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Resolution 229-1993 RESOLUTI'ON NO. 229 -1993 A RESOLUTION AMENDING AND SUPPLEMENTING 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, PROVIDING FOR THE ADVANCE REFUNDING OF THE OUTSTANDING IMPROVEMENT REVENUE BONDS, SERIES 1988A AND SERIES 1988B, OF THE COUNTY; AUTHORIZING THE ISSUANCE OF NOT EXCEEDING $7,500,000 REFUNDING REVENUE BONDS, SERIES 1993, OF THE COUNTY 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 TRru;iT FUNDS.; MAKING CERTAIN COVENANTS AND AGREESENTS ~ CONNECTION THEREWITH; AND PROVIDING AN jf~CTIVE DATE. " :::_: E ;z: -" rr1 ..--. '--" DULY ADOPTED ON APRIL 15, 1993, BY MAKING~GES NECESSARY FOR THE ISSUANCE OF A MUNICIPAL B~ INSURANCE POLICY, AND BY APPROVING THE-<' FORM 8F ESCROW DEPOSIT AGREEMENT WITH RESPECT TO THEBOND~; AND PROVIDING AN EFFECTIVE DATE. ~ J ...,~..... BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA: SECTION 1. resolution is adopted Section 125.01(1)(r), provisions of law. AUTHORITY pursuant Florida FOR THIS to Chapter Statutes, and RESOLUTION. This 218, Part II, and other applicable SECTION 2. FINDINGS. determined and declared that: It is hereby ascertained, A. The Board of County Commissioners of Monroe County, Florida (the "Governing Body"), on April 15, 1993, duly adopted a resolution entitled: "A RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA, PROVIDING FOR THE ADVANCE REFUNDING OF THE OUTSTANDING IMPROVEMENT REVENUE BONDS, SERIES 1988A AND SERIES 1988B, OF THE COUNTY; AUTHORIZING THE ISSUANCE OF NOT EXCEEDING $7,500,000 REFUNDING REVENUE BONDS, SERIES 1993, OF THE COUNTY 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 and supplement the Resolution by making changes necessary for the issuance of a municipal bond insurance policy, and by approving the form of Escrow Deposit Agreement for the bonds. SECTION 3. AMENDMENTS TO RESOLUTION. The Resolution is amended in the following manner. A. Section 1.02G of the Resolution is hereby amended to read as follows: "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'); (2) consolidated debt obligations and letter of credit- backed issues of the Federal Home Loan Banks; guaranteed mortgage-backed securities and guaranteed participation certificates of the Government National Mortgage Association ('GNMA's'); debt obligations and letter of credit-backed issues of the Student Loan Marketing Association; and participation certificates and senior lien obligations of the Federal Home Loan Mortgage Corporation ('FHLMC's'); (3) interest-bearing time deposits or savings accounts in any commercial bank or savings and loan association which has combined capital, surplus and undivided profits of not less than $3,000,000; provided, such deposits are continuously and fully insured by the Bank Insurance Fund or the Saving Association Insurance Fund of FDIC; and which is a 'qualified public depository' under the laws of the State of Florida; (4) repurchase agreements or investment contracts collateralized by direct obligations of the United States of America, GNMA's or FHLMC's, with any commercial bank (including any trustee acting on behalf of the Issuer) insured by FDIC and which 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 2 3247/MON59010/AC2 Investors' Protection Corporation liquidation in the event of insolvency; in any case if such broker or dealer, or bank, has an uninsured, unsecured and unguaranteed obligation rated 'P-l' or 'A-3' or better by Moody's, and 'A-I' or 'A-' or better by S&P; provided, that (a) 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 of at least 103% 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, under the Uniform Commercial Code, or book entry procedures described in 31 C.F.R. 306.1 et seq. or 31 C.F.R. 350.0 et seq. in such securities are created for the benefit of the Issuer (or any trustee acting on its behalf); (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 of any trustee or independent third party acting solely as agent (the 'Agent') for the Issuer, and such third party is (A) a Federal Reserve Bank, (B) a bank or trust company which has a combined capital, surplus and undivided profits of at least $50,000,000, or (C) a bank approved in writing by the Bond Insurer; and the Issuer shall have received written confirmation from such third party that it holds such securities free and clear of any lien, as agent for the Issuer; (d) the repurchase agreement has a term of 180 days or less, and the Issuer or the Agent will value the collateral at least weekly, and will liquidate the collateral if any deficiency in the required collateral percentage is not restored within 2 business day of such valuation; and (e) a master or specific repurchase agreement governs the transaction. (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 (I), (2) or (3) above, or any combination thereof, that are rated 'AAAm' or 'AAAm-G' by S&P; or (6) the Local Government Surplus Funds Trust Fund as described in Section 218.405, Florida Statutes." B. Section 1.02V of the Resolution is hereby amended to read as follows: "V. '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; provided, the full faith and credit of the united States of America is pledged to any such direct obligations or guarantee." 3 3247/MON59010/AC2 C. 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 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 with 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. 4 3247/MON59010/AC2 Notwithstanding the foregoing provlslons 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 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. Any successor Bond Registrar or paying agent must have combined capital, surplus and undivided profits of not less than $50,000,000, unless otherwise approved by the Bond Insurer." D. Section 2.09 of the Resolution is hereby amended to read as follows: "SECTION 2.09 PROVISIONS FOR REDEMPTION. The Bonds or any portions thereof shall be subject to mandatory and/or optional redemption prior to their respective stated dates of maturity, at such times and in such manner as shall be determined by subsequent resolution of the Board adopted on or prior to the sale thereof; provided, however, that except for Bonds that have been advance refunded, notice of optional redemption shall only be disseminated if sufficient funds have been deposited with the paying agent to pay the redemption price for such Bonds. Notice of such redemption shall, at least 30 days prior to the redemption date, be filed with the Bond Registrar and paying agent and be mailed, postage prepaid, by the Bond Registrar to the Bond Insurer and to all Registered Owners of Bonds to be redeemed at their addresses as they appear of record on the books of the Bond Registrar as of 45 days prior to the date fixed for redemption; provided, however, that failure to mail such notice of redemption to a Registered Owner shall not render ineffective any proceedings for redemption with respect to Bonds held by Registered Owners to whom notice was properly mailed. Interest shall cease to accrue on any Bond duly called 5 3247/MON~9010/AC2 for prior redemp~ion on' the redemption date, if payment thereof has been duly provided. The privilege of transfer or exchange of any of the Bonds selected for redemption shall be suspended. Furthermore, at least 2 business days in advance of mailing the notice of redemption as specified above, the Bond Registrar shall send such notice of redemption by certified mail, overnight mail/delivery service or telecopy to all registered securities depositories then in the business of holding substantial amounts of obligations of the type comprising the Bonds (such depositories currently The Depository Trust Company, New York, New york; Midwest Securities Trust Company, Chicago, Illinois; pacific Securities Depository Trust Company, San Francisco, California; and Philadelphia Depository Trust Company, Philadelphia, pennsylvania); and at least 30 days prior to the redemption date, mail such notice of redemption to one or more national information services which disseminate notices of redemption of obligations such as the Bonds; provided, however, that failure to distribute such notice of redemption to such depositories and national infor~ation services shall not render ineffective any calling of Bonds for prior redemption. Each notice of redemption shall state the date of dissemination of such notice; the date of issue of the Bonds; the redemption date; the redemption price; the place or places of redemption (including the name and appropriate address or addresses of the paying agent); the dates of maturity and interest rates borne by the Bonds to be redeemed; the CUSIP number (if any) of the maturity or maturities to be redeemed; and, if less than all of any such maturity, the distinctive certificate numbers of the Bonds of such maturity to be redeemed, and, in the case of Bonds to be redeemed in part only, the respective portions of the principal amount thereof to be redeemed. Each such notice shall also state that on such date there will become due and payable on each of such Bonds, the redemption price thereof, or of such specified portion of the principal amount thereof in the case of a Bond to be redeemed in part only, together with interest accrued thereon to the redemption date; and that from and after such redemption date, interest thereon shall cease to accrue, and shall require that such Bonds be then surrendered at the address or addresses of the paying agent specified in the redemption notice. Failure to include in such notice of redemption all of the information specified in this paragraph, shall not render ineffective any proceedings for the redemption of Bonds." E. Section 4.03D 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 6 3247/MON59010/AC2 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. 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 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 Credit Facility in the face amount of such withdrawal, and deposit the surplus money so withdrawn 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 7 3247/MON59010/AC2 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 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 Issuer shall also provide notice to FGIC of any deficiency in the amount on deposit in the Reserve Account due to market fluctuations in the value of the Authorized Investments on deposit therein. 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." F. Section 4.03G of the Resolution is hereby amended to read as follows: "G. INVESTMENT AND DISPOSITION OF INVESTMENT INCOME; VALUATION. Pledged Funds on deposit in the Revenue Fund, the Sinking Fund and the Bond Amortization Account may be invested and reinvested only in Authorized Investments maturing not later than the date on which the money therein will be needed. The Pledged Funds in the Reserve Account may be invested and reinvested in Authorized Investments, provided such investments mature not later than 5 years from their respective purchase dates. Any and all income received by the Issuer from such investments of Pledged Funds in the above Funds and Accounts (excluding the Reserve Account) shall be deposited into the Sinking Fund. Income received from the investment of money on deposit in the Reserve Account shall remain in the Reserve Account unless it is fully funded, in which case such income shall be deposited into the Sinking Fund on the next business day following the receipt thereof. All investments shall be valued as frequently as desired by the Bond Insurer, but not less often than annually, at the market value thereof, exclusive of accrued interest. Deficiencies in the amount on deposit in any Fund and Account resulting from a decline in market value shall be restored by the next valuation date." 8 3247/MON59010/AC2 G. Section 5.02 of the Resolution is hereby amended to read as follows: ' "SEcrION 5.02 ANNUAL AUDIT. The Issuer shall after the close of each Fiscal Year, cause the books, records and accounts relating to the Pledged Funds to be properly audited by a recognized Accountant, and shall require the Accountant to complete its audit report within 12 months after the close of the Fiscal Year. Such audit shall contain, but not be limited to, the statements required by generally accepted accounting principles applicable to governmental units, a statement of the amount on deposit in the Reserve Account as of the last valuation, and after consultation with bond counsel to the Issuer, a certificate by the Accountant disclosing any breach on the part of the Issuer of any covenant herein. A copy of such annual audit shall be made available, at all reasonable times, for inspection by any Bondholder, upon request therefor, and shall be mailed, postage prepaid, to the Bond Insurer (if the outstanding Bonds are then covered by a Bond Insurance Policy). In addition the Issuer shall furnish the Bond Insurer a copy of its tentative budget prior to July 31 of each year." H. Section 5.05 of the Resolution is hereby amended to read as follows: "5.05 REMEDIES. Subject to the prior written consent of the Bond Insurer (if it is then in compliance with its payment obligations under the Bond Insurance Policy), any trustee or any Holder of Bonds issued under the provisions hereof acting for the Holders of all Bonds 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. The Bond Insurer (if it is then in compliance with its payment obligations under the Bond Insurance policy) may direct all remedies if the Issuer is in default in the payment of principal, applicable redemption premium and interest on the Bonds, when due. In determining whether such a default has occurred, or a payment on the Bonds has been made, no effect shall be given to payments made under the Bond Insurance Policy. 9 3247/MON59010/AC2 For the .purposes of this Section, the Bond Insurer shall be deemed to be the Holder of all Bonds insured by it, and shall be included as a party in all remedy proceedings. 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." I. The first paragraph of Section 5.06 of the Resolution is hereby amended to read as follows: "SEcrION 5.06 ISSUANCE OF ADDITIONAL OBLIGATIONS. Except as provided below, the Issuer hereby covenants and agrees not to incur 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 applicable portion thereof, with the Bonds, herein authorized, shall be issued except upon the conditions and in the manner provided below. The Issuer shall furnish the Bond Insurer a copy of any official statement, or other disclosure document, disseminated in connection with the issuance of any additional obligations of the Issuer, regardless if they are payable on a parity from the Pledged Funds with the Bonds, within 30 days of the date of delivery of such additional obligations." J. Section 5.07 of the Resolution is hereby amended to read as follows: "5.07 TAX EXEMPTION. The Issuer at all times while the Bonds and the interest thereon are outstanding will comply with the requirements of the Code to the extent necessary to preserve the exemption from federal income taxation of the interest on the Bonds. The chief financial officer of the Issuer, or his designee, is authorized to make or effect any election, selection, choice, consent, approval or waiver on behalf of the Issuer with respect to the Bonds as the Issuer is required to 10 3247/MON59010/AC2 make or give under the federal income tax laws, for the purpose of assuring, enhahcing or protecting favorable tax treatment or characterization of the Bonds or interest thereon or assisting compliance with requirements for that purpose, reducing the burden or expense of such compliance, reducing the rebate amount or payments of penalties thereon, or making payments in lieu thereof, or obviating such amounts or payments, as determined by such officer, or his designee. Any action of such officer, or his designee, in that regard shall be in writing and signed by the officer, or his designee." K. Section 6.01 of the Resolution is hereby amended to read as follows: "SEcrION 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, and the Bond Insurer is not then in default with respect to the Bond Insurance Policy, the consent of the Bond Insurer shall be required to any amendment of this Resolution, and if the consent of the Bondholders would otherwise 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. Copies of any proposed amendments of this Resolution shall be sent to any rating agency that rated the Bonds, at least 15 days prior to the adoption of such amending resolution. For the purpose of computing the amount of Bonds held by the Holder of Capital Appreciation Bonds, the principal amount of a Capital Appreciation Bond shall be deemed to be its compounded Amount. L. Section 6.07 of the Resolution is hereby amended to read as follows: "SEcrION 6.07 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 11 3247/MON59010/AC2 event, the pledge of and lien on the Pledged Funds in favor of the applicable "Bondholders shall be no longer in effect; provided, however, that under those circumstances if any of the Bonds are to be redeemed prior to their respective stated dates of maturity, and such redemption will be accomplished more than 30 days after such defeasance, the Bond Registrar, within 30 days of such defeasance, will mail to the registered securities depositories and national information services (as described in Section 2.09 hereof) and to the Holders of such Bonds at their addresses as they appear on the registration books of the Issuer maintained by the Bond Registrar, and, if applicable, one additional time at least 30 days prior to the redemption date, a notice stating that a deposit in accordance with this Section has been made with the escrow holder and that the Bonds are deemed to have been paid in accordance with this Section, and stating such maturity or redemption date upon which money will be available for the payment of the principal of, redemption premium, if any, and interest on such Bonds; but failure to give such notice of advance refunding shall not affect any defeasance otherwise in accordance with this Section. 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 Issuer shall cause to be prepared a customary verification report of an independent certified public accountant acceptable to bond counsel for the Issuer, if such defeasance shall be accomplished through an advance refunding. 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." M. Section 6.08 of the Resolution is hereby amended to read as follows: "SECTION 6.08 NOTICES TO BOND INSURER. For the purposes of this Resolution, all notices and other documents, including any additional information reasonably requested by the Bond Insurer from time to time, required by this Resolution to be sent to the Bond Insurer, shall be mailed, postage prepaid, to Financial Guaranty Insurance Company, 115 Broadway, New York, New York 10006, Attention: Managing Counsel; Citibank, N.A., 20 Exchange Place - 16th Floor, New York, New York 10005, Attention: Municipal Trust and Agency Services Administration; and the addresses of those Bond Insurers which have issued additional Bond Insurance Policies. Furthermore, the Bond Insurer shall be furnished immediate notice of any Bond payment default." 12 3247/MON59010/AC2 SECTION 4. 'ESCROW DEPOSIT Deposit Agreement, in substantially the Exhibit A, is hereby approved. AGREEMENT. The Escrow form attached hereto as SECTION 5. SEVERABILITY OF INVALID PROVISIONS. If any one 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 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 6. 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 7. EFFECTIVE DATE. This resolution shall take effect immediately upon its adoption. Passed and adopted by of Monroe county, Florida, at May 26, 1993. the Board of County Commissioners a regular meeting of the Board on (SEAL) ATTEST: ~c.~~ C er , Board of eoun y Commissioners 13 3247/MON59010/AC2 Exhibit A ESCROW DEPOSIT AGREEMENT THIS ESCROW DEPOSIT AGREEMENT, dated as of June 3, 1993, is by and between MONROE COUNTY, FLORIDA (the "Issuer"), and NATIONSBANK OF FLORIDA, N.A., Fort Lauderdale, Florida, a national banking association, organized under the laws of the United States, as Escrow Holder (the "Escrow Holder"). BACKGROUND FACTS: 1. The Issuer has previously authorized and issued its Improvement Revenue Bonds, Series 1988-A and Series 1988B (the "Refunded Bonds"), as to which the Aggregate Debt Service (defined below) is set forth on Schedule A. 2. The Issuer has determined to provide for payment of the Aggregate Debt Service of the Refunded Bonds, on and prior to their redemption, by depositing with the Escrow Holder cash and Escrow Investments, the principal of and interest on which will be at least equal to such sum. 3. In order to obtain the funds needed for such purpose, the Issuer has authorized and is, concurrently with the delivery of this Agreement, issuing certain Refunding Bonds more fully described herein. AGREEMENT: In consideration of the herein contained, the Issuer follows: mutual covenants and agreements and the Escrow Holder agree as Section 1. Definitions. terms mean: As used herein, the following (a) "Aggregate Debt Service" means, as of any date, the sum of the Annual Debt Service then remaining unpaid with respect to the Refunded Bonds, as set forth on Schedule A attached to this Agreement. (b) "Agreement" means this Escrow Deposit Agreement. (c) "Annual Debt Service" means, in any year, the principal of, applicable redemption premium, and interest on the Refunded Bonds, including any paying agent fees and handling charges, coming due in such year as shown on Schedule A. (d) "Board" means the Board of Commissioners of Monroe County, Florida, the governing body of Monroe County, Florida. (e) "Bond Res0lution" means the resolution of the Board duly adopted on 'April 15, 1993, as amended and supplemented, providing for the issuance of the Refunding Bonds. (f) "Escrow Account" means the Escrow Account, created and established by this Agreement, and held by the Escrow Holder, in which cash and investments will be held for payment of the Refunded Bonds. (g) "Escrow Holder" means NationsBank of Florida, N.A., Fort Lauderdale, Florida. (h) "Escrow Investments" means direct non-callable obligations of, or obligations the principal of and the interest on which are unconditionally guaranteed by, the United states of America; provided, that the full faith and credit of the United states of America has been pledged to any such direct obligations or guarantee. (i) "Escrow Requirement" means, as of any date of calculation, the sum of an amount in cash and principal amount of Escrow Investments in the Escrow Account which, together with the interest due on the Escrow Investments, will be sufficient to pay, as the installments thereof become due, the Aggregate Debt Service. (j) "Expenses" means the expenses of the Issuer resulting from the execution of this Agreement, including, but not limited to, the fees and expenses of the Escrow Holder. (k) Bonds, Series Resolution. "Refunding 1993, of Bonds" means the Refunding Revenue the Issuer, described in the Bond Section 2. Deposit of Funds. The Issuer hereby deposits $7,088,949.65 with the Escrow Holder in immediately available funds, to be held in irrevocable escrow by the Escrow Holder and applied solely as provided in this Agreement. The Issuer represents that: (a) $6,971,449.65 of such funds are derived from the net proceeds of the Refunding Bonds and $117,500.00 of such funds are derived from the sinking fund for the Refunded Bonds. (b) Such funds, when invested in the Escrow Investments set forth on Schedule B attached hereto, and held in cash, will be, together with the principal amount of such Escrow Investments and the interest due thereon, at least equal to the Escrow Requirement as of the date of such deposit, as demonstrated in Schedule B attached hereto. Section 3. Use and Investment of Funds. The Escrow Holder acknowledges receipt of the sum described in Section 2 and agrees: 2 3247/MON59010/AC5 (a) to hold tne funds in irrevocable escrow during the term of this Agreement, (b) to hold $ in cash and immediately invest the remainder of such funds by the purchase of the Escrow Investments set forth on Schedule B attached hereto, and (c) to deposit, as received, all receipts of maturing principal of the Escrow Investments and all receipts of interest in the Escrow Account. Section 4. payment of Bonds and Expenses. (a) Refunded Bonds. On each interest payment date for the Refunded Bonds, the Escrow Holder shall pay to Midlantic National Bank and Trust Co., Fort Lauderdale, Florida, the paying agent for the Refunded Bonds, from the cash on hand in the Escrow Account, a sum sufficient to pay that portion of the Annual Debt Service coming due on such date as shown on Schedule A. In the event that the amount on deposit in the Escrow Account is ever insufficient for such purpose, the Escrow Holder shall immediately notify the Issuer of such deficiency, and the Issuer shall cure the same. (b) Expenses. The Issuer shall pay the Expenses, as they become due and payable, from legally available funds of the Issuer, and no lien upon or right of set-off against the funds on deposit in the Escrow Account shall exist or be created in favor of the Escrow Holder for any Expenses owed to it. (c) surilus. Upon termination of this Agreement, the Escrow Holder sha I pay to the Issuer any remaining cash in the Escrow Account in excess of the Escrow Requirement. (d) shall have Investments Investments Agreement. Lien on Funds. The holders of the Refunded Bonds an express first lien on the funds and Escrow in the Escrow Fund until such funds and Escrow are used and applied in accordance with this (e) Payments due on Holidaas. If any payment date, at the place of payment of the Refunde Bonds, shall be a Saturday, Sunday, legal holiday or a day on which banking institutions are authorized by law to close, then the Escrow Holder may make the payment required by Section 4(a) to the paying agent on the first business day following such Saturday, Sunday, legal holiday or day on which banking institutions are authorized by law to close. Section 5. Reinvestment. (a) Except as provided in this Section, the Escrow Holder shall have no power or duty to invest any funds held under this Agreement or to sell, transfer or otherwise dispose of or make substitutions of the Escrow Investments held hereunder. 3 3247/MON59010/AC5 (b) At the request of the Issuer and upon compliance with the conditions hereinafter stated, the Escrow Holder shall sell, transfer, otherwise dispose of or request the redemption of any of the Escrow Investments acquired hereunder and shall substitute other Escrow Investments for such Escrow Investments. Any money remaining after such substitution, not needed to pay the Aggregate Debt Service, shall be paid to the Issuer. The Issuer will not request the Escrow Holder to exercise any of the powers described in the preceding sentence in any manner which will cause the Refunding Bonds to be "arbitrage bonds" within the meaning of Section 148(a) of the Internal Revenue Code of 1986, as amended, and the regulations thereunder in effect and applicable to obligations issued on the issue date of the Refunding Bonds. The transactions may be effected only if (i) an independent certified public accountant shall certify to the Issuer and the Escrow Holder that the cash and principal amount of Escrow Investments remaining on hand after the transactions are completed, together with the interest due thereon, will be not less than the Escrow Requirement, and (ii) the Escrow Holder shall receive an unqualified opinion from a nationally recognized bond counsel, addressed to it and the Issuer, to the effect that the transactions will not constitute a breach of this Agreement or any provision of the Bond Resolution, and such transactions will not cause the Refunding Bonds or Refunded Bonds to be "arbitrage bonds" within the meaning of Section 148(a) of the Internal Revenue Code of 1986, as amended, and the regulations thereunder. Section 6. Redem~tion of Refunded Bonds. Certain of the Refunded Bonds will be re eemed prior to their stated dates of maturity as set forth in the excerpt from the Bond Resolution attached hereto as Schedule C. The Escrow Holder accepts its responsibilities in the Bond Resolution regarding dissemination of the notice of redemption. Section 7. Indemnity. To the extent authorized by law, the Issuer hereby assumes liability for, and hereby agrees (whether or not any of the transactions contemplated hereby are consummated) to indemnify, protect, save and keep harmless the Escrow Holder and its respective successors, assigns, agents and servants, from and against any and all liabilities, obligations, losses, damages, penalties, claims, actions, suits, costs, expenses and disbursements (including legal fees and disbursements) of whatsoever kind and nature which may be imposed on, incurred by, or asserted against at any time, the Escrow Holder (whether or not also indemnified against the same by the Issuer or any other person under any other agreement or instrument) and in any way relating to or arising out of the execution and delivery of this Agreement, the maintenance of the Escrow Account, the acceptance of the funds and securities deposited therein, the purchase of the Escrow Investments, the retention of the Escrow Investments or the proceeds thereof and any payment, transfer or other application of funds or securities by the Escrow Holder in accordance with the provisions of this 4 3247/MON59010/AC5 Agreement; prov~ded, however, that the Issuer shall not be required to indemnify' the Escrow Holder for its own negligence or willful misconduct. In no event shall the Issuer be liable to any person by reason of the transactions contemplated hereby, other than to the Escrow Holder as specifically set forth in this Section. The indemnities contained in this Section shall survive the termination of this Agreement and the resignation or removal of the Escrow Holder. Section 8. Responsibility of Escrow Holder. The Escrow Holder and its respective successors, assigns, agents and servants shall not be held to any personal liability whatsoever, whether to the Issuer or to third parties, in tort, contract, or otherwise, in connection with the execution and delivery of this Agreement, the maintenance of the Escrow Account, the acceptance of the funds deposited therein, the purchase of the Escrow Investments, the retention or other application of money or securities by the Escrow Holder in accordance with the provisions of this Agreement or by reason of any nonnegligent act, omission or error of the Escrow Holder made in good faith in the conduct of its duties. The Escrow Holder shall, however, be liable to the Issuer for its negligent or willful acts, omissions or errors which violate or fail to comply with the terms of this Agreement. The duties and obligations of the Escrow Holder shall be determined by the express provisions of this Agreement. The Escrow Holder may consult with counsel, who mayor may not be counsel to the Issuer, and in reliance upon the opinion of such counsel shall have full and complete authorization and protection in respect of any action taken, suffered or omitted by it in good faith in accordance therewith. Whenever the Escrow Holder shall deem it necessary or desirable that a matter be proved or established prior to taking, suffering or omitting any action under this Agreement, such matter may be deemed to be conclusively established by a certificate signed by an authorized officer of the Issuer. Section 9. Resignation of Escrow Holder. The Escrow Holder may resign and thereby become discharged from the duties and obligations hereby created, by notice in writing given to the Issuer and published once in a daily newspaper of general circulation or a financial journal published and/or of general circulation in the Borough of Manhattan, City and State of New York, including, but not limited to, The Bond Buyer, not less than 60 days before such resignation shall take effect. Such resignation shall take effect immediately upon the appointment of a new Escrow Holder hereunder. If the Refunded Bonds are outstanding in fully registered form, and the Escrow Holder is able to obtain from the bond registrar for the Refunded Bonds, a complete list of the holders thereof and their addresses, the Escrow Holder may mail the notice of resignation, within the time required, to the holders of the Refunded Bonds in lieu of publication of such notice. 5 3247/MON59010/AC5 Section 10. Removal of Escrow Holder. (a) The Escrow Holder may be removed at any time by an instrument or concurrent instruments in writing, executed by the holders of not less than 51% in aggregate principal amount of the Refunded Bonds then outstanding, such instruments to be filed with the Issuer, and notice in writing given by such holders to the original purchaser or purchasers of the Refunding Bonds, and published once in a daily newspaper of general circulation or a financial journal published and/or of general circulation in the Borough of Manhattan, City and State of New York, not less than 60 days before such removal is to take effect as stated in such instrument or instruments. A photographic copy of any instrument filed with the Issuer under the provisions of this paragraph shall be delivered by the Issuer to the Escrow Holder. If the Refunded Bonds are outstanding in fully registered form, and such holders of the Refunded Bonds are able to obtain from the bond registrar for the Refunded Bonds, a complete list of the remaining holders thereof and their addresses, such bondholders removing the Escrow Holder may mail such notice of removal, within the time required, to the remaining bondholders in lieu of publication of such notice. (b) The Escrow Holder may also be removed at any time for any breach of trust or for acting or proceeding in violation of, or for failing to act or proceed in accordance with, any provisions of this Agreement with respect to the duties and obligations of the Escrow Holder, by any court of competent jurisdiction upon the application of the Issuer or the holders of not less than 5% in aggregate principal amount of the Refunded Bonds then outstanding. Section 11. Successor Escrow Holder. (a) If at any time hereafter the Escrow Holder shall resign, be removed, be dissolved or otherwise become incapable of acting, or shall be taken over by any governmental official, agency, department or board, the position of Escrow Holder shall thereupon become vacant. If the position of Escrow Holder shall become vacant for any of the foregoing reasons or for any other reason, the Issuer shall appoint an Escrow Holder to fill such vacancy. The Issuer shall publish notice of any such appointment once in a daily newspaper of general circulation or a financial journal published and/or of general circulation in the Borough of Manhattan, City and State of New York, and, before the second publication of such notice, shall mail a copy thereof to the original purchaser or purchasers of the Refunding Bonds. If the Refunded Bonds are outstanding in fully registered form, the Issuer may mail or cause to be mailed, the notice of resignation, within the time required, to the holders of the Refunded Bonds in lieu of publication of such notice. 6 3Z47/MON59010/AC5 (b) If,at any' time within one year after such vacancy shall have occurred, 'the Issuer has not appointed a successor Escrow Holder in accordance with the provisions of paragraph (a) of this section, the holders of 51% in aggregate principal amount of the Refunded Bonds then outstanding, by an instrument or concurrent instruments in writing, executed by such bondholders and filed with the governing body of the Issuer, may appoint a successor Escrow Holder, which shall supersede any Escrow Holder theretofore appointed by the Issuer. Photographic copies of each such instrument shall be delivered promptly by the Issuer, to the predecessor Escrow Holder and to the Escrow Holder so appointed by the bondholders. (c) If no appointment of a successor Escrow Holder shall be made pursuant to the foregoing provisions of this section, the holder of any Refunded Bond then outstanding, or any retiring Escrow Holder may apply to any court of competent jurisdiction to appoint a successor Escrow Holder. Such court may thereupon, after such notice, if any, as such court may deem proper and prescribe, appoint a successor Escrow Holder. Section 12. Term; Amendments. (a) This Agreement shall commence upon its execution and delivery and shall terminate when the Refunded Bonds have been paid and discharged in accordance with the proceedings authorizing the Refunded Bonds. (b) All amendments to the prior written consent Refunded Bonds, and shall be hereto. to of in this Agreement shall be subject the holders of all the unpaid writing signed by both parties Section 13. Severability. If anyone or more of the covenants or agreements provided in this Agreement on the part of the Issuer or the Escrow Holder to be performed should be determined by a court of competent jurisdiction to be contrary to law, such covenant or agreements herein contained shall in no way affect the validity of the remaining provisions of this Agreement. Section 14. Counterparts. This Agreement may be executed in several counterparts, all or any of which shall be regarded for all purposes as duplicate originals and shall constitute and be but one and the same instrument. Section 15. Governing Law. This Agreement shall be construed under the laws of the State of Florida. 7 3247/MON59010/AC5 EXECUTION: The parties hereto have caused this Escrow Deposit Agreement to be executed by their duly authorized officers and their corporate seals to be hereunto affixed and attested as of the date first above written. MONROE COUNTY, FLORIDA (Seal) By Mayor, Board of County Commis- sioners of Monroe County, Florida Attested: Clerk, Board of County Commis- sioners of Monroe County, Florida 8 3247/MON59010/AC5 NATIONSBANK OF FLORIDA, N.A. Fort Lauderdale, Florida Escrow Holder (Corporate Seal) By Trust Officer 9 3247/MON5Q010/AC5 Schedule A Refunded Bonds Debt Service: 10 3247/MON59010/AC5 Schedule B Escrow Investments: The escrow investments consist of: $ par amount United States Treasury Notes, yielding %, maturing 199 , at a purchase price of $ Escrow Cash Flow: The escrow cash flow is as follows: 11 3247/MON59010/AC5 Schedule C SECTION 5.10. REDEMPTION OF CERTAIN REFUNDED BONDS. The Refunded Bonds maturing on and after December 1, 1997, are hereby called for redemption, as a whole, as of December 1, 1996, at a price of par plus accrued interest to December 1, 1996, plus a premium equal to 2% of the principal amount of the Refunded Bonds to be redeemed. The Notice of Redemption of such Refunded Bonds shall be in substantially the following form: NOTICE OF REDEMPTION MONROE COUNTY, FLORIDA IMPROVEMENT REVENUE BONDS, SERIES 1988A AND SERIES 1988B MATURING DECEMBER 1, 1997, AND THEREAFTER NOTICE IS HEREBY GIVEN, for and on behalf of Monroe county, Florida (the "County"), that all of its outstanding Improvement Revenue Bonds, Series 1988A and Series 1988B, both dated December 1, 1988, originally issued on December 14, 1988, and February 16, 1989, respectively, which mature in the year 1997 and thereafter, bearing interest and CUSIP numbers as follows: , in the aggregate principal amount of $5,430,000, and which are redeemable on December 1, 1996, at the option of the County, at the redemption price of the principal amount of each bond to be redeemed, together with interest accrued thereon to the date fixed for redemption, plus a premium equal to 2% of the par value thereof; will be redeemed on December 1, 1996. payment of the redemption price, plus accrued interest, of such bonds will be made on such December 1, 1996, redemption date, at the office of Midlantic National Bank and Trust Co., Fort Lauderdale, Florida, the paying agent for the bonds, upon surrender thereof. Interest on such bonds being redeemed will cease to accrue from and after such redemption date. Under the provisions of the Interest and Dividend Tax Compliance Act of 1983 (the "Act"), all holders submitting their bonds for redemption must submit a W-9 (Certificate of Taxpayer Identification Number) in order to avoid 31% backup withholding required under the Act. Dated and mailed this day of , 1996. MONROE COUNTY, FLORIDA By: Mayor, Board of County Commissioners 12 3247/MON59010/AC5 The escrow holder under the Escrow Deposit Agreement is hereby instructed and directed at least 30 days prior to such redemption date, to file the same with the bond registrar and paying agent for the Refunded Bonds to be redeemed; and to mail the same by first class mail, postage prepaid, to all registered owners of Refunded Bonds to be redeemed, at the addresses as they appear on the registration books, and to Financial Guaranty Insurance Company, New York, New York. The escrow holder is further instructed to file the notice of redemption at least 32 days before the redemption date, by registered or certified mail to all registered securities depositories then in the business of holding substantial amounts of obligations of types such as the Refunded Bonds (such depositories now being The Depository Trust Company of New York, New York; Midwest Securities Trust Company, Chicago, Illinois; and Philadelphia Depository Trust Company, Philadelphia, pennsylvania), and to one or more national information services that disseminate notices of redemption of obligations such as the Refunded Bonds (such as Financial Daily Called Bond Service of Financial Information, Inc.; Bond Service of Interactive Data Corporation; Called Bond Service of Kenny Information Service; and Called Bond Record of Standard & Poor's Corporation). The provisions of this Section shall not take effect until the Bonds have been issued pursuant to this Resolution. 13 3247/MON59010/AC5