such Bond for the purpose of receiving payment of the
principal of, premium, if any, and interest on such Bond and for
all other purposes whatsoever, whether or not such Bond be
overdue, and, to the extent permitted by law, none of the County,
the Bank, and any such agent shall be affected by any notice to
the contrary.
ARTICLE IV
REDEMPTION AND/OR MANDATORY TENDER
FOR PURCHASE OF BONDS
SECTION 4.01. General Applicability Of Article.
The Refunding Bonds are not subject to redemption prior
to maturity.
The Improvement Bonds which are redeemable and/or subject
to mandatory tender for purchase before their Stated Maturity
shall be redeemable and/or subject to mandatory tender for
purchase in accordance with their terms and in accordance with
this Article IV.
SECTION 4.02. Election to Redeem; Notice and Moneys
Forwarded to Bank.
The exercise by the County (or, if applicable, any
transferee) of its option to redeem or tender for purchase any
Improvement Bonds shall be evidenced by a direction letter
consistent with the provisions of the Resolution. In case of any
redemption or purchase at the election of the County (or, if
applicable, any transferee) of all or a portion of the outstanding
Improvement Bonds, the County (or, if applicable, any transferee)
shall, at least 35 days (unless a shorter notice shall be
satisfactory to the Bank) prior to the date fixed for redemption
5
3247/MON59008/AD2
or purchase of such Improvement Bonds (the "Redemption/Purchase
Date"), notify the Bank by Receipted Delivery of the
Redemption/Purchase Date and of the principal amount of
Improvement Bonds of each stated Maturity to be redeemed or
purchased, and shall deposit the appropriate amount of money in
trust with the Bank for the purpose of such redemption or
purchase.
SECTION 4.03. Notice of Redemption or Purchase.
Notice of redemption or purchase shall be given by the
Bank in the name and at the expense of the County (or, if
applicable, any transferee) not less than 30 or more than 60 days
prior to the Redemption/Purchase Date, to each Owner of
Improvement Bonds to be redeemed or purchased as required by the
Resolution.
All notices of redemption or purchase shall include a
statement as to:
A. the Redemption/Purchase Date;
B. the Redemption/Purchase Price;
C. the principal amount of Improvement Bonds to be
redeemed or purchased, and, if less than all outstanding
Improvement Bonds are to be redeemed or purchased, the
identification (and, in case of partial redemption or purchase,
the principal amounts) of the Improvement Bonds to be redeemed or
purchased;
D. that on the Redemption/Purchase Date, the
Redemption/Purchase Price of each of the Improvement Bonds to be
redeemed or purchased will become due and payable and that the
interest thereon shall cease to accrue from and after such date;
E. that the Improvement Bonds to be redeemed or
purchased are to be surrendered for payment of the
Redemption/Purchase Price at the principal corporate trust office
of the Bank, and the address of such office; and
F. any other information required by Section 2.09 of
the resolution authorizing the issuance of the Improvement bonds.
ARTICLE V
PAYING AGENT
SECTION 5.01. Duties of Paying Agent.
As Paying Agent, provided adequate collected funds have
been provided to it for such purpose by or on behalf of the
County, the Bank shall pay on behalf of the County the interest
on the Bonds when due, by (a) computing the amount of interest to
be paid to each Owner (b) preparing the checks and mailing the
6
3247/MON59008/AD2
checks first-class, postage prepaid, U.S. Mail on the interest
payment date, to the Owners of the Bonds (or their Predecessor
Bonds) as of 5:00 p.m. on the Record Date, addressed to their
address appearing on the Bond Register.
SECTION 5.02. Interest Payment Dates.
The County hereby instructs the Bank to pay the
principal of and interest on the Bonds then due on the interest
payment dates specified in the Resolutions.
ARTICLE VI
REGISTRAR
SECTION 6.01. Transfer and Exchange.
The Bank shall maintain on behalf of the County, as its
principal corporate trust office, a register (herein sometimes
referred to as the "Bond Register") to record ownership and
transfers of ownership of the Bonds. The Bank is hereby
appointed "Registrar" for the purpose of registering ownership
and transfers of Bonds as herein provided. The Bank agrees to
maintain the Bond Register while it is Registrar.
upon surrender for transfer of any Bond at the principal
corporate trust office of the Bank, the Bank shall within 3
business days after receipt of the Bonds and the request,
register and deliver, in the name of the designated transferee or
transferees, one or more new fully registered Bonds of the same
maturity and interest rate, of any authorized denominations, and
of a like aggregate principal amount. If and to the extent so
provided with respect to the Bonds, at the option of the Owner,
Bonds may be exchanged for other Bonds of the same maturity and
interest rate, of any authorized denominations, and of like
aggregate principal amount, upon surrender of the Bonds to be
exchanged at the principal corporate trust office of the Bank.
Whenever any Bonds are to be surrendered for exchange, the County
shall execute, and the Bank shall authenticate and deliver, the
Bonds which the Owner making the exchange is entitled to receive.
All Bonds issued upon any transfer or exchange of Bonds
after authentication by the Bank shall be the valid obligations
of the County, evidencing the same debt, and entitled to the same
benefits hereunder and under the Resolutions, as the Bonds
surrendered upon such transfer or exchange.
Every Bond surrendered for transfer or exchange shall be
duly endorsed or be accompanied by a written instrument of
transfer or exchange, the signature on which has been guaranteed
by an officer of a federal or state bank or a member of the
National Association of Securities Dealers, in form satisfactory
to the Bank, duly executed by the Owner thereof or his attorney
7
3Z47/MON59008/ADZ
duly authorized in writing and shall be numbered in order of
their authentication by the Bank. The Registrar may request any
supporting documentation necessary to effect are-registration.
No service charge shall be made to the Owner for any
registration, transfer, or exchange of a Bond, but the County may
require payment of a sum sufficient to cover any tax, fee or
other governmental charge that may be imposed in connection with
any transfer or exchange of Bonds.
SECTION 6.02. Certificates.
The County shall provide an adequate inventory of Bond
certificates to facilitate transfers. The Bank covenants that it
will maintain Bond certificates in safekeeping and will use
reasonable care in maintaining such Bond certificates in
safekeeping, being not less than the care it exercises with
respect to other governments or corporations for which it serves
as registrar, or the care it exercises with respect to its own
Bonds certificates.
SECTION 6.03. Form of Bond Register
The Bank as Registrar will maintain the record of the
Bond Register in accordance with the Bank's general practice and
procedures in effect from time to time and with the provisions of
Chapter 279, Florida Statutes. The Bank shall not be obligated
to maintain such Register in any form other than those which the
Bank has currently available and currently utilizes at the time,
provided such system complies with Chapter 279, Florida Statutes.
The Bond Registrar may be maintained in written form or in any
other form capable of being converted into written form within a
period of 5 days.
SECTION 6.04. List of Bond Owners.
The Bank will provide the County at any time requested
in writing by the County, upon payment of the required fee, a
copy of the information contained in the Bond Register. The
County may also inspect the Bond Register at any time the Bank is
customarily open for business, provided that a period of 5 days
is allowed the Bank to provide an up-to-date listing or to
convert the information into written form.
-The Bank will not release or disclose the content of
Bond Register to any person other than to, or at the written
request of, an Authorized Representative, except upon receipt of
subpoena or court order. Upon receipt of the subpoena or court
order and as permitted by law, the Bank will notify the County so
that the County may, if it desires, contest such subpoena or
court order.
8
3247/MON59008/AD2
SECTION 6.05. Return of Cancelled Certificates.
The Bank will surrender to the County, at such
reasonable intervals as it determines in writing but not less
often that annually, Bond certificates in lieu of which or in
exchange for which other Bonds have been issued, or which have
been paid.
Bonds.
SECTION 6.06 Mutilated, Destroyed, Lost, or Stolen
The County hereby instructs the Bank to deliver and
issue Bonds in exchange for or in lieu of mutilated, destroyed,
lost or stolen Bonds as long as the same does not result in an
overissuance, all in conformance with the requirements of Section
2.08 of the Resolutions.
The Bank will issue and deliver new Bonds in exchange
for mutilated Bonds surrendered to it. The Bank will issue a new
bond in lieu of a Bond for which it received written
representation from the Owner that the certificate representing
such Bond is destroyed, lost or stolen, without the surrender or
production of the original Bond certificate. The Bank will pay
on behalf of the County the principal and premium, if any, of a
Bond for which it receives written representation that such Bond
is destroyed, lost, or stolen following the stated maturity, or
redemption or purchase of the Bond, without the surrender or
production of the original certificate.
On satisfaction of the Bank and the County that any Bond
has been destroyed, lost or stolen, and upon receipt by the Bank
and the County of such indemnity or security as they may require,
the certificate number on the Bond will be cancelled with a
notation on the Bond Register that it has been destroyed, lost,
or stolen, and a new Bond will be issued of the same series and
of like tenor and principal amount bearing a number (according to
the Bond Register) not contemporaneously outstanding. The Bank
will not issue a replacement Bond or pay such replacement bond
unless there is delivered to the Bank such security or indemnity
as it may require (which may be by the Bank's blanket bond) to
save both the Bank and the County harmless, and any taxes, fees,
costs and other expenses the County and the Bank have incurred as
a result thereof, have been paid by the Owners.
-The Bank may charge the Owner the Bank's fees and
expense in connection with issuing a new Bond in lieu of or
exchange for a mutilated, destroyed, lost or stolen bond.
SECTION 6.07. Surety Bond.
The county hereby accepts the Bank's current blanket
bond for lost, stolen or destroyed Bond certificates and any
future substitute blanket bond for lost, stolen or destroyed Bond
certificates that the Bank may arrange, and agrees that the
9
3247/MON59008/AD2
coverage under any such blanket bond is acceptable to it and
meets the County requirements as to security or indemnity. The
Bank need not notify the County of any changes in its blanket
bond or in the identity of the company giving such bond, or the
terms of any such blanket bond; provided, that the Bank shall at
all times (a) maintain in effect coverage under its blanket bond
sufficient to reimburse the County for any loss on account of
presentation for payment of any destroyed, stolen or lost Bonds
as to which replacement certificates have been issued. The
blanket bond then utilized for the purpose of lost, stolen, or
destroyed certificates by the Bank is available for inspection by
the County upon request.
SECTION 6.08. Transaction Information to county.
The Bank will, within a reasonable time after receipt of
written request from the County, furnish the County information
as to the Bonds it has paid pursuant to Section 5.01 hereof,
Bonds it has delivered upon the transfer or exchange of any Bonds
pursuant to Section 6.01 hereof, and Bonds it has delivered in
exchange for or in lieu of mutilated, destroyed, lost, or stolen
Bonds pursuant to Section 6.06 hereof.
ARTICLE VII
THE BANK
SECTION 7.01. Duties of Bank.
The Bank undertakes to perform the duties of Paying
Agent and Registrar as set forth herein and in the Resolutions
and agrees to use reasonable care in the performance thereof, and
in the event of conflict with the Resolutions, the terms of the
Resolutions shall govern.
SECTION 7.02. Reliance on Documents, Etc.
(a) The Bank may conclusively rely,
the statements and correctness of the opinions
or certificates or opinions furnished to
Authorized Representative or an Owner.
as to the truth of
expressed therein,
the Bank by an
(b) No provisions of this Agreement shall require the
Bank to expend or risk its own funds or otherwise incur any
financial liability for performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if
it shall have reasonable grounds for believing that repayment of
such funds or adequate indemnity satisfactory to it against such
risks or liability is not assured to it.
10
3247 {MON59008{AD2
(C) The Bank may rely and shall be protected in acting,
or refraining from acting, upon any resolution, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, note, security, or other paper
or document believed by it to be genuine and to have been signed
or presented by an Authorized Representative, an Owner, or a
court of competent jurisdiction. without limiting the generality
of the foregoing statement, the Bank need not examine evidence of
ownership of any Bond, but is protected in acting upon receipt of
Bonds containing an endorsement or instruction of transfer or
power of transfer which appears on its face to be signed by the
Owner or any attorney-in-fact for the Owner. The Bank shall not
be bound to make any investigation into the facts or matters
stated in the Resolutions, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order,
bond, note, security or other paper or document supplied by an
Authorized Representative.
(d) The Bank may consult with its counsel, Bond Counsel
or the County Attorney, and the advice of such attorneys, or any
opinion of such attorneys, shall be full and complete
authorization and protection with respect to any action taken,
suffered, or omitted by it hereunder in good faith and in
reliance thereon.
(e) The Bank may exercise any of its powers hereunder
and perform any duties hereunder either directly or by or through
agents or attorneys of the Bank.
SECTION 7.03. Recitals of County.
The recitals contained herein and in the Bonds shall be
taken as the statements of the County, and the Bank assumes no
responsibility for their correctness.
SECTION 7.04. May Hold Bonds.
The Bank, in its individual or any other capacity, may
become the Owner or pledgee of Bonds and may otherwise deal with
the County with the same rights it would have if it were not the
paying Agent and Registrar, or any other agent.
SECTION 7.05. Moneys held by Bank.
~Money held by the Bank hereunder shall be segregated
from any other funds of the Bank and the County, and such money
shall be held for the sole benefit of the Owners.
Any money deposited with the Bank for the payment of the
principal of, premium, if any, or interest on any Bond and
remaining unclaimed following the due date thereof for 5 years
shall be paid by the Bank to the County, after publication by the
County of the notice specified in Section 4.04 of the
Resolutions, and all liability of the Bank with respect to such
moneys shall thereupon cease.
11
3247/MON59008/AD2
The Bank shall be under no liability for interest on any
money received by it hereunder, and held subsequent to the due
date for payment of any principal or redemption premium of, or
interest on, the Bonds.
SECTION 7.06. Bank Not a Trustee.
Notwithstanding Section 7.05 hereto with respect to the
responsibility of the Bank to hold moneys hereunder for the
benefit of the Owners, this Agreement shall not be construed to
require the Bank to enforce any remedy which any Owner may have
against the County during any default or event of default under
any agreement between any Owner and the County, including the
Resolutions, or to act as trustee for such Owner.
SECTION 7.07. Bank Not Responsible for Bonds.
The Bank shall not be accountable for the use of the
proceeds of any Bonds or for the use on application of the
proceeds thereof.
SECTION 7.08. Liability; Indemnification.
The Bank shall not be liable for any error of judgement
or any act or steps taken or permitted to be taken in good faith,
or for any mistake in law or fact, or for anything it may do or
refrain from doing in connection herewith, except for its own
misconduct or negligence.
Subject to the laws of the State of Florida, (a) the
County agrees to indemnify the Bank and its agents for, and hold
it harmless against, any losses, liabilities, claims,
obligations, costs, disbursements, suits, actions or expenses
incurred, except on account of negligence or willful misconduct
on the Bank's part, arising out of or in connection with the
acceptance or administration of the Bank's duties hereunder,
including the cost and expenses (including its counsel fees and
expenses) of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers
or duties under this Agreement; and (b) the Bank agrees to
indemnify and hold the County harmless from any losses,
liabilities, claims, obligations, costs, disbursements, suits,
actions or expense incurred, except on account of negligence or
willful misconduct on the County's part, arising out of or in
connection with the acceptance or administration of the County's
duties hereunder, including the cost and expenses (including its
counsel fees and expenses) of defending itself against any claim
or liability in connection with the exercise or performance of
any of its powers or duties under this Agreement. The
indemnities contained in this Section shall survive the
termination of this Section.
12
3247/MON59008/AD2
SECTION 7.09 Interpleader.
The County and the Bank agree that the Bank may seek
adjudication of any adverse claim, demand, or controversy over
its Person as well as funds on deposit with it hereunder, waive
personal service of any process, and agree that service of
process by certified or registered mail, return receipt
requested, to the address set forth in Section 8.03 hereof shall
constitute adequate service. The County and the Bank further
agree that the Bank has the right to file a Bill of Interpleader
in any court of competent jurisdiction to determine the rights of
any Person claiming any interest herein or hereunder.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
SECTION 8.01. Amendment.
This Agreement may be amended only in writing signed by
both of the parties hereto.
SECTION 8.02. Assignment.
This Agreement may not be assigned by either party
without the prior written consent of the other.
SECTION 8.03. Notices, Waiver.
Any request, demand, authorization, direction, notice,
consent, waiver, or other document provided or permitted hereby
to be given or furnished to the County or the Bank shall be sent
by Receipted Delivery to the County or the Bank, respectively, at
the addresses shown below:
County Administrator
Monroe County, Florida
5100 College Road
Public Service Building, wing II
Key West, Florida 33040
County Attorney
Monroe County, Florida
-500 Whitehead Street
Key West, Florida 33040
Barnett Banks Trust Company, N.A.
9000 Souths ide Boulevard
Building 100 - 5th Floor
Jacksonville, Florida 32256
Attention: Corporate Trust
13
3247/MON59DD8/AD2
Any notice to Owners provided for in this Agreement of any event,
shall be sufficiently given if in writing and mailed, first-class
mail, postage prepaid, to each Owner, at the address of such
Owner as it appears in the Bond Register as of the Record Date or
the date of such notice, whichever is applicable.
In any case where notice to Owners is given by mail,
neither the failure to mail such notice nor any defect in any
notice so mailed, to any particular Owner shall effect the
sufficiency of such notice with respect to all other Owners.
Where this Agreement provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive
such notice, either before or after the event, and such waiver
shall be the equivalent of such notice. Waivers of notice by
Owners shall be filed with the Bank, but such filing shall not be
a condition precedent to the validity of any action taken in
reliance upon such waiver.
SECTION 8.04. Effect of Headings.
The Article and Section headings herein are for
convenience only and shall not affect the construction hereof.
SECTION 8.05. Successors and Assigns.
All covenants and agreements herein by the County shall
bind its successors and assigns, whether so expressed or not.
SECTION 8.06. Severability.
In case any provision
or unenforceable, the validity,
the remaining provisions shall
impaired thereby.
SECTION 8.07. Benefits of Agreement.
herein shall be invalid, illegal
legality, and enforceability of
not in any way be affected or
Nothing herein, express or
person, other than the Owners and
successors hereunder, any benefit
right, remedy, or claim hereunder.
implied, shall give to any
the parties hereto and their
or any legal or equitable
SECTION 8.08. Entire Agreement.
-This Agreement and the Resolutions constitute the entire
agreement between the parties hereto relative to the Bank acting
as paying Agent and Registrar, and if any conflict exists between
this Agreement and the Resolutions, the Resolutions shall govern.
SECTION 8.09. Counterparts.
This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and
all of which shall constitute one and the same Agreement.
14
3247/MON59008/AD2
SECTION 8.10. Termination.
Except as otherwise provided in
Agreement will terminate on the date
for the final payment of principal
interest of the Bonds.
Article VII hereof, this
of issuance of its checks
of, premium, if any, and
This Agreement may be earlier terminated with or without
cause upon not less that 60 days written notice by Receipted
Delivery by either party. Upon such termination the County will
appoint a successor Paying Agent and Registrar. If such
appointment is not made within 60 days from the date of written
notice, the Bank shall deliver all records and any unclaimed
moneys held hereunder to the County without a right of set-off
for any fees, charges or expenses due to the Bank. However, the
Bank is entitled to payment of all outstanding fees and expenses
including any counsel fees or expenses upon delivery of records
to the County. In the event this Agreement is terminated by
giving written notice, then the Bank agrees, upon request by the
County, to give notice by first-class mail to all registered
Owners of the name and address of the successor paying Agent and
Registrar. Expenses for such notice shall be paid by the County.
The provisions of Section 2.02 and of Article VII shall survive
and remain in full force and effect following the termination of
this Agreement.
Any successor paying Agent and Registrar appointed by
the County shall be either a national or state banking
institution, and shall be a corporation organized and doing
business under the laws of the United States of America or of any
state, authorized under such laws to exercise trust powers,
subject to supervision or examination by federal or State of
Florida authority, and registered with the Securities and
Exchange Commission.
SECTION 8.13. Governing Law.
This Agreement shall be construed in accordance with and
governed by the laws of the State of Florida.
15
3247/MON59008/AD2
IN WITNESS WHEREOF, the parties hereto have executed
this Agreement as of the day and year first above written.
(SEAL)
Attest:
By:
C ,
Commiss
16
3247/MON59008/AD2
(SEAL)
3247/MON59008/AD2
BARNETT BANKS TRUST COMPANY, N.A.
Jacksonville, Florida
as Paying Agent
By: Ju~ "J/. ~.~/'- ,
T' le: (JlLftf~4TC /LtlJr OFFJCl:fi..
r-----'
17
EXHIBIT A
BANK'S FEES AND EXPENSES
relating to
$1,185,000
Monroe County, Florida
Refunding Improvement Revenue Bonds, Series 1993
$425 fee per year plus $25 per year for postage, long
distance telephone calls and telecopier expenses
18
3247/MON59008/AD2
EXHIBIT A - CONTINUED
BANK'S FEES AND EXPENSES
relating to
$4,585,000
Monroe County, Florida
Card Sound Road and Bridge Improvement Revenue
Bonds, Series 1993
$425 fee per year plus $25 per year for postage, long
distance telephone calls and telecopier expenses
19
3247/MON59008/AD2
EXHIBIT B
Excerpts Fran CamUbrent for the Refunding Bonds
PAYMENT PROCEDURE PURSUANT TO THE MUNICIPAL BOND INSURANCE
POLICY
The following language sets out the applicable procedure for payments under the Municipal
Bond Insurance Policy and should be incorporated into the Financing Document:
As long as the bond insurance shall be in full force and effect, the Issuer, the Trustee and
any Paying Agent agree to comply with the following provisions:
(a) At least one (1) day prior to all Interest Payment Dates the Trustee or Paying
Agent, if any, will determine whether there will be sufficient funds in the Funds and
Accounts to pay the principal of or interest on the Bonds on such Interest Payment
Date. If the Trustee or Paying Agent, if any, determines that there will be
insufficient funds in such Funds or Accounts, the Trustee or Paying Agent, if any,
shall so notify AMBAC Indemnity. Such notice shall specify the amount of the
anticipated deficiency, the Bonds to which such deficiency is applicable and whether
such Bonds will be deficient as to principal or interest, or both. If the Trustee or
Paying Agent, if any, has not so notified AMBAC Indemnity at least one (1) day prior
to an Interest Payment Date, AMBAC Indemnity will make payments of principal or
interest due on the Bonds on or before the first (1st) day next following the date on
which AMBAC Indemnity shall have received notice of nonpayment from the Trustee
or Paying Agent, if any.
(b) the Trustee or Paying Agent, if any, shall, after giving notice to AMBAC
Indemnity as provided in (a) above, make available to AMBAC Indemnity and, at
AMBAC Indemnity's direction, to the United States Trust Company of New York,
as insurance trustee for AMBAC Indemnity or any successor insurance trustee (the
"Insurance Trustee"), the registration books of the Issuer maintained by the Trustee
or Paying Agent, if any, and all records relating to the Funds and Accounts
maintained under this [Financing Document].
(c) the Trustee or Paying Agent, if any, shall provide AMBAC Indemnity and the
Insurance Trustee with a list of registered owners of Bonds entitled to receive
principal or interest payments from AMBAC Indemnity under the terms of the
Municipal Bond Insurance Policy, and shall make arrangements with the Insurance
_ Trustee (i) to mail checks or drafts to the registered owners of Bonds entitled to
receive full or partial interest payments from AMBAC Indemnity and (ii) to pay
principal upon Bonds surrendered to the Insurance Trustee by the registered owners
of Bonds entitled to receive full or partial principal payments from AMBAC
Indemnity.
11
(d) the Trustee or Paying Agent, if any, shall, at the time it provides notice to
AMBAC Indemnity pursuant to (a) above, notify registered owners of Bonds entitled
to receive the payment of principal or interest thereon from AMBAC Indemnity (i)
as to the fact of such entitlement, (ii) that AMBAC Indemnity will remit to them all
or a part of the interest payments next coming due upon proof of Bondholder
entitlement to interest payments and delivery to the Insurance Trustee, in form
satisfactory to the Insurance Trustee, of an appropriate assignment of the registered
owner's right to payment, (ill) that should they be entitled to receive full payment of
principal from AMBAC Indemnity, they must surrender their Bonds (along with an
appropriate instrument of assignment in form satisfactory to the Insurance Trustee
to permit ownership of such Bonds to be registered in the name of AMBAC
Indemnity) for payment to the Insurance Trustee, and not the Trustee or Paying
Agent, if any, and (iv) that should they be entitled to receive partial payment of
principal from AMBAC Indemnity, they must surrender their Bonds for payment
thereon first to the Trustee or Paying Agent, if any, who shall note on such Bonds the
portion of the principal paid by the Trustee or Paying Agent, if any, and then, along
with an appropriate instrument of assignment in form satisfactory to the Insurance
Trustee, to the Insurance Trustee, which will then pay the unpaid portion of
principal.
(e) in the event that the Trustee or Paying Agent, if any, has notice that any payment
of principal of or interest on a Bond which has become Due for Payment and which
is made to a Bondholder by or on behalf of the Issuer has been deemed a
preferential transfer and theretofore recovered from its registered owner pursuant
to the United States Bankruptcy Code by a trustee in bankruptcy in accordance with
the final, nonappealable order of a court having competent jurisdiction, the Trustee
or Paying Agent, if any, shall, at the time AMBAC Indemnity is notified pursuant to
(a) above, notify all registered owners that in the event that any registered owner's
payment is so recovered, such registered owner will be entitled to payment from
AMBAC Indemnity to the extent of such recovery if sufficient funds are not
otherwise available, and the Trustee or Paying Agent, if any, shall furnish to AMBAC
Indemnity its records evidencing the payments of principal of and interest on the
Bonds which have been made by the Trustee or Paying Agent, if any, and
subsequently recovered from registered owners and the dates on which such
payments were made.
(f) in addition to those rights granted AMBAC Indemnity under this [Financing
Document], AMBAC Indemnity shall, to the extent it makes payment of principal of
or interest on Bonds, become subrogated to the rights of the recipients of such
payments in accordance with the terms of the Municipal Bond Insurance Policy, and
to evidence such subrogation (i) in the case of subrogation as to claims for past due
interest, the Trustee or Paying Agent, if any, shall note AMBAC Indemnity's rights
as subrogee on the registration books of the Issuer maintained by the Trustee or
Paying Agent, if any, upon receipt from AMBAC Indemnity of proof of the payment
12
of interest thereon to the registered owners of the Bonds, and (ii) in the case of
subrogation as to claims for past due principal, the Trustee or Paying Agent, if any,
shall note AMBAC Indemnity's rights as subrogee on the registration books of the
Issuer maintained by the Trustee or Paying Agent, if any, upon surrender of the
Bonds by the registered owners thereof together with proof of the payment of
principal thereof.
13
lWillU'l' a (WltinUlold)
Excerpts Fran Camut:nent for the Improvement Bonds
A. In the event that, on the second Business Day, and again on the
Business Day, prior to the payment date on the Obligations, the Paying Agent
has not received sufficient moneys to pay all principal of and interest on the
Obligations due on the second following or following, as the case may be,
Business Day, the Paying Agent shall inunediately notify the Insurer or its
designee on the same Business Day by telephone or telegraph, confirmed in
writing by registered or certified mail, of the amount of the deficiency.
B. If the deficiency is made up in whole or in part prior to or on
the payment date, the Paying Agent shall so notify the Insurer or its designee.
C. In addition, if the Paying Agent has notice that any Bondholder
has been required to disgorge payments of principal or interest on the
Obligation to a trustee in Bankruptcy or creditors or others pursuant to a
final judgment by a court of competent jurisdiction that such payment
constitutes a voidable preference to such Bondholder within the meaning of any
applicable bankruptcy laws, then the Paying Agent shall notify the Insurer or
its designee of such fact by telephone or telegraphic notice, confirmed in
writing by registered or certified mail.
D. The payinq Aqent is hereby irrevocably designated, appointed,
directed and authorized to act as attorney-in-fact for Holders of the
Obligations as follows:
1. If and to the extent there is a deficiency in amounts
required to pay interest on the Obligations, the payinq Aqent shall
(a) execute and deliver to Citibank, R.A., or its successors under the
Policy (the "Insurance Payinq Aqent"), in fOrJa satisfactory to the
Insurance Paying Aqent, an instrument appointinq the Insurer as agent
for such Holders in any legal proceeding related to the payment of
such interest and an assicpuaent to the Insurer of the claims for
interest to which such deficiency relates and which are paid by the
Insurer, (b) receive as designee of the respective Holders (and not as
Paying Agent) in accordance with the tenor of the Policy payment from
the Insurance Paying Aqent with respect to the claims for interest so
assigned, and (c) disburse the same to such respective Holders; and
2.. If and to the extent of a deficiency in amounts required to
pay principal of the Obligations, the Paying Aqent shall (a) execute
and deliver to the Insurance Paying Agent in form satisfactory to the
Insurance Payinq Aqent an instrument appointing the Insurer as agent
for such Holder in any legal proceeding relating to the payment of
such principal and an assicpuaent to the Insurer of any of the
Obligation surrendered .to the Insurance payinq agent of so much of the
principal amount thereof as has not previously been paid or for which
moneys are not held by the Paying Aqent and available for such payment
(but such assigmaent shall be delivered only if payment from the
Insurance payinq Aqent is received), (b) receive as designee of the
respective Holders (and .not a;s Paying Aqent) in accordance _with the
tenor of the Policy payment therefor from the Insurance Payflig Agent,
and (c) disburse the same to such Holders.
-2-
E. Payments with respect to claims for interest on and principal of
Obligations disbursed by the Paying Agent from proceeds of the Policy shall
not be considered to discharge the obligation of the Issuer with respect to
such Obligations, and the Insurer shall become the owner of such unpaid
Obligation and claims f~r .the interest in accordance with the tenor of the
assignment made to it under the provisions of this subsection or otherwise.
F. Irrespective of whether any such assignment is executed and
delivered, the Issuer and the Paying Agent hereby agree for the benefit of the
Insurer that,
1. They recognize that to the extent the Insurer makes payments,
directly or indirectly (as by paying through the Paying Agent), on
account of principal of or interest on the Obligations, the Insurer
will be subrogated to the rights of such Holders to receive the amount
of such principal and interest from the Issuer, with interest thereon
as provided and solely from the sources stated in this Indenture and
the Obligations; and
2. They will accordingly pay to the Insurer the amount of such
principal and interest (including principal and interest recovered
under subparagraph (ii) of the first paragraph of the Policy, which
principal and interest shall be deemed past due and not to have been
paid) , with interest thereon as provided in this Indenture and the
Obligation, but only fro. the sources and in the lUJUler provided
herein for the payaent of principal of and interest on the Obligations
to Holders, and will otherwise treat the Insurer as the owner of such
rights to the amount of such principal and interest.
G. In connection with the issuance of additional Obligations, the
Issuer shall deliver to the Insurer a copy of the disclosure document, if any,
circulated with respect to such additional Obligations.
H. Copies of any amendments made to the documents executed in
connection with the issuance of the Obligations which are consented to by the
Insurer shall be sent to Standard & Poor's Corporation.
I. The Insurer shall receive notice of the resignation or removal of
the Paying Agent and the appointment of a successor thereto.
J. The Insurer shall receive copies of all notices required to be
delivered to Bondholders and, on an annual basis, copies of the Issuer' s
audited financial statements and Annual Budget.
Notices: Any notice that is required to be given to a holder of the
ObligatiOn or to the payill9 Agent pursuant to the Indenture shall also be
.J?rovided to the Insurer. All notices required to be given to the Insurer
under the Indenture shall be in writing and shall be sent by registered or
certified mail addressed to Municipal Bond Investors Assurance Corporation,
113 King Street, Armonk, New York 10504 Attention: Surveillance.
3065a