HomeMy WebLinkAbout1993-080INDIAN RIVER COUNTY, FLORIDA
RESOLUTION NO. 93-80
A RESOLUTION AUTHORIZING THE RETIREMENT OF CERTAIN
OUTSTANDING WATER AND SEWER REVENUE BONDS OF THE COUNTY
AND CERTAIN SPECIAL ASSESSMENT REVENUE BONDS OF THE
COUNTY; AUTHORIZING CERTAIN PROJECTS OF THE COUNTY;
AUTHORIZING THE ISSUANCE OF NOT EXCEEDING $47,190,000
WATER AND SEWER REVENUE BONDS, SERIES 1993A, AND THE
ISSUANCE OF NOT EXCEEDING $3,330,000 OF WATER AND SEWER
REVENUE BONDS, SERIES 1993B, OF THE COUNTY TO PROVIDE
FUNDS FOR SAID RETIREMENTS AND TO FINANCE CERTAIN COSTS
IN CONNECTION WITH CERTAIN PROJECTS OF THE COUNTY;
PROVIDING FOR THE RIGHTS OF THE REGISTERED OWNERS OF
SAID BONDS; MAKING CERTAIN COVENANTS AND AGREEMENTS IN
CONNECTION THEREWITH; AND PROVIDING AN EFFECTIVE TE.
BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF INDIAN RIVER COUNTY,
FLORIDA:
SECTION 1. AUTHORITY FOR RESOLUTION. This Resolution is adopted pursuant
to Chapter 125, Florida Statutes and other applicable provisions of law.
SECTION 2. DEFINITIONS. The following terms shall have the following
meanings in this Resolution, unless the context otherwise clearly requires:
A. "Act" shall mean Chapter 125, Florida Statutes, and other applicable
provisions of law.
B. "Additional Parity Bonds" shall mean additional bonds issued in
compliance with the terms, conditions and limitations contained herein which have
an equal lien on the Pledged Funds, as herein defined, and rank equally in all
respects with all other Bonds issued hereunder as to lien and security for
payment.
C. "Authorized Investments" shall mean those investments specified in
Exhibit A attached hereto and such other investments as are approved by the
Series 1993 Bond Insurer, provided that such investments are at the time lawful
investments for the funds involved under the laws of the State of Florida,
including without limitation Section 125.31, Florida Statutes. The term
"Trustee" in item (11) of Exhibit A shall mean the County.
D. "Board" shall mean the Board of County Commissioners of Indian River
County, Florida.
E. "Bonds" shall mean the Series 1993 Bonds together with any Additional
Parity Bonds hereafter issued hereunder.
F. "Bond Registrar" shall mean with respect to any particular series of
Bonds issued hereunder the Bond Registrar for said series of Bonds to be
determined by subsequent resolution of the Board.
G. "Code" shall mean the Internal Revenue Code of 1986, as amended, and
any similar subsequent federal revenue laws. Any reference to a particular
section, subsection, etc., of the Code shall also refer to the similar section,
subsection, etc., of any similar subsequent federal revenue law.
H. "Consulting Engineers" shall mean such qualified and recognized
consulting engineers, having a nationwide and favorable reputation for skill and
experience in the construction and operation of systems such as the System, at
the time retained by the County to perform the acts and carry out the duties as
herein provided for the Consulting Engineers.
I. "Costs" shall mean all expenses necessary, appurtenant or incidental
to the acquisition or construction of any property, real, personal or mixed,
deemed necessary or desirable for carrying out the purposes of the System,
including, without intending to limit the generality of the foregoing, the cost
of any land or interest therein or of any fixtures, equipment or personal
property necessary or convenient therefor; costs of acquiring any water or sewer
system or other property in place, or any undivided interest therein, which can
be operated as part of the System or which may be declared by resolution of the
Board to be part of the System; engineering, legal and financing expenses;
expenses for estimates of costs and of revenues; expenses for surveys; the fees
of fiscal agents, financial advisors and consultants; administrative expenses
relating solely to such acquisition or construction; the capitalization of
interest for a reasonable period after the issuance of Bonds to finance any
portion of the Costs of such acquisition or construction; the creation and
establishment of reasonable reserves for debt service and operation and
maintenance; the discount on the sale of Bonds to finance any portion of the
Costs of such acquisition or construction; and such other costs and expenses as
may be necessary or incidental to such acquisition or construction.
"County" shall mean Indian River County, Florida.
K. "Federal Securities" shall mean direct obligations of, or obligations
the principal of and interest on which are unconditionally guaranteed by, the
United States of America, which are not redeemable prior to maturity at the
option of the obligor.
L. "Fees in lieu of Franchise Fees" shall mean the fees paid by the
Utility Services Department of the County to the County in consideration for the
use of public streets and rights-of-way in the County and to defray costs
incident to the regulation by the County of the services and facilities of the
Utility Services Department of the County.
H. "Fiscal Year" shall mean the period beginning with and including
October first of each year and ending with and including the next September 30.
N. "Franchise Fees" shall mean the fees paid by water and/or sewer
utilities, other than the Utility Services Department of the County, to the
County in consideration for the use of public streets and rights-of-way in the
County and to defray costs incident to the regulation by the County of the
services and facilities of such utilities.
O. "Impact Fees" shall mean the fees or charges imposed upon new
customers of the System to provide funds for the payment of all or a portion of
the costs and expenses of additions, extensions and improvements to the System
made necessary by the inclusion of such new customers.
P. "Net Revenues" shall mean the Revenues less Operating Expenses.
Q. "Operating Expenses" shall mean the current expenses paid or accrued
for the operation, maintenance and repair of all facilities constituting a part
of the System, as determined in accordance with generally accepted accounting
methods, and shall include, without limiting the generality of the foregoing,
insurance premiums, administrative expenses of the County related solely to the
System, costs of labor, materials and supplies used for such operation and
charges for the accumulation of appropriate reserves for current expenses not
annually recurrent but which are such as may reasonably be expected to be
incurred in accordance with such accepted accounting methods, but shall exclude
payments into the Sinking Fund or the Reserve Account therein and any allowances
for depreciation or for renewals or replacements of capital assets of the System.
R. "Paying Agent" shall mean with respect to any particular series of
Bonds issued hereunder the paying agent for said series of Blinds to be determined
by subsequent resolution of the Board.
S. "Pledged Funds" shall mean the Net Revenues, together with any other
receipts, revenues and funds pledged in connection with the Bonds.
T. "Record Date" shall mean the fifteenth (15th) day of the month
immediately preceding an interest or other applicable payment date for the Bonds.
U. "Registered Owner", "Bondholder" or any similar term shall mean any
person who shall be the owner of any outstanding Bond or Bonds as shown on the
books of the County maintained by the Bond Registrar.
V. "Resolution" shall mean this resolution, as amended and supplemented
from time to time.
W. "Reserve Account Requirement" shall mean the lesser of (i) the
maximum amount of principal and interest on all outstanding Bonds becoming due
in any ensuing Fiscal Year; or (11) 1258 of the average annual amount of
principal and interest on all outstanding Bonds becoming due in ensuing Fiscal
Years.
X. "Retired Bonds" shall mean the outstanding Series 1986 Bonds, the
outstanding Series 1986A Bonds, the outstanding Series 1989 Bonds, the
outstanding Series 1991 Bonds, the outstanding Series 1989 Special Assessment
Bonds and the outstanding Series 1990 Special Assessment Bonds.
Y. "Revenues" shall mean (1) the Uniform Charges; (2) the Series 1989
Special Assessment Revenues; (3) the Series 1990 Special Assessment Revenues; (4)
the Series 1991 Revenues; (5) the Series 1993 Special Assessment Revenues; (6)
subject to the consent of the Series 1993 Bond Insurer, such Surcharges, Impact
Fees, Special Assessments, Franchise Fees and Fees in lieu of Franchise Fees as
the Board, by resolution, may designate as Revenues; and (7) subject to the
consent of the Series 1993 Bond Insurer, such other receipts and revenues of the
County as the Board, by resolution, may designate as Revenues. "Revenues" shall
not include, however, such receipts and revenues as, from time to time, may be
released from the pledge created hereunder as permitted by Section 16 hereof.
Z. "Series 1986 Bonds" shall mean the Indian River County, Florida Water
and Sewer Revenue Bonds, Series 1986, dated as of December 20, 1989, in the
original aggregate principal amount of $9,200,000, issued under Resolution No.
86-35 of the County, as amended and supplemented.
AA. "Series 1986A Bonds" shall mean the Indian River County, Florida
Water and Sewer Revenue Bonds, Series 1986A, dated as of December 20, 1989, in
the original aggregate principal amount of $450,000, issued under Resolution No.
86-35 of the County, as amended and supplemented.
BB. "Series 1989 Bonds" shall mean the Indian River County, Florida Water
and Sewer Revenue Refunding Bonds, Series 1989, dated as of April 15, 1989, in
the original aggregate principal amount of $6,510,000, issued under Resolution
No. 89-19 of the County, as amended and supplemented.
CC. "Series 1989 Special Assessment Bonds" shall mean the Indian River
County, Florida Special Assessment Revenue Bonds, Series 1989, dated as of
October 15, 1989, in the original principal amount of $6,075,000, issued under
Resolution No. 89-54 of the County, as amended and supplemented.
DD. "Series 1990 Special Assessment Bonds" shall mean the Indian River
County, Florida Special Assessment Revenue Bonds, Series 1990, dated as of June
1, 1990, in the original principal amount of $720,000, issued under Resolution
No. 90-40 of the County, as amended and supplemented.
EE. "Series 1991 Bonds" shall mean the Indian River County, Florida Water
and Sewer Revenue Bonds, Series 1991, dated as of October 1, 1991, in the
original aggregate principal amount of $9,205,000, issued under Resolution No.
89-19 of the County, as amended and supplemented.
FF. "Series 1993 Bonds" shall mean the Series 1993A Bonds and the Series
1993E Bonds.
GG. "Series 1993A Bonds" shall mean the Indian River County, Florida
Water and Sewer Revenue Bonds, Series 1993A, herein authorized to be issued
hereunder.
HH. "Series 1993B Bonds" shall mean the Indian River County, Florida
Water and Sewer Revenue Bonds, Series 1993B, herein authorized to be issued
hereunder.
II. "Series 1993 Bond Insurance Policy" shall mean the municipal bond new
issue insurance policy issued by the Series 1993 Bond Insurer guaranteeing the
payment of principal of and interest on the Series 1993 Bonds.
JJ. "Series 1993 Bond Insurer" shall mean Financial Guaranty Insurance
Company, a New York stock insurance company, or any successor thereto so long as
the Series 1993 Bond Insurance Policy is in effect.
KK. "Series 1991 Project" shall mean the Series 1991 Project, as defined
in Resolution No. 91-81 of the County, as amended and supplemented.
LL. "Series 1993 Projects" shall mean (a) the expansion of the South
County Reverse Osmosis Water Treatment Plant to provide approximately 1.5 million
additional gallons per day; (b) the construction of a 3 million gallon water
storage tank and a High Service Pump Station at the North Region Reverse Osmosis
Water Treatment Plant; (c) the addition of the Roseland elevated storage tank;
(d) the construction of the Phase II Water Main Extension Project; (e) the
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construction of the Phase III Water Main Extension Project; (f) the expansion of
the West Region Wastewater Treatment Plant to provide approximately 2 million
additional gallons per day; and (g) the construction of an effluent connection
_ force main between the West and Central Regions to provide additional wastewater
flow.
MM. "Series 1989 Special Assessment Revenues shall mean all Revenues and
Supplemental Revenues, as defined in Resolution No. 89-54 of the County, as
amended and supplemented, collected by the County after April 1, 1993.
NN. "Series 1990 Special Assessment Revenues" shall mean all Revenues,
as defined in Resolution No. 90-40 of the County, as amended and supplemented,
collected by the County after April 1, 1993.
00, "Series 1991 Revenues" shall mean all receipts and revenues received
by the County from the operation of the Series 1991 Project and the North Beach
Water Surcharges, as defined in Resolution No. 91-81 of the County, as amended
and supplemented.
PP. "Series 1993 Special Assessment Revenues shall mean the special
assessments now or hereafter levied by the County in connection with the Series
1993 Projects and the interest, prepayment charges and penalties received by the
County in connection therewith.
QQ. "Special Assessments" shall mean the fees, charges and costs
lawfully assessed by the County against properties benefitted by construction or
reconstruction of sewer or water facilities and representing an apportionment
of the costs of such improvements to such properties.
RR. "Surcharges" shall mean special rates, fees and charges for water
or sewer service imposed for a limited time and purpose by ordinance adopted by
the Board and in addition to the usual uniform water and sewer service rates,
fees and charges of the County.
SS. "System" shall mean the water and sewer systems owned and operated
by the County as of April 1, 1993, wherever located in the County (including
without limitation the Series 1991 Project), together with any and all
improvements, extensions and additions thereto thereafter constructed or acquired
and any physically independent water or sewer system thereafter made a part of
the System by resolution of the Board together with any and all improvements,
extensions and additions thereto thereafter constructed or acquired. Without
intending to limit the generality of the foregoing sentence, "System" shall
include all property, real, personal and mixed, rights, powers, licenses,
easements, rights of way, privileges, franchises and all other property or
interests in property of whatsoever nature, including but not limited to
vehicles, rolling stock, buildings, pipes, pumps, machinery, tanks, mains,
conduits, meters and other equipment, used or useful in connection with
ownership, operation and maintenance of such water or sewer systems by the
County.
TT. "Term Bonds" shall mean the Bonds of a series all of which are stated
to mature on one date but which shall be subject to earlier retirement by
operation of the Bond Amortization Account.
UU. "Uniform Charges" shall mean all receipts and revenues of the County
derived from the imposition, collection and enforcement of uniform water and
sewer service rates, fees and charges for the use of and the services furnished
or to be furnished by the facilities constituting the System, including the
earnings and interest income derived from the investment of money on deposit in
the various funds and accounts created in connection with the System, but
excluding Surcharges, Impact Fees, Special Assessments, Franchise Fees and Fees
in lieu of Franchise Fees.
Words importing singular number shall include the plural number and vice
versa and words importing persons shall include firms and corporations or other
entities and vice versa.
SECTION 3. FINDINGS. It is hereby ascertained, determined and declared
that:
A. It is necessary, desirable and in the best interest of the County to
retire the Retired Bonds.
B. It is necessary, desirable and in the best interest of the County to
acquire, construct, furnish and equip the Series 1993 Projects;
C. It is necessary, desirable and in the best interest of the County to
finance the amount necessary to retire the Retired Bonds and to finance certain
costs in connection with the Series 1993 Projects by the issuance of the Series
1993 Bonds.
D. The Bonds shall be payable solely from the Pledged Funds.
E. It is expected that the Pledged Funds will be sufficient to pay the
principal of, premium, if any, and interest on the Bonds.
SECTION 4. RESOLUTION TO CONSTITUTE CONTRACT. In consideration of the
acceptance of the Bonds by the Registered Owners thereof who shall hold the same
from time to time, this Resolution shall be deemed to be and shall constitute a
contract between the County and such Registered Owners. The covenants and
agreements set forth herein to be performed by the County shall be for the equal
benefit, protection and security of the Registered Owners of the Bonds, all of
which Bonds shall be of equal rank and without preference, priority or
distinction with respect to any other Bonds, except as expressly provided in this
Resolution and in the Bonds.
SECTION 5. AUTHORIZATION TO RETIRE THE RETIRED BONDS. The retirement of
all of the outstanding Series 1986 Bonds is hereby authorized. The Series 1986
Bonds shall be retired upon the issuance of the Series 1993 Bonds at the price
of par, plus accrued interest to the retirement date.
The retirement of all of the outstanding Series 1986A Bonds is hereby
authorized. The Series 1986A Bonds shall be retired upon the issuance of the
Series 1993 Bonds at the price of par, plus accrued interest to the retirement
date.
The retirement of all of the outstanding Series 1989 Bonds is hereby
authorized. The Series 1989 Bonds maturing before May 1, 1999 shall be retired
at maturity at the price of par, plus accrued interest to the maturity date. The
Series 1989 Bonds maturing on or after May 1, 1999 shall be retired on May 1,
1998, the earliest optional redemption date, at the price of 101.56 of par, plus
accrued interest to the redemption date.
The retirement of all of the outstanding Series 1991 Bonds is hereby
authorized. The Series 1991 Bonds maturing before May 1, 2002 shall be retired
at maturity at the price of par, plus accrued interest to the maturity date. The
Series 1991 Bonds maturing on or after May 1, 2002 shall be retired on May 1,
2001, the earliest optional redemption date, at the price of 1028 of par, plus
accrued interest to the redemption date.
The retirement of all of the outstanding Series 1989 Special Assessment
Bonds is hereby authorized. The Series 1989 Special Assessment Bonds subject to
mandatory redemption on October 1, 1993 and October 1, 1994 shall be retired on
October 1, 1993 and October 1, 1994, respectively, at the price of par, plus
accrued interest to the redemption date. The other Series 1989 Special
Assessment Bonds shall be retired on October 1, 1994, the earliest optional
redemption date, at the price of 1018 of par, plus accrued interest to the
redemption date.
The retirement of all of the outstanding Series 1990 Special Assessment
Bonds is hereby authorized. The Series 1990 Special Assessment Bonds maturing
before June 1, 1996 shall be retired at maturity at the price of par, plus
accrued interest to the maturity date. The Series 1990 Special Assessment Bonds
maturing on or after June 1, 1996 shall be retired on June 1, 1995, the earliest
optional redemption date, at the price of par, plus accrued interest to the
redemption date.
The County shall provide for the retirement of the Retired Bonds by: (a)
transferring to the Escrow Agent, to be named by subsequent resolution of the
Board, from the various sinking funds for the Retired Bonds the amounts therein
allocable to the Retired Bonds; (b) transferring to the Escrow Agent from the
various reserve accounts for the Retired Bonds amounts, if any, to be specified
by subsequent resolution of the Board; (c) depositing with the Escrow Agent an
amount from the proceeds of the sale of the Series 1993 Bonds to be specified by
subsequent resolution of the Board; and (d) depositing with the Escrow Agent an
amount, if any, from other funds of the County to be specified by subsequent
resolution of the Board, which amounts, in the aggregate, together with the
interest to be earned thereon, when invested as provided in the Escrow Agreement
hereinafter mentioned, shall be sufficient to provide for timely retirement of
the Retired Bonds. The County shall enter into an Escrow Agreement with the
Escrow Agent providing for the retirement of the Retired Bonds, the form of which
shall be approved by the Chairman or Vice Chairman of the Board prior to the
execution thereof. Such approval shall be conclusively presumed by the execution
of the Escrow Agreement by the Chairman or Vice Chairman. The amount transferred
to the Escrow Agent from each of the various sinking funds and reserve accounts
shall be used only for the purpose of paying the interest on, the principal of
and the premium, if any, which first become due on the Retired Bonds to which
said sinking funds and reserve accounts relate and as may be more specifically
specified by the County.
SECTION 6. AUTHORIZATION OF THE SERIES 1993 PROJECTS. The acquisition,
construction, furnishing and equipping of the Series 1993 Projects is hereby
authorized in accordance with plans and specifications on file or to be placed
on file with the County, as modified from time to time as deemed necessary or
desirable by the County.
SECTION 7. AUTHORIZATION AND DESCRIPTION OF SERIES 1993 BONDS. Subject
and pursuant to the provisions of this Resolution, obligations of the County to
be known as "Water and Sewer Revenue Bonds, Series 1993A", are hereby authorized
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to be issued in the aggregate principal amount of not exceeding $47,190,000 and
obligations of the County to be known as "Water and Sewer Revenue Bonds, Series
1993E", are hereby authorized to be issued in the aggregate principal amount of
not exceeding $3,330,000. The Series 1993 Bonds shall be dated as of a date to
be fixed by subsequent resolution of the County and may be numbered consecutively
from R-1 upward or in such other manner as agreed upon between the County and the
Bond Registrar. The Series 1993 Bonds shall be issued in such denominations,
shall bear interest at such rate or rates, not exceeding the maximum rate
authorized by applicable law, be payable at such times, shall mature on such
dates and in such years and in such amounts, shall be subject to redemption, in
whole or in part, prior to their respective stated dates of maturity, at the
option of the County or otherwise, at such times and in such manner and shall
have such other terms and conditions all as may be determined by subsequent
resolution of the Board adopted at or prior to the sale of the Series 1993 Bonds.
The Series 1993 Bonds shall be issued in fully registered form without
coupons; shall be payable with respect to principal at a corporate trust office
of the Paying Agent; shall be payable in lawful money of the United States of
America; and shall bear interest from their date, payable by checks mailed to the
Registered Owners at their addresses as the same appear on the registration books
kept by the Bond Registrar on behalf of the County on the applicable Record Date.
At the option of any Registered Owner of $1,000,000 or more in aggregate
principal amount of Series 1993 Bonds on any Record Date, interest shall be
payable by domestic wire transfer pursuant to written instructions from such
Registered Owner; provided that such instructions are on file with the Paying
Agent not later than such Record Date.
Notwithstanding any other provisions of this Resolution, the Board may, at
its option, prior to the date of issuance of any series of Bonds and subject to
the approval of the purchasers of such Bonds, elect to use an immobilization
system or pure book -entry system with respect to issuance of such Bonds, provided
adequate records will be kept with respect to the ownership of such Bonds issued
in book -entry form or the beneficial ownership of the such Bonds issued in the
name of a nominee. As long as any of such Bonds are outstanding in book -entry
form, the provisions of Sections B, 10, 11 and 12 of this Resolution shall not
be applicable to such Bonds. The details of any alternative system of bond
issuance, as described in this paragraph, shall be set forth in a resolution of
the Board duly adopted at or prior to the delivery of such Bonds.
SECTION B. EXECUTION AND AUTHENTICATION OF BONDS. The Bonds shall be
executed in the name of the County by the Chairman or Vice Chairman of the Board
attested by its Clerk and its official seal or a facsimile thereof shall be
affixed thereto or reproduced thereon. The signatures of the Chairman or Vice
Chairman and Clerk may be either manual or facsimile signatures. The certificate
of authentication of the Bond Registrar shall appear on the Bonds, and no Bond
shall be valid or obligatory for any purpose or be entitled to any security or
benefit under this Resolution unless such certificate shall have been duly
executed on such Bond. The authorized signature for the Bond Registrar shall be
manual.
The validation certificate on the Bonds, if any, shall be executed with the
manual or facsimile signature of the Chairman or Vice Chairman of the Board.
In case any one or more of the officers of the Board who shall have signed
or sealed any of the Bonds shall cease to be such officer or officers of the
,a
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Board before the Bonds so signed and sealed shall have been actually sold and
delivered, such Bonds may nevertheless be sold and delivered as if the persons
who signed or sealed such Bonds had not ceased to hold such offices. Any Bonds
may be signed and sealed on behalf of the Board by such person who at the actual
time of the execution of such Bonds shall hold the proper office, although at the
date of such Bonds such person may not have held such office or may not have been
so authorized.
SECTION 9. NEGOTIABILITY. The Bonds issued hereunder shall be and shall
have all of the qualities and incidents of negotiable instruments under the laws
of the State of Florida, and each successive holder, in accepting any of the
Bonds, shall be conclusively deemed to have agreed that such Bonds shall be and
have all of the qualities and incidents of negotiable instruments under the laws
of the State of Florida.
SECTION 10. REGISTRATION, TRANSFER AND EXCHANGE. The'Bond Registrar shall
be responsible for maintaining books for the registration, transfer and exchange
of the Bonds.
All Bonds presented for transfer, exchange, redemption or payment (if so
required by the Board or the Bond Registrar) shall be accompanied by a written
instrument or instruments of transfer or authorization for exchange, in form and
with guaranty of signature satisfactory to the Board or the Bond Registrar, duly
executed by the Registered Owner or by his duly authorized attorney. In the case
of partial redemption of a Bond, and in lieu of issuing a new Bond or Bonds in
the aggregate principal amount then outstanding on the Bond after such
redemption, the County may, at its option, instruct the Bond Registrar to note
on the Bond the principal amount of such redemption, the date of redemption and
the outstanding principal amount of such Bond after such redemption, and return
the Bond to the Registered Owner.
Upon surrender to the Bond Registrar for transfer or exchange of any Bond
accompanied by an assignment or written authorization for exchange, whichever is
applicable, duly executed by the Registered Owner or his attorney duly authorized
in writing, the Bond Registrar shall deliver in the name of the Registered Owner
or the designated transferee or transferees, as the case may be, a new fully
registered Bond or Bonds of authorized denominations and of the same series,
maturity and interest rate, in an aggregate principal amount equal to the
principal amount that remains outstanding with respect to such Bond so
surrendered.
The Bond Registrar or the Board may require payment from the Registered
Owner or his transferee of a sum sufficient to cover any tax, fee or other
governmental charge that may be imposed in connection with any transfer or
exchange of the Bonds. Such charges and expenses shall be paid before any such
new Bond shall be delivered.
Interest on the Bonds shall be paid to the Registered Owner whose name
appears on the books of the Bond Registrar as of 5:00 P.M. local time at the
location of the Bond Registrar on the Record Date.
New Bonds delivered upon any transfer or exchange shall be valid
obligations of the County, evidencing the same debt as the Bonds surrendered,
shall be secured by this Resolution, and shall be entitled to all of the security
and benefits hereof to the same extent as the Bonds surrendered.
The County and the Bond Registrar may treat the Registered Owner of any
Bond as the absolute owner thereof for all purposes, whether or not such Bond
shall be overdue, and shall not be bound by any notice to the contrary.
SECTION 11. DISPOSITION OF BONDS PAID OR REPLACED. Whenever any Bond
shall be delivered to the -Bond Registrar for payment of the principal amount
thereof upon maturity or redemption, or for replacement, transfer or exchange,
such Bond shall be canceled and destroyed by the Bond Registrar, and counterparts
of a certificate of destruction evidencing such destruction shall be furnished
to the County.
SECTION 12. BONDS MUTILATED, DESTROYED, STOLEN OR LOST. In case any Bond
shall become mutilated, or be destroyed, stolen or lost, the County may, in its
discretion, issue and deliver a new Bond of like tenor as the Bond so mutilated,
destroyed, stolen or lost, in exchange for and cancellation of such mutilated
Bond or in lieu of and substitution for the Bond destroyed, 'stolen or lost, upon
the Registered Owner furnishing the County and the Bond Registrar proof of his
ownership thereof and the loss thereof (if lost, stolen or destroyed) and
satisfactory indemnity and complying with such other reasonable regulations and
conditions as the Board may prescribe and paying such expenses as the Board and
the Bond Registrar may incur. All Bonds so surrendered shall be canceled by the
Bond Registrar. If any such Bonds shall have matured or be about to mature,
instead of issuing a substitute Bond, the County may pay the same, upon being
indemnified as aforesaid, and if such Bond be lost, stolen or destroyed, without
surrender thereof.
Any such duplicate Bonds issued pursuant to this section shall constitute
original, additional, contractual obligations on the part of the County whether
or not the lost, stolen or destroyed Bonds be at any time found by anyone, and
such duplicate Bonds shall be entitled to equal and proportionate benefits and
rights as to lien on and source and security for payment from the funds, as
hereinafter pledged, to the same extent as all other Bonds issued hereunder.
SECTION 13. PROVISIONS FOR REDEMPTION. The Bonds or any portions thereof
shall be subject to redemption prior to their respective stated dates of
maturity, at the option of the County or otherwise, at such times and in such
manner as shall be determined by subsequent resolution adopted prior to the sale
thereof.
Except as specifically prohibited or otherwise provided by subsequent
resolution with respect to a particular series of Bonds, in lieu of any mandatory
redemption of Term Bonds, the County may purchase from money in the Sinking Fund
or the Bond Amortization Account or other available funds of the County, at a
price not to exceed the principal amount thereof plus accrued interest, and
tender to the Paying Agent for cancellation Term Bonds of the appropriate series
and maturity. The amount of the Term Bonds of such series and maturity to be so
called for redemption on the next mandatory redemption date shall be reduced by
the principal amount of Term Bonds so purchased and tendered and, if the
principal amount thereof is greater than the amount required to be redeemed on
the next mandatory redemption date, the excess may be credited against subsequent
mandatory redemptions in such manner as the County may direct.
Notice of such redemption shall, not more than forty-five (45) days and not
less than thirty (30) days prior to the redemption date, (i) be filed with the
Bond Registrar and Paying Agent, and (ii) be mailed, postage prepaid, to all
Registered Owners of Bonds to be redeemed at their addresses as they appear of
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record on the books of the Bond Registrar as of forty-five (45) days prior to the
date fixed for redemption. Interest shall cease to accrue on any Bond duly
called for prior redemption on the redemption date, if payment thereof has been
duly provided. The County and the Bond Registrar shall not be required to issue
or to register the transfer of or exchange any Bonds then considered for
redemption during a period -beginning at the close of business on the fifteenth
(15th) day next preceding any date of selection of Bonds to be redeemed and
ending at the close of business on the day of mailing the applicable notice of
redemption, as hereinafter provided, or to register the transfer of or exchange
any portion of any of the Bonds selected for redemption until after the
redemption date.
All notices of redemption with respect to the Bonds shall specify the
series, maturities and numbers of the Bonds to be redeemed (including the CUSIF
numbers); the date fixed for redemption; the redemption price or prices to be
applicable to the Bonds to be redeemed; and that on the date *fixed for redemption
such Bonds shall be payable at the principal corporate trust office of the Paying
Agent (specifying the address of same). If holders or registered owners of all
such Bonds to be redeemed file written waivers of notice with the Paying Agent,
such Bonds may be redeemed on the redemption date without necessity of notice by
mailing. Failure to mail any notice of redemption or any defect therein or in
the mailing thereof shall not affect the validity of any proceeding for
redemption of other Bonds so called for redemption.
So long as the Series 1993 Bond Insurance Policy is in effect, notice of
redemption of Bonds, other than mandatory sinking fund redemption and redemption
resulting from a refunding, shall be given or published only if sufficient funds
have been deposited with the Paying Agent to pay the redemption price of the
Bonds to be redeemed.
SECTION 14. FORM OF BONDS. The text of the Bonds, the validation
certificate thereon and the certificate of authentication thereon shall be in
substantially the following form, with such omissions, insertions and variations
as may be necessary and/or desirable and authorized or permitted by this
Resolution or any subsequent resolution adopted prior to the issuance thereof,
or as may be necessary to comply with applicable laws, rules and regulations of
the United States and the State of Florida in effect upon the issuance thereof:
No. R -
UNITED STATES OF AMERICA
STATE OF FLORIDA
INDIAN RIVER COUNTY
WATER AND SEWER REVENUE BOND, SERIES
RATE OF INTEREST MATURITY DATE DATED DATE OF SERM CUSIP
REGISTERED OWNER:
PRINCIPAL AMOUNT:
11
KNOW ALL MEN BY THESE PRESENTS, that INDIAN RIVER COUNTY, FLORIDA (the
"County"), for value received, hereby promises to pay to the Registered Owner
named above, or registered assigns, solely from the Pledged Funds, hereinafter
defined, on the Maturity Date specified above, the Principal Amount specified
above, unless this Water and Sewer Revenue Bond, Series _ (the "Bond") shall
be redeemable and duly shall have been called for earlier redemption and payment
of the redemption price shall have been made or provided for, and to pay, solely
from such Pledged Funds, semiannually on and of each year,
beginning , interest on the Principal Amount specified above, at
the Rate of Interest specified above, per annum, until such Principal Amount is
paid in full. Interest on this Bond shall be payable from the interest payment
date next preceding the date of registration and authentication of this Bond,
unless: (a) this Bond is registered and authenticated as of an interest payment
date, in which event this Bond shall bear interest from such interest payment
date; or (b) this Bond is registered and authenticated after a Record Date
(hereinafter defined) and before the next succeeding interest payment date, in
which event this Bond shall bear interest from such interest payment date; or (c)
this Bond is registered and authenticated on or prior to the Record Date first
preceding in which event this Bond shall bear interest from
; or (d) as shown by the records of the Paying Agent (hereinafter
defined), interest on this Bond is in default, in which event this Bond shall
bear interest from the date to which interest was last paid on this Bond. The
Principal Amount hereof, together with any applicable redemption premium with
respect thereto, shall be payable, when due upon maturity or earlier redemption,
upon presentation and surrender of this Bond at the corporate trust office of
(the "Paying Agent") located in , Florida,
as Paying Agent. Interest hereon shall be paid, when due, by check mailed to the
Registered Owner whose name and address shall appear, at 5:00 P.M. prevailing
local time at the location of the Bond Registrar (hereinafter defined) on the
fifteenth (15th) day of the month next preceding each interest payment date (the
"Record Date"), on the registration books maintained by
(the "Bond Registrar"), , Florida, as Bond Registrar, irrespective
of any transfer or exchange of this Bond subsequent to such Record Date and prior
to such interest payment date, unless the County shall be in default in payment
of interest due on such interest payment date. In the event of any such default,
such defaulted interest shall be payable to the person in whose name this Bond
is registered on such registration books at 5:00 P.M. prevailing local time at
the location of the Bond Registrar on a special record date for the payment of
such defaulted interest established by notice mailed by the Paying Agent to the
Registered Owner of this Bond not less than fifteen (15) days preceding such
special record date. Such notice shall be mailed to the persons in whose names
the Bonds are registered at the close of business of the Bond Registrar on the
fifth (5th) day preceding the date of mailing. At the option of any Registered
Owner of $1,000,000 or more in aggregate principal amount of Series 1993 Bonds
on any Record Date, interest shall be payable by domestic wire transfer pursuant
to written instructions from such Registered Owner; provided that such
instructions are on file with the Paying Agent not later than such Record Date.
The principal of, premium, if any, and interest on this Bond are payable in
lawful money of the United States of America,
This Bond is one of the revenue bonds authorized by the County under the
authority of and in full compliance with the Constitution and laws of the State
of Florida, including particularly Chapter 125, Florida Statutes, and Resolution
No. 93-_ of the County, all as amended and supplemented, and other applicable
provisions of law. The above -referenced resolution as amended and supplemented
12
from time to time is hereinafter referred to as the "Resolution". This Bond is
subject to all the terms and conditions of the Resolution.
This Bond is one of the revenue bonds of the County designated as Water and
Sewer Revenue Bonds, Series , all of like date and tenor, except as to
numbers, denominations, dates of maturity, rates of interest and provisions for
redemption, in the aggregate principal amount of
Dollars ($ ) (the "Bonds"). The proceeds of the Bonds,
together with the proceeds of the Water and Sewer Revenue Bonds, Series
in the aggregate principal amount of Dollars ($
_) of the County, which have been issued simultaneously with the Bonds and are
secured on a parity with the Bonds, and certain other available funds of the
County, will be used to retire the Retired Bonds, as defined in the Resolution,
to acquire, construct, furnish and equip the Series 1993 Projects, as defined in
the Resolution, to establish a reserve account and to pay certain costs and
expenses relating to issuance of the Bonds and such SeriBs Bonds and
retirement of the Retired Bonds, all as more fully set forth in the Resolution.
The principal of and interest on the Bonds are payable solely from, and are
equally and ratably secured solely by a lien upon and pledge of, the Net
Revenues, as that term is defined in the Resolution, to be derived by the County
from the operation of the water and sewer systems defined in the Resolution as
the "System", and certain funds and accounts pledged for the payment of the
principal of, interest and premium, if any, on the Bonds and certain earnings
thereon, all as provided in the Resolution (the "Pledged Funds"). Reference is
made to the Resolution for terms and conditions upon which certain receipts and
revenues pledged under the Resolution may be released from such pledge, and for
terms and conditions upon which additional bonds having a parity lien upon and
right to payment from such Pledged Funds have been issued and may be issued from
time to time.
This Bond does not constitute a general indebtedness of the County within
the meaning of any constitutional or statutory provision or limitation.
It is expressly agreed by the Registered Owner of this Bond that such Registered
Owner shall never have the right to require or compel the exercise of the ad
valorem taxing power of the County for the payment of the principal of, interest
or premium, if any, on this Bond or the making of any other payments specified
by the Resolution. It is further agreed between the County and the Registered
Owner of this Bond that this Bond and the indebtedness evidenced hereby shall
constitute a lien upon only the Pledged Funds in the manner provided in the
Resolution.
(To be inserted where appropriate on face of bond: "REFERENCE IS HEREBY
RADE TO THE FURTHER PROVISIONS OF THIS BOND SET FORTH ON THE REVERSE SIDE HEREOF,
AND SUCH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS IF SET
FORTH ON THIS SIDE.")
The Bonds are issuable only in the form of registered bonds, without
coupons, in the denominations of $5,000 principal amount or any integral multiple
thereof.
This Bond may be transferred only upon the books kept by the Bond
Registrar, on behalf of the County, upon surrender hereof at the designated
corporate trust office of the Bond Registrar with an assignment duly executed by
the Registered Owner or his duly authorized attorney, but only in the manner,
subject to the limitations and upon payment of a sum sufficient to cover any tax,
13
r
fee or governmental charge that may be imposed in connection with such transfer,
all as provided in the Resolution. Upon such transfer, there shall be executed
in the name of the transferee, and the Bond Registrar shall deliver, as early as
practicable, a new fully registered bond or bonds of authorized denominations in
the same aggregate principal amount and of the same series, maturity and interest
rate as this Bond.
In like manner, subject to said conditions and upon payment of any such
sum, this Bond may be surrendered at said office of the Bond Registrar in
exchange for an equal aggregate principal amount of new fully registered bonds
of authorized denominations of the same series, maturity and interest rate as
this Bond.
The County and the Bond Registrar shall not be required to issue or to
register the transfer of or exchange any Bonds then considered for redemption
during a period beginning at the close of business on the fifteenth (15th) day
next preceding any date of selection of Bonds to be redeemed and ending at the
close of business on the day of mailing the applicable notice of redemption, as
hereinafter provided, or to register the transfer of or exchange any portion of
any of the Bonds selected for redemption until after the redemption date.
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 Constitution and laws of the State of Florida
applicable thereto.
This Bond is and has all the qualities and incidents of a negotiable
instrument under the laws of the State of Florida.
[Insert redemption provisions)
In lieu of any mandatory redemption of the Bonds, the County may purchase
Bonds and tender them to the Paying Agent, all as more fully provided in the
Resolution.
If less than all Bonds of any one maturity are to be redeemed, the Bonds
of such maturity to be redeemed shall be drawn by lot by the Paying Agent. For
the purposes of redemption, if this Bond is of a denomination larger than $5,000,
it shall be treated as representing that number of Bonds which equals the number
obtained by dividing the principal amount hereof by $5,000, each $5,000 portion
of this Bond being subject to redemption. In case of partial redemption of this
Bond, payment of the redemption price shall be made only upon surrender of this
Bond in exchange for Bonds of authorized denominations in aggregate principal
amount equal to the unredeemed portion of the principal amount hereof.
Notice of any redemption shall be given in the manner provided in the
Resolution. On the date designated for redemption, notice having been provided
as aforesaid, and money for payment of the principal, premium, if any, and
accrued interest being held by the Paying Agent, interest on the Bonds or
portions thereof so called for redemption shall cease to accrue and such Bonds
or portions thereof so called for redemption shall cease to be entitled to any
benefit or security under the Resolution, and the registered owners of such Bonds
or portions thereof so called for redemption shall have no rights with respect
thereto, except to receive payment of the principal to be redeemed and accrued
14
interest thereon to the date fixed for redemption, together with the redemption
premium, if any.
This Bond shall not be valid or become obligatory for any purpose or be
entitled to any security or benefit under the Resolution until the certificate
of authentication hereon shall have been executed by the manual signature of an
authorized representative of the Bond Registrar.
_ IN WITNESS WHEREOF, Indian River County, Florida, has issued this Bond and
has caused the same to be executed by the Chairman of the Board of County
Commissioners of the County and attested by the Clerk of the Board of County
Commissioners, either manually or with their facsimile signatures, and its
official seal, or a facsimile thereof, to be affixed, impressed, imprinted or
otherwise reproduced hereon, all as of the day of
(SEAL) INDIAN RIVER COUNTY, FLORIDA
By:
Chairman
ATTEST:
Clerk
CERTIFICATE OF AUTHENTICATION
AND CERTIFICATE AS TO OPINION
It is certified that:
(1) This Bond is one of the Bonds described in the within -mentioned
Resolution; and
(2) The text of the Opinion printed upon this Bond is a true and
correct copy of the text of an original Opinion issued by
, dated and delivered on the date of original delivery of, and
payment for, such Bonds, which Opinion is on file at our corporate trust office
referred to in this Bond, where the same may be inspected.
Date of Registration and Authentication:
15
As Bond Registrar
By:
Authorized Representative
VALIDATION CERTIFICATE
This Bond is one of the bonds which were validated and
confirmed by judgment of the Circuit Court of the Nineteenth Judicial Circuit of
Florida in and for Indian River County, Florida, rendered on
_, 19 .
Chairman, Board of County
Commissioners of Indian
River County, Florida
The following abbreviations, when used in the inscription on the face
of this 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
UNIF GIF MIN ACT -
(Cust.)
Custodian for
(Minor)
under Uniform Gifts to Minors
Act of
(State)
Additional abbreviations may also be used though not in list above.
16
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned sells, assigns and
transfers to
(Name and address of Transferee)
(Social Security or Taxpayer Identification Number of Transferee)this Bond and
does hereby irrevocably constitute and appoint
as his agent to transfer this Bond on the books kept for registration hereof,
with full power of substitution in the premises.
(Signature of Transferor)
Date:
Signature guaranteed:
(Name of Bank, Trust Company
or Firm)
By:
Title:
NOTICE: No transfer will be registered and no new Bond will be issued in the
name of the Transferee unless the signature(s) to this assignment correspond(s)
to the name(s) appearing as registered owner upon the face of the within Bond in
every particular, without enlargement or any change whatever and the Social
Security or Federal Employer Identification Number of the Transferee is supplied.
Signature(s) of the Transferor(s) must be guaranteed by a member firm of a major
stock exchange or a commercial bank or trust company.
[insert if appropriate:]
PARTIAL REDEMPTION PAYMENTS
Authorized
Officer of
Principal Balance of Bond
Pavmnnt Datg Amount Paid Principal Unpaid Reeistrar
SECTION 15. BONDS NOT GENERAL OBLIGATIONS. The Bonds shall not be or
constitute general or moral obligations or a pledge of the faith, credit or
taxing power of the County, the State of Florida or any political subdivision
thereof or an indebtedness of any of them as "bonds" within the meaning of the
Constitution of the State of Florida, but shall be special obligations of the
County payable solely from and secured solely by a lien upon and a pledge of the
Pledged Funds. No Registered Owner shall ever have the right to compel the
exercise of the ad valorem taxing power of the County, the State of Florida or
any political subdivision thereof, or taxation in any form of any real property
17
therein, to pay the Bonds or the interest thereon, or be entitled to payment of
such principal and interest from any funds of the County other than the Pledged
Funds.
SECTION 16. SECURITY FOR BONDS; RELEASE OF CERTAIN PLEDGED REVENUES. The
payment of the principal of, premium, if any, and interest on the Bonds shall be
secured forthwith equally and ratably by a pledge of and a lien upon the Pledged
Funds. The County does hereby irrevocably pledge the Pledged Funds to the
payment of the principal of, premium, if any, and interest on the Bonds, to the
extent and in the manner provided herein.
Nothing in this Resolution shall constitute or be construed to constitute
a conveyance or mortgage of the System or of any part thereof.
Notwithstanding any other provision of this Resolution to the contrary, the
County may, by resolution of the Board filed with the Clerk'of the Board, except
and release from the pledge and lien created by this Resolution, and the phrase
"Revenues" as used in this Resolution shall no longer include, the receipts and
revenues of the County derived from the Uniform Charges for the use of and
services furnished or to be furnished by any water and/or sewer facilities
constituting a physically independent system of the County, or any Impact Fees,
Special Assessments, Surcharges, Franchise Fees, Fees in lieu of Franchise Fees
or other receipts and revenues (other than Uniform Charges) theretofore pledged
in connection with the Bonds, as stated in such resolution, if there shall be
filed with the Clerk of the Board the following:
(1) A certificate of an independent firm of certified public
accountants of suitable experience and responsibility: (i) stating
that the books and records of the County relating to the collection
and receipt of the Revenues and the Operating Expenses have been
audited by them for the Fiscal Year immediately preceding the date
of the proposed release of such receipts and revenues from the
pledge hereunder or for any twelve (12) consecutive month period out
of the eighteen (18) consecutive months immediately preceding such
date; (ii) setting forth the Revenues, the Uniform Charges, the
Operating Expenses and the Net Revenues for the audited period
referred to in (i) above, with respect to which such certificate is
made; and (iii) stating that the Net Revenues, adjusted to give
effect to the proposed release of such receipts and revenues as if
the same had occurred at the beginning of such audited period, were
equal to at least 1.20 times the largest amount of principal and
interest that will mature and become due in any Fiscal Year
thereafter on all Bonds then outstanding. For purposes of (iii)
above, (A) Revenues, Uniform Charges and Operating Expenses may be
further adjusted so as to fairly represent the operation of the
System, provided that the amount and a detailed reason for each such
adjustment is set forth in such certificate; (B) Net Revenues may
also be adjusted for (I) the pro forma effect of rates implemented
prior to the proposed release of such receipts and revenues and (II)
new customers added to the System during the test period; and (C)
any amounts owed to the issuer of a Reserve Account Credit
Instrument (hereinafter defined) as a result of a draw thereon, as
appropriate, shall be added to the principal and interest payable on
Bonds to determine compliance with the foregoing test;
18
(2) A certificate of the chief financial officer of the
County stating that the County has established and will maintain a
separate accounting of all revenues and expenses in connection with
any such independent system or with respect to such Impact Fees,
Surcharges, Special Assessments, Franchise Fees, Fees in lieu of
Franchise Fees or other receipts and revenues to be released, apart
from the Pledged Funds; and
(3) Written consent of the Series 1993 Bond Insurer.
All or any part of the certificate required under subparagraph (1) of this
paragraph may be rendered by consulting engineers, consultants or other persons
with requisite knowledge and experience who are not reasonably objected to by the
Series 1993 Bond Insurer.
SECTION 17. COVENANTS OF THE COUNTY. For so long as'any of the principal
of and interest on any of the Bonds shall be outstanding and unpaid, or until
there shall have been set apart in the Sinking Fund hereinafter created a sum
sufficient to pay, when due, the entire principal amount of the Bonds remaining
unpaid, together with interest accrued and interest to accrue thereon through
such payment date, or until the provisions of Section 24 hereof have been
satisfied, the County covenants with the holders of the Bonds issued pursuant to
this Resolution that:
A. REVENUE FUND. All Revenues shall upon receipt thereof be deposited
in the "Water and Sewer Revenue Fund" (herein the "Revenue Fund"), which is
hereby created and established.
B. DISPOSITION OF REVENUES. All Revenues on deposit in the Revenue Fund
shall be disposed of by the County as needed or as required herein only in the
following manner and in the following order of priority:
(1) First, the County shall transfer in each month to the
"Operation and Maintenance Fund", which is hereby created and
established, the amount required to be deposited therein to pay the
Operating Expenses due or to become due for such month.
(2) Second, the County shall deposit in each month into the
"Water and Sewer Revenue Bonds Sinking Fund" (herein the "Sinking
Fund"), which is hereby created and established, one-sixth (1/6th)
of such sum as will be sufficient to pay interest on the Bonds as
the same shall become due on the next interest payment date,
together with the amount of any deficiency in prior deposits for
interest on Bonds, and one -twelfth (1/12th) of the principal of
Bonds maturing on the next principal payment date with respect to
the Bonds. Such deposit shall take into account the sums, if any,
deposited in the Sinking Fund out of proceeds from the sale of Bonds
to pay interest thereon on the following interest payment date and
the reduction in the amount of interest payable on Term Bonds on the
following interest payment date attributable to the purchase and
tender of Term Bonds in lieu of mandatory redemption, if any. In
addition, there shall be deposited in the Sinking Fund amounts
sufficient to pay the fees and charges of the Paying Agent.
(3) Third, the County shall deposit in each month into an
account in the Sinking Fund to be known as the "Bond Amortization
19
Account", which is hereby created and established, one -twelfth
(1/12th) of the principal of Bonds, if any, subject to mandatory
call for redemption on the next principal payment date with respect
to the Bonds. Such deposit shall take into account the principal
amount of the Term Bonds subject to mandatory call for redemption on
the next principal payment date that the County shall have purchased
and tendered to the Paying Agent in lieu of mandatory redemption on
such date (as and to the extent not prohibited under the terms of
the particular series of Bonds), if any.
(4) Fourth, the County shall deposit into an account in the
Sinking Fund to be known as the "Reserve Account", which is hereby
created and established, a sum sufficient to increase the amount on
deposit in the Reserve Account to the Reserve Account Requirement.
A sum to be specified by subsequent resolution of the County may be
deposited in the Reserve Account out of the proceeds of the sale of
Bonds.
Provided, however, in no Fiscal Year shall Net Revenues in excess of
twenty percent (208) of the Reserve Account Requirement be required
to be deposited in the Reserve Account, except as may be required by
subsection P or subsection Y below. However, the foregoing twenty
percent (208) limitation shall not apply to the extent that
principal and interest on the Bonds are paid from the Reserve
Account or there is ten percent (108) or more decline in the market
value of the Reserve Account. No further deposits shall be required
to be made into the Reserve Account as long as there shall remain on
deposit therein (including any Reserve Account Credit Instrument as
described below) a sum equal to the Reserve Account Requirement.
The value of the Reserve Account, including investments on deposit
in the Reserve Account, shall be determined annually at market on
the first day of the Fiscal Year by an independent firm of certified
public accountants, who may be the accountants for the County, in
accordance with generally accepted accounting principles.
Notwithstanding the foregoing provisions, in lieu of, in whole or in
part, the required deposits into the Reserve Account, the County may
cause to be deposited into the Reserve Account any of the following
(each a "Reserve Account Credit Instrument"):
(a) A surety bond or insurance policy issued to
the Paying Agent, as agent of the Bondholders, by a
company licensed to issue an insurance policy
guaranteeing the timely payment of debt service on the
Bonds (a "municipal bond insurer"), if the claims paying
ability of the issuer thereof, at the time of issuance
thereof, shall be rated "AAA" by Standard 6 Poor's
Corporation or its successor ("SU") and "Aaa" by
Moody's Investors Service or its successor ("Moody's");
(b) A surety bond or insurance policy issued to
the Paying Agent, as agent of the Bondholders, by an
entity other than a municipal bond insurer, if the form
and substance of such instrument and the issuer thereof
shall be approved by the Series 1993 Bond Insurer; or
20
(c) An unconditional irrevocable letter of
credit issued to the Paying Agent, as agent of the
Bondholders, by a bank, if such bank is rated at least
"AA" by S&P and "As" by Moody's, at the time of issuance
thereof.
Any such Reserve Account Credit Instrument shall meet the further
terms and conditions described in subsection Y below and shall be
payable or available to be drawn upon, as the case may be (upon the
giving of notice as required thereunder), by the Paying Agent on any
interest payment date on which a deficiency exists which cannot be
cured by money in any other fund or account held pursuant hereto and
available for such purpose. It shall be the duty of the Paying
Agent to, and the Paying Agent shall, without further authorization
or direction from the County, ascertain the necessity for a claim or
draw upon any Reserve Account Credit Instrument and provide notice
to the issuer of the Reserve Account Credit Instrument in accordance
with its terms not later than three days (or such appropriate time
period as will, when combined with the timing of required payment
under the Reserve Account Credit Instrument, ensure payment under
the Reserve Account Credit Instrument on or before the interest
payment date) prior to each interest payment date. If a
disbursement is made under any such Reserve Account Credit
Instrument, the County may reinstate the maximum limits of such
Reserve Account Credit Instrument immediately following such
disbursement, otherwise the amount of credit toward the Reserve
Account Requirement for such Reserve Account Credit Instrument shall
be appropriately reduced.
Furthermore, the County may at any time and from time to time cause
to be deposited in the Reserve Account such a Reserve Account Credit
Instrument and cause an appropriate amount to be withdrawn from the
Reserve Account and released to the County.
Moneys in the Reserve Account shall be used only for the purpose of
the payment of maturing principal of or interest on Bonds when the
other moneys in the Sinking Fund are insufficient therefor, and for
no other purpose. However, upon the valuation of the Reserve
Account in each year, if the moneys applied and allocated to the
Reserve Account (except the investment income thereon) exceed the
amount required, such excess may be withdrawn and released to the
County. If the Reserve Account Requirement shall at any time be
satisfied in whole or in part with a qualifying letter of credit and
such letter of credit is about to expire or terminate, the County
hereby authorizes and directs the Paying Agent to draw upon such
letter of credit prior to its expiration or termination to the
extent required to fully fund the Reserve Account Requirement unless
a replacement Reserve Account Credit Instrument is in place or the
Reserve Account is otherwise fully funded in its required amount.
(5) Fifth, the County shall apply an amount sufficient for
the payment of current debt service and reserve requirements of any
obligations of the County which have a lien on the Pledged Funds
junior and subordinate to the lien of the Bonds.
21
(6) Sixth, the County may deposit into the "Sewer and Water
Renewal and Replacement Fund", which is hereby created and
established, an amount to be determined by the County to be used
only for the purpose of paying the costs of extraordinary repairs,
renewals, replacements, improvements, extensions and additions with
respect to the System.
(7) Seventh, the balance of any moneys remaining in the Revenue Fund
after the above required payments have been made may be used by the County
for any lawful purpose.
No further deposits to the Sinking Fund, the Bond Amortization Account or
the Reserve Account shall be required when the aggregate sums deposited therein
are and remain at least equal to the sum of all of the principal and interest
then due and thereafter becoming due in all ensuing years for the Bonds then
outstanding.
C. PLEDGED FUNDS AND INVESTMENT OF FUNDS. The Sinking Fund, the Bond
Amortization Account and the Reserve Account shall be Pledged Funds, shall
constitute trust funds for the purposes provided herein for such funds and shall
be used only for the purposes and in the manner provided herein. All moneys in
all funds and accounts created or established hereunder shall be continuously
secured in the manner by which deposits of public funds are required to be
secured by the laws of the State of Florida. Moneys on deposit in the Revenue
Fund and the Sinking Fund (except the Reserve Account therein) may be invested
and reinvested only in Authorized Investments maturing not later than the date
on which the moneys therein will be needed for the purposes of such funds.
Moneys in the Reserve Account may be invested and reinvested in Authorized
Investments maturing not later than the last maturity date of the Bonds.
Except as may be provided in a resolution adopted in connection with the
issuance of Additional Parity Bonds, any and all income received by the County
from such investments shall be deposited into the Rebate Account hereunder to the
extent required and the excess, if any, into the Revenue Account.
D. OPERATION AND MAINTENANCE. The County will maintain the System and
all parts thereof in good condition and will operate the same in an efficient and
economical manner, making such expenditures for equipment and for renewals,
repairs and replacements as may be proper for the economical operation and
maintenance thereof.
E. RATE COVENANT. The County shall fix, establish and maintain such
Uniform Charges and, as applicable, such Surcharges, Impact Fees, Special
Assessments, Franchise Fees and Fees in lieu of Franchise Fees in connection with
the System and other receipts and revenues pledged hereunder, shall collect the
same and shall revise the same from time to time, whenever necessary, so as to
always provide in each Fiscal Year either of the following:
(1) Uniform Charges less Operating Expenses sufficient to pay
(a) one hundred percent (1008) of all required deposits into the
Reserve Account, and (b) one hundred twenty percent (1208) of the
amount of principal and interest becoming due in such Fiscal Year on
the Bonds outstanding; or
(2) when the Revenues include receipts and revenues in
addition to Uniform Charges, Net Revenues in each Fiscal Year
22
sufficient to pay (a) one hundred percent (100%) of all required
deposits into the Reserve Account, and (b) one hundred twenty
percent (120%) of the amount of principal and interest becoming due
in such Fiscal Year on the Bonds outstanding; provided, however,
that Uniform Charges less Operating Expenses are sufficient to pay
(a) one hundred percent (100%) of all required deposits into the
Reserve Account, and (b) one hundred percent (100%) of the amount of
principal and interest becoming due in such Fiscal Year on the Bonds
outstanding.
For purposes of this subsection, any amounts owed by the County to the issuer of
a Reserve Account Credit Instrument as a result of a draw thereon, as
appropriate, shall be added to the principal and interest payable on the Bonds
to determine compliance with this rate covenant.
F. BOOKS AND RECORDS. The County shall keep propek books, records and
accounts, showing correct and complete entries of all transactions of the County
relating to the System. Registered Owners of the Bonds shall have the right at
all reasonable times to inspect all books, records and accounts of the County
relating to the System.
G. ANNUAL AUDIT. The County shall also, at least once a year, within 180
days after the close of its Fiscal Year, cause the books, records and accounts
relating to the System to be audited by a independent firm of certified public
accountants. A copy of such annual audits shall be furnished to any Registered
Owner of the Bonds who shall have requested in writing that a copy of such audits
be furnished him.
H. NO MORTGAGE OR SALE OF THE SYSTEM. The County will not mortgage,
pledge or otherwise encumber the System or any part thereof, or any Revenues to
be derived therefrom, except as herein provided, and will not sell, lease or
otherwise dispose of any substantial portion of the System, except as provided
herein.
The County may sell, lease or otherwise dispose of any of the property
comprising a substantial portion of the System in the event that (a) such
property is determined by resolution of the Board, upon the recommendation of the
County Administrator and the Consulting Engineers, to be no longer necessary or
useful or profitable for the System; and (b) the sale, lease or other disposition
of such property is determined by resolution of the Board, upon recommendation
of the County Administrator and the Consulting Engineers, not to impair the
ability of the County to comply during the current or any future Fiscal Year with
the rate covenant set forth herein.
The proceeds derived from any sale, lease or other disposition of a
substantial portion of the System shall be used for the retirement of outstanding
Bonds. The proceeds derived from the sale, lease or other disposition of less
than a substantial portion of the System shall be placed in the Water and Sewer
Renewal and Replacement Fund, provided, however, all or a portion of such
proceeds may be used for the retirement of outstanding Bonds if authorized by
resolution of the Board upon the recommendation of the County Administrator and
the Consulting Engineers.
I. INSURANCE. To the extent practicable, the County will carry adequate
fire and windstorm insurance on all buildings, structures and other appropriate
properties of the System which are subject to loss through fire or windstorm,
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will carry adequate public liability insurance, and will otherwise carry
insurance of all kinds and in the amounts normally carried in the operation of
similar facilities and properties in Florida. Any such insurance shall be
carried for the benefit of the Registered Owners of the Bonds. All moneys
received from losses under any of such insurance, except public liability, are
hereby pledged by the County as security for the Bonds, until and unless such
proceeds are used to remedy the loss or damage for which such proceeds are
received, in which event the repairing of the property damaged or the replacement
of the property destroyed shall be commenced within a reasonable time after the
receipt of such proceeds and shall proceed on a reasonable and continuous basis.
J. NO FREE SERVICE. The County will not render or cause to be rendered
any free use of any nature of the System, nor will any preferential rates be
established for users of the same class.
K. ENFORCEMENT OF COLLECTIONS. The County will diligently enforce and
collect the Revenues and any other receipts and revenues pledged hereunder, will
take all steps, actions and proceedings for the enforcement and collection
thereof as the same shall become delinquent to the full extent permitted or
authorized by law, and will maintain accurate records with respect thereto. All
such Revenues and other charges shall, as collected, be held in trust to be
applied as herein provided and not otherwise.
L. REMEDIES. Any Registered Owner may by suit, action, mandamus or other
proceedings in any court of competent jurisdiction, protect and enforce any and
all rights, including the right to the appointment of a receiver, existing under
the laws of the State of Florida, and may enforce and compel the performance of
all duties required hereunder or by any applicable statutes to be performed by
the County or by any officer thereof.
Nothing herein, however, shall be construed to grant to any Registered
Owner any lien on any property of or in the County.
M. OPERATING BUDGET. On or before the last day of each Fiscal Year, the
County shall adopt an annual budget for the System for the ensuing Fiscal Year,
which shall include a budget for Operating Expenses. The Operating Expenses
incurred in any Fiscal Year will not exceed the reasonable and necessary amounts
required therefor and the County will not expend any amount or incur any
obligation for the operation, maintenance and repair of the System in excess of
the amount provided for the purpose in the annual budget for the then current
Fiscal Year except upon resolution of the Board declaring that such expenses are
necessary for the operation and maintenance of the System.
If the budget discloses that the estimated Revenues and other revenues,
funds and receipts pledged hereunder, if any, will be insufficient during such
Fiscal Year, after payment of the Operating Expenses, to meet the rate covenant
set forth herein, the County shall forthwith revise the rates, fees and charges
imposed with respect to the System in order to cure such estimated deficiency and
to comply with the rate covenant. There shall be included in the budget amounts
necessary to provide for the orderly replacement of the depreciable capital
assets of the System.
N. CONSULTING ENGINEERS. The County will annually retain the Consulting
Engineers for the purpose of providing the County with competent engineering
counsel with respect to the economical and efficient operation of the entire
water and sewer system of the County and in connection with the making of capital
24
improvements thereto and renewals and replacements thereof. The County may,
however, employ additional engineers at any time with relation to specific
engineering and operation problems arising in connection therewith.
0. NO COMPETING SYSTEMS. To the full extent permitted by law, the County
will not grant, renew, extend or allow to expand any franchise or permit for any
system similar to the System within the service area of the System.
P. ISSUANCE OF ADDITIONAL PARITY OBLIGATIONS. Additional Parity Bonds,
payable on a parity from the Pledged Funds with the Bonds, may be issued from
time to time to finance any portion of the Costs of the construction and/or
acquisition of additions, extensions and improvements to the System, or of any
physically separate water or sewer system declared by resolution of the Board to
be part of the System, or for refunding purposes, in the manner herein provided.
Before issuing any such Additional Parity Bonds, there shall have been
obtained and filed with the County a certificate of an independent firm of
certified public accountants of suitable experience and responsibility: (i)
stating that the books and records of the County relating to the collection and
receipt of the Revenues, the Uniform Charges and the Operating Expenses have been
audited by them for the Fiscal Year immediately preceding the date of sale of the
proposed obligations or for any twelve (12) consecutive month period out of the
eighteen (18) consecutive months immediately preceding the date of sale of the
proposed obligations; (ii) setting forth the Revenues, the Uniform Charges, the
Operating Expenses and the Net Revenues for the audited period referred to in (i)
above, with respect to which such certificate is made; and (iii) stating that:
(a) during such audited period the County was in compliance
with the rate covenant set forth in Subsection E above; and
(b) the Net Revenues, adjusted as hereinafter provided, were
equal to at least 1.20 times the largest amount of principal and
interest that will mature and become due in any Fiscal Year
thereafter on all Bonds to remain outstanding, including the
proposed Additional Parity Bonds; and when the Revenues include
receipts and revenues in addition to Uniform Charges, the Uniform
Charges less Operating Expenses, adjusted as hereinafter provided,
were equal to at least 1.00 times the largest amount of principal
and interest that will mature and become due in any Fiscal Year
thereafter on all Bonds to remain outstanding, including the
proposed Additional Parity Bonds.
For purposes of (iii) above, (A) Revenues, Uniform Charges and Operating Expenses
may be adjusted so as to fairly represent the operation of the System, provided
that the amount and a detailed reason for each such adjustment is set forth in
such certificate; (B) Net Revenues may also be adjusted for: (i) the pro forma
effect of rates implemented prior to issuance of the Additional Parity Bonds,
(ii) new customers added to the System during the test period, (iii) already
existing occupied residences or operating business establishments which will be
connected to the System upon completion of projects under construction or to be
funded with bond proceeds, and (iv) Net Revenues attributable to customers for
whom Impact Fees have been paid, and which will be connected to the System upon
completion of projects under construction or to be funded with bond proceeds
(provided that so long as the Series 1993 Bond Insurance Policy is in effect, not
more than 400 of the Net Revenues described in this subclause (iv) shall be used
as an adjustment under this clause (B) without the consent of the Series 1993
25
Bond Insurer); and (C) any amounts owed by the County to the issuer of a Reserve
Account Credit Instrument as a result of a draw thereon, as appropriate, shall
be added to the principal and interest payable on the Bonds to determine
compliance with the foregoing test.
All or any part of the certificate required under the second paragraph of
this subsection may be rendered by consulting engineers, consultants or other
persons with requisite knowledge and experience who are not reasonably objected
to by the Series 1993 Bond Insurer.
Each resolution authorizing the issuance of Additional Parity Bonds shall
recite that all of the covenants herein contained will be applicable to such
Additional Parity Bonds.
Additional Parity Bonds may not be issued hereunder at any time while the
County is in default in performing any of the covenants and obligations assumed
hereunder, or all payments herein required to have been made into the accounts
and funds, as provided hereunder, have not been made to the full extent required.
The foregoing conditions shall not apply with respect to Additional Parity
Bonds the proceeds of which will be used to complete a project a substantial
portion of the cost of which has been or will be paid out of the proceeds of
Bonds issued hereunder.
The County covenants for the benefit of the Registered Owners of the Series
1993 Bonds and any other Bonds issued and outstanding hereunder that the County
shall, at the time of issuance of any Additional Parity Bonds, make a deposit to
the Reserve Account in the Sinking Fund created hereunder so that the Reserve
Account shall have a value of cash and investments at such time equal to the
Reserve Account Requirement (giving effect to the Additional Parity Bonds and the
retirement of any Bonds being refunded with proceeds of the Additional Parity
Bonds), unless the Series 1993 Bond Insurer shall agree otherwise. Provided,
however, in no event shall such deposit be required to exceed an amount equal to
the maximum amount which if deposited from the proceeds of the Additional Parity
Bonds would not adversely affect the exclusion of the interest on the Additional
Parity Bonds from the gross income of the Registered Owners thereof for purposes
of federal income taxation.
Q. ISSUANCE OF OTHER OBLIGATIONS. The County will not issue any other
obligations, except under the conditions and in the manner provided herein,
payable from the Pledged Funds, nor 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 of the Bonds and the interest thereon, upon
the Pledged Funds, except as specifically provided herein. The County may issue
obligations other than the Bonds payable from the Pledged Funds provided such
obligations are junior and subordinate in all respect to the Bonds as to lien on
and source and security for payment from the Pledged Funds and such obligations
contain an express statement to that effect.
R. MANAGEMENT OF SYSTEM. The County in operating the System will employ
persons of demonstrated ability and experience and will require all employees who
may have possession of moneys derived from operation of the System to be covered
by a fidelity bond written by a responsible indemnity company in an amount
sufficient to protect the County from loss.
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S. CONNECTION WITH SYSTEM. The County will, to the full extent permitted
by law, require all lands, buildings, residences and other structures within its
territorial boundaries which can use the System to connect therewith and use the
System and cease to use any other potable water system and any other method of
sewage disposal.
T. ARBITRAGE. The County covenants to and with purchasers of the issue
which is comprised of the Series 1993 Bonds that it will make no use of the
proceeds of such issue which will cause the Series 1993 Bonds to be or become
"arbitrage bonds" within the meaning of Section 103(b)(2) and Section 148 of the
Internal Revenue Code of 1986, as amended (the "Code") or any applicable
regulations implementing said Sections and the County further covenants to comply
with all other requirements of the Code if and to the extent applicable to
maintain continuously the exclusion from gross income for Federal income tax
purposes of the interest on the Series 1993 Bonds.
U. FUNDS AND ACCOUNTS. The designation and establishment of the various
funds and accounts created herein does not 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 and assets as provided herein.
V. POWER TO ISSUE BONDS AND PLEDGE PLEDGED FUNDS. The County is duly
authorized under all applicable laws to create and issue the Bonds and to adopt
this Resolution and to pledge the Pledged Funds in the manner and to the extent
provided herein. Except to the extent otherwise provided in this Resolution, the
Pledged Funds are not pledged or hypothecated (except with respect to the Retired
Bonds which are to be retired with prnceeds of the Series 1993 Bonds) and, upon
issuance of the Series 1993 Bonds, will be free and clear of any pledge, lien,
charge or encumbrance thereon or with respect thereto prior to, or of equal rank
with, the security interest, pledge and assignment created by this Resolution,
including any pledge thereof for the benefit of the Retired Bonds, and all action
on the part of the County to that end has been and will be duly and validly
taken. The Bonds and the provisions of this Resolution are and will be valid and
legally enforceable obligations of the County in accordance with their terms and
the terms of this Resolution. The County shall at all times, to the extent
permitted by law, defend, preserve and protect the pledge of the Pledged Funds
and all the rights of the Registered Owners under this Resolution against all
claims and demands of all persons whomsoever.
W. BONDS SECURED BY PLEDGE OF PLEDGED FUNDS. The Bonds issued hereunder
shall be direct and special obligations of the County payable in accordance with
their terms and the provisions of this Resolution from the Pledged Funds hereby
pledged for the benefit of the Registered Owners, to the extent and in the manner
provided herein.
The Pledged Funds shall be held in trust by the Clerk of the Circuit Court
of the County for the benefit of the Registered Owners of the Bonds.
The Pledged Funds shall immediately be subject to the lien and charge of
this Resolution without any physical delivery thereof or further act, and the
lien and charge of this Resolution shall be valid and binding as against all
parties having claims of any kind in tort, contract or otherwise, against the
County, irrespective of whether such parties have notice thereof.
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X. TAX COVENANTS. The County covenants that it will not take any action
or fail to take any action with respect to the proceeds of the Bonds that would
result in loss of the exclusion from gross income for federal income tax purposes
pursuant to section 103(a) of the Code of interest paid on outstanding Bonds
which, when initially issued and sold, were the subject of an opinion of counsel
to the effect that interest thereon was so excludable.
With respect to any series of Bonds initially issued and sold as tax-exempt
bonds within the meaning of the Code, the County covenants that any use of the
System in the trade or business of any person or entity other than the County,
including use under a take -or -pay contract or certain management contracts
("private business use"), if such use is related to the County's use of the
System, will not exceed more than ten percent (10%) of the use of the System, or
if such private business use in unrelated or disproportionate to the County's use
of the System, will not exceed more than five percent (58) of the use of the
System.
The County covenants that no more than ten percent (10%) of the Revenues
will be derived directly or indirectly from payments from any nongovernmental
user, other than payments by a nongovernmental user as a member of the general
public.
Y. FURTHER TERMS AND CONDITIONS OF RESERVE ACCOUNT CREDIT INSTRUMENTS.
The further terms and conditions upon which the Reserve Account requirement set
forth in subsection B(4) above may be met in whole or in part with a Reserve
Account Credit Instrument are, unless the Series 1993 Bond Insurer agrees
otherwise, as follows:
(1) With respect to any letter of credit:
(a) such letter of credit shall be payable in one
or more draws upon presentation by the Paying Agent of
a sight draft accompanied by its certificate that it
then holds insufficient funds to make a required payment
of principal or interest on the Bonds;
(b) the draws shall be payable within two days
of presentation of the sight draft;
(c) the letter of credit shall be for a term of
not less than three years and shall be subject to an
"evergreening" feature so as to provide the County with
at least 30 months' notice of termination; the issuer of
the letter of credit shall be required to notify the
County and the Paying Agent not later than 30 months
prior to the stated expiration date of the letter of
credit as to whether such expiration date shall be
extended, and if so, shall indicate the new expiration
date.
If such notice indicates that the expiration date
shall not be extended, the County shall deposit in the
Reserve Account an amount sufficient to cause the cash
or permitted investments on deposit in the Reserve
Account, together with any other qualifying Reserve
Account Credit Instruments, to equal the Reserve Account
28
'... Requirement, such deposit to be paid in equal
installments on a least a semi-annual basis over the
remaining term of the letter of credit, unless the
t _ Reserve Account Credit Instrument is replaced by another
Reserve Account Credit Instrument permitted hereunder;
{ and
(d) The letter of credit shall permit a draw in
full prior to the expiration or termination of such
letter of credit if the letter of credit has not been
replaced or renewed.
(2) The use of any Reserve Account Credit Instrument shall
be subject to receipt of an opinion of counsel acceptable to the
Series 1993 Bond Insurer in form and substance satisfactory to the
Series 1993 Bond Insurer as to the due authorization, execution,
delivery and enforceability of such instrument in accordance with
its terms, subject to applicable laws affecting creditors' rights
generally, and, in the event the issuer of such credit instrument is
not a domestic entity, an opinion of foreign counsel in form and
substance satisfactory to the Series 1993 Bond Insurer. In
addition, the use of an irrevocable letter of credit shall be
subject to receipt of an opinion of counsel acceptable to the Series
1993 Bond Insurer in form and substance satisfactory to the Series
1993 Bond Insurer to the effect that payments under such letter of
credit would not constitute avoidable preferences under Section 547
of the United States Bankruptcy Code or similar Florida laws with
avoidable preference provisions in the event of the filing of a
petition for relief under the United States Bankruptcy Code or
similar Florida laws by or against the County (or any other account
party under the letter of credit).
(3) The obligation to reimburse the issuer of a Reserve
Account Credit Instrument for any fees or expenses or claims or
draws upon such Reserve Account Credit Instrument shall be
subordinate to the payment of debt service on the Bonds. The right
of the issuer of a Reserve Account Credit Instrument to payment or
reimbursement of its fees and expenses shall be subordinated to cash
replenishment of the Reserve Account, and, subject to the second
succeeding sentence, its right to reimbursement for claims or draws
shall be on a parity with the cash replenishment of the Reserve
Account. The Reserve Account Credit Instrument shall provide for a
revolving feature under which the amount available thereunder will
be reinstated to the extent of any reimbursement of draws or claims
paid. If the revolving feature is suspended or terminated for any
reason, the right of the issuer of the Reserve Account Credit
Instrument to reimbursement will be further subordinated to cash
replenishment of the Reserve Account to an amount equal to the
difference between the full original amount available under the
Reserve Account Credit Instrument and the amount then available for
further draws or claims. In the event (a) the issuer of a Reserve
Account Credit Instrument becomes insolvent, or (b) the issuer of a
Reserve Account Credit Instrument defaults in its payment
obligations thereunder, or (c) the rating of the claims paying
ability of the issuer of the insurance policy or surety bond falls
below "AAA" by S&P and "Aaa" by Moody's, or (d) the rating of the
29
issuer of the letter of credit falls below "AA" by S&P and "As" by
Moody's, the obligation to reimburse the issuer of the Reserve
Account Credit Instrument shall be subordinate to the cash
replenishment of the Reserve Account.
(4) In the event (a) the revolving reinstatement feature
described in the preceding subparagraph (3) is suspended or
terminated, or (b) the rating of the claims paying ability of the
issuer of the surety bond or insurance policy falls below "AAA" by
S&P and "Aaa°7 by Moody's, or (c) the rating of the issuer of the
letter of credit falls below "AA" by S&P and "Aa" by Moody's, the
Issuer shall either (i) deposit into the Reserve Account an amount
sufficient to cause the cash or permitted investments on deposit in
the Reserve Account to equal the Reserve Account Requirement, such
amount to be paid over the ensuing five years in equal installments
deposited at least semi-annually or (ii) replace such instrument
with another Reserve Account Credit Instrument within six months of
such occurrence. In the event (a) the rating of the claims -paying
ability of the issuer of the surety bond or insurance policy falls
below "A", or (b) the rating of the issuer of the letter of credit
falls below "A", or (e) the issuer of the Reserve Account Credit
Instrument defaults in its payment obligations hereunder, or (d) the
issuer of the Reserve Account Credit Instrument becomes insolvent,
the County shall either (i) deposit into the Reserve Account an
amount sufficient to cause the cash or permitted investments on
deposit in the Reserve Account to equal the Reserve Account
Requirement, such amount to be paid over the ensuing year in equal
installments on at least a monthly basis, or (ii) replace such
instrument with another Reserve Account Credit Instrument within six
months of such occurrence.
(5) Where applicable, the amount available for draws or
claims under a Reserve Account Credit Instrument may be reduced by
the amount of cash or permitted investments deposited in the Reserve
Account pursuant to either clause (i) of the preceding subparagraph
(4).
(6) Cash on deposit in the Reserve Account shall be used (or
investments purchased with such cash shall be liquidated and the
proceeds applied as required) prior to any drawing on any Reserve
Account Credit Instrument. If and to the extent that more than one
Reserve Account Credit Instrument is deposited in the Reserve
Account, drawings thereunder and repayments of costs associated
therewith shall be made on a pro rata basis, calculated by reference
to the maximum amounts available thereunder.
Z. VARIABLE RATE OBLIGATIONS. If the County at any time shall issue
Additional Parity Bonds the interest rate on which is not established at the time
of issuance at a single numerical rate with respect to each maturity thereof
("Variable Rate Bonds"), then such Variable Rate Bonds shall, for purposes of
this Resolution, save for the provisions with respect to payment of interest
thereon to the holders and registered owners thereof, be assumed to bear interest
at a fixed rate equal to the higher of (a) 9.29 and (b) the highest interest rate
borne over the preceding 24 months by any outstanding Variable Rate Bonds, or if
no such Variable Rate Bonds are at the time outstanding, by variable rate debt
for which the interest rate is computed by reference to an index comparable to
30
that to be utilized in determining the interest rate for the Variable Rate Bonds
then proposed to be issued.
SECTION 18. SERIES 1993 FUNDS AND ACCOUNT. There is hereby created and
established the "Series 1993 Sinking Fund" within the Sinking Fund, the "Series
1993 Bond Amortization Fund" within the Bond Amortization Fund and the "Series
1993 Reserve Account" within the Reserve Account. The Series 1993 Sinking Fund,
the Series 1993 Bond Amortization Fund and the Series 1993 Reserve Account shall
not in any manner whatsoever affect the parity of the Bonds and are established
solely for the accounting convenience of the County. Revenues and other amounts
deposited in the Sinking Fund allocable to the Series 1993 Bonds shall be held
in the Series 1993 Sinking Fund. Revenues and other amounts deposited in the
Bond Amortization Fund allocable to the Series 1993 Bonds shall be held in the
Series 1993 Bond Amortization Fund. Revenues and other amounts deposited in the
Reserve Account allocable to the Series 1993 Bonds shall be held in the Series
1993 Reserve Account.
SECTION 19. PROCEDURE FOR PAYMENT OF SERIES 1993 BONDS PURSUANT TO THE
SERIES 1993 BOND INSURANCE POLICY. The following provisions shall govern payment
of Series 1993 Bonds pursuant to the Series 1993 Bond Insurance Policy:
(i) If on the third day preceding any interest payment date for the Series
1993 Bonds there is not on deposit with the Paying Agent sufficient moneys
available to pay all principal of and interest on the Series 1993 Bonds due on
such date, the Paying Agent shall immediately notify the Series 1993 Bond Insurer
and Citibank, N.A., New York, New York, or its successor, as its Fiscal Agent
(the "Series 1993 Fiscal Agent") of the amount of such deficiency. If by said
interest payment date the County has not provided the amount of such deficiency,
the Bond Registrar shall simultaneously make available to the Series 1993 Bond
Insurer and to the Series 1993 Fiscal Agent the registration books for the Series
1993 Bonds maintained by the Bond Registrar, In addition:
(A) The Paying Agent shall provide the Series 1993 Bond Insurer
with a list of the Bondholders entitled to receive principal or interest
payments from the Series 1993 Bond Insurer under the terms of the Series
1993 Bond Insurance Policy and shall make arrangements for the Series 1993
Bond Insurer and the Series 1993 Fiscal Agent (1) to mail checks or drafts
to Bondholders entitled to receive full or partial interest payments from
the Series 1993 Bond Insurer and (2) to pay principal of the Series 1993
Bonds surrendered to the Series 1993 Fiscal Agent by the Bondholders
entitled to receive full or partial principal payments from the Series
1993 Bond Insurer; and
(B) The Paying Agent shall, at the time the registration books are
made available to the Series 1993 Bond Insurer pursuant to (A) above,
notify Bondholders entitled to receive the payment of principal of or
interest on the Series 1993 Bonds from the Series 1993 Bond Insurer (I) as
to the fact of such entitlement, (2) that the Series 1993 Bond Insurer
will remit to them all or part of the interest payments coming due, (3)
that, except as provided in paragraph (ii) below, in the event that any
Bondholder is entitled to receive full payment of principal from the
Series 1993 Bond Insurer, such Bondholder must tender his bond with the
instrument of transfer in the form provided on the bond executed in the
name of the Series 1993 Bond Insurer, and (4) that, except as provided in
paragraph (ii) below, in the event that such Bondholder is entitled to
receive partial payment of principal from the Series 1993 Bond Insurer,
31
such Bondholder must tender his bond for payment first to the Paying
Agent, which shall note on such bond the portion of principal paid by the
Paying Agent, and then, with the form of transfer executed in the name of
the Series 1993 Bond Insurer, to the Series 1993 Fiscal Agent, which will
then pay the unpaid portion of principal to the Bondholder.
(ii) In the event that the Paying Agent has notice that any payment of
principal of or interest on a Series 1993 Bond has been recovered from a
Bondholder pursuant to the United States Bankruptcy Code by a trustee in
bankruptcy in accordance with the final, nonappealable order of a court having
competent jurisdiction, the Paying Agent shall, at the time it provides notice
to the Series 1993 Bond Insurer, notify all Bondholders that in the event that
any Bondholder's payment is so recovered, such Bondholder will be entitled to
payment from the Series 1993 Bond Insurer to the extent of such recovery, and the
Paying Agent shall furnish to the Series 1993 Bond Insurer its records evidencing
the payments of principal of and interest on the Series 1993 Bonds which have
been made by the Paying Agent and subsequently recovered from Bondholders, and
the dates on which such payments were made.
(iii) The Series 1993 Bond Insurer shall, to the extent it makes payment
of principal of or interest on the Series 1993 Bonds, become subrogated to the
rights of the recipients of such payments in accordance with the terms of the
Series 1993 Bond Insurance Policy and, to evidence such subrogation, (1) in the
case of subrogation as to claims for past due interest, the Bond Registrar shall
note the Series 1993 Bond Insurer's rights as subrogee on the registration books
maintained by the Bond Registrar upon receipt from the Series 1993 Bond Insurer
of proof of the payment of interest thereon to the Bondholders of such Series
1993 Bonds and (2) in the case of subrogation as to claims for past due
principal, the Bond Registrar shall note the Series 1993 Bond Insurer's rights
as subrogee on the registration books for the Series 1993 Bonds maintained by the
Bond Registrar upon receipt of proof of the payment of principal thereof to the
Bondholders of such Series 1993 Bonds. Notwithstanding anything in this
Resolution to the contrary, the Paying Agent shall make payment of such past due
interest and past due principal directly to the Series 1993 Bond Insurer to the
extent that the Series 1993 Bond Insurer is a subrogee with respect thereto.
(iv) The notice addresses for the Series 1993 Bond Insurer and the Series
1993 Fiscal Agent shall be as follows, or any such other address as the Series
1993 Bond Insurer or the Series 1993 Fiscal Agent shall subsequently provide to
the Paying Agent in writing:
Financial Guaranty Insurance Company
115 Broadway
New York, New York 10006
Attention: General Counsel
Citibank, N.A.
20 Exchange Place - 16th Floor
New York, New York 10005
Attention: Municipal Trust and Agency
Services Administration.
SECTION 20. APPLICATION OF SERIES 1993 BOND PROCEEDS. All moneys
received from the sale of the Series 1993 Bonds shall be deposited and applied
by the County as follows:
32
A. All accrued interest plus, at the option of the County as specified by
subsequent resolution of the Board, an amount which will equal all or a portion
of the interest on the Series 1993 Bonds for a reasonable period of time from the
date of issuance thereof shall be deposited into the Series 1993 Sinking Fund and
applied exclusively for the payment of interest first becoming due on the Series
1993 Bonds.
B. A sum, if any, specified by subsequent resolution of the Board shall
be deposited into the Series 1993 Reserve Account in the Sinking Fund.
C. An amount to be specified by subsequent resolution of the Board shall
be applied in connection with the retirement of Retired Bonds as specified by
subsequent resolution of the Board.
D. The amount necessary to pay all costs and expenses associated with
financial reports, studies and projections, legal fees, accountant's fees, fees
of financial advisors, printing expenses, premiums and expenses related to
insuring or rating the Series 1993 Bonds and all other similar costs and expenses
incurred in connection with the issuance of the Series 1993 Bonds and the
retirement of the Retired Bonds shall be paid or provided for.
E. The balance remaining after making all the deposits and payments
provided for above shall be deposited into the "Series 1993 Construction Fund"
which is hereby created and established.
The moneys on deposit in the Series 1993 Construction Fund shall be
withdrawn, used and applied by the County, as and when necessary, solely for the
payment of or reimbursement for the costs of the Series 1993 Projects and
purposes incidental thereto; provided, however, no reimbursement shall be made
for any cost paid prior to the date of issuance of the Series 1993 Bonds unless
such reimbursement would be treated as an expenditure of proceeds of the Series
1993 Bonds on the date of reimbursement under Treasury Regulation 1.103-18
promulgated under the Code. If for any reason any moneys in the Series 1993
Construction Fund are not necessary for or are not applied to the payment of or
reimbursement for such costs, then such moneys shall be deposited by the County
into the Series 1993 Sinking Fund and used only to pay the principal of, premium,
if any, and interest on the Series 1993 Bonds which first becomes due. Anything
to the contrary contained herein notwithstanding, the Series 1993 Construction
Fund shall be and constitute a trust fund for the purposes provided herein
therefor and shall be Pledged Funds.
In the event of a default by the County in the payment of principal of or
interest on the Bonds, money in the Series 1993 Construction Fund shall be used
to remedy such default, but only to the extent that there are no other funds held
under the Resolution available for such purpose.
Any moneys in the Series 1993 Construction Fund which, in the opinion of
the County, acting upon the recommendation of the Consulting Engineers, are not
immediately necessary for expenditure, as hereinabove provided, may be invested
in Authorized Investments maturing at such time or times as will make the
proceeds thereof available when needed. All income derived therefrom shall be
deposited into the Series 1993 Rebate Account to the extent required and the
excess, if any, into the Series 1993 Construction Fund.
All expenditures or disbursements from the Series 1993 Construction Fund
shall be made only after such expenditures or disbursements shall have been
33
approved in writing by the County and, where applicable, by the Consulting
Engineers. The date of completion of each phase of each of the Series 1993
Projects shall be determined by the Consulting Engineers, who will certify such
facts in writing to the Board.
SECTION 21. REBATE. Anything to the contrary contained herein
notwithstanding, the County shall at least annually transfer into the "Series
1993 Rebate Account" which is hereby created and established from the funds and
accounts under this Resolution to which income on investments attributable to the
Series 1993 Bonds has been deposited appropriate amounts sufficient to pay to the
United States of America all amounts due with respect to the Series 1993 Bonds
under the provisions of Section 148 (f) of the Code. The earnings on the Series
1993 Rebate Account shall be added to and become a part of the 1993 Rebate
Account. Moneys in the Series 1993 Rebate Account shall only be used to pay the
amounts due to the United States of America under said Section of the Code with
respect to the Series 1993 Bonds as the same shall become due and payable. It
is the intent of this paragraph to provide for payment of all amounts due under
said Section of the Code with respect to the Series 1993 Bonds, in such
installments and at such times as may be required by said Section of the Code.
In the event of any amendment to the Code or the promulgation of regulations
under the Code which provide or require otherwise than as provided or required
in this paragraph, this paragraph shall be deemed to be amended to incorporate
such amendments or regulations, to the extent applicable, and any provisions
hereof which conflict with the provisions thereof shall be deemed to be null and
void.
SECTION 22. SALE OF THE SERIES 1993 BONDS. The Series 1993 Bonds may be
sold at public or private sale pursuant to the Act, all at one time or from time
to time, as shall be provided by subsequent resolution of the Board.
SECTION 23. SPECIAL COVENANTS. So long as the Series 1993 Bond Insurance
Policy is in effect, the County covenants to comply with the following provisions
and the Registered Owners of the Bonds, by their acceptance of such Bonds, shall
be deemed to consent to the following provisions:
A. The County shall provide the Series 1993 Bond Insurer with such
additional information as is reasonably requested by the Series 1993 Bond Insurer
from time to time.
B. Any notice or information required to be furnished to the Series 1993
Bond Insurer under the Resolution shall be addressed as follows, unless a notice
of change of address shall have been given by the Series 1993 Bond Insurer to the
County:
Financial Guaranty Insurance Company,
115 Broadway
New York, New York 10038,
Attention: President.
C. The Series 1993 Bond Insurer shall be deemed a party in interest
under this Resolution.
D. Upon the occurrence of a default which would require the Series 1993
Bond Insurer to make payments under the Series 1993 Bond Insurance Policy, the
Series 1993 Bond Insurer and its designated agent shall be provided with access
to the registration books of the County maintained by the Bond Registrar.
34
B. No resignation or removal of the Paying Agent and/or the Bond
Registrar shall become effective until a successor has been appointed and has
accepted the duties of Paying Agent and/or the Bond Registrar. The Series 1993
_ Bond Insurer shall be furnished with written notice of the resignation or removal
of the Paying Agent and/or the Bond Registrar and the appointment of any
successor thereto. Any successor Paying Agent must have combined capital,
surplus and undivided profits of at least $50 Hillion, unless the Series 1993
Bond Insurer shall otherwise approve.
_ P. This Resolution shall not be amended without the prior written
consent of the Series 1993 Bond Insurer.
G. The Series 1993 Bond Insurer shall be notified promptly of any draw
on the Reserve Account and of any deficiency due to market fluctuations in the
amount, if any, on deposit in the Reserve Account.
H. In determining whether an event of default has occurred no effect
shall be given to payments made by the Series 1993 Bond Insurer. No remedial
action shall be taken without the consent of the Series 1993 Bond Insurer and the
Series 1993 Bond Insurer, acting alone, shall have the right to direct remedies
upon default.
I. Remedies shall be cumulative with respect to the Paying Agent, the
Bondholders and the Series 1993 Bond Insurer. In case any remedies pursued under
the Resolution are discontinued or abandoned, the Paying Agent, the Bondholders
and the Series 1993 Bond Insurer shall be restored to their former positions.
J. The prior written consent of the Series 1993 Bond Insurer shall be
required for any waiver of a default.
K. The County shall provide the following information to the Series 1993
Bond Insurer:
(i) A copy of each of the annually audited financial reports
of the County;
(ii) A copy of the County's upcoming year's budget;
(iii) Upon the issuance of additional debt, whether or not it
is on a parity with the Bonds, a copy of the official statement or
other disclosure document, if any, circulated in connection with
such issuance; and
(iv) On an annual basis, the following information:
(a) Number of system users as of the end of each
Fiscal Year;
(b) Withdrawal of any System users comprising 4%
or more of the System's sales (measured in terms of
revenue dollars) since the last reporting date; and
(c) Any significant plant expansion or
retirements planned or in progress.
35
L. The Series 1993 Bond Insurer shall be given prompt notice of any
redemption, other than mandatory sinking fund redemption, of any Bonds, such
- notice to include the principal amounts, maturities and CUSIP numbers of the
Bonds to be redeemed.
M. The Series 1993 Bond Insurer shall be given Immediate notice of any
payment default with respect to the Bonds and any other default known to the
County or the Paying Agent (and the Paying Agent is hereby authorized to give the
Series 1993 Bond Insurer notice of any default known to the Paying Agent).
N. The Series 1993 Bond Insurer shall be provided with a full transcript
of all proceedings relating to the execution of any supplement to this Resolution
or of any resolution amending or supplementing this Resolution.
0. So long as the Series 1993 Bond Insurance Policy is in effect,
"provision for payment" under Section 24 hereof shall be considered as having
been made only if the following are used to effect defeasance, unless the Series
1993 Bond Insurer shall otherwise approve:
(1) cash;
(2) Federal Securities;
(3) evidences of ownership of a proportionate interest in specific
Federal Securities, which Federal Securities are held by a bank or
trust company organized and existing under the laws of the United
States of America or any state thereof in the capacity of custodian;
(4) the interest component of obligations issued by the Resolution
Funding Corp, that have been stripped by request made to the Federal
Reserve Bank of New York and held in book -entry form on the records
of the Federal Reserve Bank;
(5) obligations of state or local government municipal bond issuers (a)
which are rated "AAA" by Standard and Poor's Corporation, or its
successor ("S&P"), or "Aaa" or "#Aaa" by Moody's Investors Service,
Inc., or its successor ("Moody's"), and (b) provision for the
payment of the principal of and interest on which shall have been
made by deposit with a trustee or escrow agent of (i) cash, (ii)
Federal Securities or (iii) obligations of state or local government
municipal bond issuers rated "AAA" by S&P or "Aaa" or "#Aaa" by
Moody's; or
(6) any combination of the foregoing.
P. In the event of any advance refunding of Bonds, the Series 1993 Bond
Insurer shall be provided with a report of an independent certified public
accountant verifying that the funds to be on deposit for payment of the Bonds
being refunded will be sufficient to pay the principal of and interest on the
refunded Bonds upon stated maturities, mandatory redemption prior to maturity or
optional redemption prior to maturity, as the case may be.
SECTION 24. DEFEASANCE. If at any time the County shall have paid, or
shall have made provision for payment of, the principal, interest and premiums,
if any, with respect to any of the Bonds or any series thereof, then, and in that
event, the pledge of and lien on the Pledged Funds in favor of the Registered
36
i
,. Owners of such Bonds or of such series, as the case may be, shall be no longer
in effect. For purposes of the preceding sentence, the deposit of Federal
Securities or bank certificates of deposit fully secured as to principal and
interest by Federal Securities (or the deposit of any other securities or
investments which may be authorized by law from time to time and sufficient under
such law to effect such a defeasance) in irrevocable trust with a banking
institution or trust company, for the sole benefit of the Registered Owners of
such Bonds or such series, as the case may be, the principal of and interest on
which will be sufficient to pay, when due, the principal, interest and premiums,
if any, on such Bonds or such series, as applicable, shall be considered
"provision for payment". Nothing in this section shall be deemed to require the
County to call any of the outstanding Bonds or any series thereof for redemption
prior to maturity pursuant to any applicable optional redemption provisions, or
to impair the discretion of the County in determining whether to exercise any
such option for early redemption.
SECTION 25. MODIFICATION OF RESOLUTION. No adverse material modification
or amendment of this Resolution, or of any resolution amendatory hereof or
supplemental hereto, may be made without the consent in writing of the Registered
Owners of 51% or more in aggregate principal amount of the Bonds then outstanding
affected by such adverse material modification or amendment; provided, however,
that no modification or amendment shall permit a change in the maturity of any
Bonds or a reduction in the rate of interest thereon or in the amount of the
principal obligation thereof, or affect the unconditional promise of the County
to levy, impose and/or collect the Revenues or other receipts and revenues
pledged hereunder, if any, as herein provided, or to pay the principal of and
interest on the Bonds as the same shall become due from the Pledged Funds or
reduce the percentage required above for an adverse material modification or
amendment, without the consent of the Registered Owners of all of the Bonds
affected thereby. The foregoing shall not apply with respect to supplemental
resolutions adopted for the sole purpose of issuing Additional Parity Bonds or
junior and subordinate obligations issued hereunder in accordance herewith.
Notwithstanding the foregoing, except with respect to any modification or
amendment requiring the consent of the Registered Owners of all of the Bonds
affected thereby, to the extent that any Bonds are insured by a policy of
municipal bond insurance and such Bonds are then rated in one of the two highest
rating categories (without regard to gradation) by either Standard & Poor's
Corporation or Moody's Investors Service, Inc., or the successor of either of
them, then the consent of the issuer of such municipal bond insurance policy
shall be deemed to constitute the consent of the Registered Owners of such Bonds;
provided, however, a copy of such modification or amendment shall be provided to
said rating agencies not less than thirty (30) days prior to the effective date
thereof.
SECTION 26. SEVERABILITY. 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 separate from the remaining covenants, agreements and provisions
hereof, and shall in no way affect the validity hereof or of the Bonds issued
hereunder.
37
SECTION 27. REPEALER. All resolutions or parts of resolutions in conflict
with this Resolution or any part hereof are, to the extent of such conflict,
hereby repealed.
SECTION 28. EFFECTIVE DATE. This Resolution shall take effect immediately
upon its adoption.
The foregoing resolution was offered by Commissioner Ea¢ert_ who
moved for its adoption. The motion was seconded by Commissioner Macht
and, upon being put to a vote, the vote was as follows:
Chairman Richard N. Bird Ave
Vice Chairman John W. Tippin Ave
Commissioner Fran B. Adams -.AAvP
Commissioner Carolyn K. Eggert Ave
Commissioner Kenneth R. Hecht Ave
The Chairman thereupon declared the Resolution duly passed and adopted this
13th day of Aoril , 1993.
51
(SEAL).
Attest:'`'
Je fre , 11Clerk
APPROVED AS TO FORM AND
LEGAL SUFFICIENCY
Charles P. Vitunac
County Attorney .
38
BOARD OF COUNTY COMMISSIONERS
OF INDIAN RIVER COUNTY, FLORIDA
By: -4 za-L
Richard N. Bird, Chairman
PERMITTED INVESTMENT GUILDLINES
(1) direct obligations of the United States of America
and securities fully.and unconditionally guaranteed
as to the timely payment of principal and interest by
the United States of America ("Direct obligations")#
(2) direct obligations I and fully guaranteed certificates
of beneficial interest of the Export -Import Bank of
the United States# senior debt obligations of the
Federal Home Loan Bankst debentures of the Federal
Housing Administrations guaranteed mortgage-backed
bonds and guaranteed pass-through obligations of the
Government National Mortgage Corporations# guaranteed
Title XI financing of the U.S. Maritime
Administrations mortgage-backed securities and senior
debt obligations of the Federal National Mortgage
Association# and participation certificates and
senior debt obligations of the Federal Home Loan
Mortgage Corporation (collectively, "Agency
obligations")t
(3) direct obligations of any state of the -United States
of America or any subdivision or agency thereof whose
unsecured general obligation debt is rated "A3" or
better by Moody's Investors Service and "A-" or
batter by Standard & Poor's CorporatTon, or any
obligation fully and unconditionally guaranteed by
any state, subdivision or agency whose unsecured
general obligation debt is rated "A3" or better by
Moody's Investors Service and "A-" or better by
Standard & Poorts CorporatTonl
(4) commercial paper rated "Prime -1" by Moody's Investors
Service and "A-1" or better by Standard & Poor's
corporatlo`n t
(S) obligations rated 11A3" or better by Moody's Investors
Service and "A-" or better by Standard & Poor's
corporates;
(b) deposits, Federal funds or bankers acceptances of any
domestic bank, including a branch office of a foreign
bank which branch office is located in the United
States, provided legal opinions are received to the
effect that full and timely payment of such deposit
or similar obligation is enforceable against the
principal office or any branch of such bank, which;
a. has an unsecured, uninsured and unguaranteed
obligation rated "Prime -1" or 11A3" or better by
Moody's Investors Service and "A-1" or "A-" or
better by Standard & Poor'e Corporation, or
Lxhibit A
Pare 1 of
b. is the lead bank of a parent bank holding
company- Uh an uninsured, unsecured and
unguaranteed obligation meeting the rating
requirements in (a.) above=
deposits of any bank or savings and loan association
which has combined capital, surplus and undivided
Profits of not lose than $3 million, provided such
deposits are fully insured by the Federal Deposit
Insurance Corporation or Federal Savings and Loan
Insurance Corporations
(8) investments in a money-market fund rated "Am" or
"Am -G" or better by Standard & Poor's Corporation;
(9) repurchase agreements with a term of one year or
less with any institution with debt rated "AA" or
commercial paper rated "A-1" (in each case by
Standard & Poor's Corporation);
(lo) repurchase agreements collateralized by Direct
Obligations or Agency obligations with any
registered broker/dealer subject to the Securities
Investors' Protection Corporation jurisdiction or
any commercial bank, if such broker/dealer or bank
has an uninsured, unsecured and unguaranteed
obligation rated."Prime-1" or "A3" or better by
Moody's Investors Service, and "A-1" or "A-" or
better by Standard & Poor's corporation, provided;
(A) a master repurchase agreement or specific
written,repurchass agreement governs the
transactions and
(8) the securities are hold free and clear of any
lion by the Trustee or an independent third
party acting solely as agent for the Trustee,
and such third party is (a) a Federal Reserve
Bank, (b) a bank which is a member of the
Federal Deposit Insurance Corporation and
which has combined capital, surplus and
undivided profits of not less than $25
million, or (c) a bank approved in writing for
such purpose by Financial Guaranty Insurance
Company, and the Trustee shall have received
written confirmation from such third party
that it holds such securities, free and clear
of any lien, as agent for the Trustee; and
(C) a perfected first security interest under the
Uniform Commercial Code, or book entry
procedures prescribed at 31 C.F.R. 306.1 et
seq. or 31 C.F.R. 350.0 et seq. in such
securities is created for the benefit of the
Trustee; and
Exhibit A
Page 2 of
w u
(D) the repurchase agreement has a term of thirty
days or less, or the Trustee will value the
collateral securities no less frequently than
monthly and will liquidate the collateral
securities if any deficiency in the required
collateral percentage is not restored within
two lousiness days of such valuation; and
(E) the repurchase agreement matures at least ten
days (or other appropriate liquidation period)
prior to a debt service payment date, and
(F) the fair market value of the securities in
relation to the amount of the repurchase
obligation, including principal and interest,
is equal to at least 1004; and
(11) investment agreements with a bank or insurance
company which has an unsecured, uninsured and
unguaranteed obligation (or claims paying ability)
rated 11A3" or better by Moody's Investors Service
and "A-" or better by Standard & Poor's Corporation,
or is the lead bank of a parent bank holding company
with an uninsured, unsecured and unguaranteed
obligation meeting such rating requirements,
provided:
(A) interest is paid at least semi-annually at a
fixed rate during the entire term of the
agreement, consistent with bond payment dates,
and
(8) moneys invested thereunder may be withdrawn
without any penalty, premium, or charge upon
not more than one day's notice (provided such
notice may be amended or canceled at any time
prior to the withdrawal date), and
(C) the agreement is not subordinated to any other
obligations of such insurance company or bank,
and
(D) the same guaranteed interest rate will be paid
on any future deposits made to restore the
reserve to its required amount, and
(E) the Trustee receives an opinion of counsel
that such agreement is an enforceable
obligation of such insurance company or bank.
Exhibit A
0020G Page 3 of 3