Resolution 238A-2006
RESOLUTION NO. 238A-2006
A RESOLUTION APPROVING THE ISSUANCE BY
MONROE COUNTY, FLORIDA OF ITS AIRPORT
VARIABLE RATE REVENUE BONDS (KEY WEST
INTERNATIONAL AIRPORT), SERIES 200M TO
FINANCE CERTAIN CAPITAL IMPROVEMENTS
RELATING TO THE KEY WEST INTERNATIONAL
AIRPORT; PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, Monroe County, Florida (the "County") desires to issue its Airport
Revenue Bonds (Key West International Airport), Series 2006A (the "Bonds") in an
amount not to exceed $33,000,000 in order to finance certain capital improvements to the
Key West International Airport (the "Project"); and
WHEREAS, the County desires to approve, for purposes of Section l47(f) of the
Internal Revenue Code of 1986, as amended, the issuance of its Bonds in order to fmance
the Project;
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY
COMMISSIONERS OF MONROE COUNTY, FLORIDA:
SECTION 1. AUTHORITY. This resolution is adopted pursuant to the
laws of the State of Florida.
SECTION 2.
declares as follows:
FINDINGS. The County hereby finds, determines and
A. Notice of a public hearing to be held on the date hereof, inviting comments
and discussion concerning the issuance of the Bonds and the Project, was published in the
June 5, 2006 edition of the Key West Citizen, a newspaper of general circulation in
Monroe County, Florida, at least 14 days prior to the date of such public hearing. The
proof of publication of such notice is on file with the Clerk to the Board of County
Commissioners.
B. A public hearing was held on the date hereof, during which comments and
discussions concerning the issuance of the Bonds and the Project was requested, and any
concerned persons were heard.
C. The Board of County Commissioners is the elected legislative body and has
jurisdiction over the entire area in which the Project is located.
SECTION 3. APPROVAL. For purposes of Section l47(f) of the Internal
Revenue Code of 1986, as amended, the County hereby approves the issuance of the
Bonds and the Project.
SECTION 4. EFFECTIVE DATE. This resolution shall become effective
immediately upon its adoption.
ADOPTED at a meeting of the Board of County Commissioners on the 21st of
June, 2006.
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ATTESt, DANNY L. KOLHAGE, Clerk
BOARD OF COUNTY COMMISSIONERS OF
MONROE COUNTY, FLORIDA
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MONROE COUNTY, FLORIDA
•
AIRPORT REVENUE BOND RESOLUTION
(KEY WEST INTERNATIONAL AIRPORT)
ADOPTED JUNE 21, 2006
TABLE OF CONTENTS
PAGE
ARTICLE I
GENERAL
SECTION 1.01. DEFINITIONS 1
SECTION 1.02. AUTHORITY FOR RESOLUTION 14
SECTION 1.03. RESOLUTION TO CONSTITUTE CONTRACT 14
SECTION 1.04. FINDINGS 15
SECTION 1.05. AUTHORIZATION OF 2006 PROJECT 15
ARTICLE II
AUTHORIZATION,TERMS,EXECUTION AND REGISTRATION OF BONDS
SECTION 2.01. AUTHORIZATION OF BONDS 16
SECTION 2.02. AUTHORIZATION AND DESCRIPTION OF SERIES
2006 BONDS. 16
SECTION 2.03. APPLICATION OF SERIES 2006 BOND PROCEEDS 17
SECTION 2.04. EXECUTION OF BONDS 18
SECTION 2.05. AUTHENTICATION... 18
SECTION 2.06. TEMPORARY BONDS 18
SECTION 2.07. BONDS MUTILATED, DESTROYED, STOLEN OR
LOST 19
SECTION 2.08. INTERCHANGEABILITY,NEGOTIABILITY AND
TRANSFER 19
SECTION 2.09. FORM OF BONDS 21.
ARTICLE III
REDEMPTION OF BONDS
SECTION 3.01. PRIVILEGE OF REDEMPTION 29
SECTION 3.02. SELECTION OF BONDS TO BE REDEEMED 29
SECTION 3.03. NOTICE OF REDEMPTION 29
SECTION 3.04. REDEMPTION OF PORTIONS OF BONDS 30
SECTION 3.05. PAYMENT OF REDEEMED BONDS 31
ARTICLE IV
SECURITY, SPECIAL FUNDS AND APPLICATION THEREOF
SECTION 4.01. BONDS NOT TO BE INDEBTEDNESS OF ISSUER 32
SECTION 4.02. SECURITY FOR BONDS 32
SECTION 4.03. CONSTRUCTION FUND 32
SECTION 4.04. CREATION OF FUNDS AND ACCOUNTS 34
SECTION 4.05. DISPOSITION OF GROSS REVENUES AND OTHER
AVAILABLE MONEYS 35
i
SECTION 4.06. PFC CAPITAL IMPROVEMENT FUND 44
SECTION 4.07 REBATE FUND 44
SECTION 4.08 INVESTMENTS 45
SECTION 4.09 SEPARATE ACCOUNTS 46
SECTION 4.10 GOVERNMENT GRANTS. 47
ARTICLE V
COVENANTS
SECTION 5.01. GENERAL 48
SECTION 5.02. ANNUAL BUDGET. 48
SECTION 5.03. RATES 48
SECTION 5.04 BOOKS AND RECORDS 49
SECTION 5.05 ANNUAL AUDIT 49
SECTION 5.06 NO MORTGAGE OR SALE OF THE AIRPORT 50
SECTION 5.07 INSURANCE 51
SECTION 5.08 ENFORCEMENT OF COLLECTIONS. 52
SECTION 5.09 NO COMPETING FACILITIES 52
SECTION 5.10 CONSULTANTS 52
SECTION 5.11 ANNUAL INSPECTION 52
SECTION 5.12 ISSUANCE OF OBLIGATIONS NOT SECURED
HEREUNDER-SPECIAL PURPOSE FACILITIES
BONDS 53
SECTION 5.13. MAINTENANCE OF PFC REVENUES 53
SECTION 5.14. COMPLIANCE WITH PFC ACT,PFC REGULATIONS
AND PFC APPROVALS 53
SECTION 5.15. MANAGEMENT OF AIRPORT 54
SECTION 5.16. OPERATION OF THE AIRPORT 54
SECTION 5.17. COVENANTS WITH CREDIT BANKS AND INSURERS 55
SECTION 5.18. FEDERAL INCOME TAXATION COVENANTS;
TAXABLE BONDS 55
SECTION 5.19. HEDGE AGREEMENTS 56
ARTICLE VI
SUBORDINATED INDEBTEDNESS AND ADDITIONAL BONDS
SECTION 6.01. SUBORDINATED INDEBTEDNESS. 57
SECTION 6.02. ISSUANCE OF ADDITIONAL BONDS 57
SECTION 6.03. BOND ANTICIPATION NOTES 59
ARTICLE VII
DEFAULTS AND REMEDIES
SECTION 7.01. EVENTS OF DEFAULT 60
SECTION 7.02. REMEDIES 60
ii
SECTION 7.03. DIRECTIONS TO TRUSTEE AS TO REMEDIAL
PROCEEDINGS. 61
SECTION 7.04. REMEDIES CUMULATIVE 61
SECTION 7.05. WAIVER OF DEFAULT 61
SECTION 7.06. APPLICATION OF MONEYS AFTER DEFAULT 62
SECTION 7.07. CONTROL BY CREDIT BANK 63
ARTICLE VIII
SUPPLEMENTAL RESOLUTIONS
SECTION 8.01. SUPPLEMENTAL RESOLUTION WITHOUT
BONDHOLDERS' CONSENT 64
SECTION 8.02. SUPPLEMENTAL RESOLUTION WITH
BONDHOLDERS'AND INSURER'S CONSENT 65
SECTION 8.03. AMENDMENT WITH CONSENT OF INSURER AND
CREDIT BANK ONLY 66
ARTICLE IX •
MISCELLANEOUS
SECTION 9.01. DEFEASANCE 68
SECTION 9.02. CAPITAL APPRECIATION BONDS 69
SECTION 9.03. SALE OF BONDS 70
SECTION 9.04. SEVERABILITY OF INVALID PROVISIONS 70
SECTION 9.05. VALIDATION AUTHORIZED 70
SECTION 9.06. REPEAL OF INCONSISTENT RESOLUTIONS 70
SECTION 9.07. EFFECTIVE DATE 70
EXHIBIT A Description of 2006 Project A-1
iii
RESOLUTION NO. 238B-2006
A RESOLUTION OF THE BOARD OF COUNTY
COMMISSIONERS OF MONROE COUNTY, FLORIDA,
AUTHORIZING THE ISSUANCE OF NOT EXCEEDING
$33,000,000 IN AGGREGATE PRINCIPAL AMOUNT OF
AIRPORT VARIABLE RATE REVENUE BONDS (KEY
WEST INTERNATIONAL AIRPORT), SERIES 2006 TO
FINANCE THE COST OF MAKING IMPROVEMENTS
TO THE KEY WEST INTERNATIONAL AIRPORT;
PROVIDING A PLEDGE OF THE NET REVENUES
DERIVED FROM THE OPERATION OF THE AIRPORT
AND CERTAIN OTHER AVAILABLE MONEYS TO
SECURE PAYMENT OF THE PRINCIPAL OF AND
INTEREST ON SAID BONDS; PROVIDING FOR THE
RIGHTS OF THE HOLDERS OF SAID BONDS; AND
PROVIDING FOR AN EFFECTIVE DATE FOR THIS
RESOLUTION. •
BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF
MONROE COUNTY,FLORIDA:
ARTICLE I
GENERAL
SECTION 1.01. DEFINITIONS. When used in this Resolution, the
following terms shall have the following meanings, unless the context clearly otherwise
requires:
"Accreted Value" shall mean, as of any date of computation with respect to any
Capital Appreciation Bond, an amount equal to the principal amount of such Capital
Appreciation Bond (the principal amount at its initial offering) plus the interest accrued
on such Capital Appreciation Bond from the date of delivery to the original purchasers
thereof to the Interest Date next preceding the date of computation or the date of
computation if an Interest Date, such interest to accrue at a rate not exceeding the legal
rate, compounded semiannually, plus, with respect to matters related to the payment of
the Capital Appreciation Bonds prior to maturity thereof, if such date of computation
shall not be an Interest Date, a portion of the difference between the Accreted Value as of
the immediately preceding Interest Date and the Accreted Value as of the immediately
succeeding Interest Date, calculated based on the assumption that Accreted Value accrues
during any semi-annual period in equal daily amounts on the basis of a 360-day year.
1
"Act" shall mean Chapter 125,Part I, and Chapter 332, Florida Statutes; and other
applicable provisions of law.
"Additional Bonds" shall mean the obligations issued at any time under the
provisions of Section 6.02 hereof on a parity with the Series 2006 Bonds.
"Additional Project" shall mean any structure, property or facility which the
Issuer from time to time may determine to construct or acquire as part of the Airport,
together with all equipment, structures, facilities and other property necessary or
appropriate in connection therewith which are financed in whole or in part with the
indebtedness secured by this Resolution.
"Airport" shall mean the real property and airport and aviation facilities
constituting the existing Key West International Airport, the 2006 Project, all Additional
Projects and all Improvements to the Airport.
"Airport Consultant" means any engineer, engineering firm, firm of certified
public accountants, airport consulting firm or corporation, or other qualified Person of
favorable repute for skill and experience in performing the duties for which it is
employed by the Issuer under Section 5.10 of this Resolution.
"Airport Reserve Fund" shall mean the fund created pursuant to Section 4.04(E)
hereof.
"Annual Audit" shall mean the annual audit prepared pursuant to the
requirements of Section 5.05 hereof.
"Annual Budget" shall mean the annual budget prepared pursuant to the
requirements of Section 5.02 hereof.
"Annual Debt Service" shall mean the aggregate amount of Debt Service on the
Bonds for each applicable Fiscal Year.
"Authorized Investments" shall mean any investment allowable under
applicable law that is approved by the Governing Body of the Issuer.
"Authorized Issuer Officer" shall mean the Aviation Director, and when used in
reference to any act or document, also means any other person authorized by resolution
of the Issuer to perform such act or sign such document.
"Aviation Director" shall mean the Aviation Director of the Issuer or his or her
designee.
2
"Bank" shall mean Bank of America, N.A., and any successor thereto as Credit
Bank for the Credit Facility related to the Series 2006 Bonds.
"Bond Counsel" shall mean Nabors, Giblin & Nickerson, P.A., or any other
attorney at law or firm of attorneys, of nationally recognized standing in matters
pertaining to the federal tax exemption of interest on obligations issued by states and
political subdivisions, and duly admitted to practice law before the highest court of any
state of the United States of America.
"Bondholder" or "Holder" or "holder" or any similar term, when used with
reference to a Bond or Bonds, shall mean any person who shall be the registered owner of
any Outstanding Bond or Bonds as provided in the registration books of the Issuer.
"Bond Insurance Policy" shall mean the municipal bond new issue insurance
policy or policies issued by an Insurer guaranteeing the payment of the principal of and
interest on any portion of the Bonds.
"Bonds" shall mean the Series 2006 Bonds, together with any Additional Bonds
issued pursuant to this Resolution.
"Capital Appreciation Bonds" shall mean those Bonds which may be either
Serial Bonds.or Term Bonds and which shall bear interest payable only at maturity or
redemption. In the case of Bonds that convert to or from Capital Appreciation Bonds
with interest payable prior to maturity or mandatory redemption of such Bonds, such
Bonds shall be considered Capital Appreciation Bonds only during the period of time
interest accrues and is not payable to the Holder thereof.
"Clerk" shall mean the Clerk of the Circuit Court in and for Monroe County,
Florida, ex-officio Clerk to the Board of County Commissioners of Monroe County,
Florida, and such other person as may be duly authorized to act on his or her behalf.
"Code" shall mean the Internal Revenue Code of 1986, as amended, and the
regulations and rules thereunder in effect or proposed.
"Construction Fund" shall mean the fund established pursuant to Section 4.03
hereof.
"Cost," when used in connection with a Project, shall mean all expenses
associated with the acquisition, construction, installation, reconstruction, renewal or
replacement thereof, including without limitation: (1) land and interests therein, property
rights, and easements of any nature whatsoever; (2) physical construction, reconstruction,
renewal, replacement or completion; (3) acquisition and installation of machinery,
equipment and other tangible personal property; (4) planning, architectural, engineering,
3
surveying, legal, environmental and other consultant services; (5) fees and expenses
associated with the issuance of Bonds and other Issuer debt, including but not limited to
bond counsel, disclosure counsel, financial advisor, underwriters' discount, rating
agencies, bond insurance, credit or liquidity facilities, and printing the Bonds and other
Issuer debt and supporting documentation; (6) interest accruing on the Bonds and other
Issuer debt for such period of time as the Issuer deems appropriate; (7) deposits to the
Reserve Account; and (8) all other expenses that are properly attributable thereto under
generally accepted accounting principles, including reimbursement to the Issuer for any
moneys advanced for such purpose and interest on any interfund loan for such purposes.
"Counterparty" shall mean the entity entering into a Hedge Agreement with the
Issuer. Counterparty would also include any guarantor of such entity's obligations under
such Hedge Agreement.
"Credit Bank" shall mean as to any particular Series of Bonds, the Person (other
than an Insurer) providing a letter of credit, a line of credit or other credit or liquidity
facility, as designated in the Supplemental Resolution providing for the issuance of such
Bonds.
"Credit Facility" shall mean as to any particular Series of Bonds, an irrevocable
letter of credit, a line of credit or other credit or legal liquidity facility (other than an
insurance policy issued by an Insurer), as approved in the Supplemental Resolution
providing for the issuance of such Bonds.
"Debt Service" shall mean, at any time, the aggregate amount in the then
applicable period of time of (1) interest required to be paid on the Outstanding Bonds
during such period of time, except to the extent that such interest is to be paid from
deposits in the Interest Account made from Bond proceeds, (2) principal of Outstanding
Serial Bonds maturing in such period of time, and (3) the Sinking Fund Installments
herein designated with respect to such period of time. For purposes of this definition, (A)
all amounts payable on a Capital Appreciation Bond shall be considered a principal
payment in the year it becomes due, (B) subject to the provisions of Section 5.19 hereof,
with respect to debt service on any Bonds which are subject to a Qualified Hedge
Agreement, interest on such Bonds during the term of such Qualified Hedge Agreement
shall be deemed to be the Hedge Payments coming due during such period of time, (C) if
any Series of Bonds has 25% or more of the aggregate principal amount of such Series
coming due in any one year, Debt Service shall be determined on such Series during such
period of time as if the principal of and interest on such Series were being paid from the
date of incurrence thereof in substantially equal annual amounts over a period of 25 years
from the date of calculation, and (D) the amount on deposit in the Reserve Account (or
any subaccount thereof) on any date of calculation of Debt Service shall be deducted
from the amount of principal due at the final maturity of the Bonds which are secured by
4
such Reserve Account (or subaccount thereof) and in each preceding year until such
amount is exhausted.
"Eligible PFC Revenues" shall mean PFC Revenues which shall be legally
available to pay the principal of and interest on the Bonds in accordance with the PFC
Act and the PFC Authority.
"FAA" shall mean the Federal Aviation Administration, or the successor to its
power and authority.
"Federal Securities" shall mean direct obligations of the United States of
America. Notwithstanding anything herein to the contrary, "Federal Securities" shall
additionally include securities fully and unconditionally guaranteed as to the payment of
principal and interest by the United States of America and approved by all Insurers and
Credit Banks, to which guarantee the full faith and credit of the United States of America
has been pledged, where such securities shall be scheduled to mature at times sufficient
to ensure that moneys paid by the United States of America to honor such guarantee
obligation are available to pay when due the principal of and premium, if any, and
interest due and to become due on Bonds deemed paid within the meaning of Section
9.01 of this Resolution on or prior to the redemption date or maturity date thereof, as the
case may be.
"Fiscal Year" shall mean the period commencing on October 1 of each year and
continuing through the next succeeding September 30, or such other period as may be
prescribed by law.
"Fitch" shall mean Fitch Ratings and any assigns and successors thereto.
"Fund Balance" shall mean all moneys in the Airport Reserve Fund and the PFC
Capital Improvement Fund, provided such amounts are legally available to pay debt
service on the Bonds. For purposes of any calculation performed for purposes of
Sections 5.03(A), 5.03(B) and 6.02(B) hereof, Fund Balance shall be calculated as of the
last day of the Fiscal Year most recently concluded prior to the date of such calculation.
"Governing Body" shall mean the Board of County Commissioners of Monroe
County,Florida, or its successor in function.
"Government Grant," when used with respect to the Airport, shall mean any
sum of money heretofore or hereafter received by the Issuer from the United States of
America or any agency thereof or from the State of Florida or any agency or political
subdivision thereof as or on account of a grant or contribution, not repayable by the
Issuer, for or with respect to the construction, acquisition or other development of an
addition, extension or improvement to any part of the Airport or any costs of any such
5
construction, acquisition or development. Government Grant shall not include any grants
or contributions received by the Issuer for purposes of, or which may be used, without
violating any obligation of the Issuer or condition of such grant, for the purposes of(1)
funding Operating and Maintenance Costs or(2) paying debt service on obligations of the
Issuer. Any grants or contributions described in the preceding sentence shall be
considered "Gross Revenues."
"Gross Revenues" or "Revenues" shall mean for any period all moneys paid or
accrued for the use of and for services and facilities furnished by, or in connection with
the ownership or operation of, the Airport, or any part thereof or the leasing or use
thereof, including, but not limited to (1) rentals, (2) concession fees, (3) use charges,
(4) landing fees, (5) license and permit fees, (6) service fees and charges, (7) moneys
from the sale of fuel, and or other merchandise, and (8) Investment Earnings; provided,
however, that Gross Revenues shall not include (A) proceeds received from the sale of
Bonds, Subordinated Indebtedness or Special Purpose Facilities Bonds, (B) proceeds
from the sale or taking by eminent domain of any part of the Airport, (C) gifts or
Government Grants, (D) ad valorem tax revenues, (E) any insurance proceeds received
by the Issuer (other than insurance proceeds paid as compensation for business
interruption), (F) amounts received which are required to be paid to any other
governmental body, including, but not limited to taxes and impact fees, (G) PFC
Revenues, and (H) any noise abatement charges received for disbursement to others.
"Hedge Agreement" shall mean an agreement in writing between the Issuer and
the Counterparty pursuant to which (1) the Issuer agrees to pay to the Counterparty an
amount, either at one time or periodically, which may, but is not required to, be
determined by reference to the amount of interest (which may be at a fixed or variable
rate) payable on a notional amount related to the debt of the Counterparty specified in
such agreement in the period specified in such agreement and (2) the Counterparty agrees
to pay to the Issuer an amount, either at one time or periodically, which may, but is not
required to,be determined by reference to the amount of interest (which may be at a fixed
or variable rate) payable on a notional amount equal to the principal amount of all or a
portion of a Series of Bonds specified in such agreement during the period specified in
such agreement. Hedge Agreement .shall include any financial product or agreement
which is used by the Issuer as a hedging device with respect to its obligation to pay
interest on the Bonds, or any portion thereof, which is designated by the Issuer as a
"Hedge Agreement."
"Hedge Payments" shall mean any amounts payable by the Issuer calculated as
interest on the related notional amount under a Qualified Hedge Agreement; excluding,
however, any payments due as a penalty or a fee or by virtue of termination of a
Qualified Hedge Agreement or any obligation of the Issuer to provide collateral.
6
"Hedge Receipts" shall mean any amounts receivable by the Issuer calculated as
interest on the related notional amount under a Qualified Hedge Agreement.
"Improvement" or "Capital Improvement" shall mean such buildings,
structures, equipment, and land or interests in land and such renewals, replacements,
additions, extensions and betterments, other than ordinary maintenance and repairs, as
may be deemed necessary or desirable by the Issuer to develop or maintain the safe,
secure, competitive, efficient operation of the Airport.
"Initial Rating Requirement" shall mean, with regard to a Qualified Hedge
Agreement, a Counterparty which at the time it enters into such Qualified Hedge
Agreement is rated "A-" or better by Standard &Poor's and "A3" or better by Moody's.
"Insurance Consultant" shall mean such Person recognized and qualified in
surveying risks and recommending insurance coverage for such facilities as the Airport
and for organizations engaged in such operations as those to be conducted by the Issuer at
the Airport, at the time retained by the Issuer to perform the acts and carry out the duties
as herein provided for such Insurance Consultant or the risk management department or
officer of the Issuer if the Issuer determines by resolution that such department or officer
meets the criteria set forth above, which resolution shall remain in effect until repealed.
"Insurer" shall mean as to any particular Series of Bonds, the Person (other than
a Credit Bank)providing a municipal bond insurance or guaranty policy, as designated in
the Supplemental Resolution providing for the issuance of such Bonds.
"Interest Account" shall mean the separate account in the Sinking Fund
established pursuant to Section 4.04(C)hereof.
"Interest Date" or "interest payment date" shall be such date or dates as shall
be provided by Supplemental Resolution of the Issuer.
"Investment Earnings" shall mean all income and earnings derived from the
investment of moneys in the funds and accounts established hereunder, other than the
Construction Fund, the PFC Account, the PFC Capital Improvement Fund and the Rebate
Fund.
"Issuer" or "County" shall mean Monroe County, Florida.
"Maximum Annual Debt Service" shall mean the largest aggregate amount of
the Annual Debt Service becoming due in any Fiscal Year in which Bonds are
Outstanding.
"Maximum Interest Rate" shall mean, with respect to any particular Variable
Rate Bonds, a numerical rate of interest, which shall be set forth in the Supplemental
Resolution of the Issuer delineating the details of such Bonds, that shall be the maximum
rate of interest such Bonds may at any particular time bear.
"Mayor" shall mean the Mayor of the Governing Body, or, in his or her absence
or unavailability, the Mayor Pro Tem of the Governing Body.
"Moody's" shall mean Moody's Investors Service, and any assigns and successors
thereto.
"Net Revenues" shall mean Gross Revenues less Operating and Maintenance
Costs.
"Operation, Maintenance and Administration Fund" shall mean the fund
created pursuant to Section 4.04(B)hereof.
"Operating and Maintenance Costs" shall mean any and all costs incurred by
the Issuer in operating, maintaining and administering the Airport, including, but not
limited to, the general administrative and legal costs of the Issuer related to operation,
maintenance, management, security and development of the Airport; costs associated
with equipment, vehicles, supplies, materials, services and support for the operation,
maintenance, management, security and development of the Airport; any costs of
litigation or a legal judgment against the Issuer; all costs incurred in planning or applying
for, obtaining, maintaining and defending permits; accounting, legal and engineering
expenses; ordinary and current rentals of equipment or other property; refunds of moneys
lawfully due to others; pension, retirement, health and hospitalization funds; payments in
lieu of taxes and impact fees; and fees for management of the Airport or any portion
thereof; but does not include any costs or expenses in respect of original construction or
improvement other than expenditures necessary to prevent an interruption or continuance
of an interruption of service or of Gross Revenues or minor capital expenditures
necessary for the proper and economical operation or maintenance of the Airport, or any
provision for interest, depreciation, amortization or similar charges.
"Other Available Moneys" shall mean Eligible PFC Revenues and Fund
Balance.
"Outstanding," when used with reference to Bonds and as of any particular date,
shall describe all Bonds theretofore and thereupon being authenticated and delivered
except, (1) any Bond in lieu of which other Bond or Bonds have been issued under
agreement to replace lost, mutilated or destroyed Bonds, (2) any Bond surrendered by the
Holder thereof in exchange for other Bond or Bonds under Sections 2.06 and 2.08 hereof,
(3) Bonds deemed to have been paid pursuant to Section 9.01 hereof and (4) Bonds
8
canceled after purchase in the open market or because of payment at or redemption prior
to maturity.
"Passenger Facility Charges" or "PFCs" shall mean the passenger facility
charges relating to the Airport authorized from time to time under the PFC Act and
pledged pursuant to this Resolution or any Supplemental Resolution hereto.
Notwithstanding the foregoing, unless consented to by the Bank, so long as the Series
2006 Bonds are secured by a Credit Facility issued by the Bank, the Passenger Facility
Charges shall only consist of those PFCs approved pursuant to the PFC Authority (#05-
10-C-00-EYW), dated August 12, 2005.
"Paying Agent" shall mean any paying agent for Bonds appointed by or pursuant
to Supplemental Resolution and its successor or assigns, and any other Person which may
at any time be substituted in its place pursuant to Supplemental Resolution.
"Person" shall mean an individual, a corporation, a partnership, an association, a
joint stock company, a trust, any unincorporated organization, governmental entity or
other legal entity.
"PFC Account" shall mean the separate account established in the Revenue Fund
established pursuant to Section 4.04(A)hereof.
"PFC Act" shall mean the Aviation Safety and Capacity Expansion Act of 1990,
Pub. L. 101-508, Title IX, Subtitle B, §§9110 and 9111, recodified as 49 U.S. §40117, as
amended or replaced from time to time.
"PFC Authority" shall mean the FAA's Records of Decision, as the same may be
amended from time to time, issued by the FAA relating to Passenger Facility Charges
imposed or to be imposed by the Issuer at the Airport.
"PFC Capital Improvement Fund" shall mean the fund established pursuant to
Section 4.04(F) of this Resolution.
"PFC Improvements" shall mean Improvements made to the Airport for which
PFCs may be used under the PFC Act and PFC Authority to fund such capital
improvements or related indebtedness.
"PFC Regulations" shall mean Part 158 of the Federal Aviation Regulations (14
C.F.R. Part 158), as amended from time to time, and any other regulation(s) issued with
respect to the PFC Act.
"PFC Revenues" shall mean all revenues received by the Issuer from time to
time from the Passenger Facility Charges pursuant to PFC Authority imposed by the
9
County at the Airport pursuant to the PFC Act and the PFC Regulations, including any
investment income with respect thereto and including proceeds thereof and gains from
sales of investments after such revenues have been remitted to the Issuer as provided in
the PFC Regulations.
"Pledged Funds" shall mean, (1) the Net Revenues, (2) Other Available Moneys,
(3) any Hedge Receipts, and (4) until applied in accordance with the provisions of this
Resolution, all moneys, including investments thereof, in the funds and accounts
established hereunder, except (A) moneys in the PFC Account and the PFC Capital
Improvement Fund (but only to the extent not legally available to pay debt service on the
Bonds) and the Rebate Fund, (B) moneys in any fund or account to the extent such
moneys shall be required to pay the Operating and Maintenance Costs in accordance with
the terms of the Resolution, and (C) moneys on deposit in a subaccount of the Reserve
Account to the extent moneys on deposit therein shall be pledged solely for the payment
of the Series of Bonds for which it was established in accordance with the provisions
hereof. In addition, the 2006 Project Grants to the extent they may be lawfully used to
pay debt service on the Series 2006 Bonds shall constitute "Pledged Funds" solely for the
Series 2006 Bonds.
"Prerefunded Obligations" shall mean any bonds or other obligations of any
state of the United States of America or of any agency, instrumentality or local
governmental unit of any such state (1) which are (A) not callable prior to maturity or (B)
as to which irrevocable instructions have been given to the fiduciary for such bonds or
other Obligations by the obligor to give due notice of redemption and to call such bonds
for redemption on the date or dates specified in such instructions, (2) which are fully
secured as to principal, redemption premium, if any, and interest by a fund held by a
fiduciary consisting only of cash or Federal Securities, secured in the manner set forth in
Section 9.01 hereof, which fund may be applied only to the payment of such principal of,
redemption premium, if any, and interest on such bonds or other obligations on the
maturity date or dates thereof or the specified redemption date or dates pursuant to such
irrevocable instructions, as the case may be, (3) as to which the principal of and interest
on the Federal Securities, which have been deposited in such fund along with any cash on
deposit in such fund are sufficient to pay principal of, redemption premium, if any, and
interest on the bonds or other obligations on the maturity date or dates thereof or on the
redemption date or dates specified in the irrevocable instructions referred to in clause (1)
above and are not available to satisfy any other claims, including those against the
fiduciary holding the same, and (4) which are rated in the highest rating category
(without regard to gradations, such as "plus" or "minus" of such categories) of two of the
Rating Agencies.
"Principal Account" shall mean the separate account in the Sinking Fund
established pursuant to Section 4.04(C)hereof.
10
"Projects" shall mean the 2006 Project and any Additional Project.
"Qualified Hedge Agreement" shall mean a Hedge Agreement with a
Counterparty which meets the Initial Rating Requirement.
"Rating Agencies" means Fitch, Moody's and Standard &Poor's.
"Rebate Fund" shall mean the Rebate Fund established pursuant to Section
4.04(G)hereof.
"Redemption Price" shall mean, with respect to any Bond or portion thereof, the
principal amount or portion thereof, plus the applicable premium, if any, payable upon
redemption thereof pursuant to such Bond or this Resolution.
"Refunding Securities" shall mean Federal Securities and Prerefunded
Obligations.
"Registrar" shall mean any registrar for the Bonds appointed by or pursuant to
Supplemental Resolution and its successors and assigns, and any other Person which may
at any time be substituted in its place pursuant to Supplemental Resolution.
"Renewal and Replacement Fund" shall mean the fund established pursuant to
Section 4.04(D)hereof.
"Renewal and Replacement Fund Requirement" shall mean, on the date of
calculation, an amount of money equal to (1) $500,000 or (2) such greater or lesser
amount as may be certified to the Issuer by the Airport Consultant as an amount
appropriate for the purposes of this Resolution.
"Reserve Account" shall mean the separate account in the Sinking Fund
established pursuant to Section 4.04(C)hereof.
"Reserve Account Insurance Policy" shall mean the insurance policy deposited
in the Reserve Account in lieu of or in partial substitution for cash on deposit therein
pursuant to Section 4.05(D)(4) hereof.
"Reserve Account Letter of Credit" shall mean a letter of credit or line of credit
or other credit facility (other than a Reserve Account Insurance Policy) deposited in the
Reserve Account in lieu of or in partial substitution for cash on deposit therein pursuant
to Section 4.05(D)(4) hereof.
"Reserve Account Requirement" shall mean, as of any date of calculation for
the Reserve Account or any subaccount therein, an amount equal to the lesser of (1)
Maximum Annual Debt Service for all Outstanding Bonds secured thereby, (2) 125% of
11
•
the average Annual Debt Service for all Outstanding Bonds secured thereby, or (3) the
maximum amount allowed to be funded from proceeds of tax-exempt obligations and
invested at an unrestricted yield pursuant to the Code; provided, however, the Issuer may
establish by Supplemental Resolution a different Reserve Account Requirement for a
subaccount of the Reserve Account separately which secures a Series of Bonds pursuant
to Section 4.05(D)(4) hereof. In computing the Reserve Account Requirement in respect
of a Series of Bonds that constitutes Variable Rate Bonds, the interest rate on such Bonds
shall be assumed to be (A) if such Variable Rate Bonds have been Outstanding for at
least 12 months prior to the date of calculation, the highest interest rate borne by such
Variable Rate Bonds during the preceding 12 month period, and (B) if such Variable Rate
Bonds have not been Outstanding for at least 12 months prior to the date of calculation,
the Bond Buyer Revenue Bond Index most recently published prior to the time of
calculation. The time of calculation for Variable Rate Bonds shall be each March 1.
• "Resolution" shall mean this Resolution, as the same may from time to time be
amended, modified or supplemented by Supplemental Resolution.
"Revenue Account" shall mean the separate account in the Revenue Fund
established pursuant to Section 4.04(A)hereof.
"Revenue Fund" shall mean the fund established pursuant to Section 4.04(A)
hereof.
"Serial Bonds" shall mean all of the Bonds other than the Term Bonds.
"Series" shall mean all the Bonds delivered on original issuance in a simultaneous
transaction and identified pursuant to Sections 2.01 and 2.02 hereof or a Supplemental
Resolution authorizing the issuance by the Issuer of such Bonds as a separate Series,
regardless of variations in maturity, interest rate, Sinking Fund Installments or other
provisions.
"Series 2006 Bonds" shall mean the Monroe County, Florida Airport Variable
Rate Revenue Bonds (Key West International Airport), Series 2006, authorized pursuant
to Section 2.02 hereof.
"Sinking Fund" shall mean the fund established pursuant to Section 4.04(C)
hereof.
"Sinking Fund Installment" shall mean an amount designated as such by
Supplemental Resolution of the Issuer and established with respect to the Term Bonds.
12
"Special Purpose Facilities" shall mean any projects, improvements or facilities
determined by the Issuer to be useful in the conduct of the operations of the Airport that
are financed with the proceeds of Special Purpose Facilities Bonds.
"Special Purpose Facilities Bonds" shall mean bonds described in Section 5.12
hereof and which are issued for the purpose of paying the cost of Special Purpose
Facilities or refunding bonds previously issued for such purpose, which bonds shall not
be payable from the Pledged Funds.
"Standard & Poor's" shall mean Standard & Poor's Ratings Services a division
of The McGraw-Hill Companies, Inc., and any assigns and successors thereto.
"State" shall mean the State of Florida.
"Subordinated Indebtedness" shall mean that indebtedness of the Issuer,
subordinate and junior to the Bonds, issued in accordance with the provisions of Section
6.01 hereof.
"Supplemental Resolution" shall mean any resolution of the Issuer amending or
supplementing this Resolution adopted and becoming effective in accordance with the
terms of Sections 8.01, 8.02 and 8.03 hereof.
"Taxable Bonds" means those Bonds which state, in the body thereof, that the
interest income thereon is includable in the gross income of the Holder thereof for federal
income taxation purposes or that such interest is subject to federal income taxation.
"Term Bonds" shall mean those Bonds which shall be designated as Term Bonds
hereby or by Supplemental Resolution of the Issuer.
"Term Bonds Redemption Account" shall mean the separate account in the
Sinking Fund established pursuant to Section 4.04(C) hereof.
"2006 Project" shall mean the design, engineering, acquisition and construction
of improvements described in Exhibit A attached hereto, including,without limitation, all
property rights, easements, appurtenances, rights-of-way, franchises and equipment
relating thereto and deemed necessary or convenient for the acquisition, construction,
renovation,reconstruction or operation thereof, with such changes, deletions, additions or
modifications to the enumerated improvements, equipment and facilities, or such other
improvements, equipment or facilities as may hereafter be approved by the Governing
Body in accordance with the Act pursuant to resolution.
"2006 Project Grants" shall mean the AIP Entitlement Grant in an amount
estimated at $6,900,000 and the Florida Department of Transportation Grant in an
13
•
amount estimated at $8,700,000, both of which relate to the acquisition and construction
of the 2006 Project.
"Variable Rate Bonds" shall mean Bonds issued with a variable, adjustable,
convertible or other similar rate which is not fixed in percentage for the entire term
thereof at the date of issue.
The terms "herein," "hereunder," "hereby," "hereto," "hereof," and any similar
terms, shall refer to this Resolution; the term "heretofore" shall mean before the date of
adoption of this Resolution; and the term "hereafter" shall mean after the date of adoption
of this Resolution.
Words importing the masculine gender include the feminine gender, and vice
versa.
Words importing the singular number include the plural number, and vice versa.
SECTION 1.02. AUTHORITY FOR RESOLUTION. This Resolution is
adopted pursuant to the provisions of the Act. The Issuer has ascertained and hereby
determined that adoption of this Resolution is necessary to carry out the powers, purposes
and duties expressly provided in the Act, that each and every matter and thing as to which
provision is made herein is necessary in order to carry out and effectuate the purposes of
the Issuer in accordance with the Act and to carry out and effectuate the plan and purpose
of the Act, and that the powers of the Issuer herein exercised are in each case exercised in
accordance with the provisions of the Act and in furtherance of the purposes of the Issuer.
SECTION 1.03. RESOLUTION TO CONSTITUTE CONTRACT. In
consideration of the purchase and acceptance of any or all of the Bonds by those who
shall hold the same from time to time, the provisions of this Resolution shall be a part of
the contract of the Issuer with the Holders of the Bonds, and shall be deemed to be and
shall constitute a contract between the Issuer, the Holders from time to time of the Bonds
and any Insurer or Credit Bank. The pledge made in this Resolution and the provisions,
covenants and agreements herein set forth to be performed by or on behalf of the Issuer
shall be for the equal benefit, protection and security of the Holders of any and all of said
Bonds and any Insurer or Credit Bank, but only in accordance with the terms hereof. All
of the Bonds, regardless of the time or times of their issuance or maturity, shall be of
equal rank without preference, priority or distinction of any of the Bonds over any other
thereof except as expressly provided in or pursuant to this Resolution.
14
SECTION 1.04. FINDINGS. It is hereby ascertained, determined and
declared:
(A) That the Issuer owns, operates and maintains the Airport for the benefit of
the citizens of Monroe County, Florida.
(B) That the Issuer has determined to acquire and construct the 2006 Project.
(C) That the Issuer has determined to issue the Series 2006 Bonds in order to
finance the 2006 Project.
(D) That pursuant to the provisions of the Act, the Issuer is authorized to
undertake the 2006 Project through the issuance of the Series 2006 Bonds.
(E) That the Pledged Funds are not pledged or encumbered in any manner.
(F) That the estimated Gross Revenues and Other Available Moneys to be
derived in each year hereafter from the operation of the Airport will be sufficient to pay
all the Operating and Maintenance Costs, the principal of and interest on the Bonds to be
issued pursuant to this Resolution, as the same become due, and all other payments
provided for in this Resolution.
(G) That the principal of and interest on the Bonds to be issued pursuant to this
Resolution, and all other payments provided for in this Resolution will be paid solely
from the Pledged Funds in accordance with the terms hereof; and the Issuer may not be
compelled by any Person to exercise the ad valorem taxing power of the Issuer or use ad
valorem tax revenues to pay the principal of and interest on the Bonds to be issued
pursuant to this Resolution, or to make any other payments provided for in this
Resolution, and the Bonds shall not constitute a lien upon the Airport or upon any other
property whatsoever of or in the Issuer, other than the Pledged Funds.
SECTION 1.05. AUTHORIZATION OF 2006 PROJECT. The Issuer
hereby authorizes the 2006 Project.
15
ARTICLE II
AUTHORIZATION,TERMS,EXECUTION AND REGISTRATION OF BONDS
SECTION 2.01. AUTHORIZATION OF BONDS. This Resolution creates
an issue of Bonds of the Issuer to be designated as "Monroe County, Florida Airport
Revenue Bonds (Key West International Airport)" which may be issued in one or more
Series as hereinafter provided. The aggregate principal amount of the Bonds which may
be executed and delivered under this Resolution is not limited except as is or may
hereafter be provided in this Resolution or as limited by the Act.
The Bonds may, if and when authorized by the Issuer pursuant to this Resolution,
be issued in one or more Series, with such further appropriate particular designations
added to or incorporated in such title for the Bonds of any particular Series as the Issuer
may determine and as may be necessary to distinguish such Bonds from the Bonds of any
other Series. Each Bond shall bear upon its face the designation so determined for the
Series to which it belongs.
The Bonds shall be issued for such purpose or purposes; shall bear interest at such
rate or rates not exceeding the maximum rate permitted by law; and shall be payable in
lawful money of the United States of America on such dates; all as determined by
Supplemental Resolution of the Issuer.
The Bonds shall be issued in such denominations and such form, whether coupon
or registered; shall be dated such date; shall bear such numbers; shall be payable at such
place or places; shall contain such redemption provisions; shall have such Paying Agents
and Registrars; shall mature in such years and amounts; and the proceeds shall be used in
such manner; all as determined by Supplemental Resolution of the Issuer. The Issuer
may issue Bonds which may be secured by a Credit Facility or by a Bond Insurance
Policy of an Insurer all as shall be determined by Supplemental Resolution of the Issuer.
The Governing Body may delegate approval of the terms, details and sale of a Series of
Bonds to an Authorized Issuer Officer pursuant to Supplemental Resolution.
SECTION 2.02. AUTHORIZATION AND DESCRIPTION OF SERIES
2006 BONDS. A Series of Bonds entitled to the benefit, protection and security of this
Resolution is authorized in the aggregate principal amount of not exceeding $33,000,000
for the principal purposes of financing the Costs of the 2006 Project, funding the Reserve
Account and paying certain costs of issuance incurred with respect to the Series 2006
Bonds. Such Series of Bonds shall be designated as, and shall be distinguished from the
Bonds of all other Series by the title, "Monroe County, Florida Airport Variable Rate
Revenue Bonds (Key West International Airport), Series 2006."
16
The Series 2006 Bonds shall be dated as of the date of delivery thereof or such
other date as may be set forth by Supplemental Resolution of the Issuer; shall be issued as
fully registered Bonds; shall be numbered consecutively from one upward in order of
maturity preceded by the letter "R"; shall be in such denominations and shall bear interest
at a rate or rates not exceeding the maximum rate permitted by law, payable in such
manner and on such dates; shall consist of such amounts of Serial Bonds, Term Bonds,
Variable Rate Bonds, current interest paying Bonds and Capital Appreciation Bonds
maturing in such years and amounts not exceeding such period as may be permitted by
the Act at the time of issuance; shall be payable in such place or places; shall have such
Paying Agents and Registrars; and shall contain such redemption and other provisions; all
as the Issuer shall provide hereafter by Supplemental Resolution.
The principal of or Redemption Price, if applicable, on the Series 2006 Bonds are
payable upon presentation and surrender of the Series 2006 Bonds at the designated
office of the Paying Agent. Except as otherwise provided by Supplemental Resolution,
interest payable on any Series 2006 Bond on any Interest Date will be paid by check or
draft of the Paying Agent to the Holder in whose name such Bond shall be registered at
the close of business on the date which shall be the fifteenth day (whether or not a
business day) of the calendar month next preceding such Interest Date, or, at the request
and expense of such Holder, by bank wire transfer for the account of such Holder. All
payments of principal of or Redemption Price, if applicable, and interest on the Series
2006 Bonds shall be payable in any coin or currency of the United States of America
which at the time of payment is legal tender for the payment of public and private debts.
SECTION 2.03. APPLICATION OF SERIES 2006 BOND PROCEEDS.
The proceeds derived from the sale of the Series 2006 Bonds, including any accrued
interest and premium, if any, shall, simultaneously with the delivery of the Series 2006
Bonds to the purchaser or purchasers thereof, be applied at the direction of the Issuer as
follows:
(A) Proceeds of the Series 2006 Bonds in an amount equal to not greater than
the initial 24 months of interest due with respect to the Series 2006 Bonds, representing
capitalized interest on the Series 2006 Bonds, shall be deposited in the Interest Account
and shall be used only for the purpose of paying the interest which shall thereafter
become due on the Series 20.06 Bonds.
(B) An amount of proceeds of the Series 2006 Bonds equal to the Reserve
Account Requirement for the Series 2006 Bonds shall be deposited to the Reserve
Account.
17
(C) A sufficient amount of the Series 2006 Bond proceeds shall be applied or
set aside to the payment of costs and expenses relating to the issuance of the Series 2006
Bonds.
(D) The balance of the Series 2006 Bond proceeds shall be deposited in the
Construction Fund to pay the Cost of the 2006 Project.
SECTION 2.04. EXECUTION OF BONDS. The Bonds shall be executed in
the name of the Issuer with the manual or facsimile signature of the Mayor and the
official seal of the Issuer shall be imprinted thereon, attested and countersigned with the
manual or facsimile signature of the Clerk. In case any one or more of the officers who
shall have signed or sealed any of the Bonds or whose facsimile signature shall appear
thereon shall cease to be such officer of the Issuer before the Bonds so signed and sealed
have been actually sold and delivered such Bonds may nevertheless be sold and delivered
as herein provided and may be issued as if the person who signed or sealed such Bonds
had not ceased to hold such office. Any Bond may be signed and sealed on behalf of the
Issuer by such person who at the actual time of the execution of such Bond shall hold the
proper office of the Issuer, although at the date of such Bond such person may not have
held such office or may not have been so authorized. The Issuer may adopt and use for
such purposes the facsimile signatures of any such persons who shall have held such
offices at any time after the date of the adoption of this Resolution, notwithstanding that
either or both shall have ceased to hold such office at the time the Bonds shall be actually
sold and delivered.
SECTION 2.05. AUTHENTICATION. No Bond of any Series shall be
secured hereunder or entitled to the benefit hereof or shall be valid or obligatory for any
purpose unless there shall be manually endorsed on such Bond a certificate of
authentication by the Registrar or such other entity as may be approved by the Issuer for
such purpose. Such certificate on any Bond shall be conclusive evidence that such Bond
has been duly authenticated and delivered under this Resolution. The form of such
certificate shall be substantially in the form provided in Section 2.09 hereof.
SECTION 2.06. TEMPORARY BONDS. Until the definitive Bonds of any
Series are prepared, the Issuer may execute, in the same manner as is provided in Section
2.04, and deliver, upon authentication by the Registrar pursuant to Section 2.05 hereof, in
lieu of definitive Bonds, but subject to the same provisions, limitations and conditions as
the definitive Bonds, except as to the denominations thereof, one or more temporary
Bonds substantially of the tenor of the definitive Bonds in lieu of which such temporary
Bond or Bonds are issued, in denominations authorized by the Issuer by subsequent
resolution and with such omissions, insertions and variations as may be appropriate to
temporary Bonds. The Issuer, at his own expense, shall prepare and execute definitive
Bonds, which shall be authenticated by the Registrar. Upon the surrender of such
18
temporary Bonds for exchange, the Registrar, without charge to the Holder thereof, shall
deliver in exchange therefor definitive Bonds, of the same aggregate principal amount
and Series and maturity as the temporary Bonds surrendered. Until so exchanged, the
temporary Bonds shall in all respects be entitled to the same benefits and security as
definitive Bonds issued pursuant to this Resolution. All temporary Bonds surrendered in
exchange for another temporary Bond or Bonds or for a definitive Bond or Bonds shall
be forthwith canceled by the Registrar.
SECTION 2.07. BONDS MUTILATED, DESTROYED, STOLEN OR
LOST. In case any Bond shall become mutilated, or be destroyed, stolen or lost, the
Issuer may, in its discretion, issue and deliver, and the Registrar shall authenticate, a new
Bond of like tenor as the Bond so mutilated, destroyed, stolen or lost, in exchange and
substitution for such mutilated Bond upon surrender and cancellation of such mutilated
Bond or in lieu of and substitution for the Bond destroyed, stolen or lost, and upon the
Holder furnishing the Issuer and the Registrar proof of his ownership thereof and
satisfactory indemnity and complying with such other. reasonable regulations and
conditions as the Issuer or the Registrar may prescribe and paying such expenses as the
Issuer and the Registrar may incur. All Bonds so surrendered shall be canceled by the
Registrar. If any of the Bonds shall have matured or be about to mature, instead of
issuing a substitute Bond, the Issuer may pay the same or cause the Bond to be paid,upon
being indemnified as aforesaid, and if such Bonds be lost, stolen or destroyed, without
surrender thereof.
Any such duplicate Bonds issued pursuant to this Section 2.07 shall constitute
original contractual obligations on the part of the Issuer whether or not the lost, stolen or
destroyed Bond be at any time found by anyone, and such duplicate Bond shall be
entitled to equal and proportionate benefits and rights as to lien on the Pledged Funds to
the same extent as all other Bonds issued hereunder.
SECTION 2.08. INTERCHANGEABILITY, NEGOTIABILITY AND
TRANSFER. Bonds, upon surrender thereof at the office of the Registrar with a written
instrument of transfer satisfactory to the Registrar, duly executed by the Holder thereof or
his attorney duly authorized in writing, may, at the option of the Holder thereof, be
exchanged for an equal aggregate principal amount of registered Bonds of the same
Series and maturity of any other authorized denominations.
The Bonds issued under this Resolution shall be and have all the qualities and
incidents of negotiable instruments under the Uniform Commercial Code of the State of
Florida, subject to the provisions for registration and transfer contained in this Resolution
and in the Bonds. So long as any of the Bonds shall remain Outstanding, the Issuer shall
maintain and keep, at the office of the Registrar, books for the registration and transfer of
the Bonds.
19
Each Bond shall be transferable only upon the books of the Issuer, at the office of
the Registrar, under such reasonable regulations as the Issuer may prescribe, by the
Holder thereof in person or by his attorney duly authorized in writing upon surrender
thereof together with a written instrument of transfer satisfactory to the Registrar duly
executed and guaranteed by the Holder or his duly authorized attorney. Upon the transfer
of any such Bond, the Issuer shall issue, and cause to be authenticated, in the name of the
transferee a new Bond or Bonds of the same aggregate principal amount and Series and
maturity as the surrendered Bond. The Issuer, the Registrar and any Paying Agent or
fiduciary of the Issuer may deem and treat the Person in whose name any Outstanding
Bond shall be registered upon the books of the Issuer as the absolute owner of such Bond,
whether such Bond shall be overdue or not, for the purpose of receiving payment of, or
on account of, the principal or Redemption Price, if applicable, and interest on such Bond
and for all other purposes, and all such payments so made to any such Holder or upon his
order shall be valid and effectual to satisfy and discharge the liability upon such Bond to
the extent of the sum or sums so paid and neither the Issuer nor the Registrar nor any
Paying Agent or other fiduciary of the Issuer shall be affected by any notice to the
contrary.
Except as provided by Supplemental Resolution in the case of Variable Rate
Bonds, the Registrar, in any case where it is not also the Paying Agent in respect to any
Series of Bonds, forthwith (A) following the fifteenth day prior to an Interest Date for
such Series; (B) following the fifteenth day next preceding the date of first mailing of
notice of redemption of any Bonds of such Series; and (C) at any other time as reasonably
requested by the Paying Agent of such Series, shall certify and furnish to such Paying
Agent the names, addresses and holdings of Bondholders and any other relevant
information reflected in the registration books. Any Paying Agent of any fully registered
Bond shall effect payment of interest on such Bonds by mailing a check to the Holder
entitled thereto or may, in lieu thereof, upon the request and at the expense of such
Holder, transmit such payment by bank wire transfer for the account of such Holder.
In all cases in which the privilege of exchanging Bonds or transferring Bonds is
exercised, the Issuer shall execute and deliver Bonds and the Registrar shall authenticate
such Bonds in accordance with the provisions of this Resolution. Execution of Bonds by
the Mayor and the Clerk for purposes of exchanging,replacing or transferring Bonds may
occur at the time of the original delivery of the Series of which such Bonds are a part. All
Bonds surrendered in any such exchanges or transfers shall be held by the Registrar in
safekeeping until directed by the Issuer to be canceled by the Registrar. For every such
exchange or transfer of Bonds, the Issuer or the Registrar may make a charge sufficient to
reimburse it for any tax, fee, expense or other governmental charge required to be paid
with respect to such exchange or transfer. Except as provided by Supplemental
Resolution in the case of Variable Rate Bonds, the Issuer and the Registrar shall not be
obligated to make any such exchange or transfer of Bonds of any Series during the 15
20
days next preceding an Interest Date on the Bonds of such Series (other than Capital
Appreciation Bonds), or, in the case of any proposed redemption of Bonds of such Series,
then, for the Bonds subject to redemption, during the 15 days next preceding the date of
the first mailing of notice of such redemption and continuing until such redemption date.
The Issuer may elect to issue any Bonds as uncertificated registered public
obligations (not represented by instruments), commonly known as book-entry
obligations, provided it shall establish a system of registration therefor by Supplemental
Resolution.
SECTION 2.09. FORM OF BONDS. The text of the Bonds, except for
Capital Appreciation Bonds and Variable Rate Bonds, the form of which shall be
provided by Supplemental Resolution of the Issuer, shall be in substantially the following
form with such omissions, insertions and variations as may be necessary and/or desirable
and approved by the Mayor or the Clerk prior to the issuance thereof (which necessity
and/or. desirability and approval shall be presumed by such officer's execution of the
Bonds and the Issuer's delivery of the Bonds to the purchaser or purchasers thereof):
21
•
No. R- $
UNITED STATES OF AMERICA
STATE OF FLORIDA
MONROE COUNTY, FLORIDA
AIRPORT REVENUE BONDS,
(KEY WEST INTERNATIONAL AIRPORT)
SERIES
Date of
Interest Rate Maturity Date Original Issue CUSIP
Registered Holder:
Principal Amount:
MONROE COUNTY, FLORIDA, a political subdivision of the State of Florida
(the "Issuer"), for value received, hereby promises to pay, solely from the Pledged Funds
hereinafter described, to the Registered Holder identified above, or registered assigns as
hereinafter provided, on the Maturity Date identified above, the Principal Amount
identified above and to pay interest on such Principal Amount from the Date of Original
Issue identified above or from the most recent interest payment date to which interest has
been paid at the Interest Rate per annum identified above on and
of each year commencing until such Principal
Amount shall have been paid, except as the provisions hereinafter set forth with respect
to redemption prior to maturity may be or become applicable hereto.
Such Principal Amount and interest and the premium, if any, on this Bond are
payable in any coin or currency of the United States of America which, on the respective
dates of payment thereof, shall be legal tender for the payment of public and private
debts. Such Principal Amount and the premium, if any, on this Bond, are payable at the
designated corporate trust office of
as Paying Agent. Payment of each installment of interest shall be made to the person in
whose name this Bond shall be registered on the registration books of the Issuer
maintained by , , , as Registrar,
at the close of business on the date which shall be the fifteenth day (whether or not a
business day) of the calendar month next preceding each interest payment date and shall
22
be paid by a check of such Paying Agent mailed to such Registered Holder at the address
appearing on such registration books or, at the request and expense of such Registered
Holder, by bank wire transfer for the account of such Holder.
This Bond is one of an authorized issue of Bonds in the aggregate principal
amount of $ (the "Bonds") of like date, tenor and effect, except as to
maturity date, interest rate, registered holder, denomination and number, issued to finance
, in and for the Issuer, under the authority of and in full compliance
with the Constitution and laws of the State of Florida, particularly Chapter 125, Part I,
and Chapter 332, Florida Statutes, and other applicable provisions of law(collectively,
the "Act"), and a resolution of the Issuer duly adopted by the Board of County
Commissioners of the Issuer on June 21, 2006, as supplemented (the "Resolution"), and
is subject to all the terms and conditions of the Resolution.
This Bond and the interest hereon are payable solely from and secured by a lien
upon and a pledge of(1) the Net Revenues (as defined in the Resolution) to be derived
from the operation of the Airport (as defined in the Resolution), (2) Other Available
Moneys (as defined in the Resolution), and (3) until applied in accordance with the
provisions of the Resolution, all moneys, including investments thereof, in the funds and
accounts established under the Resolution, except (A) moneys in the PFC Account, the
PFC Capital Improvement Fund (to the extent not legally available to pay debt service on
the Bonds) and the Rebate Fund, (B) moneys in any fund or account to the extent such
moneys shall be required to pay the Operating and Maintenance Costs in accordance with
the terms of the Resolution, and (C) moneys on deposit in a subaccount of the Reserve
Account established by the Resolution to the extent such moneys shall be pledged solely
for the payment of the Series of Bonds for which it was established in accordance with
the provisions of the Resolution (collectively, the "Pledged Funds"), subject in each case
to the application thereof for the purposes and on the conditions permitted by the
Resolution. In addition, the 2006 Project Grants (as defined in the Resolution) to the
extent they may be lawfully used to pay debt service on the Series 2006 Bonds (as
defined in the Resolution) shall constitute "Pledged Funds" solely for such Series 2006
Bonds. It is expressly agreed by the Registered Holder of this Bond that the full faith and
credit of the Issuer are not pledged to the payment of the principal of, premium, if any,
and interest on this Bond and that such Holder shall never have the right to require or
compel the exercise of the taxing power of the Issuer to the payment of such principal,
premium, if any, and interest. This Bond and the obligation evidenced hereby shall not
constitute a lien upon the Airport or any other property of the Issuer, but shall constitute a
lien only on, and shall be payable solely from, the Pledged Funds in accordance with the
terms of the Resolution. Obligations may be issued by the Issuer from time to time on
parity with the Bonds pursuant to the terms of the Resolution.
23
This Bond is transferable in accordance with the terms of the Resolution only
upon the books of the Issuer kept for that purpose at the designated corporate trust office
of the Registrar by the Registered Holder hereof in person or by his attorney duly
authorized in writing, upon the surrender of this Bond together with a written instrument
of transfer satisfactory to the Registrar duly executed by the Registered Holder or his
attorney duly authorized in writing, and thereupon a new Bond or Bonds in the same
aggregate principal amount shall be issued to the transferee in exchange therefor, and
upon the payment of the charges, if any, therein prescribed. The Bonds are issuable in
the form of fully registered Bonds in the denomination of $5,000 and any integral
multiple thereof, not exceeding the aggregate principal amount of the Bonds. The Issuer,
the Registrar and any Paying Agent may treat the Registered Holder of this Bond as the
absolute owner hereof for all purposes, whether or not this Bond shall be overdue, and
shall not be affected by any notice to the contrary. The Issuer shall not be obligated to
make any exchange or transfer of the Bonds during the 15 days next preceding an interest
payment date or, in the case of any proposed redemption of the Bonds, then, for the
Bonds subject to such redemption, during the 15 days next preceding the date of the first
mailing of notice of such redemption and continuing to the redemption date.
The Issuer has established a book-entry system of registration for the Bonds.
Except as specifically provided otherwise in the Resolution, an agent will hold this Bond
on behalf of the beneficial owner hereof. By acceptance of a confirmation of purchase,
delivery or transfer, the beneficial owner of this Bond shall be deemed to have agreed to
such arrangement.
(INSERT REDEMPTION PROVISIONS)
Redemption of this Bond under the preceding paragraphs shall be made as
provided in the Resolution upon notice given by first class mail sent at least 30 days prior
to the redemption date to the Registered Holder hereof at the address shown on the
registration books maintained by the Registrar; provided, however, that failure to mail
notice to the Registered Holder hereof, or any defect therein, shall not affect the validity
of the proceedings for redemption of other Bonds as to which no such failure or defect
has occurred. In the event that less than the full principal amount hereof shall have been
called for redemption, the Registered Holder hereof shall surrender this Bond in
exchange for one or more Bonds in an aggregate principal amount equal to the
unredeemed portion of principal, as provided in the Resolution.
Reference to the Resolution and any and all resolutions supplemental thereto and
modifications and amendments thereof and to the Act is made for a description of the
pledge and covenants securing this Bond, the nature, manner and extent of enforcement
of such pledge and covenants, and the rights, duties, immunities and obligations of the
Issuer.
24
It is hereby certified and recited that all acts, conditions and things required to
exist, to happen and to be performed precedent to and in the issuance of this Bond, exist,
have happened and have been performed, in regular and due form and time as required by
the laws and Constitution of the State of Florida applicable thereto, and that the issuance
of the Bonds does not violate any constitutional or statutory limitations or provisions.
Neither the members of the Board of County Commissioners of the Issuer nor any
person executing this Bond shall be liable personally hereon or be subject to any personal
liability or accountability by reason of the issuance hereof.
This Bond shall not be valid or become obligatory for any purpose until the
certificate of authentication hereon shall have been signed by the Registrar.
IN WITNESS WHEREOF, Monroe County, Florida has issued this Bond and
has caused the same to be executed by the manual or facsimile signature of the Mayor of
its Board of County Commissioners, and by the manual or facsimile signature of the
Clerk to such Board, and its seal or a facsimile thereof to be affixed or reproduced
she eon;,all as of the Date of Original Issue.
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' ; Mayor, Board of County Commissioners
ATTESTED AND COUNTERSIGNED:
DANNY L. OLHIAGE, Clerk
(1?-1...4.4.1 D.C .
Clerk, Board of County Commissioners
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APPROVED AS TO FORM AND
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25
CERTIFICATE OF AUTHENTICATION
This Bond is one of the Bonds of the issue described in the within-mentioned
Resolution.
DATE OF AUTHENTICATION:
Registrar
By:
Authorized Officer
26
Unless this certificate is presented by an authorized representative of The
Depository Trust Company to the Issuer or its agent for registration of transfer, exchange
or payment, and any certificate issued is registered in the name of Cede & Co. or such
other name as requested by the authorized representative of The Depository Trust
Company and any payment is made to Cede & Co., ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL since the registered owner hereof, Cede & Co., has an interest herein.
FOR VALUE RECEIVED,the undersigned sells, assigns and transfers to
Insert Social Security or Other Identifying Number of Assignee
(Name and Address of Assignee)
the within bond and does hereby irrevocably constitute and appoint
, as attorneys to register the transfer of the
said bond on the books kept for registration thereof, with full power of substitution in the
premises.
Dated:
Signature guaranteed:
NOTICE: Signature must be guaranteed by NOTICE: The signature to this assignment
an institution which is a participant in the must correspond with the name of the
Securities Transfer Agent Medallion Registered Holder as it appears upon the
Program(STAMP) or similar program. face of the within bond in every particular,
without alteration or enlargement or any
change whatever and the Social Security or
other identifying number of such assignee
must be supplied.
27
The following abbreviations, when used in the inscription on the face of the within
Bond, shall be construed as though they were written out in full according to applicable
laws or regulations:
TEN COM --as tenants in common
TEN ENT -- as tenants by the entireties
JT TEN-- as joint tenants with right of
survivorship and not as tenants
in common
UNIF TRANS MIN ACT --
(Cust.)
Custodian for
under Uniform Transfers to Minors Act of
(State)
Additional abbreviations may also be used though not in list above.
•
28
ARTICLE III
REDEMPTION OF BONDS
SECTION 3.01. PRIVILEGE OF REDEMPTION. The terms of this
Article III shall apply to redemption of Bonds other than Capital Appreciation Bonds or
Variable Rate Bonds. The terms and provisions relating to redemption of Capital
Appreciation Bonds and Variable Rate Bonds shall be provided by Supplemental
Resolution.
SECTION 3.02. SELECTION OF BONDS TO BE REDEEMED. The
Bonds shall be redeemed only in the principal amount of $5,000 each and integral
multiples thereof. The Issuer shall, at least 45 days prior to the redemption date (unless a
shorter time period shall be satisfactory to the Registrar) notify the Registrar of such
redemption date and of the principal amount of Bonds to be redeemed. For purposes of
any redemption of less than all of the Outstanding Bonds of a single maturity, the
particular Bonds or portions of Bonds to be redeemed shall be selected by the Registrar
from the Outstanding Bonds of the maturity or maturities designated by the Issuer by
such method as the Registrar shall deem fair and appropriate and which may provide for
the selection for redemption of Bonds or portions of Bonds in principal amounts of
$5,000 and integral multiples thereof.
If less than all of the Outstanding Bonds of a single maturity are to be redeemed,
the Registrar shall promptly notify the Issuer and Paying Agent (if the Registrar is not the
Paying Agent for such Bonds) in writing of the Bonds or portions of Bonds selected for
redemption and, in the case of any Bond selected for partial redemption, the principal
amount thereof to be redeemed.
SECTION 3.03. NOTICE OF REDEMPTION. Notice of such redemption
shall specify the Bond or Bonds (or portions thereof) to be redeemed and the date and
place for redemption, shall be given by the Registrar on behalf of the Issuer, and (A) shall
be filed with the Paying Agents of such Bonds, (B) shall be mailed first class, postage
prepaid, at least 30 days prior to the redemption date to all Holders of Bonds to be
redeemed at their addresses as they appear on the registration books kept by the Registrar
as of the date of mailing of such notice, and (C) shall be mailed, certified mail, postage
prepaid, at least 35 days prior to the redemption date to the registered securities
depositories and two or more nationally recognized municipal bond information services.
Failure to mail such notice to such depositories or services or the Holders of the Bonds to
be redeemed, or any defect therein, shall not affect the proceedings for redemption of
Bonds as to which no such failure or defect has occurred.
29
Each notice of redemption shall state: (1) the CUSIP numbers of all Bonds being
redeemed, (2) the original issue date of such Bonds, (3) the maturity date and rate of
interest borne by each Bond being redeemed, (4) the redemption date, (5) the Redemption
Price, (6) the date on which such notice is mailed, (7) if less than all Outstanding Bonds
are to be redeemed, the certificate number (and, in the case of a partial redemption of any
Bond, the principal amount) of each Bond to be redeemed, (8) that on such redemption
date there shall become due and payable upon each Bond to be redeemed the Redemption
Price thereof, or the Redemption Price of the specified portions of the principal thereof in
the case of Bonds to be redeemed in part only, together with interest accrued thereon to
the redemption date, and that from and after such date interest thereon shall cease to
accrue and be payable, (9) that the Bonds to be redeemed, whether as a whole or in part,
are to be surrendered for payment of the Redemption Price at the principal office of the
Registrar at an address specified, and (10) the name and telephone number of a person
designated by the Registrar to be responsible for such redemption.
In addition to the mailing of the notice described above, each notice of redemption
and payment of the Redemption Price shall meet the following requirements; provided,
however, the failure to provide such further notice of redemption or to comply with the
terms of this paragraph shall not in any manner defeat the effectiveness of a call for
redemption if notice thereof is given as prescribed above:
(A) Each further notice of redemption shall be sent by certified mail or
overnight delivery service or telecopy to all registered securities depositories then in the
business of holding substantial amounts of obligations of types comprising the Bonds and
to one or more national information services which disseminate notices of prepayment or
redemption of obligations such as the Bonds.
(B) Each further notice of redemption shall be sent to such other Person, if any,
as shall be.required by applicable law or regulation.
The notice of redemption described in this paragraph need not be given as
described above if the Bonds called for redemption are registered pursuant to a book-
entry-only system.
The Issuer may provide that a notice of redemption may be contingent upon the
occurrence of certain condition(s) and that if such condition(s) do not occur, the notice
will be rescinded; provided notice of rescission shall be mailed in the manner described
above to all affected Bondholders not later than the business day prior to the date of
redemption.
SECTION 3.04. REDEMPTION OF PORTIONS OF BONDS. Any Bond
which is to be redeemed only in part shall be surrendered at any place of payment
30
specified in the notice of redemption (with due endorsement by, or written instrument of
transfer in form satisfactory to the Registrar duly executed by, the Holder thereof or his
attorney duly authorized in writing) and the Issuer shall execute and the Registrar shall
authenticate and deliver to the Holder of such Bond, without service charge, a new Bond
or Bonds, of any authorized denomination, as requested by such Holder in an aggregate
principal amount equal to and in exchange for the unredeemed portion of the principal of
the Bonds so surrendered.
SECTION 3.05. PAYMENT OF REDEEMED BONDS. Notice of
redemption having been given substantially as aforesaid, the Bonds or portions of Bonds
so to be redeemed shall (subject to the satisfaction of any conditions specified in the
notice), on the redemption date, become due and payable at the Redemption Price therein
specified, and from and after such date (unless the Issuer shall default in the payment of
the Redemption Price) such Bonds or portions of Bonds shall cease to bear interest.
Upon surrender of such Bonds for redemption in accordance with said notice, such Bonds
shall be paid by the Registrar and/or Paying Agent at the appropriate Redemption Price,
plus accrued interest. All Bonds which have been redeemed shall be canceled and
destroyed by the Registrar and shall not be reissued.
31
ARTICLE IV
SECURITY,SPECIAL FUNDS AND APPLICATION THEREOF
SECTION 4.01. BONDS NOT TO BE INDEBTEDNESS OF ISSUER. The
Bonds shall not be or constitute general obligations or indebtedness of the Issuer as
"bonds" within the meaning of any constitutional or statutory provision, but shall be
special obligations of the Issuer, payable solely from and secured by a lien upon and
pledge of the Pledged Funds, in the manner and to the extent provided in this Resolution.
No Holder of any Bond shall ever have the right to compel the exercise of any ad
valorem taxing power to pay such Bond, or be entitled to payment of such Bond from any
moneys of the Issuer except from the Pledged Funds in the manner and to the extent
provided herein.
SECTION 4.02. SECURITY FOR BONDS. The payment of the principal of
or Redemption Price, if applicable, and interest on the Bonds.shall be secured forthwith
equally and ratably by a pledge of and lien upon the Pledged Funds; provided, however, a
Series of Bonds may be further secured by a Credit Facility or Bond Insurance Policy in
addition to the security provided herein; and provided further that a Series of Bonds may
be secured independently of any other Series of Bonds by the establishment of a separate
subaccount in the Reserve Account for such Series of Bonds. In addition, the 2006
Project Grants to the extent they may be lawfully used to pay debt service on the Series
2006 Bonds shall constitute "Pledged Funds" solely for the Series 2006 Bonds. The
Issuer does hereby irrevocably pledge the Pledged Funds to the payment of the principal
of or Redemption Price, if applicable, and interest on the Bonds in accordance with the
provisions hereof. Except as otherwise provided by Supplemental Resolution, the
obligation of the Issuer to make Hedge Payments to a Counterparty pursuant to a
Qualified Hedge Agreement shall be on parity with the Bonds as to lien on and pledge of
the Pledged Funds in accordance with the terms hereof(any other payments related to a
Qualified Hedge Agreement, including fees, penalties and termination payments and the
obligation of the Issuer to collateralize, shall be Subordinated Indebtedness of the Issuer).
The Pledged Funds shall immediately be subject to the lien of this pledge without
any physical delivery thereof or further act, and the lien of this pledge shall be valid and
binding as against all parties having claims of any kind in tort, contract or otherwise
against the Issuer.
SECTION 4.03. CONSTRUCTION FUND. The Issuer covenants and agrees
to establish, a special fund in a bank, trust company or such other entity in the State,
which is eligible under the laws of the State to be a depository for municipal funds, to be
known as the "Monroe County, Florida Key West Airport Construction Fund," which
shall be used only for payment of the Cost of a Project. Moneys in the Construction
32
Fund, until applied in payment of any item of the Cost of a Project in the manner
hereinafter provided, shall be subject to a lien and charge in favor of the Holders of the
Bonds and for the further security of such Holders.
There shall be paid into the Construction Fund the amounts required to be so paid
by the provisions of this Resolution, and there may be paid into the Construction Fund, at
the option of the Issuer, any moneys received for or in connection with a Project by the
Issuer from any other source.
The Issuer shall establish within the Construction Fund a separate account for each
Project, the Cost of which is to be paid in whole or in part out of the Construction Fund.
The Issuer shall establish the "Series 2006 Account" within the Construction Fund for the
2006 Project. Moneys in such Accounts shall be used to pay the Costs of the 2006
Project.
The proceeds of insurance maintained pursuant to this Resolution against physical
loss of or damage to a Project, or of contractors' performance bonds with respect thereto
pertaining to the period of construction thereof, shall be deposited into the appropriate
account of the Construction Fund.
Any moneys received by the Issuer from the State or from the United States of
America or any agencies thereof for the purpose of financing part of the Cost of a Project
shall be deposited into the appropriate account of the Construction Fund and used in the
same manner as other Bond proceeds are used therein; provided that separate accounts or
subaccounts may be established in the Construction Fund for moneys received pursuant
to the provisions of this paragraph whenever required by federal or State law; provided,
further, any such moneys shall not be subject to the lien and charge in favor of the
Holders of the Bonds
The Issuer covenants that the acquisition, construction and installation of each
Project will be completed without delay and in accordance with sound engineering
practices. The Issuer shall make disbursements or payments from the Construction Fund
to pay the Cost of a Project upon the filing with the Clerk of certificates and/or
documents signed by an Authorized Issuer Officer, stating with respect to each
disbursement or payment to be made: (A) the item number of the payment, (B) the name
and address of the Person to whom payment is due, (C) the amount to be paid, (D) the
account of the Construction Fund from which payment is to be made, (E) the purpose, by
general classification, for which payment is to be made, and (F) that (i) each obligation,
item of cost or expense mentioned therein has been properly incurred, is in payment of a
part of the Cost of a Project and is a proper charge against the account of the
Construction Fund from which payment is to be made and has not been the basis of any
previous disbursement or payment, or (ii) each obligation, item of cost or expense
33
mentioned therein has been paid by the Issuer, is a reimbursement of a part of the Cost of
a Project, is a proper charge against the account of the Construction Fund from which
payment is to be made, has not been theretofore reimbursed to the Issuer or otherwise
been the basis of any previous disbursement or payment and the Issuer is entitled to
reimbursement thereof. The Clerk shall retain all such certificates and/or documents of
the Authorized Issuer Officers for such other period of time as required by applicable
law. The Clerk shall make available the certificates and/or documents at all reasonable
times for inspection by any Holder of any of the Bonds or the agent or representative of
any Holder of any of the Bonds.
Notwithstanding any of the other provisions of this Section 4.03, to the extent that
other moneys are not available therefor, amounts in the Construction Fund derived from
proceeds of the Bonds may be applied to the payment of principal of and interest on
Bonds when due.
The date of completion of the acquisition and construction of a Project shall be
determined by an Authorized Issuer Officer which shall certify such fact in writing to the
Governing Body. An Authorized Issuer Officer may perform such tests relating to a
Project as he deems necessary in order to make such certification. Promptly after the date
of the completion of a Project, and after paying or making provision for the payment of
all unpaid items of the Cost of such Project, the Issuer shall transfer the balance of any
money in the Construction Fund which shall deposit such moneys in the following order
of priority in (A) another account of the Construction Fund for which an Authorized
Issuer Officer has stated that there are insufficient moneys present to pay the Cost of the
related Project, (B) the Reserve Account, to the extent of a deficiency therein, and (C)
such other fund or account established hereunder as shall be determined by the
Governing Body, provided the Issuer has received an opinion of Bond Counsel to the
effect that such transfer shall not adversely affect the exclusion, if any, of interest on the
Bonds from gross income for purposes of federal income taxation.
SECTION 4.04. CREATION OF FUNDS AND ACCOUNTS. The Issuer
covenants and agrees to establish with a bank, trust company or such other entity in the
State, which is eligible under the laws of the State to be a depository for its funds the
following funds and accounts:
(A) The "Monroe County, Florida Key West Airport Revenue Fund." The
Issuer shall maintain two separate accounts in the Revenue Fund: the "Revenue
Account" and the "PFC Account."
(B) The "Monroe County, Florida Key West Airport Operation, Maintenance
and Administration Fund."
34
(C) The "Monroe County, Florida Key West Airport Sinking Fund." The Issuer
shall maintain four separate accounts in the Sinking Fund: the "Interest Account," the
"Principal Account," the "Term Bonds Redemption Account" and the "Reserve Account."
(D) The "Monroe County, Florida Key West Airport Renewal and Replacement
Fund."
(E) The "Monroe County, Florida Key West Airport Reserve Fund."
(F) The "Monroe County, Florida Key West Airport PFC Capital Improvement
Fund."
(G) The "Monroe County, Florida Key West Airport Rebate Fund."
Moneys in the aforementioned funds and accounts (except for moneys in the
Rebate Fund), until applied in accordance with the provisions hereof, shall be subject to a
lien and charge in favor of the Holders of the Bonds and for the further security of such
Holders in accordance with the terms hereof.
The Issuer may at any time and from time to time appoint one or more depositaries
to hold, for the benefit of the Bondholders, any one or more of the funds and accounts
established hereby. Such depositary or depositaries shall perform at the direction of the
Issuer the duties of the Issuer in depositing, transferring and disbursing moneys to and
from each of such funds or accounts as herein set forth, and all records of such depositary
in performing such duties shall be open at all reasonable times to inspection by the Issuer
and its agents and employees. Any such depositary shall be a bank or trust company duly
authorized to exercise corporate trust powers and subject to examination by federal or
state authority, of good standing, and be qualified under applicable State law.
SECTION 4.05. DISPOSITION OF GROSS REVENUES AND OTHER
AVAILABLE MONEYS.
(A) Revenue Fund. Into the Revenue Account, the Issuer shall deposit
promptly, as received, all Gross Revenues. Into the PFC Account, the Issuer shall deposit
promptly, as received, all PFC Revenues.
(B) Operation, Maintenance and Administration Fund. Moneys in the Revenue
Account shall first be used each month to deposit in the Operation, Maintenance and
Administration Fund such sums as are necessary to pay Operating and Maintenance Costs
for the ensuing month; provided the Issuer may transfer moneys from the Revenue
Account to the Operation, Maintenance and Administration Fund at any time to pay
Operating and Maintenance Costs to the extent there is a deficiency in the Operation,
Maintenance and Administration Fund for such purpose. Amounts in the Operation,
35
Maintenance and Administration Fund shall be paid out from time to time by the Issuer
for Operating and Maintenance Costs.
(C) PFC Account. Moneys in the PFC Account shall be used on or before the
25th day of each month in the following order of priority:
(1) Sinking Fund. The Issuer shall deposit or credit to the Interest
Account, the Principal Account and the Term Bonds Redemption Account such
amounts as it shall determine pursuant to its Annual Budget and which are Eligible
PFC Revenues.
(2) PFC Capital Improvement Fund. The remainder of moneys in the
PFC Account shall be deposited into the PFC Capital Improvement Fund and shall
be utilized in accordance with the terms of Section 4.06 hereof.
(D) Subsequent to the payment described in Section 4.05(B) hereof, all moneys
at any time on deposit in the Revenue Account shall be disposed of by the Issuer on or
before the 25th day of each month in the following order of priority:
(1) Interest Account. The Issuer shall deposit or credit to the Interest
Account the sum which, together with the balance in said Account including any
moneys transferred from the PFC Account to the Interest Account, shall equal the
interest on all Bonds Outstanding (except as to Capital Appreciation Bonds)
accrued and unpaid and to accrue to the end of the then current calendar month.
All Hedge Receipts shall be deposited directly to the Interest Account upon
receipt. With respect to interest on Bonds which are subject to a Qualified Hedge
Agreement, interest on such Bonds during the term of the Qualified Hedge
Agreement shall be deemed to include the corresponding Hedge Payments.
Moneys in the Interest Account shall be applied by the Issuer (a) for deposit with
the Paying Agents to pay the interest on the Bonds on or prior to the date the same
shall become due and (b) for Hedge Payments. The Issuer shall adjust the amount
of the deposit to the Interest Account not later than a month immediately
preceding any Interest Date so as to provide sufficient moneys in the Interest
Account to pay the interest on the Bonds coming due on such Interest Date. No
further deposit need be made to the Interest Account when the moneys therein are
equal to the interest coming due on the Outstanding Bonds on the next succeeding
Interest Date. With respect to debt service on any Bonds which are subject to a
Qualified Hedge Agreement, any Hedge Payments due to the Qualified Hedge
Agreement Counterparty relating to such Bonds shall be paid to the Qualified
Hedge Agreement Counterparty on a parity basis with the aforesaid required
payments into the Sinking Fund. In computing the interest on Variable Rate
Bonds which shall accrue during a calendar month, the interest rate on such
36
Variable Rate Bonds shall be assumed to be (A) if such Variable Rate Bonds have
been Outstanding for at least 12 months prior to the commencement of such
calendar month, the highest interest rate borne by such Variable Rate Bonds
during the preceding 12 month period, and (B) if such Variable Rate Bonds have
not been Outstanding for at least 12 months prior to the date of calculation, the
Bond Buyer Revenue Bond Index most recently published prior to the
commencement of such calendar month.
(2) Principal Account. Commencing no later than the month which is
one year prior to the first principal due date, the Issuer shall next deposit into the
Principal Account the sum which, together with the balance in said Account
including any moneys transferred from the PFC Account to the Principal Account,
shall equal the principal amounts on all Bonds Outstanding due and unpaid and
that portion of the principal next due which would have accrued on such Bonds
during the then current calendar month if such principal amounts were deemed to
accrue monthly (assuming that a year consists of 12 equivalent calendar months
having 30 days each) in equal amounts from the next preceding principal payment
due date, or, if there be no such preceding payment due date from a date one year
preceding the due date of such principal amount. Moneys in the Principal Account
shall be applied by the Issuer for deposit with the Paying Agents to pay the
principal of the Bonds on or prior to the date the same shall mature, and for no
other purpose. Serial Capital Appreciation Bonds shall be payable from the
Principal Account in the years in which such Bonds mature and monthly payments
into the Principal Account on account of such Bonds shall commence in the month
of the respective Bond Years in which such Bonds mature. The Issuer shall adjust
the amount of the deposit to the Principal Account not later than the month
immediately preceding any principal payment date so as to provide sufficient
moneys in the Principal Account to pay the principal on Bonds becoming due on
such principal payment date. No further deposit need be made to the Principal
Account when the moneys therein are equal to the principal coming due on the
Outstanding Bonds on the next succeeding principal payment date.
(3) Term Bonds Redemption Account. Commencing in the month
which is one year prior to the first Sinking Fund Installment due date, there shall
be deposited to the Term Bonds Redemption Account the sum which, together
with the balance in such Account including any moneys transferred from the PFC
Account to the Term Bonds Redemption Account, shall equal the Sinking Fund
Installments on all Bonds Outstanding due and unpaid and that portion of the
Sinking Fund Installments of all Bonds Outstanding next due which would have
accrued on such Bonds during the then current calendar month if such Sinking
Fund Installments were deemed to accrue monthly (assuming that a year consists
of 12 equivalent calendar months having 30 days each) in equal amounts from the
37
next preceding Sinking Fund Installment due date, or, if there is no such preceding
Sinking Fund Installment due date, from a date one year preceding the due date of
such Sinking Fund Installment. Moneys in the Term Bonds Redemption Account
shall be used to purchase or redeem Term Bonds in the manner herein provided,
and for no other purpose. The Issuer shall adjust the amount of the deposit to the
Term Bonds Redemption Account on the month immediately preceding any
Sinking Fund Installment Date so as to provide sufficient moneys in the Term
Bonds Redemption Account to pay the Sinking Fund Installments becoming due
on such date. Payments to the Term Bonds Redemption Account shall be on
parity with payments to the Principal Account.
Amounts accumulated in the Term Bonds Redemption Account with
respect to any Sinking Fund Installment (together with amounts accumulated in
the Interest Account with respect to interest, if any, on the Term Bonds for which
such Sinking Fund Installment was established) may be applied by the Issuer, on
or prior to the 60th day preceding the due date of such Sinking Fund Installment,
(a) to the purchase of Term Bonds of the Series and maturity for which such
Sinking Fund Installment was established, or (b) to the redemption at the
applicable Redemption Prices of such Term Bonds, if then redeemable by their
terms. Amounts in the Term Bonds Redemption Account which are used to
redeem Term Bonds shall be credited against the next succeeding Amortization
Installment which shall become due on such Term Bonds. The applicable
Redemption Price (or principal amount of maturing Term Bonds) of any Term
Bonds so purchased or redeemed shall be deemed to constitute part of the Term
Bonds Redemption Account until such Sinking Fund Installment date, for the
purposes of calculating the amount of such Account. As soon as practicable after
the 60th day preceding the due date of any such Sinking Fund Installment, the
Issuer shall proceed to call for redemption on such due date, by causing notice to
be given as provided in Section 3.03 hereof, Term Bonds of the Series and
maturity for which such Sinking Fund Installment was established (except in the
case of Term Bonds maturing on a Sinking Fund Installment date) in such amount
as shall be necessary to complete the retirement of the unsatisfied balance of such
Sinking Fund Installment. The Issuer shall pay out of the Term Bonds
Redemption Account and the Interest Account to the appropriate Paying Agents,
on or before the day preceding such redemption date (or maturity date), the
amount required for the redemption (or for the payment of such Term Bonds then
maturing), and such amount shall be applied by such Paying Agents to such
redemption (or payment). All expenses in connection with the purchase or
redemption of Term Bonds shall be paid by the Issuer from the Operation,
Maintenance and Administration Fund.
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(4) Reserve Account. There shall be deposited to the Reserve Account
an amount which would enable the Issuer to restore the funds on deposit in the
Reserve Account (including any subaccounts therein) to an amount equal to the
Reserve Account Requirement applicable thereto. All deficiencies in the Reserve
Account must be made up no later than 12 months from the date such deficiency
first occurred, whether such shortfall was caused by decreased market value or
withdrawal (whether from cash or a Reserve Account Insurance Policy or Reserve
Account Letter of Credit). On or prior to each principal payment date and Interest
Date for the Bonds (in no event earlier than the 25th day of the month next
preceding such payment date), moneys in the Reserve Account shall be applied by
the Issuer to the payment of the principal of or Redemption Price, if applicable,
and interest on the Bonds to the extent .moneys in the Interest Account, the
Principal Account and the Term Bonds Redemption Account shall be insufficient
for such purpose, but only to the extent the moneys transferred from the Airport
Reserve Fund, the PFC Capital Improvement Fund, and the Renewal and
Replacement Fund for such purposes pursuant to Sections 4.05(D)(7), 4.06 and
4.05(D)(5), respectively, hereof shall be inadequate to fully provide for such
insufficiency. Whenever there shall be surplus moneys in the Reserve Account by
reason of a decrease in the Reserve Account Requirement or as a result of a
deposit in the Reserve Account Letter of Credit or a Reserve Account Insurance
Policy, such surplus moneys, to the extent practicable, shall be deposited by the
Issuer into the Revenue Account of the Revenue Fund. The Issuer shall promptly
inform each Insurer of any draw upon the Reserve Account for purposes of paying
the principal of and interest on the Bonds.
Upon the issuance of any Series of Bonds under the terms, limitations and
conditions as herein provided, the Issuer shall fund the Reserve Account in an
amount at least equal to the Reserve Account Requirement. Such required
amount, if any, shall be paid in full or in part from the proceeds of such Series of
Bonds or may be accumulated in equal monthly payments to the Reserve Account
over a period of months from the date of issuance of such Series of Bonds, which
shall not exceed 36 months. In the event moneys in the Reserve Account are
accumulated as provided above, (a) the amount in said Reserve Account on the
date of delivery of the Additional Bonds shall not be less than the Reserve
Account Requirement on all Bonds Outstanding (excluding the Additional Bonds)
on such date, and (b) the incremental difference between the Reserve Account
Requirement on all Bonds Outstanding (excluding the Additional Bonds) on the
date of delivery of the Additional Bonds and the Reserve Account Requirement on
all such Bonds and the Additional Bonds shall be 50% funded upon delivery of the
Additional Bonds.
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Notwithstanding the foregoing provisions, in lieu of or in substitution of the
required deposits into the Reserve Account, the Issuer may cause to be deposited
into the Reserve Account a Reserve Account Insurance Policy and/or Reserve
Account Letter of Credit for the benefit of the Bondholders in an amount equal to
the difference between the Reserve Account Requirement applicable thereto and
the sums then on deposit in the Reserve Account, if any. The Issuer may also
substitute a Reserve Account Insurance Policy and/or Reserve Account Letter of
Credit for cash on deposit in the Reserve Account upon compliance with the terms
of this Section 4.05(D)(4). Such Reserve Account Insurance Policy and/or
Reserve Account Letter of Credit shall be payable to the Paying Agent (upon the
giving of notice as required thereunder) on any Interest Date or redemption date
on which a deficiency exists which cannot be cured by moneys in any other fund
or account held pursuant to this Resolution and available for such purpose. The
Issuer providing such Reserve Account Insurance Policy and/or Reserve Account
Letter of Credit shall be either (a) an insurer whose municipal bond insurance
policies insuring the payment, when due, or the principal of and interest on
municipal bond issues results in such issues being rated in one of the two highest
rating categories (without regard to gradations, such as "plus" or "minus" of such
categories) by two of the Rating Agencies, or (b) a commercial bank, insurance
company or other financial institution which has been assigned a rating by two of
the Rating Agencies in one of the two highest rating categories (without regard to
gradations, such as "plus" or "minus" of such categories). Any Reserve Account
Insurance Policy and/or Reserve Account Letter of Credit shall equally secure all
Bonds except to the extent a Series of Bonds is secured by a subaccount in the
Reserve Account which is pledged solely for the payment of such Series of Bonds
as provided in the last paragraph of this Section 4.05(D)(4).
If two days prior to an interest or principal payment date, or such other
period of time as shall be required by the terms of the Reserve Account Insurance
Policy or Reserve Account Letter of Credit, the Issuer shall determine that a
deficiency exists in the amount of moneys available to pay in accordance with the
terms hereof interest and/or principal due on the Bonds on such date, the Issuer
shall immediately notify (a) the issuer of the applicable Reserve Account
Insurance Policy and/or the issuer of the Reserve Account Letter of Credit and
submit a demand for payment pursuant to the provisions of such Reserve Account
Insurance Policy and/or the Reserve Account Letter of Credit, (b) the Paying
Agent, and (c) the Insurer, if any, of the amount of such deficiency and the date on
which such payment is due.
In the event the Reserve Account contains both a Reserve Account
Insurance Policy or Reserve Account Letter of Credit and cash and separate
subaccounts have not been established in the Reserve Account, the cash shall be
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drawn down completely prior to any draw on the Reserve Account Insurance
Policy or Reserve Account Letter of Credit. In the event more than one Reserve
Account Insurance Policy or Reserve Account Letter of Credit is on deposit in the
Reserve Account, amounts required to be drawn thereon shall be done on a pro-
rata basis. The Issuer agrees to pay all amounts owing in regard to any Reserve
Account Insurance Policy or Reserve Account Letter of Credit from the Pledged
Funds. Pledged Funds shall be applied in accordance with this Section 4.05(D)(4),
first, to reimburse the issuer of the Reserve Account Insurance Policy or Reserve
Account Letter of Credit for amounts advanced under such instruments, second,
replenish any cash deficiencies in the Reserve Account, and, third, to pay the
issuer of the Reserve Account Insurance Policy or Reserve Account Letter of '
Credit interest on amounts advanced under such instruments. This Resolution
shall not be discharged or defeased while any obligations are owing in regard to a
Reserve Account Insurance Policy or Reserve Account Letter of Credit on deposit
in the Reserve Account. The Issuer agrees not to optionally redeem Bonds unless
all amounts owing in regard to a Reserve Account Insurance Policy or Reserve
Account Letter of Credit on deposit in the Reserve Account have been paid in full.
The Issuer may evidence its obligation to reimburse the issuer of any
Reserve Account Letter of Credit or Reserve Account Insurance Policy by
executing and delivering to such issuer a promissory note therefor; provided,
however, any such note (a) shall not be a general obligation of the Issuer the
payment of which is secured by the full faith and credit or taxing power of the
Issuer, and (b) shall be payable solely from the Pledged Funds in the manner
provided herein.
Any consent or approval of any Insurer described in this Section 4.05(D)(4)
shall be required only so long as there are Outstanding Bonds secured by a Bond
Insurance Policy issued by such Insurer which is in full force and effect and the
commitments of which have been honored by such Insurer. The term "Paying
Agent" as used in this Section 4.05(D)(4) may include one or more Paying Agents
for the Outstanding Bonds.
Whenever the amount of cash in the Reserve Account, together with the
other amounts in the Debt Service Fund, are sufficient to fully pay all Outstanding
Bonds in accordance with their terms (including principal or applicable
Redemption Price and interest thereon), the funds on deposit in the Reserve
Account may be transferred to the other Accounts of the Sinking Fund for the
payment of the Bonds.
The Issuer may also establish a separate subaccount in the Reserve Account
for any Series of Bonds and provide a pledge of such subaccount to the payment
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of such Series of Bonds apart from the pledge provided herein. To the extent a
Series of Bonds is secured separately by a subaccount of the Reserve Account, the
Holders of such Bonds shall not be secured by any other moneys in the Reserve
Account. Moneys in a separate subaccount of the Reserve Account shall be
maintained at the Reserve Account Requirement applicable to such Series of
Bonds secured by the subaccount; provided the Supplemental Resolution
authorizing such Series of Bonds may establish the Reserve Account Requirement
relating to such separate subaccount of the Reserve Account at such level as the
Issuer deems appropriate. Moneys shall be deposited in the separate subaccounts
in the Reserve Account on a pro-rata basis. In the event the Issuer shall maintain a
Reserve Account Insurance Policy or Reserve Account Letter of Credit and
moneys in such subaccount, the moneys shall be used prior to making any
disbursements under such Reserve Account Insurance Policy or Reserve Account
Letter of Credit.
(5) Renewal and Replacement Fund. There shall be deposited to the
Renewal and Replacement Fund such sums as shall be sufficient to pay 1/12 of an
amount equal to the Renewal and Replacement Fund Requirement until the
amount accumulated in such Fund is equal to such Renewal and Replacement
Fund Requirement; provided, however, that (a) such Renewal and Replacement
Fund Requirement may be increased or decreased as the Airport Consultant shall
certify to the Issuer is necessary for the purposes of the Renewal and Replacement
Fund, and (b) in the event that the Airport Consultant shall certify that the
Renewal and Replacement Fund Requirement is excessive for the purposes of the
Renewal and Replacement Fund such excess amount as may be on deposit therein
may be transferred by the Issuer from the Renewal and Replacement Fund for
deposit into the Airport Reserve Fund. The moneys in the Renewal and
Replacement Fund shall be applied by the Issuer for the purpose of paying the cost
of extensions, improvements or additions to, or the replacement or renewal of
capital assets of, the Airport, or extraordinary repairs of the Airport; provided,
however, that on or prior to each principal and interest payment date for the Bonds
(in no event earlier than the 25th day of the month next preceding such payment
date), moneys in the Renewal and Replacement Fund shall be,applied for the
payment into the Interest Account, the Principal Account and the Term Bonds
Redemption Account when the moneys therein are insufficient to pay the principal
of and interest on the Bonds coming due, but only to the extent moneys transferred
from the Airport Reserve Fund and the PFC Capital Improvement Fund for such
purpose pursuant to Sections 4.05(D)(7) and 4.06 hereof, shall be adequate to fully
provide for such insufficiency. Moneys in the Renewal and Replacement Fund
may also be transferred to the Operation, Maintenance and Administration Fund to
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fund Operating and Maintenance Costs to the extent other moneys available
therefor shall be insufficient for such purpose.
(6) Subordinated Indebtedness. Gross Revenues shall next be deposited
by the Issuer for the payment of any debt service and other required deposits on
Subordinated Indebtedness incurred by the Issuer in connection with the
Improvements to the Airport and in accordance with the proceedings authorizing
such Subordinated Indebtedness.
(7) Airport Reserve Fund. The balance of any Gross Revenues
remaining in the Revenue Account shall be deposited in the Airport Reserve Fund
and applied for any lawful purpose relating to the Airport. Moneys in the Airport
Reserve Fund shall be applied to the payment, on or prior to each principal and
interest payment date for the Bonds (in no event earlier than the 25th day of the
month next preceding such payment date), into the Interest Account, the Principal
Account and the Term Bonds Redemption Account when the moneys therein shall
be insufficient to pay the principal of and interest on the Bonds coming due. The
Issuer may make transfers from the Airport Reserve Fund to the Revenue
Account.
(E) Whenever moneys on deposit in the Sinking Fund are sufficient to fully pay
all Outstanding Bonds in accordance with their terms (including principal or applicable
Redemption Price and interest thereon), no further deposits to the Sinking Fund need .be
made. If on any payment date the Gross Revenues and Eligible PFC Revenues are
insufficient to deposit the required amount in any of the funds or accounts or for any of
the purposes provided above, the deficiency shall be made up on the subsequent payment
dates.
The Issuer, in its discretion, may use moneys in the Principal Account and the
Interest Account to purchase or redeem Bonds coming due on the next principal payment
date, provided such purchase or redemption does not adversely affect the Issuer's ability
to pay the principal or interest coming due on such principal payment date on the Bonds
not so purchased or redeemed.
(F) In the event the Issuer shall issue a Series of Bonds secured by a Credit
Facility, the Issuer may establish separate subaccounts in the Interest Account, the
Principal Account and the Term Bonds Redemption Account to provide for payment of
the principal of and interest on such Series; provided payment from the Pledged Funds of
one Series of Bonds shall not have preference over payment of any other Series of Bonds.
The Issuer may also deposit moneys in such subaccounts at such other times and in such
other amounts from those provided in Section 4.05(D) as shall be necessary to pay the
43
principal of and interest on such Bonds as the same shall become due, all as provided by
the Supplemental Resolution authorizing such Bonds and the Credit Facility.
In the case of Bonds secured by a Credit Facility, amounts on deposit in the
Sinking Fund may be applied as provided in the applicable Supplemental Resolution and
the Credit Facility to reimburse the Credit Bank for amounts drawn under such Credit
Facility to pay the principal of, premium, if any, and interest on such Bonds or to pay the
purchase price of any such Bonds which are tendered by the holders thereof for payment;
provided such Credit Facility shall have no priority over Bondholders or an Insurer to
amounts on deposit in the Sinking Fund. Other payments due to a Credit Bank in relation
to obligations arising under its Credit Facility may be on parity with the Bonds as to
source of and security for payment to the extent provided in the Supplemental Resolution
relating thereto.
SECTION 4.06. PFC CAPITAL IMPROVEMENT FUND. The Issuer shall
apply moneys on deposit in the PFC Capital Improvement Fund, to the extent permitted
by the PFC Act and PFC Approvals, to pay the principal of (whether at maturity or in
satisfaction of the Sinking Fund Installments) and interest on the Bonds when due,
whenever and to the extent that the money on deposit in the Interest Account, the
Principal Account and the Term Bonds Redemption Account and moneys transferred
from the Airport Reserve Fund to said Accounts pursuant to Section 4.05(D)(7) hereof
are insufficient for such purposes.
The Issuer agrees that any moneys in the PFC Capital Improvement Fund which
are legally available to pay debt service on the Series 2006 Bonds shall be used solely for
such purpose. The payment of debt service shall include, but not be limited to, early
redemption of the Series 2006 Bonds.
The Issuer, at its option, and with the written consent of the Bank, but only after
determining that no amounts are required to be applied to pay the principal of and interest
on the Bonds as described above, may apply any amounts remaining in the PFC Capital
Improvement Fund for any one or more of the following purposes: (A) to pay the costs of
PFC Improvements, (B) to pay debt service on any obligation incurred by the County to
finance costs of PFC Improvements, (C) to purchase or redeem Bonds, if permitted by the
PFC Act and PFC Regulations, or (D) to the extent permitted by the PFC Act and the
PFC Regulations, for any other lawful Airport purpose.
SECTION 4.07 REBATE FUND. Amounts on deposit in the Rebate Fund
shall be held in trust by the Issuer and used solely to make required rebates to the United
States (except to the extent the same may be transferred to the Revenue Account) and the
Bondholders shall have no right to have the same applied for debt service on the Bonds.
For any Series of Bonds for which the rebate requirements of Section 148(f) of the Code
44
are applicable, the Issuer agrees to undertake all actions required of it in its arbitrage
certificate relating to such Series of Bonds, including, but not limited to:
(A) making a determination in accordance with the Code of the amount
required to be deposited in the Rebate Fund;
(B) depositing the amount determined in clause (A) above into the Rebate
Fund;
(C) paying on the dates and in the manner required by the Code to the United
States Treasury from the Rebate Fund and any other legally available moneys of the
Issuer such amounts as shall be required by the Code to be rebated to the United States
Treasury; and
(D) keeping such records of the determinations made pursuant to this Section
4.07 as shall be required by the Code, as well as evidence of the fair market value of any
investments purchased with proceeds of the Bonds.
The provisions of the above-described arbitrage certificates may be amended
without the consent of any Holder, Credit Bank or Insurer from time to time as shall be
necessary, in the opinion of Bond Counsel, to comply with the provisions of the Code.
SECTION 4.08 INVESTMENTS. Moneys on deposit in the Construction
Fund, the Sinking Fund, the PFC Capital Improvement Fund,the Operation, Maintenance
and Administration Fund, the Airport Reserve Fund, the Renewal and Replacement Fund
and the Revenue Fund shall be continuously secured in the manner by which the deposit
of public funds are authorized to be secured by the laws of the State. Moneys on deposit
in the Construction Fund, the PFC Capital Improvement Fund, the Operation,
Maintenance and Administration Fund, the Airport Reserve Fund, the Renewal and
Replacement Fund, the Revenue Fund and the Sinking Fund (other than the Reserve .
Account) shall be invested and reinvested by the Issuer in Authorized Investments,
maturing not later than the dates on which such moneys will be needed for the purposes
of such Fund or Account. Moneys on deposit in the Reserve Account may be invested or
reinvested by the Issuer in Authorized Investments which shall have an average aggregate
weighted term to maturity not greater than ten years. Notwithstanding any other
provision hereof, all amounts on deposit in the Construction Fund or Interest Account
representing accrued interest and capitalized interest shall be held by the Issuer, shall be
pledged solely to the payment of interest on the corresponding Series of Bonds and,
unless otherwise provided by Supplemental Resolution, shall be invested only in Federal
Securities maturing in such times and in such amounts as are necessary to pay the interest
to which they are pledged; provided, however, amounts on deposit in the Interest
Account representing accrued and capitalized interest shall be invested only in cash or
45
direct obligations of the United States of America or any combination thereof and shall
be used only for the purpose of paying interest on the Bonds which funded such accrued
and capitalized interest. All investments shall be valued at amortized cost; provided,
however, investments in the Reserve Account shall be valued at the market value thereof,
exclusive of accrued interest. Investments in the Reserve Account shall be valued by the
Issuer on an annual basis on March 1 of each year.
Any and all income received from the investment of moneys in each separate
account of the Construction Fund, the Interest Account, the Principal Account, the Term
Bonds Redemption Account, the Airport Reserve Fund, the PFC Capital Improvement
Fund, the PFC Account, the Revenue Account, the Reserve Account (to the extent such
income and the other amounts in the Reserve Account do not exceed the Reserve
Account Requirement) and the Renewal and Replacement Fund (to the extent such
income and other amounts in the Renewal and Replacement Fund do not exceed the
Renewal and Replacement Fund Requirement), shall be retained in such respective Fund
or Account.
Any and all income received from the investment of moneys in the Reserve
Account (only to the extent such income and the other amounts in the Reserve Account
exceeds the Reserve Account Requirement) and of moneys in the Renewal and
Replacement Fund (only to the extent such income and other amounts in the Renewal and
Replacement Fund exceeds the Renewal and Replacement Fund Requirement), shall be
deposited upon receipt thereof in the Revenue Account.
Nothing in this Resolution shall prevent any Authorized Investments acquired as
investments of or security for funds held under this Resolution from being issued or held
in book-entry form on the books of the Department of the Treasury of the United States.
SECTION 4.09 SEPARATE ACCOUNTS. The moneys required to be
accounted for in each of the foregoing funds, accounts and subaccounts established
herein may be deposited in a single bank account, and funds allocated to the various
funds, accounts and subaccounts established herein may be invested in a common
investment pool, provided that adequate accounting records are maintained to reflect and
control the restricted allocation of the moneys on deposit therein and such investments
for the various purposes of such funds, accounts and subaccounts as herein provided.
The designation and establishment of the various funds, accounts and subaccounts
in and by this Resolution shall not be construed to require the establishment of any
completely independent, self-balancing funds as such term is commonly defined and used
in governmental accounting, but rather is intended solely to constitute an earmarking of
certain revenues for certain purposes and to establish certain priorities for application of
such revenues as herein provided.
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SECTION 4.10 GOVERNMENT GRANTS. All Government Grants shall
be utilized in accordance with the terms of such Government Grant and applicable law.
All proceeds of the 2006 Project Grants shall be held by the Issuer and used solely for the
purpose of redeeming principal of Series 2006 Bonds prior to maturity and prior to any
redemption otherwise required hereby or by any agreement with the Bank, as may be
further addressed in the agreement between the Bank and the Issuer.
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ARTICLE V
COVENANTS
SECTION 5.01. GENERAL. The Issuer hereby makes the covenants
provided in this Article V, in addition to all other covenants in this Resolution, with each
and every successive Holder of any of the Bonds so long as any of said Bonds remain
Outstanding.
SECTION 5.02. ANNUAL BUDGET. The Issuer shall prepare and adopt,
prior to the beginning of each Fiscal Year, an Annual Budget in accordance with
applicable law. No expenditure for Operating and Maintenance Costs of the Airport shall
be made in any Fiscal Year in excess of the aggregate amount provided for Operating and
Maintenance Costs in the Annual Budget, (A) without a written finding and
recommendation by an Authorized Issuer Officer, which finding and recommendation
shall state in detail the purpose of and necessity for such increased expenditures, and (B)
until the Governing Body shall have approved such finding and recommendation by
resolution. In each Fiscal Year, the Issuer shall designate as part of its Annual Budget the
amount of Eligible PFC Revenues which shall be utilized to pay debt service on the
Bonds.
If for any reason the Issuer shall not have adopted the Annual Budget before the
first day of any Fiscal Year, other than the first Fiscal Year, the preliminary budget for
such year or the Annual Budget for the preceding Fiscal Year shall be deemed to be in
effect for such Fiscal Year until the Annual Budget for such Fiscal Year is adopted.
The Issuer shall mail copies of such Annual Budgets and amended Annual
Budgets and all resolutions authorizing increased expenditures for operation and
maintenance to any Credit Bank or Insurer of Bonds who shall file its address with the
Clerk and request in writing that copies of all such Annual Budgets and resolutions be
furnished to it and shall make available all such Annual Budgets and resolutions
authorizing increased expenditures for operation and maintenance of the Airport at all
reasonable times to any Holder or Holders of Bonds or to anyone acting for and on behalf
of such Holder or Holders.
SECTION 5.03. RATES. For the Fiscal Year commencing October 1, 2006
and for each Fiscal Year thereafter, the Issuer shall fix, establish, maintain and collect
such rates, fees, rentals and charges for the services and facilities of the Airport, and
revise the same from time to time, whenever necessary, so as always to provide in each
Fiscal Year:
(A) Net Revenues, together with the Other Available Moneys, equal to at least
125% of the Annual Debt Service becoming due in such Fiscal Year; provided
48
(B) the Net Revenues, together with Other Available Moneys, shall be adequate
at all times to pay in such Fiscal Year at least 100% of (1) the Annual Debt Service
becoming due in such Fiscal Year, (2) any amounts required by the terms hereof to be
deposited in the Reserve Account or with any issuer of a Reserve Account Letter of
Credit or Reserve Account Insurance Policy in such Fiscal Year, (3) any amounts
required by the terms hereof to be deposited in the Renewal and Replacement Fund in
such Fiscal Year, and (4) any Subordinated Indebtedness coming due in said Fiscal Year.
Such rates, fees, rentals and other charges shall not be so reduced so as to be
insufficient to provide adequate Net Revenues and Other Available Moneys for the
purposes provided therefor by this Resolution.
If, in any Fiscal Year, the Issuer shall fail to comply with the requirements
contained in this Section 5.03, it shall cause the Airport Consultant to review its rates,
fees, rentals, charges, income, Gross Revenues, Other Available Moneys, Operating and
Maintenance Costs and methods of operation and to make written recommendations as to
the methods by which the Issuer may promptly seek to comply with the requirements set
forth in this Section 5.03. The Issuer shall forthwith commence to implement such
recommendations to the extent required so as to cause it to thereafter comply with said
requirements.
SECTION 5.04 BOOKS AND RECORDS. The Issuer shall keep books,
records and accounts of the Gross Revenues, Other Available Moneys and operations of
the Airport and the Holders of any Bonds Outstanding or the duly authorized
representatives thereof shall have the right at all reasonable times to inspect all books,
records and accounts of the Issuer relating thereto.
SECTION 5.05 ANNUAL AUDIT. The Issuer shall, after the close of each
Fiscal Year, cause the books, records and accounts relating to the Airport to be properly
audited by a recognized independent firm of certified public accountants, and shall
require such accountants to complete their report of such Annual Audit in accordance
with applicable law and generally accepted auditing standards. Such report shall address
the basic fmancial statements of the Issuer, as defined by the Governmental Accounting
Standards Board to include the minimum combination of (A) fund-based financial
statements, (B) government-wide financial statements, and (C) accompanying note
disclosures needed for fair presentation of the Issuer's finances in conformity with
generally accepted accounting principles. The Annual Audit shall provide sufficient
detail of the Pledged Funds so that compliance with the financial covenants provided
herein may be ascertained. A copy of each Annual Audit shall regularly be furnished to
any Credit Bank or Insurer who shall have furnished its address to the Clerk and
requested in writing that the same be furnished to it.
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SECTION 5.06 NO MORTGAGE OR SALE OF THE AIRPORT. The
Issuer irrevocably covenants, binds and obligates itself not to sell, lease, encumber or in
any manner dispose of the Airport as a whole or any substantial part thereof(except as
provided below) until all of the Bonds and all interest thereon shall have been paid in full
or provision for payment has been made in accordance with Section 9.01 hereof.
The foregoing provision notwithstanding, the Issuer shall have and hereby
reserves the right to sell, lease or otherwise dispose of any of the property comprising a
part of the Airport in the following manner, if any one of the following conditions exist:
(A) such property is not necessary for the operation of the Airport, (B) such property is
not useful in the operation of the Airport, (C) such property is not profitable in the
operation of the Airport, or (D) in the case of a lease of such property, will be
advantageous to the Airport and will not materially adversely affect the security for the
Bondholders.
Prior to any such sale, lease or other disposition of said property: (1) if the amount
to be received therefor is not in excess of five percent of the book value of the Airport at
original cost, an Authorized Issuer Officer shall make a finding in writing determining
that one or more of the conditions for sale, lease or disposition of property provided for in
the second paragraph of this Section 5.06 have been met; or (2) if the amount to be
received from such sale, lease or other disposition of said property shall be in excess of
five percent of the book value of the Airport at original cost, (a) an Authorized Issuer
Officer shall first make a finding in writing determining that one or more of the
conditions for sale, lease or other 'disposition of property provided for in the second
paragraph of this Section 5.06 have been met, (b) the Governing Body shall, by
resolution, duly adopt, approve and concur in the finding of the Authorized Issuer
Officer, and (c) the Issuer shall obtain an opinion of Bond Counsel to the effect that such
sale, lease or other disposition is not in violation of the Act and will not adversely affect
the federal tax exempt status of interest on the Bonds (other than Taxable Bonds).
The proceeds from any such sale or other disposition shall be deposited, first, into
the Renewal and Replacement Fund to the extent necessary to make the amount therein
equal to the Renewal and Replacement Fund Requirement, and second, into the Airport
Reserve Fund. Proceeds from any such lease shall constitute Gross Revenues and shall
be deposited in the Revenue Account.
The transfer of the Airport as a whole from the control of the Governing Body to
some other board or authority which may hereafter be created for such purpose and which
constitutes a governmental entity, interest on obligations issued by which are excluded
from gross income for purposes of federal income taxation, shall not be deemed
prohibited by this Section 5.06 and such successor board or authority shall fall within the
definition of"Issuer" in Section 1.01 hereof.
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Notwithstanding the foregoing provisions of this Section 5.06, the Issuer shall
have the authority to sell for fair and reasonable consideration any land comprising a part
of the Airport which is no longer necessary or useful in the operation of the Airport and
the proceeds derived from the sale of such land shall be disposed of in accordance with
the provisions of the fourth paragraph of this Section 5.06.
Notwithstanding provisions of this Section 5.06, the Issuer may make contracts or
grant licenses for the operation of, or grant easements or other rights with respect to, any
part of the Airport if such contract, license, easement or right does not, in the opinion of
the Airport Consultant, as evidenced by a certificate to that effect filed with the Issuer,
impede or restrict the operation by the Issuer of the Airport, but any payments to the
Issuer under or in connection with any such contract, license, easement or right in respect
of the Airport or any part thereof shall constitute Gross Revenues and shall be deposited
in the Revenue Account.
SECTION 5.07 INSURANCE. The Issuer will carry such insurance as is
ordinarily carried by public entities owning and operating aviation facilities similar to the
Airport with a reputable insurance carrier or carriers, in such amounts as the Issuer shall
determine to be sufficient and such other insurance against loss or damage by fire,
explosion, hurricane, tornado or other hazards and risks, and said property loss or damage
insurance shall at all times be in an amount or amounts equal to the fair appraisal value of
the buildings, properties, furniture, fixtures and equipment of the Airport, or such other
amount or amounts as the Insurance Consultant shall approve as sufficient.
The Issuer may establish minimum levels of insurance for which the Issuer may
self-insure. Such minimum levels of insurance shall be in amounts as recommended in
writing by the Insurance Consultant.
The proceeds from property loss and casualty insurance shall be deposited in the
Renewal and Replacement Fund and, together with other available funds of the Issuer,
shall be used to repair or replace the damaged portion of the Airport; provided, however,
if the Issuer makes a determination in accordance with Section 5.06 hereof that such
damaged portion of the Airport is no longer necessary or useful in the operation of the
Airport, such proceeds shall (1) if such proceeds equal or exceed $500,000, (a) be applied
to the redemption or purchase of Bonds, or (b) be deposited in irrevocable trust for the
payment of Bonds in the manner set forth in Section 9.01, provided the Issuer has
received an opinion of Bond Counsel to the effect that such deposit shall not adversely
affect the exclusion, if any, from gross income of interest on the Bonds for purposes of
federal income taxation, or (2) if such proceeds are less than $500,000, be deposited in
the Revenue Account.
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SECTION 5.08 ENFORCEMENT OF COLLECTIONS. The Issuer will
reasonably enforce and collect the rates, fees, rentals and other charges for the services
and facilities of the Airport herein pledged; will take all reasonable steps, actions and
proceedings for the enforcement and collection of such rates, charges, rentals and fees as
shall become delinquent, to the full extent permitted or authorized by law; and will
maintain accurate records with respect thereof. All such fees, rates, charges, rentals and
revenues herein pledged shall, as collected, be held in trust to be applied as herein
provided and not otherwise.
SECTION 5.09 NO COMPETING FACILITIES. To the full extent of the
law and other than Marathon Airport, the Issuer will not grant, or cause, consent to, or
allow the granting of any franchise or permit to conduct aeronautical services, or provide
access to the Airport to conduct aeronautical services to any Person, or undertake any
aviation project not made a part of the Airport which will materially compete with the
Airport, as determined by the Issuer.
SECTION 5.10 CONSULTANTS. The Issuer will, for the purpose of
performing and carrying out the duties imposed on the Airport Consultant and Insurance
Consultant by this Resolution, employ one or more Persons having a favorable reputation
for skill and experience in such work. The cost of employing such Consultants as
provided by this Resolution shall be treated as a part of the Operating and Maintenance
Cost of the Airport or as a Project Cost as appropriate. The Issuer may appoint one or
more Airport Consultants and Insurance Consultants to perform the responsibilities
described herein for such Consultants.
SECTION 5.11 ANNUAL INSPECTION. The Issuer covenants that it will
cause the Airport Consultant, among such other duties as may be imposed upon them by
the Issuer or by this Resolution, to make or cause to be made an inspection at least once a
year of the Airport and, on or before the final adoption of the Issuer's Annual Budget in
each year,to submit to the Issuer a report setting forth the following:
(A) recommendations as to the amount that should be deposited during the
ensuing Fiscal Year to the credit of the Renewal and Replacement Fund; and
(B) findings whether the Airport has been maintained in good repair and sound
operating condition, and estimates of the amount, if any, required to be expended to place
the Airport in such condition and the details of such expenditures and the approximate
time required therefor.
The Issuer covenants that if such report indicates that the Airport has not been
maintained in good repair and sound operating condition, it will promptly restore, replace
or renew such facilities so that the Airport shall be in good repair and sound operating
52
condition with all expedition practicable and will make adequate provision therefor in the
Annual Budget for necessary Improvements required by State or federal law applicable to
the Airport, in both cases from (and to the extent of) funds legally available therefor
which are derived from the operation of the Airport. Nothing herein shall be construed to
require the Issuer to expend any funds other than funds derived from the operation of the
Airport.
SECTION 5.12 ISSUANCE OF OBLIGATIONS NOT SECURED
HEREUNDER — SPECIAL PURPOSE FACILITIES BONDS. The Issuer shall be
permitted to issue Special Purpose Facilities Bonds for the purpose of financing the cost
of such Special Purpose Facilities as it shall deem necessary or desirable in the operation
of the Airport. Special Purpose Facilities may consist of(A) Special Purpose Facilities
that are owned and/or operated by private companies and the Special Purpose Facilities
Bonds are payable from and secured exclusively by payments to be made by such private
companies, and (B) Special Purpose Facilities that are owned by the Issuer and payable
from any source other than the Pledged Funds. The Issuer shall determine the terms and
conditions under which Special Purpose Facilities Bonds may be issued without regard to
any test, financial or otherwise, contained in this Resolution.
The Issuer may cause any Special Purpose Facilities to become a part of the
Airport by resolution of the Governing Body, if there shall be filed with the Clerk a
report of the Airport Consultant substantially in the form provided in Section 6.02 hereof
relating to the issuance of Additional Bonds.
SECTION 5.13. MAINTENANCE OF PFC REVENUES. The Issuer
covenants to do all things necessary on its part to continue the levy of the Passenger
Facility Charges in compliance with the PFC Act and any successor provision of law and
to diligently enforce collection of the Passenger Facility Charges. The Issuer will at all
times comply with all of the requirements and conditions of the PFC Act, the PFC
Regulations and the PFC Authority, and take every necessary action to remain qualified
to levy the Passenger Facility Charges and collect the PFC Revenues. The Issuer will not
take any action which will jeopardize eligibility for receipt of such funds which may
adversely affect the undertakings provided in this instrument. The Issuer will not take
any action or enter into any agreement which will have the effect of reducing the level of
Passenger Facility Charges received by the Issuer if such reduction shall materially
adversely affect the Issuer's ability to pay the Bonds.
SECTION 5.14. COMPLIANCE WITH PFC ACT, PFC REGULATIONS
AND PFC APPROVALS. The Issuer covenants that it will comply with all provisions
of the PFC Act and the PFC Regulations applicable to the Issuer, and all provisions of the
PFC Approvals, and that it will not take any action or omit to take any action with respect
to the PFC Revenues, the Projects, the Airport or otherwise if such action or omission
53
would, pursuant to the PFC Act, the PFC Regulations or the PFC Approvals, cause the
termination of the authority to impose Passenger Facility Charges or prevent the use of
the Eligible PFC Revenues as contemplated by this Resolution and PFC Approvals. The
Issuer covenants that all PFC Revenues will be used in compliance with all provisions of
the PFC Act, the PFC Regulations and the PFC Approvals applicable to the Issuer, and
all provisions thereof. Without limiting the generality of the foregoing, the Issuer
covenants that to the extent necessary to comply with the foregoing covenant:
(A) it (i) will impose the Passenger Facility Charges to the full extent
authorized by the PFC Approvals, (ii) will not unilaterally decrease the level of the
Passenger Facility Charges to be collected from any passenger, (iii) will unilaterally
increase the total approved Passenger Facility Charges pursuant to PFC Regulations §
158.37(a) to the extent necessary to pay the debt service of the Bonds, and (iv) will apply
for an additional increase in total approved Passenger Facility Charges pursuant to PFC
Regulations § 158.37(b) to the extent the Issuer projects such increase may be necessary
to pay the debt service of the Bonds;
(B) it will not impose any noise or access restriction at the Airport not in
compliance with the Airport Noise and Capacity Act of 1990, Pub. L 101-508, Title IX,
Subtitle D;
(C) it will take all action reasonably necessary to cause all collecting air carriers
to collect and promptly remit to the Issuer the Passenger Facility Charges at the Airport
required by the PFC Act, the PFC Regulations and the PFC Approvals to be so collected
and remitted; and
(D) it will contest any attempt by the FAA to terminate or suspend the authority
to impose, receive or use the Passenger Facility Charges at the Airport prior to the charge
expiration date as defined in the PFC Approvals or the date total approved Passenger
Facility Charge revenue has been collected.
SECTION 5.15. MANAGEMENT OF AIRPORT. The Issuer shall not take
any action which would cause the Administrator of the FAA, Department of
Transportation, or any successor to the powers and authority of such Administrator, to
suspend or revoke operating certificates issued for the Airport under the Federal Aviation
Act of 1958, or any successor statute. The Issuer shall comply with all valid acts,
including the acts, rules, regulations, orders and directives. of any governmental,
legislative, executive, administrative or judicial body applicable to the Airport, unless the
same shall be contested in good faith.
SECTION 5.16. OPERATION OF THE AIRPORT. The Issuer covenants
that it will at all times use reasonable efforts, subject to force majeure, to keep the Airport
•
54
open for landings and takeoffs of aircraft of any type using facilities similar to those at
the Airport and to maintain the powers, duties and obligations now reposed in it pursuant
to law, and will not at any time take or fail to take any action the effect of which could
reasonably be expected to delay or imperil either the payment of the indebtedness
evidenced by any of the Bonds or the performance or observance of any of the covenants
herein contained.
SECTION 5.17. COVENANTS WITH CREDIT BANKS AND
INSURERS. The Issuer may make such covenants as it may in its sole discretion
determine to be appropriate with any Insurer, Credit Bank or other financial institution
that shall agree to insure or to provide for Bonds of any one or more Series credit or
liquidity support that shall enhance the security or the value of such Bonds. Such
covenants may be set forth in the applicable Supplemental Resolution and shall be
binding on the Issuer, the Registrar, the Paying Agent and all the Holders of Bonds the
same as if such covenants were set forth in full in this Resolution and may not diminish
the security of any of the Bonds Outstanding.
SECTION 5.18. FEDERAL INCOME TAXATION COVENANTS;
TAXABLE BONDS. The Issuer covenants with the Holders of each Series of Bonds
(other than Taxable Bonds) that it shall not use the proceeds of such Series of Bonds in
any manner which would cause the interest on such Series of Bonds to be or become
included in gross income for purposes of federal income taxation.
The Issuer covenants with the Holders of each Series of Bonds (other than Taxable
Bonds) that neither the Issuer nor any Person under its control or direction will make any
use of the proceeds of such Series of Bonds (or amounts deemed to be proceeds under the
Code) in any manner which would cause such Series of Bonds to be "arbitrage bonds"
within the meaning of the Code and neither the Issuer nor any other Person under its
control shall do any act or fail to do any act which would cause the interest on such Series
of Bonds to become subject to inclusion within gross income for purposes of federal
income taxation.
The Issuer hereby covenants with the Holders of each Series of Bonds (other than
Taxable Bonds) that it will comply with all provisions of the Code necessary to maintain
the exclusion from gross income of interest on the Bonds for purposes of federal income
taxation, including, in particular, the payment of any amount required to be rebated to the
U.S. Treasury pursuant to the Code.
The Issuer may, if it so elects, issue one or more Series of Taxable Bonds the
interest on which is (or may be) includable in the gross income of the Holder thereof for
federal income taxation purposes, so long as each Bond of such Series states in the body
thereof that interest payable thereon is (or may be) subject to federal income taxation and
55
provided that the issuance thereof will not cause interest on any other Bonds theretofore
issued hereunder to be or become subject to federal income taxation. The covenants set
forth in this Section 5.18 shall not apply to any Taxable Bonds.
SECTION 5.19. HEDGE AGREEMENTS. Each Counterparty to a
Qualified Hedge Agreement shall meet the Initial Rating Requirement. For the period the
Counterparty does not fall below "Baa2" by Moody's or "BBB" by Standard &Poor's (the
"Minimum Rating Requirement"), interest on Bonds subject to a Qualified Hedge
Agreement with such Counterparty shall be deemed to be the Hedge Payments for
purposes of the definition of "Debt Service." For any period the Counterparty, does not
satisfy the Minimum Rating Requirement and is not replaced by a Counterparty that
meets the Initial Rating Requirement, interest on Bonds subject to a Qualified Hedge
Agreement with such Counterparty shall be the actual interest on such Bonds (not taking
into account the Hedge Payments) for purposes of the definition of"Debt Service." The
above-described requirements for a Counterparty to a Qualified Hedge Agreement and
the inclusion or exclusion of Hedge Payments for purposes of the definition of "Debt
Service" may be waived in writing by the Insurer(s) and Credit Bank(s) of the Bonds if
such Bonds are all secured by Bond Insurance Policies and/or Credit Facilities. Other
than the interest rate cap entered into with UBS AG as of the date of delivery of the
Series 2006 Bonds, the Issuer shall not enter into any Hedge Agreement with respect to
the Series 2006 Bonds without the written consent of the Bank.
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ARTICLE VI
SUBORDINATED INDEBTEDNESS AND ADDITIONAL BONDS
SECTION 6.01. SUBORDINATED INDEBTEDNESS. The Issuer will not
issue any other obligations, except under the conditions and in the manner provided
herein, payable from the Pledged Funds or voluntarily create or cause to be created any
debt, lien, pledge, assignment, encumbrance or other charge having priority to or being
on a parity with the lien thereon in favor of the Bonds and the interest thereon. The
Issuer may at any time or from time to time issue evidences of indebtedness payable in
whole or in part out of Net Revenues and which may be secured by a pledge of Net
Revenues; provided, however, that such pledge shall be, and shall be expressed to be,
subordinated in all respects to the pledge of the Net Revenues created by this Resolution
and provided further that the issuance of such Subordinated Indebtedness shall be subject
to any provisions contained in financing documents securing outstanding Subordinated
Indebtedness to the extent such provisions impact on the ability of the Issuer to issue
Subordinated Indebtedness. No Subordinated Indebtedness shall be subject to
acceleration. The Issuer shall have the right to covenant with the holders from time to
time of any Subordinated Indebtedness to add to the conditions, limitations and
restrictions under which any Additional Bonds may be issued under the provisions of
Section 6.02 hereof. The Issuer agrees to pay promptly any Subordinated Indebtedness
as the same shall become due.
SECTION 6.02. ISSUANCE OF ADDITIONAL BONDS. No Additional
Bonds, payable on a parity with the Bonds then Outstanding pursuant to this Resolution,
shall be issued except upon the conditions and in the manner herein provided. The Issuer
may issue one or more Series of Additional Bonds for any one or more of the following
purposes: (i) financing the Cost of a Project, or the completion thereof, or (ii) refunding
any or all Outstanding Bonds or of any Subordinated Indebtedness of the Issuer.
No such Additional Bonds shall be issued unless the following conditions are
complied with:
(A) Except in the case of Additional Bonds issued for the purpose of refunding
Outstanding Bonds, the Issuer shall certify that it is current in all deposits into the various
funds, accounts and subaccounts established hereby and all payments theretofore required
to have been deposited or made by it under the provisions of this Resolution have been
deposited or made and it has complied with the covenants and agreements of this
Resolution.
(B) There shall have been filed with the Issuer a certificate of the Clerk setting
forth for the last complete Fiscal Year or a period of 12 consecutive months of the 24
57
months most recently concluded prior to the issuance of the Additional Bonds (the
"12-Month Period") (1) Gross Revenues received by the Issuer during the 12-Month
Period; (2) the Operating and Maintenance Costs incurred during the 12-Month Period;
(3) the Fund Balance; (4) the Eligible PFC Revenues received during the 12-Month
Period; (5) the Maximum Annual Debt Service including the Additional Bonds then
proposed to be issued; (6) that Net Revenues and Eligible PFC Revenues received by the
Issuer during the 12-Month Period, together with the Fund Balance, were in an amount at
least equal to 125% of the Maximum Annual Debt Service including the Additional
Bonds then proposed to be issued; and (7) that Net Revenues and Eligible PFC Revenues
received by the Issuer during the 12-Month Period were in an amount equal to at least
100% of (a) the Maximum Annual Debt Service including the Additional Bonds then
proposed to be issued, (b) any amounts required by the terms hereof to be deposited in
the Reserve Account or with the issuer of any Reserve Account Letter of Credit or
Reserve Account Insurance Policy during the 12-Month Period, (c) any amounts required
by the terms hereof to be deposited in the Renewal and Replacement Fund during the 12-
Month Period, and (d) any Subordinated Indebtedness coming due during the 12 months
immediately succeeding the issuance of the proposed Additional Bonds.
(C) With respect to Additional Bonds that are issued to complete a Project, the
Authorized Issuer Representative shall have filed with the Clerk a certificate
demonstrating that the proceeds of such Additional Bonds to be issued (net of issuance
costs and any discounts) will be not more than 10% of the original Cost of such Project
for the completion of which such Additional Bonds are then being issued. If the
Authorized Issuer Representative files such certificate with the Clerk, the conditions of
Section 6.02(B) hereof shall not apply to the issuance of such Additional Bonds.
(D) For the purpose of determining the Debt Service under this Section 6.02,
the interest rate on additional parity Variable Rate Bonds then proposed to be issued shall
be deemed to be the Bond Buyer Revenue Bond Index most recently published prior to
the sale of such Additional Bonds.
(E) For the purpose of determining the Debt Service under this Section 6.02,
the interest rate on Outstanding Variable Rate Bonds shall be deemed to be (1) if such
Variable Rate Bonds have been Outstanding for at least 12 months prior to the date of
sale of such Additional Bonds, the highest interest rate borne by such Variable Rate
Bonds during the preceding 12 month period, or(2) if such Variable Rate Bonds have not
been Outstanding for at least 12 months prior to the date of sale of such Additional
Bonds, the Bond Buyer Revenue Bond Index most recently published prior to the sale of
such Additional Bonds.
(F) Additional Bonds shall be deemed to have been issued pursuant to this
Resolution the same as the Outstanding Bonds, and all of the other covenants and other
58
provisions of this Resolution (except as to details of such Additional Bonds inconsistent
therewith) shall'be for the equal benefit, protection and security of the Holders of all
Bonds issued pursuant to this Resolution. Except as provided in Sections 4.02 and 4.05
hereof, all Bonds, regardless of the time or times of their issuance, shall rank equally with
respect to their lien on the Pledged Funds and their sources and security for payment
therefrom without preference of any Bonds over any other.
(G) In the event any Additional Bonds are issued for the purpose of refunding
any Bonds then Outstanding, the conditions of Section 6.02(B) hereof shall not apply,
provided that the issuance of such Additional Bonds shall not result in an increase in
Maximum Annual Debt Service. The conditions of Section 6.02(B) hereof shall apply to
Additional Bonds issued to refund Subordinated Indebtedness and to Additional Bonds
issued for refunding purposes which cannot meet the conditions of this paragraph.
(H) The Issuer shall not issue any Additional Bonds pursuant to Section 6.02
(C)hereof without the written consent of the Bank.
SECTION 6.03. BOND ANTICIPATION NOTES. The Issuer may issue.
notes in anticipation of the issuance of Bonds which shall have such terms and details and
be secured in such manner, not inconsistent with this Resolution, as shall be provided by
Supplemental Resolution of the Issuer. Such notes shall be Subordinated Indebtedness,
unless the Issuer satisfies the conditions of Section 6.02 hereof relating to Additional
Bonds.
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ARTICLE VII
DEFAULTS AND REMEDIES
SECTION 7.01. EVENTS OF DEFAULT. The following events shall each
constitute an "Event of Default":
(A) Default shall be made in the payment of the principal of, Sinking Fund
Installment,redemption premium or interest on any Bond when due.
(B) There shall occur the dissolution or liquidation of the Issuer, or the filing by
the Issuer of a voluntary petition in bankruptcy, or the commission by the Issuer of any
act of bankruptcy, or adjudication of the Issuer as a bankrupt, or assignment by the Issuer
for the benefit of its creditors, or appointment of a receiver for the Issuer, or the entry by
the Issuer into an agreement of composition with its creditors, or the approval by a court
of competent jurisdiction of a petition applicable to the Issuer in any proceeding for its
reorganization instituted under the provisions of the Federal Bankruptcy Act, as
amended, or under any similar act in any jurisdiction which may now be in effect or
hereafter adopted.
(C) The Issuer shall default in the due and punctual performance of any other of
the covenants, conditions, agreements and provisions contained in the Bonds or in this
Resolution on the part of the Issuer to be performed, and such default shall continue for a
period of 90 days after written notice of such default shall have been received from an
Insurer or the Holders of not less than 25% of the aggregate principal amount of Bonds
Outstanding. Notwithstanding the foregoing, the Issuer shall not be deemed to be in
default hereunder if such default can be cured within a reasonable period of time and if
the Issuer in good faith institutes appropriate curative action and diligently pursues such
action until default has been corrected; provided, however, no such curative action shall
exceed 90 days without the prior written consent of the Insurer.
The Issuer shall provide immediate notice of any Event. of Default described in
Section 7.01(A) to all affected Bondholders. The Issuer shall provide notice of any other
Event of Default to all affected Bondholders within 30 days of the Issuer's knowledge
thereof.
SECTION 7.02. REMEDIES. Any Holder of Bonds issued under the
provisions of this Resolution or any trustee or receiver acting for such Bondholders may
either at law or in equity, by suit, action, mandamus or other proceedings in any court of
competent jurisdiction, protect and enforce any and all rights under the Laws of the State
of Florida, or granted and contained in this Resolution, and may enforce and compel the
performance of all duties required by this Resolution or by any applicable statutes to be
60
performed by the Issuer or by any officer thereof; provided, however, that no Holder,
trustee or receiver shall have the right to declare the Bonds immediately due and payable.
The Holder or Holders of Bonds in an aggregate principal amount of not less than
25% of the Bonds then Outstanding may by a duly executed certificate in writing appoint
a trustee for Holders of Bonds issued pursuant to this Resolution with authority to
represent such Bondholders in any legal proceedings for the enforcement and protection
of the rights of such Bondholders and such certificate shall be executed by such
Bondholders or their duly authorized attorneys or representatives, and shall be filed in the
office of the Clerk. Notice of such appointment, together with evidence of the requisite
signatures of the Holders of not less than 25% in aggregate principal amount of Bonds
Outstanding and the trust instrument under which the trustee shall have agreed to serve
shall be filed with the Issuer and the trustee and notice of such appointment shall be given
to all Holders of Bonds in the same manner as notices of redemption are given hereunder.
After the appointment of the first trustee hereunder, no further trustees may be appointed;
however, the Holders of a majority in aggregate principal amount of all the Bonds then
Outstanding may remove the trustee initially appointed and appoint a successor and
subsequent successors at any time.
SECTION 7.03. DIRECTIONS TO TRUSTEE AS TO REMEDIAL
PROCEEDINGS. The Holders of a majority in principal amount of the Bonds then
Outstanding (or any Insurer insuring any then Outstanding Bonds) have the right, by an
instrument or concurrent instruments in writing executed and delivered to the trustee, to
direct the method and place of conducting all remedial proceedings to be taken by the
trustee hereunder with respect to the Series of Bonds owned by such Holders or insured
by such Insurer, provided that such direction shall not be otherwise than in accordance
with law or the provisions hereof, and that the trustee shall have the right to,decline to
follow any direction of the Holders which in the opinion of the trustee would be unjustly
prejudicial to Holders of Bonds not parties to such direction.
SECTION 7.04. REMEDIES CUMULATIVE. No remedy herein conferred
upon or reserved to the Bondholders is intended to be exclusive of any other remedy or
remedies, and each and every such remedy shall be cumulative, and shall be in addition
to every other remedy given hereunder or now or hereafter existing at law or in equity or
by statute.
SECTION 7.05. WAIVER OF DEFAULT. No delay or omission of any
Bondholder to exercise any right or power accruing upon any default shall impair any
such right or power or shall be construed to be a waiver of any such default, or an
acquiescence therein; and every power and remedy given by Section 7.02 to the
Bondholders may be exercised from time to time, and as often as may be deemed
expedient.
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SECTION 7.06. APPLICATION OF MONEYS AFTER DEFAULT. If an
Event of Default shall happen and shall not have been remedied, the Issuer or a trustee or
receiver appointed for the purpose shall apply all Pledged Funds (except as for amounts
in the subaccounts of the Reserve Account which shall be applied to the payment of the
Series of Bonds for which they were established) as follows and in the following order:
(A) To the payment of the reasonable and proper charges, expenses and
liabilities of the trustee or receiver and Registrar hereunder;
(B) To the payment of the amounts required for reasonable and necessary
Operating and Maintenance Costs, and for the reasonable renewals, repairs and
replacements of the Airport necessary to prevent loss of Net Revenues and Eligible PFC
Revenues, as certified by the Airport Consultant;
(C) To the payment of the interest and principal or Redemption Price, if
applicable, then due on the Bonds, as follows:
(1) Unless the principal of all the Bonds shall have become due and
payable, all such moneys shall be applied:
FIRST: to the payment to the Persons entitled thereto of all
installments of interest then due, in the order of the maturity of such
installments, and, if the amount available shall not be sufficient to pay in
full any particular installment, then to the payment ratably, according to the
amounts due on such installment, to the Persons entitled thereto, without
any discrimination or preference;
SECOND: to the payment to the Persons entitled thereto of the
unpaid principal of any of the Bonds which shall have become due at
maturity or upon mandatory redemption prior to maturity (other than Bonds
called for redemption for the payment of which moneys are held pursuant to
the provisions of Section 9.01 of this Resolution), in the order of their due
dates, with interest upon such Bonds from the respective dates upon which
they became due, and, if the amount available shall not be sufficient to pay
in full Bonds due on any particular date, together with such interest, then to
the payment first of such interest, ratably according to the amount of such
interest due on such date, and then to the payment of such principal, ratably
according to the amount of such principal due on such date, to the Persons
entitled thereto without any discrimination or preference; and
THIRD: to the payment of the Redemption Price of any Bonds
called for optional redemption pursuant to the provisions of this Resolution.
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(2) If the principal of all the Bonds shall have become due and payable,
all such moneys shall be applied to the payment of the principal and interest then
due and unpaid upon the Bonds, with interest thereon as aforesaid, without
preference or priority of principal over interest or of interest over principal, or of
any installment of interest over any other installment of interest, or of any Bond
over any other Bond, ratably, according to the amounts due respectively for
principal and interest, to the Persons entitled thereto without any discrimination or
preference.
(D) To the payment of all amounts owed to an Insurer or a Credit Bank not
covered by A, B or C above.
SECTION 7.07. CONTROL BY CREDIT BANK. To the extent a Credit
Bank is current in its obligations under its Credit Facility, such Credit Bank shall become
subrogated to the rights of the Holders of Bonds secured by such Credit Facility in
accordance with the terms of such Credit Facility. Upon the occurrence and continuance
of an Event of Default, a Credit Bank for a Series of Bonds, if such Credit Bank shall not
be in default under its Credit Facility, shall be deemed to be the sole owner of the Bonds
secured by such Credit Facility for purposes of (a) directing and controlling the
enforcement of all rights and remedies with respect to such Series of Bonds, including
any waiver of an Event of Default and removal of any trustee, and (b) exercising any
voting right or privilege or giving any consent or direction or taking any other action that
the Holders of such Bonds are entitled to take pursuant to this Article VII hereof. No
provision expressly recognizing or granting rights in or to a Credit Bank shall be
modified without the consent of such Credit Bank. A Credit Bank's rights under this
Section 7.07 shall be suspended during any period in which such Credit Bank is in default
in its obligations under its Credit Facility (except to the extent of amounts previously paid
by such Credit Bank and due and owing to such Credit Bank) and shall be of no force or
effect if its Credit Facility is no longer in effect or if the Credit Bank asserts that its
Credit Facility is not in effect or if the Credit Bank waives such rights in writing. The
Issuer shall provide each Credit Bank immediate notice of any Event of Default described
in Section 7.01(A) hereof and notice of any other Event of Default occurring hereunder
within five days of the occurrence thereof.
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ARTICLE VIII
SUPPLEMENTAL RESOLUTIONS
SECTION 8.01. SUPPLEMENTAL RESOLUTION WITHOUT
BONDHOLDERS' CONSENT. The Issuer, from time to time and .at any time, may
adopt such Supplemental Resolutions without the consent of the Bondholders (which
Supplemental Resolution shall thereafter form a part hereof) for any of the following
purposes:
(A) To cure any ambiguity or formal defect or omission or to correct any
inconsistent provisions in this Resolution or to clarify any matters or questions arising
hereunder.
(B) to grant to or confer upon the Bondholders any additional rights, remedies,
powers, authority or security that may lawfully be granted to or conferred upon the
Bondholders.
(C) To add to the conditions, limitations and restrictions on the issuance of
Bonds under the provisions of this Resolution other conditions, limitations and
restrictions thereafter to be observed.
(D) To add to the covenants and agreements of the Issuer in this Resolution
other covenants and agreements thereafter to be observed by the Issuer or to surrender
any right or power herein reserved to or conferred upon the Issuer.
(E) To specify and determine the matters and things referred to in Sections
2.01, 2.02 or 2.09 hereof, and also any other matters and things relative to such Bonds
which are not contrary to or inconsistent with this Resolution as theretofore in effect, or
to amend, modify or rescind any such authorization, specification or determination at any
time prior to the first delivery of such Bonds.
(F) To authorize Additional Projects or to change or modify the description of
any Project.
(G) To specify and determine matters necessary or desirable for the issuance of
Variable Rate Bonds or Capital Appreciation Bonds.
(H) To provide for the establishment of a separate subaccount or subaccounts in
the Reserve Account which shall independently secure one or more Series of Bonds.
(I) To revise the procedures provided in Section 4.05(D)(4) hereof pursuant to
which moneys are drawn on a Reserve Account Insurance Policy or Reserve Account
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Letter of Credit and moneys are reimbursed to the provider of such Policy or Letter of
Credit.
(J) To make provision hereunder for the use of a Qualified Hedge Agreement.
(K) To make any other change that, in the opinion of the Issuer, would not
materially adversely affect the security for the Bonds. In making such determination, the
Issuer shall not take into consideration any Bond Insurance Policy or Credit Facility.
Prior to adoption of any Supplemental Resolution which amends or modifies
provisions of this Resolution, the Issuer shall obtain an opinion of Bond Counsel to the
effect that the amendments or modifications to this Resolution shall not adversely affect
the exclusion, if any, from gross income of interest on the Bonds for purposes of federal
income taxation.
SECTION 8.02. SUPPLEMENTAL RESOLUTION WITH
BONDHOLDERS' AND INSURER'S CONSENT. Subject to the terms and provisions
contained in this Section 8.02 and Section 8.01 and 8.03 hereof, the Holder or Holders of
not less than a majority in aggregate principal amount of the Bonds then Outstanding
shall have the right, from time to time, anything contained in this Resolution to the
contrary notwithstanding, to consent to and approve the adoption of such Supplemental
Resolutions hereto as shall be deemed necessary or desirable by the Issuer for the purpose
of supplementing, modifying, altering, amending, adding to or rescinding, in any
particular, any of the terms or provisions contained in this Resolution; provided,
however, that if such modification or amendment will, by its terms, not take effect so
long as any Bonds of any specified Series or maturity remain Outstanding, the consent of
the Holders of such Bonds shall not be required and such Bonds shall not be deemed to
be Outstanding for the purpose of any calculation of Outstanding Bonds under this
Section 8.02. Any Supplemental Resolution which is adopted in accordance with the
provisions of this Section 8.02 shall also require the written consent of the Insurer of any
Bonds which are Outstanding at the time such Supplemental Resolution shall take effect.
No Supplemental Resolution may be approved or adopted which shall permit or require
(A) an extension of the maturity of the principal of or the payment of the interest on any
Bond issued hereunder, (B) reduction in the principal amount of any Bond or the
Redemption Price or the rate of interest thereon, (C) a preference or priority of any Bond
or Bonds over any other Bond or Bonds (except as to the establishment of separate
subaccounts in the Reserve Account provided in Section 4.05(C)(4) hereof), or (D) a
reduction in the aggregate principal amount of the Bonds required for consent to such
Supplemental Resolution. Nothing herein contained, however, shall be construed as
making necessary the approval by Bondholders or the Insurer or Credit Bank of the
adoption of any Supplemental Resolution as authorized in Section 8.01 hereof.
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If at any time the Issuer shall determine that it is necessary or desirable to adopt
any Supplemental Resolution pursuant to this Section 8.02, the Clerk shall cause the
Registrar to give notice of the proposed adoption of such Supplemental Resolution and
the form of consent to such adoption to be mailed, postage prepaid, to all Bondholders at
their addresses as they appear on the registration books. Such notice shall briefly set
forth the nature of the proposed Supplemental Resolution and shall state that copies
thereof are on file at the offices of the Clerk and the Registrar for inspection by all
Bondholders. The Issuer shall not, however, be subject to any liability to any Bondholder
by reason of its failure to cause the notice required by this Section 8.02 to be mailed and
any such failure shall not affect the validity of such Supplemental Resolution when
consented to and approved as provided in this Section 8.02.
Whenever the Issuer shall deliver to the Clerk an instrument or instruments in
writing purporting to be executed by the Holders of not less than a majority in aggregate
principal amount of the Bonds then Outstanding, which instrument or instruments shall
refer to the proposed Supplemental Resolution described in such notice and shall
specifically consent to and approve the adoption thereof in substantially the form of the
copy thereof referred to in such notice, thereupon, but not otherwise, the Issuer may
adopt such Supplemental Resolution in substantially such form, without liability or
responsibility to any Holder of any Bond, whether or not such Holder shall have
consented thereto.
If the Holders of not less than a majority in aggregate principal amount of the
Bonds Outstanding at the time of the adoption of such Supplemental Resolution shall
have consented to and approved the adoption thereof as herein provided, no Holder of
any Bond shall have any right to object to the adoption of such Supplemental Resolution,
or to object to any of the terms and provisions contained therein or the operation thereof,
or in any manner to question the propriety of the adoption thereof, or to enjoin or restrain
the Issuer from adopting the same or from taking any action pursuant to the provisions
thereof.
Upon the adoption of any Supplemental Resolution pursuant to the provisions of
this Section 8.02, this Resolution shall be deemed to be modified and amended in
accordance therewith, and the respective rights, duties and obligations under this
Resolution of the Issuer and all Holders of Bonds then Outstanding shall thereafter be
determined, exercised and enforced in all respects under the provisions of this Resolution
as so modified and amended.
SECTION 8.03. AMENDMENT WITH CONSENT OF INSURER AND
CREDIT BANK ONLY. For purposes of amending this Resolution pursuant to Section
8.02 hereof, an Insurer or Credit Bank for Bonds shall be considered the Holder of such
Bonds which it has provided credit enhancement, provided such Bonds, at the time of the
66
adoption of the amendment, shall be rated by the Rating Agencies which shall have rated
such Bonds at the time such Bonds were credit enhanced no lower than the ratings
assigned thereto by such Rating Agencies on such date of being credit enhanced. The
consent of the Holders of such Bonds shall not be required if the Insurer or Credit Bank
for such Bonds shall consent to the amendment as provided by this Section 8.03. The
foregoing right of amendment, however, does not apply to any amendment to Section
5.18 hereof with respect to the exclusion, if applicable, of interest on said Bonds from
gross income for purposes of federal income taxation. At least 15 days prior to adoption
of any amendment made pursuant to this Section 8.03, notice of such amendment shall be
delivered to the Rating Agencies rating the Bonds. Upon filing with the Clerk of
evidence of such consent the Insurer or Credit Bank as aforesaid, the Issuer may adopt
such Supplemental Resolution. After the adoption by the Issuer of such Supplemental
Resolution, notice thereof shall be mailed in the same manner as notices of an
amendment under Section 8.02 hereof.
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ARTICLE IX
MISCELLANEOUS
SECTION 9.01. DEFEASANCE. If the Issuer shall pay or cause to be paid
or there shall otherwise be paid to the Holders of all Bonds the principal or Redemption
Price, if applicable, and interest due or to become due thereon, at the times and in the
manner stipulated therein and in this Resolution and if the Issuer shall pay all amounts
owing to any provider of a Reserve Account Letter of Credit or Reserve Account
Insurance Policy and all amounts owing to the Insurer, if any, then the pledge of the
Pledged Funds, and all covenants, agreements and other obligations of the Issuer to the
Bondholders, shall thereupon cease, terminate and become void and be discharged and
satisfied. In such event, the Paying Agents shall pay over or deliver to the Issuer all
money or securities held by them pursuant to the Resolution which are not required for
the payment or redemption of Bonds not theretofore surrendered, for such payment or
redemption.
Any Bonds or interest installments appertaining thereto, whether at or prior to the
maturity or redemption date of such Bonds, shall be deemed to have been paid within the
meaning of this Section 9.01 if(A) in case any such Bonds are to be redeemed prior to
the maturity thereof, there shall have been taken all action necessary to call such Bonds
for redemption and notice of such redemption shall have been duly given or provision
shall have been made for the giving of such notice, and (B) there shall have been
deposited in irrevocable trust with a banking institution or trust company by or on behalf
of the Issuer either moneys in an amount which shall be sufficient, or Refunding
Securities the principal of and the interest on which when due will provide moneys
which, together with the moneys, if any, deposited with such bank or trust company at the
same time shall be sufficient (as verified by an independent certified public accountant),
to pay the principal of or Redemption Price, if applicable, and interest due and to become
due on said Bonds on and prior to the redemption date or maturity date thereof, as the
case may be. Except as hereafter provided, neither the Refunding Securities nor any
moneys so deposited with such bank or trust company nor any moneys received by such
bank or trust company on account of principal of or Redemption Price, if applicable, or
interest on said Refunding Securities shall be withdrawn or used for any purpose other
than, and all such moneys shall be held in trust for and be applied to, the payment, when
due, of the principal of or Redemption Price, if applicable, of the Bonds for the payment
or redemption of which they were deposited and the interest accruing thereon to the date
of maturity or redemption; provided, however, the Issuer may substitute new Refunding
Securities and moneys for the deposited Refunding Securities and moneys if the new
Refunding Securities and moneys are sufficient to pay the principal of or Redemption
Price, if applicable, and interest on the refunded Bonds.
For purposes of determining whether Variable Rate Bonds shall be deemed to
have been paid prior to the maturity or the redemption date thereof, as the case may be,
68
•
by the deposit of moneys, or specified Refunding Securities and moneys, if any, in
accordance with this Section 9.01, the interest to come due on such Variable Rate Bonds
on or prior to the maturity or redemption date thereof, as the case may be, shall be
calculated at the Maximum Interest Rate; provided, however, that if on any date, as a
result of such Variable Rate Bonds having borne interest at less than the Maximum
Interest Rate for any period, the total amount of moneys and specified Refunding
Securities on deposit for the payment of interest on such Variable Rate Bonds is in excess
of the total amount which would have been required to be deposited on such date in
respect of such Variable Rate Bonds is in order to satisfy this Section 9.01, such excess
shall be paid to the Issuer free and clear of any trust, lien, pledge or assignment securing
the Bonds or otherwise existing under this Resolution.
In the event the Bonds for which moneys are to be deposited for the payment
thereof in accordance with this Section 9.01 are not by their terms subject to redemption
within the next succeeding 60 days, the Issuer shall cause the Registrar to mail a notice to
the Holders of such Bonds that the deposit required by this Section 9.01 of moneys or
Refunding Securities has been made and said Bonds are deemed to be paid in accordance
with the provisions of this Section 9.01 and stating such maturity or redemption date
upon which moneys are to be available for the payment of the principal of or Redemption
Price, if applicable, and interest on said Bonds.
Nothing herein shall be deemed to require the Issuer to call any of the Outstanding
Bonds for redemption prior to maturity pursuant to any applicable optional redemption
provisions, or to impair the discretion of the Issuer in determining whether to exercise
any such option for early redemption.
In the event that the principal of or Redemption Price, if applicable, and interest
due on the Bonds shall be paid by an Insurer or Insurers, such Bonds shall remain
Outstanding, shall not be defeased and shall not be considered paid by the Issuer, and the
pledge of the Pledged Funds and all covenants, agreements and other obligations of the
Issuer to the Bondholders shall continue to exist and such Insurer or Insurers shall be
subrogated to the rights of such Bondholders.
SECTION 9.02. CAPITAL APPRECIATION BONDS. For the purposes of
(A) receiving payment of the Redemption Price if a Capital Appreciation Bond is
redeemed prior to maturity, or (B) receiving payment of a Capital Appreciation Bond if
the principal of all Bonds becomes due and payable under the provisions of this
Resolution, or (C) computing the amount of Bonds held by the Holder of a Capital
Appreciation Bond in giving to the Issuer or any trustee or receiver appointed to represent
the Bondholders any notice, consent, request or demand pursuant to this Resolution for
any purpose whatsoever, the principal amount of a Capital Appreciation Bond shall be
deemed to be its Accreted Value.
69
SECTION 9.03. SALE OF BONDS. The Bonds shall be issued and sold at
public or private sale at one time or in installments from time to time and at such price or .
prices as shall be consistent with the provisions of the Act, the requirements of this
Resolution and other applicable provisions of law.
SECTION 9.04. SEVERABILITY OF INVALID PROVISIONS. If any
one or more of the covenants, agreements or provisions of 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 covenants, agreements or provisions shall be null and void and
shall be deemed separable from the remaining covenants, agreements and provisions of
this Resolution and shall in no way affect the validity of any of the other covenants,
agreements or provisions hereof or of the Bonds issued hereunder.
SECTION 9.05. VALIDATION AUTHORIZED. To the extent deemed
necessary by Bond Counsel or desirable by Counsel for the Issuer, the Bond Counsel is
authorized to institute appropriate proceedings for validation of a Series of the Bonds
herein authorized pursuant to Chapter 75, Florida Statutes.
SECTION 9.06. REPEAL OF INCONSISTENT RESOLUTIONS. All
resolutions, resolutions or parts thereof in conflict herewith are hereby superseded and
repealed to the extent of such conflict.
SECTION 9.07. EFFECTIVE DATE. This Resolution shall take effect
simultaneously with the issuance of the Series 2006 Bonds.
ADOPTED at a meeting of the Board of County Commissioners on the 21st of
June,20.0.E
f��. (1-- \2-),?1 \4
-ti , BOARD OF COUNTY COMMISSIONERS
��i, f_..-iPu OF MONROE C UNTY FLORIDA
-= ; By:
aK,,,� /"fi
Mayor/Chairp rson
ATTEST: DANNY L. KOLHAGE, Clerk
G.,......41.....46.24...
Deputy Clerk
MONROE COUNTY ATTORNE
AP ED AS T
70 SU NNE .HU
DUN 0 •0
Date //
,
EXHIBIT A
DESCRIPTION OF 2006 PROJECT
The 2006 Project generally consists of (a) the design and construction of a
renovation and expansion of the Key West International Airport passenger terminal
building; (b)the design and construction of certain vehicular parking improvements at the
Key West International Airport; and (c) the design and construction of a new terminal
roadway and ramp system at the Key West International Airport, all as more particularly
described in the plans and specifications on file with the Issuer.
A-1