Resolution 672-1988
RESOLUTION NO.
6 72-1~88
A RESOLUTION AMENDING A RESOLUTION OF THE BOARD OF COUNTY
COMMISSIONERS OF MONROE COUNTY, FLORIDA, ENTITLED:
"A RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS OF
MONROE COUNTY, FLORIDA, AUTHORIZING THE ACQUISITION AND
CONSTRUCTION OF CERTAIN CAPITAL IMPROVEMENTS IN MONROE
COUNTY, FLORIDA; PROVIDING FOR THE ISSUANCE OF NOT
EXCEEDING $7,500,000 IMPROVEMENT REVENUE BONDS, SERIES
1988, OF THE COUNTY TO BE APPLIED TO FINANCE THE COST
THEREOF; PROVIDING FOR THE PAYMENT OF SUCH BONDS FROM THE
FIRST AND SECOND GUARANTEED ENTITLEMENTS OF THE COUNTY
TO STATE REVENUE SHARING TRUST FUNDS; MAKING CERTAIN
COVENANTS AND AGREEMENTS IN CONNECTION THEREWITH; AND
PROVIDING AN EFFECTIVE DATE."
DULY ADOPTED ON NOVEMBER 22, 1988, BY MAKING THOSE
CHANGES NECESSARY FOR THE ISSUANCE OF A MUNICIPAL BOND
INSURANCE POLICY AND A BOND RESERVE ACCOUNT INSURANCE
POLICY; AND PROVIDING AN EFFECTIVE DATE.
BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF MONROE
COUNTY, FLORIDA:
SECTION 1. AUTHORITY FOR THIS RESOLUTION. This resolution is
adopted pursuant to Chapter 218, Part II, and Section 125.01(1) (r),
Florida Statutes, and other applicable provisions of law.
SECTION 2.
FINDINGS.
It is hereby ascertained, determined
and declared that:
A. The Board of County Commissioners of Monroe County, Florida
(the "Governing Body"), on November 22, 1988, duly adopted a
resolution entitled:
"A RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS OF
MONROE COUNTY, FLORIDA, AUTHORIZING THE ACQUISITION AND
CONSTRUCTION OF CERTAIN CAPITAL IMPROVEMENTS IN MONROE
COUNTY, FLORIDA; PROVIDING FOR THE ISSUANCE OF NOT
EXCEEDING $7,500,000 IMPROVEMENT REVENUE BONDS, SERIES
1988, OF THE COUNTY TO BE APPLIED TO FINANCE THE COST
THEREOF; PROVIDING FOR THE PAYMENT OF SUCH BONDS FROM THE
FIRST AND SECOND GUARANTEED ENTITLEMENTS OF THE COUNTY
TO STATE REVENUE SHARING TRUST FUNDS; MAKING CERTAIN
COVENANTS AND AGREEMENTS IN CONNECTION THEREWITH; AND
PROVIDING AN EFFECTIVE DATE."
(the "Resolution).
B. It is necessary and desirable to amend the Resolution by
making those changes necessary for the issuance of a municipal bond
insurance policy and a bond reserve account insurance policy by
Financial Guaranty Insurance Company, New York, New York.
SECTION 3.
AMENDMENTS TO RESOLUTION.
The Resolution is
amended in the following manner.
A. Section 1.02 of the Resolution is hereby amended to read
as follows:
"SECTION 1.02 DEFINITIONS. Unless the context otherwise
requires, the terms defined in this section shall have the meanings
specified in this section. Words importing singular number shall
include the plural number in each case and vice versa, and words
importing persons shall include firms and corporations.
A. 'Accountant' shall mean the independent certified public
accountant or firm of certified public accountants at the time
employed by the Issuer under the provisions of this Resolution to
perform and carry out the duties imposed on the Accountant by this
Resolution.
B. 'Act' shall mean, collectively, Chapter 218, Part II, and
Section 125.01(1) (r), Florida Statutes, and other applicable
provisions of law.
C. 'Additional Parity Bonds' shall mean additional obligations
of the Issuer which have an equal lien on the applicable portion of
the Pledged Funds and rank equally in all applicable respects with the
Bonds initially issued hereunder.
D. 'Alternate Credit Facility' shall mean any bond reserve
insurance policy (excluding the Reserve Policy) or letter of credit,
as applicable, which complies with the Alternative Credit Facility
criteria.
E. 'Alternate Credit Facility criteria' shall mean the
following conditions with respect to an Alternate Credit Facility:
(1) An insurance policy issued to the paying agent, as agent
of the Bondholders, by a municipal bond insurer licensed
to issue an insurance policy guaranteeing the timely
payment of debt service on the Bonds may be deposited in
the Reserve Account to meet the Reserve Account
Requirement if the claims paying ability of the issuer
thereof shall be rated 'AAA' or 'Aaa' by Standard & Poor's
Corporation, New York, New York (' S&P' ), or Moody's
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Investors Service, New York, New York ('Moody's'),
respectively.
(2) An insurance policy issued to the paying agent, as agent
of the Bondholders, by an entity other than a municipal
bond insurer, may be deposited in the Reserve Account to
meet the Reserve Account Requirement if the form and
substance of such instrument and the issuer thereof shall
be approved by FGIC.
(3) An unconditional irrevocable letter of credit issued to
the paying agent, as agent of the Bondholders, by a bank
may' be deposited in the Reserve Account to meet the
Reserve Account Requirement if the issuer thereof is rated
at least 'AA' by S&P. The letter of credit shall be
payable in one or more draws upon presentation by the
beneficiary of a sight draft accompanied by its
certificate that it then holds insufficient funds to make
a required payment of principal of or interest on the
Bonds. The draws shall be payable within 2 days of
presentation of the sight draft. The letter of credit
shall be for a term of not less than 3 years and shall be
subject to an 'evergreening' feature so as to provide the
Issuer with at least 30 months notice of termination. The
issuer of the letter of credit shall be required to notify
the Issuer and the paying agent for the Bonds, not later
than 30 months prior to the stated expiration date of the
letter of credit, as to whether such expiration date shall
be extended, and if so, shall indicate the new expiration
date. If such notice indicates that the expiration date
shall not be extended, the Issuer shall deposit in the
Reserve Account an amount sufficient to cause the cash or
Authorized Investments on deposit in the Reserve Account
together with any other qualifying credit instruments, to
equal the Reserve Account Requirement on all outstanding
Bonds, such deposit to be paid in equal installments on
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at least a semiannual basis over the remaining term of the
letter of credit, unless the letter of credit is replaced
by an Alternate Credit Facility meeting the requirements
in any of paragraphs (1), (2) or (3) above. The letter
of credit shall permit a draw in full prior to its
expiration or termination, if it has not been replaced or
renewed. The paying agent for the Bonds shall draw upon
the letter of credit prior to its expiration or
termination, unless an acceptable replacement is in place
or the Reserve Account is fully funded in its required
amount.
(4) The use of any Alternate Credit Facility pursuant to this
Resolution shall be subject to receipt of an opinion of
counsel acceptable to FGIC in form and substance
satisfactory to FGIC as to the due authorization,
execution, delivery and enforceability of such instrument
in accordance with its terms, subject to applicable laws
affecting creditors' rights generally, and, in the event
the issuer of such credit instrument is not a domestic
entity, an opinion of foreign counsel in form and
substance satisfactory to FGIC. In addition, the use of
an irrevocable letter of credit shall be subject to
receipt of an opinion of counsel acceptable to FGIC in
form and substance satisfactory to FGIC to the effect that
payments under such letter of credit would not constitute
avoidable preferences under section 547 of the U. S .
Bankruptcy Code or similar state laws with avoidable
preference provisions in the event of the filing of a
petition for relief under the u.s. Bankruptcy Code or
similar state laws, by or against the Issuer (or any other
account party under the letter of credit).
(5) The obligation to reimburse the issuer of an Alternate
Credit Facility for any fees or expenses or claims or
draws upon such Alternate Credit Facility shall be
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subordinate to the payment of Debt Service Requirements.
The right of the issuer of an Alternate Credit Facility
to payment or reimbursement of its fees and expenses shall
be subordinated to cash replenishment of the Reserve
Account, and, subject to the second succeeding sentence,
its rights to reimbursement for claims or draws shall be
on a parity with the cash replenishment of the Reserve
Account. The Alternate Credit Facility shall provide for
a revolving feature under which the amount available
thereunder will be reinstated to the extent of any
reimbursement of draws or claims paid. If the revolving
feature is suspended or terminated for any reason, the
right of the issuer of the Alternate Credit Facility to
reimbursement will be further subordinated to cash
replenishment of the Reserve Account to an amount equal
to the difference between the full original amount
available under the Alternate Credit Facility and the
amount then available for further draws or claims. In the
event (a) the issuer of an Alternate Credit Facility
becomes insolvent, or (b) the issuer of an Alternate
Credit Facility defaults in its payment obligations
thereunder, or (c) the claims paying abil i ty of the issuer
of the insurance policy falls below 'AAA' or 'Aaa,' by S&P
or Moody's, respectively, or (d) the rating of the issuer
of the letter of credit falls below 'AA' by S&P, the
obligation to reimburse the issuer of the Alternate Credit
Facility shall be subordinate to the cash replenishment
of the Reserve Account.
(6) In the event (a) the revolving reinstatement feature
described in the preceding paragraph is suspended or
terminated, or (b) the rating of the claims paying ability
of the issuer of the insurance policy falls below 'AAA'
or 'Aaa,' by S&P or Moody's, respectively, or (c) the
rating of the issuer of the letter of credit falls below
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'AA' by S&P, the Issuer shall either (i) deposit into the
Reserve Account an amount sufficient to cause the cash or
Authorized Investments on deposit in the Reserve Account
to equal the Reserve Account Requirement on all
outstanding Bonds, such amount to be paid over the ensuing
5 years in equal installments deposited at least
semiannually or (ii) replace such instrument with an
insurance policy or letter of credit meeting the
requirements in any of paragraphs (1), (2) or (3) above
within 6 months of such occurrence. In the event (a) the
rating of the claims-paying ability of the issuer of the
insurance policy falls below 'A,' or (b) the rating of the
issuer of the letter of credit falls below 'A,' or (c) the
issuer of the Alternate Credit Facility defaults in its
payment obligations thereunder, or (d) the issuer of the
Alternate Credit Facility becomes insolvent, the Issuer
shall either (i) deposit into the Reserve Account an
amount sufficient to cause the cash or Authorized
Investments on deposit in the Reserve Account to equal to
Reserve Account Requirement on all outstanding Bonds, such
amount to be paid over the ensuing year in equal
installments on at least a monthly basis, or (ii) replace
such instrument with an Alternate Credit Facility meeting
the requirements in any of paragraphs (1), (2) or (3)
above within 6 months of such occurrence.
(7) Where applicable, the amount available for draws or claims
under the Alternate Credit Facility may be reduced by the
amount of cash or Authorized Investments deposited in the
Reserve Account pursuant to clause (i) of the preceding
paragraph (6).
F. 'Amortization Installment' with respect to any Current
Interest Paying Bonds of a series, shall mean an amount so designated
which is established for the Current Interest Paying Term Bonds of
such series, provided that (1) each such installment shall be deemed
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to be due on such interest or principal maturity date of each
applicable year as is fixed by subsequent resolution of the Board, and
(2) the aggregate of such installments for such series shall equal the
aggregate principal amount of Current Interest Paying Term Bonds of
such series authenticated and delivered on original issuance; and with
respect to any Term Bonds of a series issued as Capital Appreciation
Bonds, shall mean the Compounded Amounts so designated by subsequent
resolution of the Board, provided that each such installment shall be
deemed to be due on such date of each applicable year as is fixed by
subsequent resolution of the Board.
G. 'Authorized Investments' shall mean any of the following
if and to the extent the same are at the time legal for investment of
county funds:
(1) Government Obligations which are held in a custody or
trust account by a bank or savings and loan association which is
either (a) a 'qualified public depository' under the laws of the state
of Florida or (b) has capital, surplus and undivided profits of not
less than $50,000,000, and which is a member of the Federal Deposit
Insurance Corporation ( 'FDIC' ) or the Federal savings and Loan
Insurance corporation ('FSLIC'), as applicable;
(2) bonds, debentures, notes or other evidences of
indebtedness issued by any of the following agencies or such other
like governmental or government-sponsored agencies subsequently
created, so long as such agencies are owned or sponsored by the United
states of America: Federal Home Loan Bank System, Government National
Mortgage Association, Student Loan Marketing Association and Federal
Home Loan Mortgage corporation;
(3) interest-bearing time deposits 'or savings accounts in any
commercial bank or savings and loan association which is a member of
FDIC or FSLIC and is a 'qualified public depository' under the laws
of the State of Florida;
(4) repurchase agreements or investment contracts with any
bank, trust company (including any trustee acting on behalf of the
Issuer) or savings and loan association which is a member of FDIC or
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FSLIC, as applicable, and is a 'qualified public depository' under the
laws of the state of Florida; or with any broker or dealer registered
with the Securities Exchange Commission and subject to Securities
Investors' Protection Corporation liquidation in the event of
insolvency; in any case having short term debt rated in either of the
2 highest categories by S&P or Moody's; provided, that (a) to the
extent not insured by FDIC or FSLIC, the repurchase or investment
agreements are secured by those securities described in paragraphs (1)
or (2) above having at all times a fair market value or at least 100%
of the value (principal plus accrued interest) of such agreement or
contract; (b) the Issuer (or any trustee acting on its behalf) has a
perfected first security interest in such securities described in
paragraphs (1) or (2) above; and (c) such securities described in
paragraph (1) or (2) above are owned by the pledgor free and clear of
any kind of liens or security interests other than that of the Issuer
(or any trustee acting on its behalf); the security for any repurchase
agreements and investment contracts being (A) in the case of
Government Obligations which can be pledged by book entry notation
under regulations of the United States Treasury, appropriately entered
on the records of a Federal Reserve Bank, or (B) in the case of other
investments, deposited with the Issuer (or any trustee acting on its
behalf), a Federal Reserve Bank or a bank or trust company which is
acting solely as agent for the Issuer (or any trustee acting on its
behalf), and which has a combined net capital and surplus of at least
$25,000,000;
(5) shares or other interests in any mutual fund, trust,
investment company or similar entity or portfolio which invests solely
in securities described in paragraphs (1),' (2) or (3) above, or any
combination thereof; or
(6) the Local Government Surplus Funds Trust Fund as described
in Section 218.405, Florida Statutes.
H. 'Board' shall mean the Board of County Commissioners of
the Issuer.
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I. 'Bond Insurance Policy' shall mean the municipal bond new
issue insurance policy issued by the applicable Bond Insurer
guaranteeing the timely payment of principal of and interest on a
series of Bonds, when due.
J. 'Bond Insurer' shall mean, with respect to the Bonds
originally issued hereunder, the municipal bond insurance company, if
any, guaranteeing the timely payment of principal of and interest on
the Bonds.
K. 'Bond Registrar' shall mean the officer of the Issuer or
such bank or trust company, located within or without the state of
Florida, who or which shall maintain the registration books of the
Issuer and be responsible for the transfer and exchange of the Bonds,
and who or which also may be the paying agent for the Bonds and
interest thereon.
L. 'Bonds' shall mean the Improvement Revenue Bonds, Series
1988, herein authorized to be issued, together with any Additional
Parity Bonds hereafter issued under the terms, conditions and
limitations contained herein.
M. 'Bond Year' shall mean the one year period beginning on
December 2 of each year and ending on the succeeding December 1.
N. 'Capital Appreciation Bonds' shall mean Bonds, the interest
on which (1) shall be compounded periodically, (2) shall be payable
at maturity or redemption prior to maturity and (3 shall be determined
by reference to the Compounded Amounts.
o. 'Compounded Amounts' with respect to any Capital
Appreciation Bonds, shall mean the amounts so designated in a
subsequent resolution of the Board, representing principal and
interest accrued on such Capital Appreciation Bonds.
P. 'Current Interest Paying Bonds' shall mean the Bonds, the
interest on which shall be payable on a semiannual basis.
Q. 'Debt Service Requirement' for any Bond Year, as applied
to the Bonds, shall mean the sum of:
(1) The amount required to pay the interest becoming due on
the Current Interest Paying Bonds during such Bond Year, except to the
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extent that such interest shall have been provided by payments into
the sinking Fund out of Bond proceeds for a specified period of time.
(2) The aggregate amount required to pay the principal
becoming due on Current Interest Paying Bonds for such Bond Year. For
purposes of this definition: (a) the stated maturity date of any
Current Interest Paying Term Bonds shall be disregarded and the
Amortization Installments applicable to such Current Interest Paying
Term Bonds in such Bond Year shall be deemed to mature in such Bond
Year; and (b) the principal amount of any Current Interest Paying Term
Bonds having a single principal maturity and no Amortization
Installments therefor shall be calculated as if the amount of such
single maturity had been amortized over a term of years and was
payable in such payments of principal and interest as shall be set
forth in a subsequent resolution of the Board adopted prior to the
delivery of any such Bonds.
(3) The aggregate amount required to pay the Compounded
Amounts due on any Capital Appreciation Bonds maturing in such Bond
Year. For purposes of this definition, the stated maturity date of
any Capital Appreciation Term Bonds shall be disregarded and the
Amortization Installments applicable to such Capital Appreciation Term
Bonds in such year shall be deemed to mature in such year.
( 4 ) The amount required to repay the Pol icy Costs and any
draws or claims under an Alternate Credit Facility.
S. 'Federal Securities' shall mean, collectively, (1)
Government Obligations; (2) certificates evidencing ownership of
portions of such obligations described in (1) 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
independently against the obligor on the underlying obligations if
such underlying obligations are not available to satisfy any claim
against the custodian; or (3) municipal obligations that have been
advance refunded, are secured by an escrow wi thin which are held
obligations described in (1) and have been rated in the highest rating
category by both S&P and Moody's; none of which described in (1), (2)
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or (3) above are subject to redemption prior to maturity at the option
of the obligor.
S. 'Fiscal Year' shall mean the period commencing on October
1 of each year and ending on the succeeding September 30, or such
other annual period as may be prescribed by law from time to time for
the Issuer.
T. 'Government Obligations' shall mean any securities that are
direct obligations of, or obligations the timely payment of principal
of and interest on which is fully and unconditionally guaranteed by,
the United States of America.
U. 'Holder of Bonds' or 'Bondholders' or any similar term
shall mean any person who shall be the Registered Owner of any such
Bond or Bonds.
v. 'Issuer' shall mean Monroe County, Florida.
w. 'Maximum Debt Service Requirement' shall mean, as of any
particular date of calculation, the greatest amount of aggregate
annual Debt Service Requirements for all series of outstanding Bonds
for the then current or any future Bond Year.
x. 'Pledged Funds' shall mean, collectively, the 'guaranteed
entitlement I and ' second guaranteed entitlement I portions of the
revenue sharing trust funds of the State of Florida, as defined in and
as distributable to the Issuer pursuant to Chapter 218, Part II,
Florida Statutes.
Y. 'Policy Costs' shall mean the draws, expenses and accrued
interest with respect to the Reserve Policy.
z. 'Project' shall mean the acquisition and construction of
certain capi tal improvements in the area of the Issuer, all in
accordance with plans and specifications now on file or to be on file
with the Issuer.
AA. 'Record Date' shall mean the 15th day of the month
immediately preceding any interest payment date for the Bonds.
BB. 'Registered Owner' shall mean the owner of any Bond or
Bonds as shown on the registration books of the Issuer maintained by
the Bond Registrar.
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CC. 'Reserve Policy' shall mean the municipal bond debt
service reserve account policy issued by Financial Guaranty Insurance
Company, New York, New York ('FGIC').
DO. 'Reserve Account Requirement' shall mean the lesser of (1)
Maximum Debt Service Requirement, (2) 125% of the average Debt Service
Requirement, or (3) an amount equal to 10% of the proceeds of the sale
of the Bonds as set forth in section 148(d) (2) of the Internal Revenue
Code of 1986, as amended (collectively, the 'Code').
EE. 'Resolution' shall mean, collectively, this resolution
and all resolutions amendatory hereof or supplemental hereto.
FF. 'Serial Bonds' shall mean the Bonds which shall be stated
to mature in semiannual or annual installments.
GG. 'Term Bonds' shall mean the Bonds which shall be stated
to mature on one date and which shall be subject to mandatory
redemption by operation of the Bond Amortization Account, or otherwise
designated as such by resolution of the Board adopted prior to the
delivery thereof."
B. section 2.06 of the Resolution is hereby amended to read
as follows:
"SECTION 2.06 REGISTRATION. The Issuer shall, prior to the
proposed date of 'delivery of the Bonds, by resolution of the Board
designate the Bond Registrar and, if applicable, paying agent. The
Bond Registrar shall be responsible for maintaining the books for the
registration of and for the transfer of the Bonds and, if a bank is
so designated, in compliance with a written agreement to be executed
between the Issuer and such bank as Bond Registrar on or prior to the
delivery date of the Bonds.
Upon surrender to the Bond Registrar for transfer or exchange
of any Bond, duly endorsed for transfer or accompanied by an
assignment or written authorization for exchange, whichever is
applicable, duly executed by the Registered Owner or his attorney duly
authorized in writing, the Bond Registrar shall deliver in the name
of the Registered Owner or the transferee or transferees, as the case
may be, a new fully registered Bond or Bonds of authorized
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denominations and of the same maturity and interest rate and for the
aggregate principal amount which the Registered Owner is entitled to
receive; provided, however, that Current Interest Paying Bonds may
only be exchanged for new Current Interest Paying Bonds and Capital
Appreciation Bonds may only be exchanged for new capital Appreciation
Bonds.
All Bonds presented for transfer, exchange, redemption or
payment (if so required by the Issuer or the Bond Registrar) shall be
accompanied by a written instrument or instruments of transfer or
authorization for exchange, in form and with guaranty of signature
satisfactory to the Issuer or the Bond Registrar, duly executed by the
Registered Owner or by his duly authorized attorney.
The Bond Registrar or the Issuer may require payment from the
Registered Owner or transferee of a sum sufficient to cover any tax,
fee or other governmental charge that may be imposed in connection
wi th any exchange or transfer of the Bonds. Such charges and expenses
shall be paid before any new Bond shall be delivered.
Interest on the Bonds shall be paid to the Registered Owners
whose names appear on the books of the Bond Registrar as of 5:00 p.m.
(eastern time) on the Record Date.
New Bonds delivered upon any transfer or exchange shall be
valid obligations of the Issuer, evidencing the same debt as the Bonds
surrendered, shall be secured by this Resolution, and shall be
entitled to all of the security and benefits hereof to the same extent
as the Bonds surrendered.
The Issuer and the Bond Registrar may treat the Registered
Owner of any Bond as the absolute owner thereof for all purposes,
whether or not such Bond shall be overdue, 'and shall not be bound by
any notice to the contrary.
Notwithstanding the foregoing provisions of this section 2.06,
the Issuer reserves the right, on or prior to the delivery of the
Bonds, to amend or modify the foregoing provisions relating to
registration of the Bonds in order to comply with all applicable laws,
rules and regulations of the united States or the State of Florida
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relating thereto, including, particularly, any provision of such laws,
rules and regulations as shall permit the use of unregistered
instruments and coupons. The provisions of such instruments and
coupons, if applicable, shall be set forth in a subsequent resolution
of the Board.
Upon the occurrence of a default in payment of the principal
of and/or interest on the Bonds which would require a Bond Insurer to
make payment under its Bond Insurance Policy, the Bond Insurer and its
designated agent shall have access, at all reasonable times, to the
registration books of the Bond Registrar.
No resignation or removal of the Bond Registrar or paying agent
shall become effective until the appointment of (and acceptance of
such appointment by) a successor. The Bond Insurer shall be
furnished, as soon as practicable, with written notice of the
resignation or removal of any Bond Registrar or paying agent and the
appointment of a successor Bond Registrar or paying agent."
C. section 4.01 of the Resolution is hereby amended to read
as follows:
"SECTION 4.01 SECURITY FOR BONDS. Neither the Bonds nor the
interest thereon shall be or constitute a general indebtedness of the
Issuer within the meaning of any constitutional or statutory provision
or limitation, but shall be payable solely from and secured by a lien
upon and a pledge of the Pledged Funds as provided below. No Holder
or Holders of any Bonds issued hereunder shall ever have the right to
require or compel the exercise of the ad valorem taxing power of the
Issuer or taxation in any form of any property therein for payment
thereof, or be entitled to payment of such principal and interest from
any other funds of the Issuer, except from the Pledged Funds in the
manner provided herein. Until payment has been provided as herein
permitted, the payment of the principal of and interest on the Bonds,
and all other payments required by this Resolution, shall be secured
forthwith equally and ratably by an irrevocable prior lien on the
Pledged Funds, and the Issuer does hereby irrevocably pledge and grant
a prior lien upon the same for such purposes.
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To secure the repayment of Policy Costs, the Issuer hereby
pledges and grants a lien upon the Pledged Funds, junior, subordinate
and inferior to the lien thereon in favor of the Holders of the
Bonds."
D. section 4.030 of the Resolution is hereby amended to read
as follows:
"D. RESERVE ACCOUNT. Pledged Funds shall then be applied by
the Issuer to maintain in the Reserve Account a sum equal to the
Reserve Account Requirement. Except as provided below, such sum shall
initially be deposited therein from the proceeds of the sale of the
Bonds. Any withdrawals from the Reserve Account (including Policy
Costs) shall be restored or repaid within 12 months by depositing
therein or repaying FGIC, as applicable, an amount equal to 1/12th of
such withdrawal or Policy Costs related to a draw under the Reserve
POlicy, as the case may be; however, if the Issuer is unable to
deposit or repay 1/12th of any withdrawals or Policy Costs in any
month, such amounts available to make such deposit or repayment shall
be first applied to the repayment of Policy Costs. If there is more
than one letter of credit or bond reserve insurance policy, as
described below, drawings thereunder and the repayment of Policy Costs
or reimbursement of amounts with respect to such other letter of
credit or bond reserve insurance policy shall be made on a pro rata
basis (calculated by reference to the maximum amounts available
thereunder), after applying all available cash in the Reserve Account
and prior to replenishing any such drawings , respectively. No further
payments shall be required to be made into the Reserve Account when
there has been deposited therein and as long as there shall remain on
deposit therein a sum equal to the Reserve Account Requirement. The
Authorized Investments on deposit in the Reserve Account shall be
valued annually on the last day of the Fiscal Year in accordance with
generally accepted accounting practice.
Any draws under the Reserve Policy and related reasonable
expenses incurred by FGIC shall bear interest at a rate equal to the
lower of (1) the prime rate of Morgan Guaranty Trust Company, New
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15
York, New York, in effect from time to time, plus 2% per annum, or (2)
the highest rate permitted by law.
Notwithstanding the foregoing and with the written consent
of the Bond Insurer (if the outstanding Bonds are then covered by a
Bond Insurance POlicy), the Issuer shall not be required to fully
capitalize the Reserve Account on the date of issuance of the Bonds
from proceeds of the sale of the Bonds, if it provides on the date of
issuance of the Bonds (1) bond reserve insurance issued by a reputable
and recognized municipal bond insurer, or (2) a letter of credit
issued by any bank or national banking association insured by FDIC;
in an amount equal to the difference between the Reserve Account
Requirement and the sum to be deposited therein pursuant to the first
paragraph of this Section 4.03D; provided, however, that either the
bond reserve insurance policy or the letter of credit, as applicable,
are approved by FGIC or satisfy the Alternate Credit Facility
Criteria.
At any time after the issuance of the Bonds, the Issuer may,
in its discretion, withdraw the amount of money on deposit in the
Reserve Account and substitute in its place, an Alternate Credi t
Facility in the face amount of such withdrawal, and deposit the
surplus money so withdrawn into the Construction Fund if the Project
is not complete; otherwise, if the Project has been completed, into
the Sinking Fund.
Money in the Reserve Account shall be used only for the purpose
of the payment of maturing Amortization Installments or principal of
or interest on the Bonds when the other money allocated to the Sinking
Fund and Bond Amortization Account is insufficient therefor, and for
no other purpose. All cash on deposit therein shall be used (or
investments purchased with such cash shall be liquidated and the
proceeds applied as required prior to any drawing under the Reserve
Policy or Alternate Credit Facility) prior to any drawing under the
Reserve Policy. If and whenever the money applied and allocated to
the Reserve Account exceeds the Reserve Account Requirement on all
88089\amendres.doc/El13088
16
then outstanding Bonds, such excess shall be withdrawn and deposited
into the Sinking Fund.
In the event the Issuer determines to draw upon the Reserve
POlicy, it shall provide, or cause the paying agent for the Bonds to
provide, notice of the same to FGIC at least 2 business days prior to
the next succeeding interest payment date for the Bonds.
The paying agent for the Bonds shall be required to ascertain
the necessity for a claim or draw upon any Alternate Credit Facility
and to provide notice to the issuer of the Alternate Credit Facility
in accordance with its terms not later than 3 days (or such
appropriate time period as will, when combined with the timing of the
required payment under the Alternate Credit Facility, ensure payment
under the Alternate Credit Facility on or before the applicable
interest payment date for the Bonds) prior to the applicable interest
payment date."
E. section 5.04 of the Resolution is hereby amended to read
as follows:
"SECTION 5.04 NO IMPAIRMENT OF CONTRACT. The Issuer has full
power and authority to irrevocably pledge the Pledged Funds to the
payment of the principal of and interest on the Bonds. The pledge of
such Pledged Funds, in the manner provided herein, shall not be
subj ect to repeal, modification or impairment by any subsequent
resolution, ordinance or other proceedings of the Issuer or by any
subsequent act of the Legislature of the State of Florida unless the
Issuer shall have provided, or such Legislature shall have made
immediately available to the Issuer, such additional or supplemental
funds which shall be sufficient to retire such Bonds and the interest
thereon in accordance with their terms and repay any Policy Costs then
due and owing."
F. Section 5.05 of the Resolution is hereby amended to read
as follows:
"SECTION 5.05 REMEDIES. Any trustee (other than the custodial
trustee described in Section 4.02A hereof) or any Holder of Bonds
issued under the provisions hereof acting for the Holders of all Bonds
88089\amendres.doc/El13088
17
may by suit, action, mandamus or other proceedings in any court of
competent jurisdiction, protect and enforce any and all rights,
including the right to the appointment of a receiver, existing under
the laws of the state of Florida, or granted and contained herein, and
may enforce and compel the performance of all duties herein required
or by any applicable statutes to be performed by the Issuer or by any
officer thereof. Nothing herein, however, shall be construed to grant
to any Holder of such Bonds any lien on any property of or within the
corporate boundaries of the Issuer, except as provided herein. No
Holder of Bonds, however, shall have any right in any manner whatever
to affect, disturb or prejudice the security of this Resolution or to
enforce any right hereunder except in the manner herein provided, and
all proceedings at law or in equity shall be instituted and maintained
for the benefit of all Holders of Bonds.
For the purposes of this Section, the Bond Insurer shall be
deemed to be the Holder of all Bonds insured by it.
If any payments of Debt Service Requirements are made by the
Bond Insurer with respect to Bonds which have not been defeased in
accordance with the provisions of Section 6.06 hereof, the lien upon
and pledge of the money on deposit from time to time in the Funds and
Accounts created and established herein and all covenants and other
obligations of the Issuer to the Holders of such Bonds shall continue
to exist and the Bond Insurer shall be subrogated to the rights of
the Holders of such Bonds with respect to the Debt Service
Requirements paid or insured by it.
If the Issuer fails to repay any Policy Costs in accordance
with Section 4:03D hereof, FGIC shall be entitled to exercise any and
all remedies available at law under this Resolution, other than (1)
acceleration of the maturities of the Bonds or (2) remedies which may
adversely affect the Holders of the Bonds."
G. Section 5.06 of the Resolution is hereby amended to read
as follows:
"SECTION 5.06 ISSUANCE OF ADDITIONAL OBLIGATIONS. Except as
provided below, the Issuer hereby covenants and agrees not to incur
88089\amendres.doc/El13088
18
any other obligations or indebtedness payable from the same source as
the Bonds, unless such obligations contain an express statement that
such obligations are junior and subordinate in all respects to the
Bonds herein authorized as to lien on and source and security for
payment from the Pledged Funds. Furthermore, no Additional Parity
Bonds, payable on a parity from the Pledged Funds, or appl icable
portion thereof, with the Bonds, herein authorized, shall be issued
except upon the conditions and in the manner provided below.
A. There shall have been obtained and filed with the Issuer
a certificate of an Accountant: (1) stating that he had compiled or
reviewed the books and records of the Issuer relating to the
collection and receipt of the Pledged Funds, or applicable portion
thereof; (2) setting forth the amount of each component of the Pledged
Funds received by the Issuer for 12 consecutive months out of the 18
month period immediately preceding the proposed date of delivery of
such Additional Parity Bonds with respect to which such certificate
is made; and (3) stating that the Pledged Funds for such preceding 12
month period are at least equal to 1.25 times the Maximum Debt Service
Requirement to become due in any ensuing Bond Year on the Bonds then
outstanding; and that the portion of the Pledged Funds which will
secure payment of the principal of and interest on the Additional
Parity Bonds proposed to be issued is at least equal to 1.25 times the
Maximum Debt Service Requirement to become due in any ensuing Bond
Year on such Additional Parity Bonds proposed to be issued.
B. Each resolution authorizing the issuance of Additional
Parity Bonds will recite that all of the covenants herein contained
applicable to the Additional Parity Bonds, will be applicable to such
Additional Parity Bonds.
c. The Issuer shall not be in breach of the covenants and
obligations assumed hereunder, and all payments herein required to
have been made into the Funds and Accounts, as provided hereunder,
shall have been made to the full extent required.
D. The Issuer shall not be required to comply with the
requirements of paragraph A above with respect to any Additional
88089\amendres.doc/El13088
19
Parity Bonds issued for the sole purpose of refunding a portion of the
outstanding Bonds.
E. No Additional Parity Bonds bearing interest at a variable
rate per annum may be issued without the prior written consent of
FGIC, if its Bond Insurance Policy is then in effect.
F. The Issuer shall have given FGIC prior written notice of
the issuance of the Additional Parity Bonds then proposed to be
issued, if its Bond Insurance Policy is then in effect."
H. section 6.01 of the Resolution is hereby amended to read
as follows:
"SECTION 6.01 MODIFICATION OR AMENDMENT. No adverse material
modification or amendment of this Resolution or of any ordinance or
resolution amendatory hereof or supplemental hereto may be made
without the consent in writing of the Holders of 51% or more in
aggregate principal amount of all the Bonds so affected by such
modification or amendment; provided, however, that no modification or
amendment shall permit a change in the maturity of the Bonds or a
reduction in the rate of interest thereon, or in the amount of
principal obligation thereof, or affect the promise of the Issuer to
pay the principal of and interest on the Bonds as the same shall
become due from the Pledged Funds, or. reduce the percentage of the
Holders of the Bonds required to consent to any adverse material
modification or amendment hereof without the consent of the Holders
of all Bonds; provided further, however, that the Issuer may at any
time amend this Resolution to provide for the issuance or exchange of
Bonds in coupon form, if and to the extent that doing so will not
affect the tax exempt status of the interest on the Bonds. If the
Bonds then outstanding are insured by a Bond Insurance POlicy, the
consent of the Bond Insurer shall be required in lieu of the consent
of the Holders of the Bonds so insured, and the Bond Insurer shall be
furnished with a certified copy of any such amendatory or supplemental
ordinance or resolution. For the purpose of computing the amount of
Bonds held by the Holder of Capital Appreciation Bonds, the principal
88089\amendres.doc/El13088
20
amount of a Capital Appreciation Bond shall be deemed to be its
Compounded Amount."
I. Section 6.06 of the Resolution is hereby amended to read
as follows:
"SECTION 6.06 DEFEASANCE. If, at any time, the Issuer shall
have paid, or shall have made provision for the payment of, the
principal, interest and redemption premiums, if any, with respect to
the Bonds, or any portion thereof, then, and in that event, the pledge
of and lien on the applicable portion of the Pledged Funds in favor
of the applicable Bondholders shall be no longer in effect. For
purposes of the preceding sentence, deposit of sufficient cash and/or
principal and interest of Federal Securities in irrevocable trust with
a banking institution or trust company, for the sole benefit of the
applicable Bondholders, to make timely payment of the principal,
interest, and redemption premiums, if any, on the outstanding Bonds,
shall be considered 'provision for payment'; provided, however, that
no defeasance shall occur unless all Policy Costs have been paid in
full. The consent of the Bond Insurer (if the outstanding Bonds are
then covered by a Bond Insurance Policy) shall be required for the use
of securities other than Government Obligations for the purposes of
this Section 6.06."
J. Section 6.07 of the Resolution is hereby amended to read
as follows:
"SECTION 6.07 NOTICES TO BOND INSURER. For the purposes of
this Resolution, all notices and other documents sent to the Bond
Insurer shall be mailed, postage prepaid, to Financial Guaranty
Insurance Company, 175 Water Street, New York, New York 10038,
Attention: President; and the addresses of those Bond Insurers which
have issued additional Bond Insurance Policies."
SECTION 4. SEVERABILITY OF INVALID PROVISIONS. If anyone or
more of the provisions contained in this resolution shall be held
contrary to any express provision of law or contrary to the policy of
express law, though not expressly prohibited, or against public
pOlicy, or shall for any reason whatsoever be held invalid, then such
88089\amendres.doc/E113088
21
provisions shall be null and void and shall be deemed separable from
the remaining provisions, and shall in no way affect the validity of
any of the other provisions hereof.
SECTION 5. REPEALING CLAUSE. All resolutions or parts thereof
of the Governing Body in conflict with the provisions contained in
this resolution are, to the extent of such conflict, hereby superseded
and repealed.
SECTION 6. EFFECTIVE DATE. This resolution shall take effect
immediately upon its adoption.
Passed and adopted by the Board of County Commissioners of
Monroe County, Florida, at a regular meeting of the Board on December
6, 1988.
MONROE COUNTY, FLORIDA
(SEAL)
ATTEST:DAN1lX L. KOl.H4..GE, ~lerk
By
JJW~
Mayor, Board of County
Commissioners
APP?111 TOFtJIIM
AMr LE J4 S. 'FFICIENCY.
BY ~ ~
Attomey'/J OIIice
88089\amendres.doc/El13088
22