HomeMy WebLinkAbout1993-145RESOLUTION 93-145
A RESOLUTION AUTHORIZING THE RETIREMENT OF CERTAIN
OUTSTANDING RECREATIONAL REVENUE BONDS OF THE COUNTY;
AUTHORIZING THE ISSUANCE OF NOT EXCEEDING $9,875,000
RECREATIONAL REVENUE REFUNDING BONDS, SERIES 1993, TO
PROVIDE FUNDS FOR SAID RETIREMENTS; PROVIDING FOR THE
RIGHTS OF THE REGISTERED OWNERS OF SAID BONDS; MAKING
CERTAIN COVENANTS AND AGREEMENTS IN CONNECTION
THEREWITH; AND PROVIDING AN EFFECTIVE DATE.
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, Ordinance No. 77-19 of the County, as amended,
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, Ordinance No. 77-19
of the County, as amended, 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.
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, which shall be a bank with
trust powers or a trust company.
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. "County" shall mean Indian River County, Florldn.
I. "Federal Securities" shall mean direct obligations of the United
States of America, which are not redeemable prior to maturity at the option of
the obligor, including without limitation such obligations issued or held in book
entry form on the books of the United States of America.
J. "Fiscal Year" shall mean the period beginning with and including
October first of each year and ending with and including the next September 30.
K. "Gross Revenues" shall mean all income and earnings derived from the
operation of the Recreational Facilities; and any income from the investment of
money in the funds and accounts herein established for the payment of the
principal of, interest and premium, if any, on the Bonds.
L. "Half -Cent Sales Tax" shall mean the portion of the proceeds of the
local government half -cent sales tax on deposit from time to time in the Local
Government Half -Cent Sales Tax Clearing Trust Fund in the State Treasury of the
State of Florida, allocated for and distributed monthly to the County pursuant
to Chapter 218, Part VI, Florida Statutes.
M. "Net Revenues" shall mean the Gross Revenues less Operating Expenses.
N. "Operating Expenses" shall mean the current expenses paid or accrued
for the operation, maintenance and repair of the Recreational Facilities, as
determined in accordance with generally accepted accounting procedures, and shall
include, without limiting the generality of the foregoing, insurance premiums,
administrative expenses of the County related solely to the Recreational
Facilities and costs of labor, materials and supplies, but shall exclude any
reserves for renewals and replacements, extraordinary repairs and any allowances
for depreciation.
0. "Paying Agent" shall mean with respect to any particular series of
Bonds issued hereunder the paying agent for said series of Bonds to be determined
by subsequent resolution of the Board, which shall be a bank with trust powers
or a trust company.
P. "Pledged Funds" shall mean the Net Revenues, the Racetrack and Jai
Alai Fronton Funds, the Half -Cent Sales Tax and the other revenues and funds
Pledged in connection with the Bonds, all in the manner and to the extent
provided herein.
Q. "Qualified Independent Consultant" shall mean a qualified and
recognized independent consultant retained by the County to perform the acts and
carry out the duties herein provided for the Qualified Independent Consultant,
which consultant, if appropriate, may be the certified public accountants
retained, from time to time, to prepare the annual audit of the County, and which
consultant shall have a favorable reputation for skill and experience with
respect to the acts and duties to be provided hereunder.
R. "Racetrack and Jai Alai Fronton Funds" shall mean that portion of the
racetrack funds and jai alai fronton funds accruing annually to the County under
the provisions of Chapters 550 and 551, Florida Statutes, and allocated to the
Board pursuant to law.
S. "Record Date" shall mean the fifteenth (15th) day of the month
immediately preceding an interest or other applicable payment date for the Bonds.
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T. "Recreational Facilities" shall mean the properties and assets, real
and personal, tangible and intangible, owned and/or operated by the County as of
the date of adoption of this Resolution used or useful for two (2) public golf
courses and related clubhouse facilities and all properties and assets thereafter
acquired or constructed as improvements, additions or expansions thereof.
U. "Registered Owner", "Bondholder", "holder" 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 1985 Bonds and the
outstanding Series 1991 Bonds.
Y. "Sales Tax Resolution" shall mean Resolution No. 85-75 of the County,
as amended and supplemented.
Z. "Series 1985 Bonds" shall mean the Indian River County, Florida
Recreational Revenue Bonds, Series 1985, dated as of April 1, 1986, in the
original aggregate principal amount of $2,720,000, issued under Resolution No,
85-78 of the County, as amended and supplemented.
AA. "Series 1991 Bonds" shall mean the Indian River County, Florida
Recreational Revenue Bonds, Series 1991, dated as of August 1, 1991, in the
original aggregate principal amount of $6,015,000, issued under Resolution No.
85-78 of the County, as amended and supplemented.
BB. "Series 1993 Bonds" shall mean the Indian River County, Florida
Recreational Revenue Refunding Bonds, Series 1993, herein authorized to be issued
hereunder.
CC. "Series 1993 Bond Insurance Policy" shall mean the municipal bond
insurance policy issued by the Series 1993 Bond Insurer insuring the payment when
due of the principal of and interest on the Series 1993 Bonds, as provided
therein.
DD. "Series 1993 Bond Insurer" shall mean AMBAC Indemnity Corporation,
a Wisconsin domiciled stock insurance company, or any successor thereto.
EE. "Series 1993 Reserve Account Surety" shall mean AMBAC Indemnity
Corporation, a Wisconsin domiciled stock insurance company, or any successor
thereto.
FF. "Series 1993 Reserve Account Surety Bond" shall mean the surety bond
issued by the Series 1993 Reserve Account Surety guaranteeing certain payments
into the Reserve Account as provided therein and subject to the limitations set
forth therein.
GG. "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.
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
finance the amount necessary to retire the Retired Bonds by the issuance of the
Series 1993 Bonds.
C. The Bonds shall be payable solely from the Pledged Funds.
D. 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 1985 Bonds is hereby authorized. The Series 1985
Bonds maturing before September 1, 1996 shall be retired at maturity at the price
of par, plus accrued interest to the maturity date. The Series 1985 Bonds
maturing on or after September 1, 1996 shall be retired on September 1, 1995, 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 1991 Bonds is hereby
authorized. The Series 1991 Bonds maturing before September 1, 2000 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 September 1, 2000 shall be
retired on September 1, 1999, the earliest optional redemption date, at the price
of 1028 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 AND DESCRIPTION OF SERIES 1993 BONDS. Subject
and pursuant to the provisions of this Resolution, obligations of the County to
be known as "Recreational Revenue Refunding Bonds, Series 1993", are hereby
authorized to be issued in the aggregate principal amount of not exceeding
$9,875,000. 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 they appear on the registration books
kept by the Bond Registrar on behalf of the County. At the option of any
Registered Owner of $1,000,000 or more in aggregate principal amount of the
Series 1993 Bonds as of 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
r1 name of a nominee. As long as any of such Bonds are outstanding in book -entry
form, the provisions of Sections 7, 9, 10 and 11 of this Resolution shall not be
=A 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.
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SECTION 7. 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
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 8. 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 9. 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 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 transfer or exchange of any Bond, the Bond Registrar shall
deliver in the name of the designated transferee or transferees or the Registered
Owner, 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 presented.
The Bond Registrar 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.
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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 10. 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 11. BONDS MUTILATED, DESTROYED, STOLEN OR LAST. 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 substitute 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 12. 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
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 CUSIP
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 Series 1993 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 Series 1993 Bonds to be redeemed.
SECTION 13. FORM OF BONDS. The text of the Bonds, the validation
certificate thereon, if applicable, 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
RECREATIONAL REVENUE REFUNDING BOND, SERIES
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RATE OF ItUEREST MATURITY DATE DATED DATE OF SERIES CUSIP
REGISTERED OWNER:
PRINCIPAL AMOUNT:
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 special funds hereinafter
mentioned, on the Maturity Date specified above, the Principal Amount specified
above, unless this Recreational Revenue Refunding 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 special 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 $1,000,000 or more in aggregate principal
amount of Bonds as of any Record date, interest shall be payable by domestic wire
transfer pursuant to written instructions from such Registered Owner; provided
that such instructions are on file with the Paying Agent not later than such
Record Date. The principal of, premium, if any, and interest on this Bond are
payable in lawful money of the United States of America.
This Bond is one of the revenue bonds authorized by the County under the
authority of and in full compliance with the Constitution and laws of the State
of Florida, including particularly Chapter 125, Florida Statutes, Ordinance No.
77-19 of the County and Resolution No. 93-_ of the County, all as amended and
supplemented, and other applicable provisions of law. The above -referenced
resolution as amended and supplemented from time to time is hereinafter referred
to as the "Resolution". This Bond is subject to all the terms and conditions of
the Resolution.
This Bond is one of the revenue bonds designated as Recreational Revenue
Refunding Bonds, Series _, all of like date and tenor, except as to numbers,
denominations, dates of maturity, rates of interest and provisions for
redemption, in the aggregate principal amount of
Dollars ($ ) (the "Bonds"). The proceeds of the Bonds,
together with certain other available funds of the County, will be used to retire
the Retired Bonds, as defined in the Resolution, to establish a reserve account
and to pay certain costs and expenses relating to issuance of the Bonds and
retirement of the Retired Bonds, all as more fully set forth in the Resolution.
The principal, interest and premium, if any, on the Bonds are payable from,
and are equally and ratably secured by (1) a first lien upon and pledge of (a)
the Net Revenues to be derived by the County from the operation of Recreational
Facilities; (b) the Racetrack and Jai Alai Fronton Funds; and (c) certain funds
and accounts pledged for the payment of the principal of, premium, if any, and
interest on the Bonds and certain earnings thereon; and (2) a subordinate lien
upon and pledge of the Half -Cent Sales Tax distributed to the County
(collectively, the "Pledged Funds"), all as defined and to the extent and as more
fully provided in the Resolution. As provided in the Resolution, upon the
happening of certain events, the Bonds shall be payable from and be equally and
ratably secured by a first lien upon and pledge of fourteen percent (148) of the
Half -Cent Sales Tax in lieu of being payable from and equally and ratably secured
by the subordinate lien upon and pledge of the Half -Cent Sales Tax.
Reference is made to the Resolution for terms and conditions upon which
additional bonds may be issued from time to time having a lien upon and right to
payment on a parity with the Bonds.
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, all in the manner and to the
extent provided in the Resolution.
(To be inserted where appropriate on face of bond: "REFERENCE IS HEREBY
MADE 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.")
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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,
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 and of the same maturity
and interest rate as this Bond, in aggregate principal amount equal to the
unredeemed portion of the principal amount hereof.
11
a'
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
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
12
(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.
As Bond Registrar
By:
Authorized Representative
Date of Registration and Authentication:
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.
13
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.
SECTION 14. 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, as provided herein. 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 therein, to pay the principal, interest or premium, if any, on the
Bonds, or be entitled to payment of such principal, interest or premium, if any,
from any funds of the County other than the Pledged Funds, as provided herein.
SECTION 15. SECURITY FOR AND CERTAIN COVENANTS AND PROVISIONS WITH RESPECT
TO THE BONDS. 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 first
lien upon the Pledged Funds (excluding the Half -Cent Sales Tax). The County does
hereby irrevocably pledge the Pledged Funds (excluding the Half -Cent Sales Tax)
to the payment of the principal of, premium, if any, and interest on the Bonds,
to the extent and in the manner provided herein.
The principal of, premium, if any, and interest on the Bonds shall be
secured forthwith equally and ratably by a lien upon and a pledge of the Half -
14
r
Cent Sales Tax. The County hereby irrevocably pledges the Half -Cent Sales Tax
to the payment of the principal of, premium, if any, and interest on the Bonds.
Such lien and pledge shall be junior and subordinate in all respects to the lien
upon and the pledge of the Half -Cent Sales Tax to the payment of the principal
of, premium, if any, and interest on the bonds, now outstanding or hereafter
issued, under the Sales Tax Resolution.
The County shall be obligated to take all lawful action necessary or
required to continue to be entitled to receive the Half -Cent Sales Tax.
The County hereby covenants that it will not issue any additional
installments of bonds authorized under the Sales Tax Resolution or any additional
parity obligations under the Sales Tax Resolution unless there shall have been
obtained and filed with the County a certificate of the Accountant stating and
setting forth the same information as required by Section 17J(1) of the Sales Tax
Resolution, except that for purposes of said certificate the Maximum Debt Service
Requirement shall include the maximum amount of principal and interest on all
outstanding Bonds becoming due in any ensuing Fiscal Year and Sales Tax receipts
shall include Race Track Funds and Jai Alai Fronton Funds. However, said
certificate shall not be required if compliance with the first paragraph of said
Section 17J(1) is not required.
If at any time hereafter there are no bonds outstanding under the Sales Tax
Resolution and the County covenants not to thereafter issue any bonds under the
Sales Tax Resolution, then the foregoing lien upon and pledge of the Half -Cent
Sales Tax shall no longer be in effect and the principal of, premium, if any, and
interest on the Bonds shall thereafter be secured forthwith equally and ratably
by a first lien upon and pledge of fourteen percent (14%) of the Half -Cent Sales
Tax. The County in such event hereby irrevocably pledges said fourteen percent
(14%) of the Half -Cent Sales Tax to the payment of the principal of, premium, if
any, and interest on the Bonds.
In each Fiscal Year the Half -Cent Sales Tax available after the application
of the Sales Tax Resolution and the Racetrack and Jai Alai Fronton Funds shall
be used to pay the principal of, premium, if any, and interest on the Bonds in
such Fiscal Year to the extent that amounts in the Sinking Fund (other than in
the Reserve Account) are insufficient to make such payments. To the extent that
the Half -Cent Sales Tax and the Racetrack and Jai Alai Fronton Funds received by
the County in any Fiscal Year are not required for the payment of the principal
of, premium, if any, and interest on the Bonds in such Fiscal Year, they may be
used by the County for any lawful purpose.
The Half -Cent Sales Tax and the Racetrack and Jai Alai Fronton Funds liened
and pledged hereunder may be invested and reinvested only in Authorized
Investments maturing not later than the date on which the same will be needed for
the purposes therefor. Any and all income received by the County from such
investments may be used by the County for any lawful purpose.
The foregoing covenants and provisions shall be no longer in effect when
no Bonds are outstanding or when all of the Bonds have been defeased pursuant to
Section 32.
Nothing in this Resolution shall constitute or be construed to constitute
a conveyance or mortgage of the Recreational Facilities.
15
C f,
SECTION 16. 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 32 hereof have been
satisfied, the County covenants with the holders of the Bonds issued pursuant to
this Resolution that:
A. REVENUE FUND. All Gross Revenues shall upon receipt thereof be
deposited in the "Recreational Facilities Revenue Fund" (herein the "Revenue
Fund"), which is hereby created and established.
B. DISPOSITION OF REVENUES. All Gross 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
"Recreational Facilities Operating Fund" (herein the "Operating
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 to the
"Recreational Revenue Bonds Sinking Fund" (herein the "Sinking
Fund"), which is hereby created and established, one-sixth (1/6th)
(or such other appropriate equal monthly portion) of the interest on
the Bonds to 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) (or such other appropriate equal
monthly portion) of the principal of Bonds to mature on the next
principal payment date. 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
Account", hereby created and established, one -twelfth (1/12th) (or
such other appropriate equal monthly portion) of the principal of
Bonds, if any, subject to mandatory redemption on the next principal
payment date. Such deposit shall take into account the principal
amount ofrthe•Term•Bonds- subject to mandatory 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
16
Reserve Account to the Reserve Account Requirement; Provided, however, in
no Fiscal Year shall Net Revenues in excess of twenty percent (201) of the
Reserve Account Requirement be required to be deposited in the Reserve
Account, except as may be required by subsection L or subsection S below.
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.
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.
The value of the Reserve Account, including investments on deposit in the
Reserve Account, shall be determined as described in Exhibit A.
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 & Poor's
Corporation or its successor ("S&P") 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
(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 "Aa" 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 S 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
17
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 deposited in the Revenue Fund.
Moneys in the Reserve Account shall be used only for the purpose of
the payment of principal of or interest on Bonds as the same shall
become due and payable 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 on
deposit in the Reserve Account (except the investment income
thereon) exceed the amount required, such excess may be withdrawn
and deposited in the Revenue Fund. 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 from time to time transfer to the
Series 1993 Rebate Account and other similar accounts established with
respect to any Additional Parity Bonds amounts required or estimated to be
required for the purposes thereof.
(6) Sixth, the County shall apply an amount sufficient for
the payment of current debt service and reserve requirements with
j respect to any obligations of the County which have a lien on the
Pledged Funds junior and subordinate to the lien of the Bonds.
`- (7) Seventh, the County may deposit into the "Recreational
Facilities Improvement Fund" (herein the "Improvement Fund"), which
is hereby created and established, an amount to be determined by the
County Administrator to be used only for the purpose of paying the
j.' costs of extraordinary repairs, renewals, replacements,
j improvements, additions and expansions. with respect to the
Recreational Facilities. Money on deposit in the Improvement Fund
{< may be withdrawn only upon the authorization of the County
Administrator.
(8) Eighth, the balance of any moneys remaining in the Revenue
Ic Fund after the above required payments have been made may be used by the
' County for any lawful purpose.
18
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 Revenue Fund, 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 ten (10) years from the date of
purchase.
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 Revenue Fund.
D. OPERATION AND MAINTENANCE. The County will maintain the Recreational
Facilities 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, to the extent practicable, fix,
establish, revise from time to time whenever necessary, maintain and collect such
fees, rates, rentals and other charges for the use of the services of the
Recreational Facilities so as to provide Net Revenues in each Fiscal Year
sufficient to pay (a) one hundred percent (1008) of all required deposits into
the Reserve Account, and (b) one hundred percent (1008) 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 proper books, records and
accounts, showing correct and complete entries of all transactions of the County
i relating to the Recreational Facilities and the Pledged Funds. Registered Owners
of the Bonds shall have the right at all reasonable times to inspect all books,
t, records and accounts of the County relating to the Recreational Facilities and
i111 the Pledged Funds.
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 Recreational Facilities and the Pledged Funds 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.
19
H. NO MORTGAGE OR SALE OF THE RECREATIONAL FACILITIES. The County will
not mortgage, pledge or otherwise encumber the Recreational Facilities or any
part thereof, or any Gross Revenues to be derived therefrom, and will not sell,
lease or otherwise dispose of any substantial portion of the Recreational
Facilities, except as provided herein.
The County may sell, lease or otherwise dispose of a substantial portion
of the Recreational Facilities in the event that (a) such portion is determined
by resolution of the Board, upon the recommendation of the County Administrator
and the Qualified Independent Consultant, to be no longer necessary or useful or
profitable for the Recreational Facilities; and (b) the sale, lease or other
disposition of such portion is determined by resolution of the Board, upon
recommendation of the County Administrator and the Qualified Independent
Consultant, 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 (including
condemnation) of a substantial portion of the Recreational Facilities shall be
used for the retirement of outstanding Bonds. The proceeds derived from the
sale, lease or other disposition (including condemnation) of less than a
substantial portion of the Recreational Facilities shall be placed in the
Improvement 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 Qualified
Independent Consultant.
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 Recreational Facilities which are subject to loss through fire
or windstorm, 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 USE. The County shall not furnish or supply the facilities
or services of the Recreational Facilities free of charge to any person, firm or
corporation, public or private.
K. 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 appointmegt 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, except in the manner and to
the extent provided herein.
20
;i
L. ADDITIONAL PARITY BONDS. No Additional Parity Bonds, payable on a
parity from the Pledged Funds with the Bonds, may be issued hereunder, except for
the purpose of refunding outstanding Bonds, but no refunding may be undertaken
in accordance with this provision if it shall result in an increase in the
maximum amount of principal and interest on all outstanding Bonds becoming due
in any ensuing Fiscal Year.
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 County covenants for the benefit of the Registered Owners of the 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 at such time
all or a portion of the Series 1993 Bonds are outstanding and 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.
M. 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 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.
N. 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 and any applicable regulations
promulgated thereunder 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.
0. 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
21
used in governmental accounting, but rather is intended solely to constitute an
earmarking of certain revenues and assets as provided herein.
P. 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 and
the Sales Tax Resolution, the Pledged Funds have not been pledged or hypothecated
(except with respect to the Retired Bonds which are to be retired with proceeds
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 and lien upon the Pledged Funds and all the rights of the
Registered Owners under this Resolution against all claims and demands of all
persons whomsoever.
Q. 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 to the extent
and in the manner provided herein.
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.
R. 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
Recreational Facilities in any trade or business of any person or entity other
than the County, including use under certain lease or management contracts
("private business use"), if such use is related to the County's use of the
Recreational Facilities, will not exceed more than ten percent (10%) of the use
of the Recreational Facilities, or, if such private business use is unrelated or
disproportionate to the County's use of the Recreational Facilities, will not
exceed more than five percent (58) of the use of the Recreational Facilities.
22
The County covenants that no more than ten percent (10%) of the Gross
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.
S. 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 all or a portion of the Series 1993 Bonds
are outstanding and 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
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
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
23
11S r
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 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 "Asa" by Moody's, or (d) the rating of the
issuer of the letter of credit falls below "AA" by S&P and "Aa" 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" by Moody's, or (c) the rating of the issuer of the
letter of credit falls below "AA" by S&P and "As" 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
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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 (c) 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.
T. 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) 1108 of the current interest rate on
the Variable Rate Bonds; or (b) the Bond Buyer 20 General Obligation Bond Index
for the last week of the month preceding the date of sale of the Variable Rate
Bonds.
SECTION 17. 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.
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SECTION 18. 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:
A. All accrued interest 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, 1f any, after making all the deposits and
payments provided for above shall be deposited into the Series 1993 Sinking Fund
and used only for the purpose of paying the principal of and interest on the
Series 1993 Bonds which first become payable.
SECTION 19. REBATE. Anything to the contrary contained herein
notwithstanding, the County shall from time to time transfer into the "Series
1993 Rebate Account" which is hereby created and established 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; provided, however, if the County shall determine that the amounts in the
Series 1993 Rebate Account are in excess of the amounts sufficient for such
payments, the County may transfer such excess to the Revenue Fund. 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 20. 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 21. ADDITIONAL COVENANTS RELATING TO THE SERIES 1993 BOND
INSURANCE POLICY. So long as the Series 1993 Bond Insurance Policy is in effect
and the Series 1993 Bond Insurer is not in default under the Series 1993 Bond
26
Insurance Policy, bankrupt, insolvent or in receivership, the County shall
observe the following covenants:
A. The County shall furnish the following to the Series 1993 Bond Insurer:
(1) as soon as practicable after the filing
thereof, a copy of any financial statement of the County
and a copy of any audit and annual report of the County;
(2) a copy of any notice to be given to the
Registered Owners of Series 1993 Bonds, including,
without limitation, notice of any redemption of or
defeasance of the Series 1993 Bonds, and any certificate
rendered pursuant hereto relating to the security for
the Series 1993 Bonds; and
(3) such additional information the Series 1993
Bond Insurer may reasonably request.
B. The County shall notify the Series 1993 Bond Insurer of any failure of
the County to provide any of the items enumerated in paragraphs (1) or (2) of
subsection A of this Section.
C. The County will permit the Series 1993 Bond Insurer to discuss the
affairs, finances and accounts of the County or any information the Series 1993
Bond Insurer may reasonably request regarding the security for the Series 1993
Bonds with appropriate officers of the County. The County will permit the Series
1993 Bond Insurer to have access to the Recreational Facilities and to have
access to and to make copies of all books and records relating to the Series 1993
Bonds at any reasonable time.
D. The Series 1993 Bond Insurer shall have the right to direct an
accounting of the Pledged Funds and other funds and revenues pledged as security
for the Series 1993 Bonds, at the County's expense, and the County's failure to
comply with such direction within thirty (30) days after receipt of written
notice of the direction from the Series 1993 Bond Insurer shall be deemed a
default hereunder; provided, however, that if compliance cannot occur within such
period, then such period will be extended if compliance is begun within such
period and diligently pursued, but only if such extension would not materially
adversely affect the interests of any Registered Owner of any of the Series 1993
Bonds.
E. Notwithstanding any other provision of this Resolution, the County
shall immediately notify the Series 1993 Bond Insurer if at any time there are
insufficient moneys to make any payments of principal and/or interest as required
and immediately upon the occurrence of any event of default hereunder.
F. Any provision - of -hereof expressly recognizing or granting rights in or
to the Series 1993 Bond Insurer may not be amended in any manner which affects
the rights of the Series 1993 Bond Insurer without the prior written consent of
the Series 1993 Bond Insurer.
G. Unless otherwise provided in this Section, the Series 1993 Bond
Insurer's consent shall be required whenever consent of the holders of the Series
1993 Bonds is required for any of the following purposes: (i) execution and
delivery of any amendment, supplement or change to or modification of this
27
Resolution; (ii) removal of the Paying Agent and selection and appointment of any
successor paying agent; and (iii) initiation or approval of any action not
described in (i) or (ii) above which requires consent of holders of the Series
1993 Bonds.
H. Any reorganization or liquidation plan with respect to the County must
be acceptable to the Series 1993 Bond Insurer. In the event of any such
reorganization or liquidation, the Series 1993 Bond Insurer shall have the right
to vote on behalf of all of the Registered Owners of the Series 1993 Bonds.
SECTION 22. CONCERNING THE PAYING AGENT FOR THE SERIES 1993 BONDS. The
County covenants and agrees that while any of the Series 1993 Bonds are
outstanding and all such bonds have not been defeased in accordance herewith, the
Series 1993 Bond Insurance Policy is in effect, and the Series 1993 Bond Insurer
is not in default under the Series 1993 Bond Insurance Policy, bankrupt,
insolvent or in receivership, the following covenants shall be observed:
A. The Paying Agent may be removed at any time, at the request of the
Series 1993 Bond Insurer, for any breach of the duties set forth in this
Resolution.
B. The Series 1993 Bond Insurer shall receive prior written notice of any
resignation of a Paying Agent.
C. No successor Paying Agent shall be appointed unless the Series 1993
Bond Insurer approves the selection of such successor in writing.
D. Notwithstanding any other provision of this Resolution, no removal,
resignation or termination of the Paying Agent shall take effect until a
successor, acceptable to the Series 1993 Bond Insurer, shall be appointed.
SECTION 23. SERIES 1993 BOND INSURER MAY CONTROL PROCEEDINGS. Anything
in this Resolution to the contrary notwithstanding, while the Series 1993 Bond
Insurance Policy is in effect, any of the Series 1993 Bonds are outstanding and
have not been defeased in accordance herewith, and the Series 1993 Bond Insurer
is not in default with respect to the Series 1993 Bond Insurance Policy,
bankrupt, insolvent or in receivership, then upon default by the County as to
payment of the principal of, premium, if any, and interest on Series 1993 Bonds
when and as the same become due upon maturity, any earlier redemption, or
otherwise, or as to the observance of any covenant of this Resolution, the Series
1993 Bond Insurer shall be entitled to control and direct the enforcement of all
rights and remedies granted to the holders of Series 1993 Bonds or the Paying
Agent for the benefit of the holders of Series 1993 Bonds under this Resolution.
SECTION 24. PROCEDURE FOR PAYMENT OF SERIES 1993 BONDS PURSUANT TO THE
SERIES 1993 BOND INSURANCE POLICY. While the Series 1993 Bond Insurance Policy
is in effect and any Series 1993 Bonds insured thereunder (herein, the "Series
1993 Insured Bonds") -remain outstanding, the County and the Bond Registrar and
the Paying Agent for any Series 1993 Insured Bonds agree to comply with the
following provisions:
A. At least one (1) day prior to all interest payment dates for Series
1993 Insured Bonds, the Paying Agent will determine whether there will be
sufficient available funds in the funds and accounts maintained by the County or
the Paying Agent under this Resolution to pay the principal of or interest on the
Series 1993 Insured Bonds on such interest payment date. If the Paying Agent
28
A
determines that there will be insufficient funds in such funds or accounts, the
Paying Agent shall so notify the Series 1993 Bond Insurer and the Bond Registrar.
Such notice shall specify the amount of the anticipated deficiency, the Series
1993 Insured Bonds to which such deficiency is applicable and whether such Series
1993 Insured Bonds will be deficient as to principal or interest, or both. If
the Paying Agent has not so notified the Series 1993 Bond Insurer at least one
(1) day prior to an interest payment date, the Series 1993 Bond Insurer will make
payments of principal or interest due on the Series 1993 Insured Bonds on or
before the first (1st) day next following the date on which the Series 1993 Bond
Insurer shall have received notice of nonpayment from the Paying Agent.
B. The Bond Registrar and the Paying Agent shall, after notice has been
given to the Series 1993 Bond Insurer as provided in A above, make available to
the Series 1993 Bond Insurer and, at the Series 1993 Bond Insurer's direction,
to the United States Trust Company of New York, as insurance trustee for the
Series 1993 Bond Insurer or any successor insurance trustee (the "Series 1993
Insurance Trustee"), the registration books of the County maintained by the Bond
Registrar and all records relating to the funds and accounts maintained under
this Resolution.
C. The Bond Registrar shall provide the Series 1993 Bond Insurer and the
Series 1993 Insurance Trustee with a list of registered owners of Series 1993
Bonds 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 with the Series 1993 Insurance Trustee (i) to mail checks or
drafts to the registered owners of Bonds entitled to receive full or partial
interest payments from the Series 1993 Bond Insurer and (ii) to pay principal
upon Series 1993 Insured Bonds surrendered to the Series 1993 Insurance Trustee
by the registered owners of Series 1993 Bonds entitled to receive full or partial
principal payments from the Series 1993 Bond Insurer.
D. The Paying Agent shall, at the time it provides notice to the Series
1993 Bond Insurer pursuant to A above, notify registered owners of Series 1993
Bonds entitled to receive the payment of principal or interest thereon from the
Series 1993 Bond Insurer (i) as to the fact of such entitlement, (ii) that the
Series 1993 Bond Insurer will remit to them all or a part of the interest
payments next coming due upon proof of Bondholder entitlement to interest
payments and delivery to the Series 1993 Insurance Trustee, in form satisfactory
to the Series 1993 Insurance Trustee, of an appropriate assignment of the
registered owner's right to payment, (iii) that should they be entitled to
receive full payment of principal from the Series 1993 Bond Insurer, they must
surrender their Series 1993 Bonds (along with an appropriate instrument of
assignment in form satisfactory to the Series 1993 Insurance Trustee to permit
ownership of such Series 1993 Bonds to be registered in the name of the Series
1993 Bond Insurer) for payment to the Series 1993 Insurance Trustee, and not the
Paying Agent, and (iv) that should they be entitled to receive partial payment
of principal from the Series 1993 Bond Insurer, they must surrender their Series
1993 Bonds for payment thereon -first to the Paying Agent, who shall note on such
Series 1993 Bonds the portion of the principal paid by the Paying Agent and then,
along with an appropriate instrument of assignment in form satisfactory to the
Series 1993 Insurance Trustee, to the Series 1993 Insurance Trustee, which will
then pay the unpaid portion of principal. The Bond Registrar shall take such
action as shall be appropriate to enable such notice to be given to Bondholders.
E. If the Paying Agent has notice that any payment of principal of or
interest on an Insured Bond which has become Due for Payment (as that phrase is
29
defined in the Series 1993 Bond Insurance Policy), and which is made to a
Bondholder by or on behalf of the County has been deemed a preferential transfer
and theretofore recovered from its registered owner 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 the Series 1993 Bond Insurer is notified pursuant to A above,
notify all registered owners that in the event that any registered owner's
payment is so recovered, such registered owner will be entitled to payment from
the Series 1993 Bond Insurer to the extent of such recovery if sufficient funds
are not otherwise available, 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 Insured Bonds which have been made by the Paying
Agent and subsequently recovered from registered owners and the dates on which
such payments were made.
F. In addition to those rights granted to the Series 1993 Bond Insurer
under this Resolution, the Series 1993 Bond Insurer shall, to the extent it makes
payment of principal of or interest on Series 1993 Insured 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 (i) 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 of the County maintained by the Bond Registrar, upon
receipt from the Series 1993 Bond Insurer of proof of the payment of interest
thereon to the registered owners of the Series 1993 Insured Bonds, and (ii) 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 of the County maintained by the Bond Registrar, upon surrender of the
Series 1993 Insured Bonds by the registered owners thereof together with proof
of the payment of principal thereof.
SECTION 25. SUBROGATION RIGHTS OF SERIES 1993 BOND INSURER.
Notwithstanding any provision of this Resolution to the contrary, if the
principal and/or interest due on any Series 1993 Bonds insured by the Series 1993
Bond Insurance Policy shall be paid by the Series 1993 Bond Insurer pursuant to
the Series 1993 Bond Insurance Policy, such Series 1993 Bonds shall remain
outstanding for all purposes, shall not be defeased or otherwise satisfied by
such payment and shall not be considered paid by the County, and the assignment
and pledge of the Pledged Funds and all covenants, agreements and other
obligations of the County to the registered owners shall continue to exist and
shall run to the benefit of the Series 1993 Bond Insurer, and the Series 1993
Bond Insurer shall be subrogated to the rights of such registered owners.
SECTION 26. SERIES 1993 BOND INSURER AS THIRD PARTY BENEFICIARY. To the
extent that this Resolution confers upon or gives or grants to the Series 1993
Bond Insurer any right, remedy or claim under or by reason of this Resolution,
the Series 1993 Bond Insurer is hereby explicitly recognized as being a third -
party beneficiary hereunder and may enforce any such right, remedy or claim
conferred, given or granted hereunder.
SECTION 27. PARTIES IN INTEREST. Nothing in this Resolution, expressed
or implied is intended or shall be construed to confer upon, or to give to, any
person or entity, other than the County, the Series 1993 Bond Insurer, the Paying
Agent (or Paying Agents, if applicable), and the Registered Owners of the Bonds,
any right, remedy or claim under or by reason of this Resolution or any covenant,
condition or stipulation therein contained, and all covenants, stipulations,
30
promises and agreements in this Resolution contained by and on behalf of the
County shall be for the sole and exclusive benefit of the County, the Series 1993
Bond Insurer, the Paying Agent (or Paying Agents, if applicable), and the
Registered Owners of the Bonds.
SECTION 28. INTERPRETATION OF RESOLUTION. Notwithstanding any other
provision of this Resolution, in determining whether the rights of the
Bondholders will be adversely affected by any action taken pursuant to the terms
and provisions of this Resolution, the Paying Agent shall consider the effect on
the Bondholders as if there were no Series 1993 Bond Insurance Policy.
SECTION 29. THE SERIES 1993 RESERVE ACCOUNT SURETY BOND. Any term or
condition hereof relating to a Reserve Account Credit Instrument which differs
in any respect from any term or condition hereof relating to the Series 1993
Reserve Account Surety Bond or any term or condition of the Series 1993 Reserve
Account Surety Bond shall not apply with respect to such term or condition hereof
relating to the Series 1993 Reserve Account Surety Bond or such term or condition
of the Series 1993 Reserve Account Surety Bond to the extent of such difference.
SECTION 30. ADDITIONAL COVENANTS RELATING TO THE SERIES 1993 RESERVE
ACCOUNT SURETY BOND. So long as the Series 1993 Reserve Account Surety Bond is
in effect and the Series 1993 Reserve Account Surety is not in default under the
Series 1993 Reserve Account Surety Bond, bankrupt, insolvent or in receivership,
the County shall observe the following covenants:
A. The County shall furnish the following to the Series 1993 Reserve
Account Surety:
(1) as soon as practicable after the filing
thereof, a copy of any financial statement of the County
and a copy of any audit and annual report of the County;
(2) a copy of any notice to be given to the
Registered Owners of Series 1993 Bonds, including,
without limitation, notice of any redemption of or
defeasance of the Series 1993 Bonds, and any certificate
rendered pursuant hereto relating to the security for
the Series 1993 Bonds: and
(3) such additional information the Series 1993
Reserve Account Surety may reasonably request.
B. The County will permit the Series 1993 Reserve Account Surety to
discuss the affairs, finances and accounts of the County or any information the
Series 1993 Reserve Account Surety may reasonably request regarding the security
for the Series 1993 Bonds with appropriate officers of the County. The County
will permit the Series 1993 Reserve Account Surety to have access to the
Recreational Facilities and to have access to and to make copies of all books and
records relating to the Series 1993 Bonds at any reasonable time.
C. Notwithstanding any other provision of this Resolution, the County
shall immediately notify the Series 1993 Reserve Account Surety if at any time
there are insufficient moneys to make any payments of principal and/or interest
as required and immediately upon the occurrence of any event of default
hereunder.
31
V
' D. Any provision of hereof expressly recognizing or granting rights in or
to the Series 1993 Reserve Account Surety may not be amended in any manner which
affects the rights of the Series 1993 Reserve Account Surety without the prior
written consent of the Series 1993 Reserve Account Surety.
E. Unless otherwise provided in this Section, the Series 1993 Reserve
Account Surety's consent shall be required whenever consent of the holders of the
Series 1993 Bonds is required for any of the following purposes: (i) execution
and delivery of any amendment, supplement or change to or modification of this
Resolution; (li) removal of the Paying Agent and selection and appointment of any
successor paying agent; and (iii) initiation or approval of any action not
described in (i) or (ii) above which requires consent of holders of the Series
1993 Bonds.
SECTION 31. PROCEDURE FOR PAYMENT PURSUANT TO THE SERIES 1993 RESERVE
ACCOUNT SURETY BOND. While the Series 1993 Surety Bond is in effect, the County
and the Bond Registrar and the Paying Agent for any Bonds agree to comply with
the following provisions:
A. In the event and to the extent that moneys on deposit in the Sinking
Fund, plus all amounts on deposit in and credited to the Reserve Account in
excess of the amount of the Series 1993 Reserve Account Surety Bond, are
insufficient to pay the amount of principal and interest coming due, then upon
the later of: (i) one (1) day after receipt by the General Counsel of the Series
1993 Reserve Account Surety of a demand for payment in the form attached to the
Series 1993 Reserve Account Surety Bond as Attachment 1 (the "Demand for
Payment"), duly executed by the Paying Agent certifying that payment due under
this Resolution has not been made to the Paying Agent; or (ii) the payment date
of the Bonds as specified in the Demand for Payment presented by the Paying Agent
to the General Counsel of the Series 1993 Reserve Account Surety, the Series 1993
Reserve Account Surety will make a deposit of funds in an account with the Paying
Agent or its successor, in New York, New York, sufficient for the payment to the
Paying Agent, of amounts which are then due to the Paying Agent under this
Resolution (as specified in the Demand for Payment) up to but not in excess of
the Surety Bond Coverage, as defined in the Series 1993 Reserve Account Surety
Bond; provided, however, that in the event that the amount on deposit in, or
credited to, the Reserve Account, in addition to the amount available under the
Series 1993 Reserve Account Surety Bond, includes amounts available under a
letter of credit, insurance policy, surety bond or other such funding instrument
(the "Additional Funding Instrument"), draws on the Series 1993 Reserve Account
Surety Bond and the Additional Funding Instrument shall be made on a pro rata
basis to fund the insufficiency.
B. The Paying Agent and the County shall, after the Paying Agent has
submitted to the Series 1993 Reserve Account Surety the Demand for Payment as
provided in A above, make available to the Series 1993 Reserve Account Surety all
records relating to the funds and accounts maintained under this Resolution.
C. The Paying Agent and the County shall, upon receipt of moneys received
by the Paying Agent from the draw on the Series 1993 Reserve Account Surety Bond,
as specified in the Demand for Payment, credit the Reserve Account to the extent
of moneys received pursuant to such Demand.
D. The Reserve Account shall be replenished in the following priority: (i)
principal and interest on the Series 1993 Reserve Account Surety Bond and on any
Additional Funding Instrument shall be paid from Gross Revenues first available
32
under Section 16B(4) hereof on a pro rata basis; and after all such amounts are
paid in full, amounts necessary to fund the Reserve Account to the required
level, after taking into account the amounts available under the Series 1993
Reserve Account Surety Bond and any Additional Funding Instrument, shall be
deposited from in the Reserve Account from the Gross Revenues next available
under Section 16B(4) hereof.
SECTION 32. 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
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 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
aeries, as applicable, shall be considered "provision for payment". For purposes
of this Section, amounts paid by the Series 1993 Bond Insurer under the Series
1993 Bond Insurance Policy shall not be deemed paid and shall be deemed due and
owing until paid by the County. 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 33. 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 518 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 collect the receipts and revenues pledged hereunder, 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 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 6 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 34. SEVERABILITY. If any one or more of the covenants, agreements
or provisions of this Resolution shall be held contrary to any express provision
31
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 thereof or of the Bonds issued
hereunder.
SECTION 35. 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 36. EFFECTIVE DATE. This Resolution shall take effect immediately
upon its adoption.
The foregoing resolution was offered by Commissioner Eggert who
moved for its adoption. The motion was seconded by Commissioner Adams
and, upon being put to a vote, the vote was as follows:
Chairman Richard N. Bird Aye
Vice Chairman John W. Tippin Ave
Commissioner Fran B. Adams Ave
Commissioner Carolyn K. Eggert Ave
Commissioner Kenneth R. Macht Aye
The Chairman thereupon declared the Resolution duly passed and adopted this
]Z day of AnguAt , 1993.
(SEAL),
LEGAL SUFPICLENGY"*
Charles P. Vitunac
County Attorney
BOARD OF COUNTY COMMISSIONERS
OF INDIAN RIVER COUNTY, FLORIDA
By:_
Richard N. Bird, Chairman
C rk
34
EXHIBIT A
PERMITTED INVESTMENTS
A. AMBAC Indemnity will allow the following obligations to be used as Permitted
Investments for all purposes, Including defeasance investments in refunding escrow
accounts.
(AMBAC Indemnity no longer gives a premium credit for the investment of accrued
and/or capitalized interest.)
(1) Cash (insured at all times by the Federal Deposit Insurance Corporation or
otherwise collateralized with obligations described in paragraph (2) below),
or
(2) Direct obligations of (including obligations issued or held in book entry form
on the books of) the Department of the Treasury of the United States of
America.
B. AMBAC Indemnity will allow the following Obligations to be used as Permitted
Investments for all purposes other then defeasance investments in refunding escrow
accounts.
(1) obligations of any of the following federal agencies which obligations
represent full faith and credit of the United States of America, including:
- Export - Import Bank
Farmers Home Administration
General Services Administration
U.S. Maritime Administration
- Small Business Administration
- Government National Mortgage Association (GNMA)
U.S. Department of Housing & Urban Development (PHA's)
Federal Housing Administration;
(2) bonds, notes or other evidences of indebtedness rated "AAA" by Standard
& Poor's Corporation and "Aad" by Moody's Investors Service issued by the
Federal National Mortgage Association or the Federal Home Loan Mortgage
Corporation with remaining maturities not exceeding three years;
(3) U.S. dollar denominated deposit accounts, federal funds and banker's
acceptances with domestic commercial banks which have a rating on their
short term certificates of deposit on the date of purchase of "A-1" or "A-1 +"
by Standard & Poor's and "P-1" by Moody's and maturing no more than
360 days after the date of purchase. (Ratings on holding companies are
not considered as the rating of the bank);
Page 1 of 3 pages
(4) commercial paper which is rated at the time of purchase in the single
highest classification, "A-1 +" by Standard & Poor's and "P-1" by Moody's
Investors Service and which matures not more than 270 days after the date
of purchase;
(5) investments in a money market fund rated "AAAm" or "AAAm-G" or better
by Standard & Poor's Corporation;
(6) Pre -refunded Municipal Obligations defined as follows: Any bonds or other
obligations of any state of the United States of America or of any agency,
instrumentality or local governmental unit of any.such state which are not
callable at the option of the obligor prior to maturity or as to which
irrevocable instructions have been given by the obligor to call on the date
specified in the notice; and
(A) which are rated, based on an irrevocable escrow account or fund
(the "escrow"), i the highest rating category of Standard & Poor's
Corporation and Moody's Investors Service, Inc. or any successors
thereto; or
(B) (i) which are fully secured as to principal and interest and
redemption premium, if any, by an escrow consisting only of cash or
obligations described in paragraph (1) above, which escrow may be
applied only to the payment of such principal of and interest and
redemption premium, if any, on such bonds or other obligations on
the maturity date or dates thereof or the specified redemption date
or dates pursuant to such irrevocable instructions, as appropriate,
and (ii) which escrow is sufficient, as verified by a nationally
recognized independent certified public accountant, to pay principal
of and interest and redemption premium, if any, on the bonds or
other obligations described in this paragraph on the maturity date or
dates specified in the irrevocable instructions referred to above, as
appropriate; (Pre -refunded Municipal Obligations meeting the
requirements of subsection (B) hereof may not be used as
Permitted Investments for annual appropriation lease
transactions without the prior written approval of Standard &
Poor's Corporation.]
(7) investment agreements approved in writing by AMBAC Indemnity
Corporation (supported by appropriate opinions of counsel) with notice to
Standard & Poor's Corporation; and
(S) other forms of investments approved in writing by AMBAC with notice to
Standard & Poor's Corporation.
Page 2 of 3 pages
ysw h
rpt
C. The value of the above investments shall be determined as follows:
"Value", which shall be determined as of the end of each month, means that the value of
any investments shall be Calculated as follows:
a) as to investments the bid and asked prices of which are published on a
regular basis in The Wall Street Journal (or, if not there, then in The New
York Times): the average of the bid and asked prices for such investments
so published on or most recently prior to such time of determination;
b) as to investments the bid and asked prices of which are not published on
a regular basis in The Wall Street Journal or The New York Times: the
average bid price at such time of determination foi such investments by any
two nationally recognized government securities dealers (selected by the
Trustee in its absolute discretion) at the time making a market in such
investments or the bid price published by a nationally recognized pricing
service;
C) as to certificates of deposit and bankers acceptances: the face amount
thereof, plus accrued interest; and
d) as to any investment not specified above: the value thereof established by
prior agreement between the Issuer, the Trustee and AMBAC Indemnity
Corporation.
Page 3 of 3 pages