Loading...
Resolution 134-1991 ~ ~ RESOLUTION NO. 134-1991 A RESOLUTION FIXING THE DATE, DENOMINATIONS, MATURITY SCHEDULE, INTEREST RATES, INTEREST PAYMENT DATES, REDEMPTION PROVISIONS AND BOND REGISTRAR, PAYING AGENT, ESCROW HOLDER AND CUSTODIAL TRUSTEE FOR $9,570,000 REFUNDING IMPROVEMENT BONDS, SERIES 1991, OF THE MONROE COUNTY MUNICIPAL SERVICE DISTRICT, MONROE COUNTY, FLORIDA; AWARDING THE BONDS AT NEGOTIATED SALE TO THE PURCHASER; APPROVING THE FORM AND DISSEMINATION OF THE OFFICIAL STATEMENT FOR THE BONDS; APPROVING THE FORMS OF ESCROW DEPOSIT AGREEMENT AND CUSTODIAL TRUST AGREEMENT; CANCELLING AUTHORIZATION FOR THE ISSUANCE OF THE BALANCE OF THE BONDS; AUTHORIZING ALL OTHER NECESSARY ACTION IN CONNECTION WITH THE ISSUANCE OF THE BONDS; AND PROVIDING AN EFFECTIVE DATE. BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA, acting as the governing body of the Monroe County Municipal Service District: SECTION 1. AUTHORITY FOR RESOLUTION. This resolution is adopted pursuant to Sections 215.84 and 218.385, Florida statutes, and other applicable provisions of law. SECTION 2. FINDINGS. determined and declared that: It is hereby ascertained, A. A resolution (the "Resolution") of the Board of County Commissioners of Monroe County, Florida (the "Governing Body"), the governing body of the Monroe County Municipal Service District (the "Issuer), duly adopted on March 12, 1991, authorized the issuance of not exceeding $11,000,000 Refunding Improvement Bonds, Series 1991 (the "Bonds"), to provide for the advance refunding of certain outstanding obligations of the Issuer and the acquisition and construction of certain capital projects in the area of the Issuer. B. Prior to changes have occurred interest rates on long to the Issuer. adoption of this resolution, significant in the municipal bond market regarding term municipal bonds, which are favorable C. Based upon all available information and advice from the staff of the Issuer, the Governing Body has determined that it is in the best interest of the Issuer to respond to these favorable market conditions without undue delay. D. There is insufficient time favorable market conditions by offering sale. to the respond to these Bonds for public E. A negotiated sale of these Bonds will result in the most favorable bond financing plan and is in the best interest of the Issuer. F. There has been filed with the Issuer, prior to adoption of this resolution, the disclosure statement required by Section 218.385(4), Florida Statutes. G. The Issuer has received a commitment (the "Commitment") for municipal bond insurance from Municipal Bond Investors Assurance Corporation (the "Insurer") and, therefore, expects to receive from Standard & Poor's Corporation, New York, New York, or Moody's Investors Service, New York, New York, prior to issuance of the Bonds, a bond rating in one of its 3 highest classifications. H. Merrill Lynch & Co., Clearwater, "Purchaser"), has by written proposal, offered $9,570,000 aggregate principal amount of the Bonds of $9,390,302.83, plus accrued interest to the date at the interest rates set forth below. Florida (the to purchase at the price of delivery, I. It is necessary and desirable at this time to fix the date, denominations, maturity schedule, interest rates, interest payment dates, redemption provisions and bond registrar, paying agent, escrow holder and custodial trustee for the Bonds; to award the Bonds at negotiated sale to the Purchaser; to approve the form and dissemination of the official statement for the Bonds; to approve the forms of the escrow deposit agreement and the custodial trust agreement; to cancel authorization for the issuance of the balance of the Bonds; and to authorize all other necessary action in connection with the issuance of the Bonds. SECTION 3. REMAINING FISCAL DETAILS FOR BONDS. The date, denominations, maturity schedule, interest rates, interest payment dates and redemption provisions for the Bonds shall be as set forth below. The Bonds shall be issued in the denomination of $5,000 each or any integral multiple thereof, shall be dated April 1, 1991, and shall bear interest payable on October 1, 1991, and semiannually thereafter on April 1 and October 1 of each year. Bonds in the aggregate principal shall be issued as serial Bonds, shall bear per annum and shall mature on October 1 in as follows: amount of $4,420,000 interest at the rates the years and amounts 2 3247/MON60003/ABl Interest Interest Year Amount Rate Year Amount Rate 1992 $180,000 5.20% 1998 $375,000 6.00% 1993 285,000 5.40 1999 405,000 6.15 1994 300,000 5.60 2000 425,000 6.30 1995 315,000 5.70 2001 455,000 6.40 1996 335,000 5.80 2002 480,000 6.50 1997 355,000 5.90 2003 510,000 6.60 Bonds in the aggregate principal amount of $5,150,000 shall be issued as term Bonds, shall mature on October 1, 2011, and shall bear interest at the rate of 6.75% per annum. Principal amounts of the term Bonds or portions thereof maturing on October 1, 2011, to be selected by lot, which shall be equal to the following mandatory amortization installments: Year Amount Year Amount 2004 $540,000 2008 $690,000 2005 580,000 2009 735,000 2006 615,000 2010 640,000 2007 650,000 2011 700,000 shall be redeemed on October 1 in such years prior to their maturity (except the installment maturing in the year 2011) by operation of the Bond Amortization Account, at the price of the principal amount thereof plus accrued interest to the date of prior redemption, or be purchased in the open market at a price not to exceed such redemption price. The Bonds or portions thereof maturing in the years 1992 to 1999, both inclusive, are not subject to redemption prior to their respective stated dates of maturity, at the option of the Issuer. The Bonds or portions thereof maturing in the year 2000 and thereafter shall, at the option of the Issuer, be redeemable other than by operation of the Bond Amortization Account, in whole at any time on or after October 1, 1999, or in part, in such manner determined by the Issuer, on October 1, 1999, or on any interest payment date thereafter, at a price of par and accrued interest, plus the premiums specified below, expressed as percentages of the principal amount of the Bonds or portions thereof to be so redeemed, if redeemed during the following periods: Redemption Period (both dates inclusive) October 1, 1999, to september 30, 2000 October 1, 2000, to September 30, 2001 October 1, 2001, and thereafter Premium 2% 1 o 3 3247/MON60003/ABl SECTION 4. BOND REGISTRAR, PAYING AGENT AND ESCROW HOLDER. The bond registrar, paying agent and escrow holder with respect to the Bonds shall be Citizens and Southern National Bank (Florida), Fort Lauderdale, Florida. The Escrow Deposit Agreement, in substantially the form attached hereto as Exhibit A, is hereby approved. SECTION 5. CUSTODIAL TRUSTEE. The custodial trustee with respect to certain of the funds and accounts created and established by the Resolution shall be First Union National Bank of Florida, Miami, Florida. The custodial Trust Agreement, in substantially the form attached hereto as Exhibit B, is hereby approved. SECTION 6. AWARD OF BONDS. Bonds in the aggregate principal amount of $9,570,000 are hereby awarded and sold to the Purchaser at the price of $9,390,302.83, plus accrued interest to the date of delivery, bearing interest as stated above, and upon the remaining terms and conditions of the purchase proposal. SECTION 7. STATEMENT OF INSURANCE. There shall be printed on the back of each Bond a statement to the effect that payment of the principal of and interest on the Bonds is insured by the Insurer, and the proper officer of the Issuer is authorized and directed to pay the premium for such insurance upon the delivery of the Bonds. SECTION 8. OFFICIAL STATEMENT. The form and dissemination of the preliminary official statement ("deemed final" (except for permitted omissions) as of its date for purposes of SEC Rule 15c2-12(b)(1)) with respect to and in connection with the marketing of the Bonds are hereby approved. The proper officers or agents of the Governing Body or of the Issuer are hereby authorized and directed to prepare, or cause to be prepared, the final official statement for the Bonds in substantially the form of the preliminary official statement, with such changes and additions as may be requested from time to time by the officers or agents of the Issuer, without further authorization from this Governing Body. SECTION 9. CANCELLATION OF BALANCE OF BONDS. The authorization for issuance of the unsold balance of the Bonds is hereby cancelled and rescinded. SECTION 10. NECESSARY ACTION. The proper officers of the Issuer are hereby designated agents of the Issuer in connection with the issuance of the Bonds, and are authorized and empowered, individually or collectively, to take all action and steps and to execute and deliver any and all instruments, documents or contracts on behalf of the Issuer which are required by the Resolution and/or are necessary and desirable in connection with the execution and delivery of the Bonds, and which are not inconsistent with this resolution and any other action relating to the Bonds. 4 3247/MON60003/ABl SECTION 11. 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 12. EFFECTIVE DATE. This resolution shall take effect immediately upon its adoption. PASSED AND ADOPTED by the Board of County Commissioners of Monroe County, Florida, acting as the governing body of the Monroe County Municipal Service District, at a special meeting of the Board held on April 10, 1991. [SEAL] BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA ~ -, ~ . 0 VlI' -: ~ ""-~ Mayor ~~ ATTEST:DANNY L. XOLHAGE, Clerk fflL ~1I.A~ Approved as to Form and Legal SUffiC~i 'i " By ( ~ Coun y At -;;::: 5 3247/MON80003/ABl EXHIBIT A SS&D Draft Dated 04/04/91 ESCROW DEPOSIT AGREEMENT THIS ESCROW DEPOSIT AGREEMENT, dated as of April , 1991, is by and between the MONROE COUNTY MUNICIPAL SERVICE DISTRICT, Monroe County, Florida (the "Issuer"), and CITIZENS AND SOUTHERN TRUST COMPAN~ (FLORIDA), NATIONAL ASSOCIATION, 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 Refunding Improvement Bonds, Series 1985, dated December 1, 1985 (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 County Commissioners of Monroe County, Florida, the governing body of the Issuer. (e) "Bond Resolution" means the resolution of the Board duly adopted on March 12, 1991, as amended and supplemented, providing for the issuance of the Refunding Bonds. (f) "Escrow Account" means the Escrow Account, created and established by the Bond Resolution, and held by the Escrow Holder pursuant to this Agreement, in which cash and investments will be held for payment of the Refunded Bonds. Company Florida. (g) "Escrow Holder" (Florida), National means Citizens and Southern Trust Association, Fort Lauderdale, (h) "Escrow Investments" means direct obligations of, or obligations the principal of and the interest on which are unconditionally guaranteed by, the United States of America. (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) "Issuer" means the Monroe County Municipal Service District, Monroe County, Florida. (1) "Refunding Bonds, Series 1991, of Resolution. Bonds" means the Refunding Improvement the Issuer, described in the Bond Section 2. Deposit of Funds. The Issuer hereby deposits $ 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: proceeds $ $ are (a) $ of such funds are derived from the net of the Refunding Bonds and $ (representing from the sinking fund for such Refunded Bonds and from the reserve account in such fund) of such funds 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 2 3Z47/MON60003/AA3 and the interest due thereon, Requirement as of the date of Schedule C attached hereto. at least equal to the Escrow such deposit, as demonstrated in Section 3. Use and Investment of Funds. The Escrow Holder acknowledges receipt of the sum described in Section 2 and agrees: (a) to hold the 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 and other income 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 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 have a reasonable time to 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) surrlus. 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 HOlida~s. 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. 3 3Z47/MON60003/AA3 Section 5. Reinvestment. (a) Except as provided in Section 3 and 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. (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. 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) a nationally recognized 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 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. Redemption of Refunded Bonds. The Refunded Bonds will be redeemed prior to their stated dates of maturity as set forth in the Bond Resolution. 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 4 3247/MON60003/AA3 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 Agreement; provided, 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. Section 8. Reslonsibility of Escrow Holder. The Escrow Holder and its respec ive successors, assigns, agents and servants shall not be held to any personal liability whatsoever, 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, 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 such new Escrow Holder shall be appointed before the time limited by such notice, and shall then accept the duties and obligations thereof. If the Refunded Bonds are outstanding in fully registered form, and the Escrow Holder is able to obtain from the bond registrar for the 5 3247/MON60003/AA3 Refunded Bonds, a complete list of the holders thereof and their addresses, the Escrow Holder shall mail the notice of resignation, within the time required, to the holders of the Refunded Bonds in lieu of publication of such notice. 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 shall 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, but only with the written approval of the original purchaser of the Refunding Bonds, or the corporate successor or successors of the original purchaser, which approval shall not be unreasonably withheld, 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 6 3247/MON60003/AA3 the original purchaser or purchasers of the Refunding Bonds. If the Refunded Bonds are outstanding in fully registered form, the Issuer shall 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. (b) At any time within one year after such vacancy shall have occurred, 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 this Agreement shall be in writing signed by both parties hereto. 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 3Z47/MON60003/AA3 EXECUTION: The parties hereto have Agreement to be executed by their their corporate seals to be hereunto the date first above written. caused this Escrow Deposit duly authorized officers and affixed and attested as of MONROE COUNTY MUNICIPAL SERVICE DISTRICT (Seal) By Mayor, Board of County Commissioners, Monroe County, Florida Attested: Clerk, Board of County Commis- sioners, Monroe County, Florida , Florida (Corporate Seal) Escrow Holder By Vice President 8 3247/MON&0003/AA3 EXHIBIT B SS&D Draft Dated 04/04/91 CUSTODIAL TRUST AGREEMENT THIS AGREEMENT, made and entered into this April , 1991, by and between the Monroe County Municipal Service District, Monroe County, Florida (hereinafter called "District"), and First Union National Bank of Florida, Miami, Florida (hereinafter sometimes called "Trustee"); WIT N E SSE T H: WHEREAS, the District has heretofore authorized the issuance of not exceeding $11,000,000 Refunding Improvement Bonds, Series 1991 (hereinafter called "Bonds"), by a resolution duly adopted by the Board of County Commissioners of Monroe County, Florida, the governing body of the District (hereinafter called "BOard"), on March 12, 1991, as amended and supplemented (hereinafter collectively called "Resolution"); and WHEREAS, the District Sinking Fund, a Reserve Account, a Renewal and Replacement Fund; into such Funds and Accounts; and Funds and Accounts; and by the Resolution established a a Bond Amortization Account and provided for money to be paid set forth the purposes of such WHEREAS, the Board desires that First Union National Bank of Florida, Miami, Florida, serve as custodial trustee for the above Funds and Accounts; and WHEREAS, it is considered advisable and in the best interest of the District and the holders of the Bonds that the terms of the trust be set forth in writing; and WHEREAS, the Trustee is willing to accept appointment as custodial trustee for the above Funds and Accounts, and the execution of this agreement has been duly authorized by the Board and by the Board of Directors of the Trustee; NOW, THEREFORE, it is mutually covenanted and agreed by and between the District and the Trustee as follows: Section 1. Defined the Resolution which appear meaning ascribed to them by herein otherwise requires. Terms. That all defined terms in in this agreement shall have the the Resolution, unless the context Section 2. APaointment of Trustee. That First Union National Bank of Flori a, Miami, Florida, is hereby appointed Trustee to do and perform all acts required of the Trustee under the Resolution and in accordance with the provisions of this agreement. Section 3. Funds Held b~ Trustee. That the Sinking Fund, the Reserve Account, the Bon Amortization Account and the Renewal and Replacement Fund created by the Resolution are hereby established with and shall be held by the Trustee. The Revenue Fund and the Operation and Maintenance Fund, created by the Resolution, shall be held by the District. Section 4. Disposition of Trust Funds. That there is annexed hereto as composite Exhibit "A," and incorporated herein by reference, a certified copy of the Resolution which bears directly upon the duties of the Trustee and the manner of handling such Funds and Accounts. The Pledged Funds (to the extent their disposition is subject to the terms of this agreement) shall be deposited, held, invested and disbursed in accordance with Sections 4.02 and 4.03 of the Resolution. The District shall furnish the Trustee instructions, from time to time, regarding the investment of Pledged Funds subject to the custody of the Trustee. Section 5. Inspection of Documents. That all original documents received by the Trustee as required herein, and evidence of payment, shall be retained in possession of the Trustee, subject at all reasonable times to the inspection of the Board, the holders of the Bonds and the agents and representatives thereof. Section 6. Acce~tance accepts and agrees to execu e the upon the terms set forth in this parties hereto agree. of Trust. That the Trustee trust hereby created, but only agreement, to all of which the Section 7. Use of A ents That the Trustee may execu e any 0 perform the duties required by agents or employees, and shall be entitled to advice of counsel concerning all matters of trust hereof and its duty hereunder. Section 8. Reliance by Trustee Upon Documents of District. That the Trustee shall be protected and shall incur no liability in acting or proceeding in good faith upon any resolution, notice, telegram, request, consent, statement, affidavit, certification, voucher, bond or other paper or document which it shall in good faith believe to be genuine and to have been passed or signed by the proper officers, agents, or employees of the District, or to have been prepared and furnished pursuant to any of the provisions of this agreement; and the Trustee shall be under no duty to make any investigation or inquiry as to any statements contained or matters referred to in any such instrument, but may accept and rely upon the same as conclusive evidence of the truth and accuracy of such statement. 2 3247/MON60003/AA9 Section 9. Trustee may be Bondholder. That the Trustee may in good faith, buy, sell, own, hold and deal in any of the Bonds and may join in any action which any bondholder may be entitled to take with like effect as if the Trustee were not a party to this agreement. The Trustee may also engage in or be interested in any financial or other transaction with the District and may act upon, or as depositary, trustee, or agent for, any committee or body of holders of the Bonds secured hereby, or other obligations of the District as freely as if it were not Trustee hereunder. Section 10. Construction of A reement b Trustee. That the Trustee may construe any 0 e provisions 0 is agreement insofar as the same may appear to be ambiguous or inconsistent with any other provisions hereof, and any construction of any such provisions thereof by the Trustee in good faith shall be binding upon the parties hereto. Section 11. Resignation of Trustee. That the Trustee may resign and be discharged of the trust created by this agreement by executing an instrument in writing resigning such trust, specifying the date when such resignation shall take effect, and filing the same with the Clerk of the Board not less than 60 days before the date specified in such instrument when such resignation shall take effect. Such resignation shall take effect on the day specified in such instrument unless a successor trustee shall be previously appointed as hereinafter provided, in which event such resignation shall take effect immediately on the appointment of such successor trustee. Section 15. Transfer of Trust Estate to Successor Trustee. That any successor trustee appointed hereunder shall execute, acknowledge and deliver to the District an instrument accepting such appointment hereunder, and thereupon such successor trustee, without any further act, deed or conveyance, shall become fully vested with all the estate, property, rights, powers, trusts, duties and obligations of its predecessors in the trust hereunder, with like effect as if originally named trustee herein. Upon request of such trustee, the trustee ceasing to act and the District shall execute and deliver an instrument transferring to such successor trustee all the estates, properties, rights, powers and trusts hereunder of the trustee so ceasing to act; and the trustee so ceasing to act shall pay over to the successor trustee all money at the time held by it hereunder. Section 16. Consolidation or Merger of Trustee. That any corporation into which any trustee may be merged or with which it may be consolidated, or any corporation resulting from any merger or consolidation to which any trustee hereunder shall be a party, shall be the successor trustee under this agreement without the execution or filing or any paper or further act on the part of the parties hereto, anything herein to the contrary notwithstanding. 3 3247/MON60003/AA9 Section 17. payment of District shall pay the Trustee the Operation and Maintenance the Resolution, and held by the Expenses of Trustee. That the its proper fees and expenses from Fund, created and established by District. Section 18. Modification or Amendment. That no adverse material modification or amendment of this agreement or of any agreement 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 the Bonds then outstanding to be affected by such modification or amendment and, if the Bonds are then covered by a municipal bond insurance policy issued by Municipal Bond Investors Assurance Corporation, Armonk, New York ("MBIA"), and MBIA is not then in default under such policy, the consent of MBIA; provided, however, that no modification or amendment shall reduce such percentage of holders of such Bonds, required above, for such modifications or amendments, without the consent of the holders of all of such Bonds. Section 19. Agreement for Benefit of Bondholders. That this agreement shall be deemed to have been and is made for the benefit of the holders from time to time of the Bonds and shall be enforceable by any of the holders thereof in the manner provided in the Resolution and the laws of Florida. IN WITNESS WHEREOF, Monroe County Municipal Service District, Monroe County, Florida, has caused its seal to be hereunto affixed and attested by the Clerk of the Board and these presents to be signed by the Mayor of the Board; and First Union National Bank of Florida, Miami, Florida, has caused its corporate seal to be hereunto affixed and attested by its Trust Officer, and these presents to be signed by its Assistant vice President as of the day and year first above written. MONROE COUNTY MUNICIPAL SERVICE DISTRICT (District Seal) Attest: By Mayor, Board of County Commissioners, Monroe County, Florida Clerk, Board of County Commissioners, Monroe County, Florida 4 3247/MON80003/AA9 (Corporate Seal) Attest: Trust Officer 3Z47/MON60003/AA9 FIRST UNION NATIONAL BANK OF FLORIDA Trustee By Assistant Vice President 5