Agenda 07/11/2017 Item #11B07/11/2017
EXECUTIVE SUMMARY
Recommendation to approve a resolution authorizing the issuance of not exceeding $70,000,000 in
aggregate principal amount of Collier County, Florida Tourist Development Tax Revenue Bonds in
one or more series to finance and/or refinance costs of the acquisition, construction and equipping
of an amateur sports complex and pledging moneys received by the County from the tourist
development tax to secure payment of the principal and interest on bonds issued.
OBJECTIVE: Approve the resolution which authorizes the issuance of bonds of Collier County in one
or more series in order to finance and or refinance costs of the amateur sports complex. This resolution
will comprise part of the documentation connected with a bond validation proceeding.
CONSIDERATIONS: The financing connected with the amateur sports complex as previously described
is planned in two parts. The first is a draw of short term commercial paper under the Florida Local
Government Finance Commission’s Commercial Paper Loan Program on or about January 2018 in the
amount of $12 million to acquire approximately 60 acres of land. This debt and subsequent repayment
will be an obligation of the General Fund under a covenant to budget and appropriate from all legally
available non ad valorem revenues.
The second part is the issuance of between $55 million and $60 million in tourist development tax
revenue bonds intended to finance and/or refinance the cost of acquiring, constructing and equipping the
planned amateur sports facility. Given the complexities and timeliness of a project of this size and nature
it is unlikely that borrowings under the revenue bond contemplated herein will be necessary for at least
eighteen (18) months from the land closing discussed above. Staff estimates that a range of between $55
million to $60 million is necessary to finance project costs mentioned above. The project will be scope
managed to fit these parameters including annual debt service of $3,750,000.
A $70,000,000 maximum not to exceed aggregate principal amount is stated in this bond resolution out of
an abundance of caution as the current financial planning model may change based upon market
conditions at the time of issuance. Validating this amount will avoid any scenario under which the amount
of debt issuance validated is less than the amount necessary to complete the project.
Collier County tourist tax revenues will be pledged to secure the payment of principal and interest on
these bonds. Staff, at the recommendation of bond counsel and the county attorney, has discussed the
need to validate these bonds to determine if the fourth and fifth TDT percentage could be pledged to the
repayment of the bonds. Under current law, it is clear that the first three percentages of TDT can be used
to pay debt service on the bonds. The ability to pledge all five percentages will maximize annual debt
service coverage, making the bonds more attractive to the municipal market thereby reducing the cost of
financing.
No debt, short term or long term will be issued until a successful bond validation is achieved. Bond
validation proceeding would likely begin over the summer, after passage of this bond resolution and
adoption of the amended TDT ordinance providing for the fifth percentage. These proceedings could last
up to six months.
FISCAL IMPACT: The cost of the bond validation proceedings should not exceed $50,000. As
presented previously, current financial planning under a maximum annual debt service threshold of
$3,750,000 will allow about $55 million in bonds assuming an interest rate of four (4) percent to be
repaid over twenty five (25) years.
07/11/2017
FINANCE COMMITTEE: Members of the Finance Committee have discussed the current financing
model and will make specific recommendations on the amount, duration and other long term financing
components at the appropriate time when the County proceeds to market.
GROWTH MANAGEMENT IMPACT: None
LEGAL CONSIDERATIONS: This item has been reviewed by the County Attorney, is approved as to
form and legality, and requires majority vote for approval. -JAK
RECOMMENDATION: To approve a resolution authorizing the issuance of not exceeding $70,000,000
in aggregate principal amount of Collier County, Florida Tourist Development Tax Revenue Bonds in one
or more series to finance and/or refinance costs of the acquisition, construction and equipping of an
amateur sports complex and pledging moneys received by the County from the tourist development tax to
secure payment of the principal and interest on bonds issued; and direct the county attorney and bond
counsel to proceed with the bond validation process.
Prepared by: Mark Isackson, Director, Office of Management and Budget
ATTACHMENT(S)
1. 11 - 3470 Resolution (PDF)
07/11/2017
COLLIER COUNTY
Board of County Commissioners
Item Number: 11.B
Doc ID: 3470
Item Summary: Recommendation to approve a resolution authorizing the issuance of not
exceeding $70,000,000 in aggregate principal amount of Collier County, Florida Tourist Development
Tax Revenue Bonds in one or more series to finance and/or refinance costs of the acquisition,
construction and equipping of an amateur sports complex and pledging moneys received by the County
from the tourist development tax to secure payment of the principal and interest on bonds issued. (Mark
Isackson, Corporate Financial and Management Services Division Director)
Meeting Date: 07/11/2017
Prepared by:
Title: Operations Coordinator – Office of Management and Budget
Name: Valerie Fleming
07/05/2017 11:31 AM
Submitted by:
Title: Operations Coordinator – Office of Management and Budget
Name: Valerie Fleming
07/05/2017 11:31 AM
Approved By:
Review:
Office of Management and Budget Valerie Fleming Level 3 OMB Gatekeeper Review Completed 07/05/2017 11:31 AM
Budget and Management Office Mark Isackson Additional Reviewer Completed 07/05/2017 11:33 AM
County Attorney's Office Jeffrey A. Klatzkow Level 3 County Attorney's Office Review Completed 07/05/2017 12:26 PM
County Manager's Office Nick Casalanguida Level 4 County Manager Review Completed 07/05/2017 1:38 PM
Board of County Commissioners MaryJo Brock Meeting Pending 07/11/2017 9:00 AM
COLLIER COUNTY, FLORIDA
TOURIST DEVELOPMENT TAX REVENUE BONDS
RESOLUTION
ADOPTED JULY 11, 2017
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TABLE OF CONTENTS
PAGE
ARTICLE I
GENERAL
SECTION 1.01. DEFINITIONS ................................................................................... 1
SECTION 1.02. AUTHORITY FOR RESOLUTION ................................................ 11
SECTION 1.03. RESOLUTION TO CONSTITUTE CONTRACT .......................... 12
SECTION 1.04. FINDINGS ....................................................................................... 12
SECTION 1.05. AUTHORIZATION OF THE INITIAL PROJECT;
REIMBURSEMENT. .............................................................. 13
ARTICLE II
AUTHORIZATION, TERMS, EXECUTION AND REGISTRATION OF BONDS
SECTION 2.01. AUTHORIZATION OF BONDS .................................................... 14
SECTION 2.02. AUTHORIZATION AND DESCRIPTION OF SERIES 2017
BONDS .................................................................................... 14
SECTION 2.03. EXECUTION OF BONDS .............................................................. 15
SECTION 2.04. AUTHENTICATION....................................................................... 16
SECTION 2.05. TEMPORARY BONDS ................................................................... 16
SECTION 2.06. BONDS MUTILATED, DESTROYED, STOLEN OR LOST ....... 16
SECTION 2.07. INTERCHANGEABILITY, NEGOTIABILITY AND
TRANSFER ............................................................................. 17
SECTION 2.08. FORM OF BONDS .......................................................................... 18
ARTICLE III
REDEMPTION OF BONDS
SECTION 3.01. PRIVILEGE OF REDEMPTION .................................................... 28
SECTION 3.02. SELECTION OF BONDS TO BE REDEEMED ............................ 28
SECTION 3.03. NOTICE OF REDEMPTION .......................................................... 28
SECTION 3.04. REDEMPTION OF PORTIONS OF BONDS ................................. 30
SECTION 3.05. PAYMENT OF REDEEMED BONDS ........................................... 30
SECTION 3.06. PURCHASE IN LIEU OF OPTIONAL REDEMPTION ................ 30
ARTICLE IV
SECURITY, SPECIAL FUNDS AND APPLICATION THEREOF
SECTION 4.01. BONDS NOT TO BE INDEBTEDNESS OF ISSUER ................... 32
SECTION 4.02. SECURITY FOR BONDS ............................................................... 32
SECTION 4.03. CONSTRUCTION FUND ............................................................... 32
SECTION 4.04. CREATION OF FUNDS AND ACCOUNTS ................................. 34
SECTION 4.05. DISPOSITION OF TOURIST DEVELOPMENT TAX
REVENUES ............................................................................. 35
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SECTION 4.06. REBATE FUND .............................................................................. 43
SECTION 4.07. INVESTMENTS .............................................................................. 43
SECTION 4.08. SEPARATE ACCOUNTS ............................................................... 44
ARTICLE V
SUBORDINATED INDEBTEDNESS, ADDITIONAL BONDS AND COVENANTS
OF ISSUER
SECTION 5.01. SUBORDINATED INDEBTEDNESS ............................................ 45
SECTION 5.02. ISSUANCE OF ADDITIONAL BONDS ........................................ 45
SECTION 5.03. BOND ANTICIPATION NOTES ................................................... 47
SECTION 5.04. ACCESSION OF SUBORDINATED INDEBTEDNESS TO
PARITY STATUS WITH BONDS ......................................... 47
SECTION 5.05. BOOKS AND RECORDS ............................................................... 47
SECTION 5.06. NO IMPAIRMENT .......................................................................... 47
SECTION 5.07. RECEIPT OF TOURIST DEVELOPMENT TAX REVENUES .... 48
SECTION 5.08. FEDERAL INCOME TAX COVENANTS..................................... 48
SECTION 5.09. COVENANTS RELATING TO FEDERAL SUBSIDY BONDS .. 48
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT ................................................................. 50
SECTION 6.02. REMEDIES ...................................................................................... 50
SECTION 6.03. DIRECTIONS TO TRUSTEE AS TO REMEDIAL
PROCEEDINGS ...................................................................... 51
SECTION 6.04. REMEDIES CUMULATIVE .......................................................... 51
SECTION 6.05. WAIVER OF DEFAULT................................................................. 51
SECTION 6.06. APPLICATION OF MONEYS AFTER DEFAULT ....................... 52
SECTION 6.07. CONTROL BY INSURER .............................................................. 53
ARTICLE VII
SUPPLEMENTAL RESOLUTIONS
SECTION 7.01. SUPPLEMENTAL RESOLUTION WITHOUT
BONDHOLDERS' CONSENT ............................................... 54
SECTION 7.02. SUPPLEMENTAL RESOLUTION WITH BONDHOLDERS',
INSURERS' AND CREDIT BANKS' CONSENTS. .............. 55
SECTION 7.03. AMENDMENT WITH CONSENT OF INSURERS AND
CREDIT BANKS ONLY. ....................................................... 56
ARTICLE VIII
DEFEASANCE
SECTION 8.01. DEFEASANCE ................................................................................ 58
ARTICLE IX
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MISCELLANEOUS
SECTION 9.01. CAPITAL APPRECIATION BONDS ............................................ 60
SECTION 9.02. SALE OF BONDS ........................................................................... 60
SECTION 9.03. SEVERABILITY OF INVALID PROVISIONS ............................. 60
SECTION 9.04. VALIDATION AUTHORIZED ...................................................... 60
SECTION 9.05. REPEAL OF INCONSISTENT RESOLUTIONS........................... 60
RESOLUTION 2017-_____
A RESOLUTION OF THE BOARD OF COUNTY
COMMISSIONERS OF COLLIER COUNTY, FLORIDA
AUTHORIZING THE ISSUANCE OF NOT EXCEEDING
$70,000,000 IN AGGREGATE PRINCIPAL AMOUNT OF
COLLIER COUNTY, FLORIDA TOURIST
DEVELOPMENT TAX REVENUE BONDS IN ONE OR
MORE SERIES, TO FINANCE AND/OR REFINANCE
COSTS OF THE ACQUISITION, CONSTRUCTION AND
EQUIPPING OF AN AMATEUR SPORTS COMPLEX;
PROVIDING FOR THE ISSUANCE OF ADDITIONAL
TOURIST DEVELOPMENT TAX REVENUE BONDS
FROM TIME TO TIME TO FINANCE AND/OR
REFINANCE QUALIFIED CAPITAL IMPROVEMENTS
WITHIN THE COUNTY; PLEDGING MONEYS
RECEIVED BY THE COUNTY FROM THE TOURIST
DEVELOPMENT TAX TO SECURE PAYMENT OF THE
PRINCIPAL OF AND INTEREST ON BONDS ISSUED
HEREUNDER; PROVIDING FOR THE RIGHTS OF THE
HOLDERS OF BONDS ISSUED HEREUNDER; MAKING
CERTAIN OTHER COVENANTS AND AGREEMENTS IN
CONNECTION WITH BONDS ISSUED HEREUNDER;
AND PROVIDING AN EFFECTIVE DATE.
BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF
COLLIER COUNTY, FLORIDA:
ARTICLE I
GENERAL
SECTION 1.01. DEFINITIONS. When used in this Resolution, the
following terms shall have the following meanings, unless the context clearly otherwise
requires:
"Accreted Value" shall mean, as of any date of computation with respect to any
Capital Appreciation Bond, an amount equal to the principal amount of such Capital
Appreciation Bond (the principal amount at its initial offering) plus the interest accrued
on such Capital Appreciation Bond from the date of delivery to the original purchasers
thereof to the Interest Date next preceding the date of computation or the date of
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computation if an Interest Date, such interest to accrue at a rate not exceeding the legal
rate, compounded semiannually, plus, with respect to matters related to the payment upon
redemption or acceleration of the Capital Appreciation Bonds, if such date of
computation shall not be an Interest Date, a portion of the difference between the
Accreted Value as of the immediately preceding Interest Date and the Accreted Value as
of the immediately succeeding Interest Date, calculated based on the assumption that
Accreted Value accrues during any semi-annual period in equal daily amounts on the
basis of a 360 day year.
"Act" shall mean Section 125.0104, Florida Statutes, Chapter 125, Florida
Statutes, the Tourist Development Tax Ordinance, the Constitution of the State of Florida
and other applicable provisions of law.
"Additional Bonds" shall mean the obligations issued at any time under the
provisions of Section 5.02 hereof on parity with the Series 2017 Bonds.
"Amortization Installment" shall mean an amount designated as such by, or
provided for pursuant to, this Resolution or Supplemental Resolution of the Issuer and
established with respect to the Term Bonds.
"Annual Debt Service" shall mean the aggregate amount of Debt Service on the
Bonds for each applicable Fiscal Year.
"Authorized Investments" shall mean any investments that may be made by the
Issuer under applicable law and which are allowed under the Issuer's investment policy.
"Authorized Issuer Officer" shall mean the County Manager, the Chairman, and
the Clerk, and when used in reference to any act or document, also means any other
person authorized by resolution of the Issuer to perform such act or sign such document.
"Board" shall mean the Board of County Commissioners of the Issuer.
"Bond Amortization Account" shall mean the separate account in the Debt
Service Fund established pursuant to Section 4.04(B) hereof.
"Bond Counsel" shall mean Nabors, Giblin & Nickerson, P.A. or any other
attorney at law or firm of attorneys, of nationally recognized standing in mat ters
pertaining to the federal tax exemption of interest on obligations issued by states and
political subdivisions, and duly admitted to practice law before the highest court of any
state of the United States of America.
"Bond Insurance Policy" shall mean the municipal bond new issue insurance
policy or policies issued by an Insurer guaranteeing the payment of the principal of and
interest on any portion of the Bonds.
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"Bondholder" or "Holder" or "holder" or any similar term, when used with
reference to a Bond or Bonds, shall mean any person who shall be the registered owner of
any Outstanding Bond or Bonds as provided in the registration books of the Issuer.
"Bonds" shall mean the Series 2017 Bonds, together with any Additional Bonds
issued pursuant to this Resolution and any Subordinated Indebtedness which accedes to
the status of Bonds pursuant to Section 5.04 hereof.
"Capital Appreciation Bonds" shall mean those Bonds of a Series so designated
under the authority of the Issuer, whether by Supplemental Resolution, purchase contract,
or otherwise, which may be either Serial Bonds or Term Bonds and which shall bear
interest payable at maturity or redemption. In the case of Capital Appreciation Bonds
that are convertible to Bonds with interest payable prior to maturity or redemption of
such Bonds, such Bonds shall be considered Capital Appreciation Bonds only during the
period of time prior to such conversion.
"Chairman" shall mean the Chairman of the Board or in his or her absence or
unavailability, the Vice-Chairman of the Board or any other member of the Board that is
lawfully authorized to act on behalf of the Chairman.
"Clerk" shall mean the Clerk of the Circuit Court and County Comptroller of
Collier County, Florida and ex-Officio Clerk of the Board, and duly appointed deputy
clerk and such other person as may be duly authorized to act on his or her behalf.
"Code" shall mean the Internal Revenue Code of 1986, as amended, and the
regulations and rules thereunder in effect or proposed.
"Construction Fund" shall mean the fund established pursuant to Section 4.03
hereof.
"Cost", when used in connection with a Project, shall mean (1) the Issuer's cost of
physical construction; (2) costs of acquisition by or for the Issuer of such Project; (3)
costs of land and interests therein and the cost of the Issuer incidental to such acquisition;
(4) the cost of any indemnity and surety bonds and premiums for insurance during
construction; (5) all interest due to be paid on the Bonds and other obligations during the
period of acquisition and construction of such Project and for such period subsequent to
completion as the Issuer shall determine; (6) engineering, legal and other consultant fees
and expenses; (7) costs and expenses of the financing, including audits, fees and expenses
of any Paying Agent, Registrar or depository; (8) amounts, if any, required by this
Resolution to be paid into the Interest Account upon the issuance of any Series of Bonds;
(9) payments, when due (whether at the maturity of principal or the due date of interest or
upon redemption) on any indebtedness of the Issuer (other than the Bonds) incurred for a
Project; (10) costs of machinery, equipment and supplies and reserves required by the
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Issuer for the commencement of operation of such Project; and (11) any other costs
properly attributable to such construction or acquisition, as determined by generally
accepted accounting principles applicable to the Issuer, and shall include reimbursement
to the Issuer for any such items of Cost heretofore paid by the Issuer and interest on any
interfund loan related thereto. Any Supplemental Resolution may provide for additional
items to be included in the aforesaid Costs.
"Counterparty" shall mean the entity entering into a Hedge Agreement with the
Issuer. Counterparty would also include any guarantor of such entity's obligations under
such Hedge Agreement.
"County Manager" shall mean the County Manager of the Issuer and any duly
appointed and acting Assistant or Deputy County Manager of the Issuer and such other
person as may be duly authorized to act on his or her behalf.
"Credit Bank" shall mean as to any particular Series of Bonds, the Person (other
than an Insurer) providing a letter of credit, a line of credit or other credit or liquidity
facility, as designated in the Supplemental Resolution providing for the issuance of such
Bonds.
"Credit Facility" shall mean as to any particular Series of Bonds, an irrevocable
letter of credit, a line of credit or other credit or legal liquidity facility (other than an
insurance policy issued by an Insurer), as approved in the Supplemental Resolu tion
providing for the issuance of such Bonds.
"Debt Service" shall mean, at any time, the aggregate amount in the then
applicable period of time of (1) interest required to be paid on the Outstanding Bonds
during such period of time, except to the extent that such interest is to be paid from
deposits in the Interest Account or Construction Fund made from Bond proceeds for such
purpose, (2) principal of Outstanding Serial Bonds maturing in such period of time, and
(3) the Amortization Installments scheduled to be paid during such period of time. For
purposes of this definition, (A) all amounts payable on a Capital Appreciation Bond shall
be considered a principal payment in the year it becomes due, (B) with respect to debt
service on any Bonds which relate to a Qualified Hedge Agreement, interest on such
Bonds during the term of such Qualified Hedge Agreement shall be deemed to be the
Hedge Payments coming due during such period of time, (C) if any Series of Bonds has
25% or more of the aggregate principal amount of such Series coming due in any one
year, Debt Service shall be determined on such Series during such period of time as if the
principal of and interest on such Series were being paid from the date of issuance thereof
in substantially equal annual amounts over a period of 25 years, (D) the amount, if any,
on deposit in the Reserve Account (or any subaccount thereof) on any date of calculation
of Debt Service shall be deducted from the amount of principal due at the final maturity
of the Bonds which are secured by such Reserve Account (or subaccount thereof) and in
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each preceding year until such amount is exhausted, and (E) with respect to Debt Service
on any Federal Subsidy Bonds, when determining the interest on such Bonds for any
particular Interest Date the amount of the corresponding Federal Subsidy Payment shall
be deducted from the amount of interest which is due and payable to the holders of such
Bonds on the Interest Date, but only to the extent that the Issuer reasonably believes that
it will be in receipt of such Federal Subsidy Payment on or prior to such Interest Date.
"Debt Service Fund" shall mean the fund established pursuant to Section 4.04(B)
hereof.
"Federal Securities" shall mean non-callable direct obligations of the United
States of America (including obligations issued or held in book -entry form on the books
of the Department of Treasury) or non-callable obligations the principal of and interest on
which are unconditionally guaranteed by the United States of America.
"Federal Subsidy Bonds" shall mean Bonds issued under Section 54AA of the
Code, Section 1400U-2 of the Code or any other applicable provision of the Code, the
interest on which is not exempt from federal income taxation, with respect to which the
Issuer elects to receive, or is otherwise entitled to receive, Federal Subsidy Payments
from the United States Department of Treasury.
"Federal Subsidy Payments" shall mean the direct payments made by the United
States Department of Treasury to the Issuer with respect to any Federal Subsidy Bonds
pursuant to Sections 54AA(g), 6431 and 1400U-2 of the Code, or any other applicable
provision of the Code.
"Financial Advisor" shall mean, initially, PFM Financial Advisors LLC, Miami,
Florida, and its successors and assigns, and any entity subsequently selected by the Issuer
to serve as the Issuer's Financial Advisor.
"Fiscal Year" shall mean the period commencing on October 1 of each year and
continuing through the next succeeding September 30, or such other period as may be
prescribed by law.
"Fitch" means Fitch Ratings and any assigns and successors thereto.
Hedge Agreement" shall mean an agreement in writing between the Issuer and
the Counterparty pursuant to which (1) the Issuer agrees to pay to the Counterparty an
amount, either at one time or periodically, which may, but is not required to, be
determined by reference to the amount of interest (which may be at a fixed o r variable
rate) payable on a notional amount specified in such agreement during the period
specified in such agreement and (2) the Counterparty agrees to pay to the Issuer an
amount, either at one time or periodically, which may, but is not required to, be
6
determined by reference to the amount of interest (which may be at a fixed or variable
rate) payable on all or a portion of a notional amount specified in such agreement during
the period specified in such agreement. Hedge Agreement shall also include any
financial product or agreement which is used by the Issuer as a hedging device with
respect to its obligations to pay interest on Bonds, or any portion thereof, which is
designated by the Issuer as "Hedge Agreement."
"Hedge Payments" shall mean any amounts payable by the Issuer as interest on
the related notional amount under a Qualified Hedge Agreement; excluding, however,
any payments due as a penalty or a fee or by virtue of termination of a Qualified Hedge
Agreement or any obligation to provide collateral.
"Hedge Receipts" shall mean any amounts receivable by the Issuer on the related
notional amount under a Qualified Hedge Agreement.
"Initial Project" shall mean the development, acquisition, construction and
equipping of a regional tournament caliber amateur sports complex complete with eight
multi-purpose fields, parking, championship stadium, and a field house with indoor
courts and fields in order to attract world class amateur sporting events, all to be located
on approximately 110 acres, as more particularly described in the plans and specifications
on file with the Issuer, as the same may be amended or modified from time to time.
"Insurer" shall mean, with respect to a particular Series of Bonds, such Person as
shall have issued a Bond Insurance Policy insuring such Series of Bonds, and its
successors and assigns.
"Interest Account" shall mean the separate account in the Debt Service Fund
established pursuant to Section 4.04(B) hereof.
"Interest Date" or "interest payment date" shall be such date or dates for the
payment of interest on the Bonds as provided pursuant to Section 2.01 hereof.
"Investment Earnings" shall mean all income and earnings derived from the
investment of moneys in the funds and accounts established hereunder, other than the
Rebate Fund.
"Issuer" shall mean Collier County, Florida
"Maximum Annual Debt Service" shall mean the largest aggregate amount of the
Annual Debt Service becoming due in any Fiscal Year in which Bonds are Outstanding.
"Maximum Interest Rate" shall mean, with respect to any particular Variable
Rate Bonds, a numerical rate of interest, which shall be set forth in, or determined in
accordance with, the Supplemental Resolution of the Issuer authorizing the issuance of
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such Bonds, that shall be the maximum rate of interest such Bonds may at any particular
time bear.
"Moody's" shall mean Moody's Investors Service, and any assigns and successors
thereto.
"Outstanding", when used with reference to Bonds and as of any particular date,
shall describe all Bonds theretofore and thereupon being authenticated and delivered
except, (1) any Bond in lieu of which other Bond or Bonds have been issued under
agreement to replace lost, mutilated or destroyed Bonds, (2) any Bond surrendered by the
Holder thereof in exchange for other Bond or Bonds under Sections 2.05 and 2.07 hereof,
(3) Bonds deemed to have been paid pursuant to Section 8.01 hereof and (4) Bonds
cancelled after purchase in the open market or because of payment at or redemption prior
to maturity.
"Paying Agent" shall mean for each Series of Bonds, the paying agent appointed
by the Issuer for such Series of Bonds and its successor or assigns, if any.
"Person" shall mean an individual, a corporation, a partnership, an association, a
joint stock company, a trust, any unincorporated organization, governmental entity or
other legal entity.
"Pledged Funds" shall mean (1) the Tourist Development Tax Revenues, and (2)
until applied in accordance with the provisions of this Resolution, all moneys, including
investments thereof, in the funds and accounts established hereunder except (A) for the
Unrestricted Revenue Account and the Rebate Fund and (B) any moneys set aside in a
particular subaccount of the Reserve Account if such moneys shall be pledged solely for
the payment of a different Series of Bonds for which it was established in accordance
with the provisions hereof.
"Policy Costs" shall mean, collectively, the repayment of draws, reasonable
expenses and interest related to a Reserve Account Insurance Policy and/or Reserve
Account Letter of Credit.
"Prerefunded Obligations" shall mean any bonds or other obligations of any state
of the United States of America or of any agency, instrumentality or local governmental
unit of any such state (1) which are (A) not callable prior to ma turity or (B) as to which
irrevocable instructions have been given to the fiduciary for such bonds or other
obligations by the obligor to give due notice of redemption and to call such bonds for
redemption on the date or dates specified in such instructions, (2) which are fully secured
as to principal, redemption premium, if any, and interest by a fund held by a fiduciary
consisting only of cash or Federal Securities, secured in substantially the manner set forth
in Section 8.01 hereof, which fund may be ap plied only to the payment of such principal
8
of, redemption premium, if any, and interest on such bonds or other obligations on the
maturity date or dates thereof or the specified redemption date or dates pursuant to such
irrevocable instructions, as the case may be, (3) as to which the principal of and interest
on the Federal Securities, which have been deposited in such fund along with any cash on
deposit in such fund are sufficient, as verified by an independent certified public
accountant or other expert in such matters, to pay principal of, redemption premium, if
any, and interest on the bonds or other obligations on the maturity date or dates thereof or
on the redemption date or dates specified in the irrevocable instructions referred to in
clause (1) above and are not available to satisfy any other claims, including those against
the fiduciary holding the same, and (4) which are rated in the highest rating category
(without regard to gradations, such as "+" or "-" or "1, 2 or 3" of such categories) of one
of the Rating Agencies.
"Principal Account" shall mean the separate account in the Debt Service Fund
established pursuant to Section 4.04(B) hereof.
"Project" shall mean any structure, property or facility for public use which the
Issuer from time to time may determine to construct, acquire or equip, together with all
equipment, structures and other facilities necessary or appropriate in connection
therewith which are financed in whole or in part with the indebtedness secured by this
Resolution. This term is to be broadly construed as including any lawful undertaking
which will accrue to the benefit of the Issuer, including, without limitation, financing
improvements to the Issuer's facilities, joint ventures and acquisition of partial interests or
contractual rights, and including modification, disposal, replacement or cancellation of a
Project previously authorized, should such modification, disposal, replacement or
cancellation be permitted under this Resolution. The Initial Project constitutes a Project
hereunder.
"Qualified Hedge Agreement" shall mean a Hedge Agreement with a
Counterparty that at the time it enters into such Hedge Agreement is rated "A-" or better
by Standard & Poor's and "A3" or better by Moody's.
"Rating Agencies" means Fitch, Moody's and Standard & Poor's.
"Rebate Fund" shall mean the Rebate Fund established pursuant to Section
4.04(C) hereof.
"Redemption Price" shall mean, with respect to any Bond or portion thereof, the
principal amount or portion thereof, plus the applicable premium, if any, payable upon
redemption thereof pursuant to such Bond or this Resolution.
"Refunding Securities" shall mean Federal Securities and Prerefunded
Obligations.
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"Registrar" shall mean for each Series of Bonds, the bond registrar appointed by
the Issuer for such Series of Bonds and its successor or assigns, if any.
"Reserve Account" shall mean the separate account in the Debt Service Fund
established pursuant to Section 4.04(B) hereof.
"Reserve Account Insurance Policy" shall mean the insurance policy deposited
in the Reserve Account in lieu of or in partial substitution for cash on deposit th erein
pursuant to Section 4.05(A)(4).
"Reserve Account Letter of Credit" shall mean a letter of credit or line of credit
or other credit facility (other than a Reserve Account Insurance Policy) deposited in the
Reserve Account in lieu of or in partial substitution for cash on deposit therein pursuant
to Section 4.05(A)(4) hereof.
"Reserve Account Requirement" shall mean, as of any date of calculation for the
Reserve Account, an amount equal to the lesser of (1) Maximum Annual Debt Service for
all Outstanding Bonds secured thereby, (2) 125% of the average Annual Debt Service for
all Outstanding Bonds secured thereby, or (3) the maximum amount of Bond proceeds
which may be deposited to the Reserve Account without subjecting the same to yield
restriction under the Code, or causing interest on any of the Bonds (other than Taxable
Bonds) to be included in gross income for purposes of federal income taxation; provided,
however, the Issuer may establish hereby or by Supplemental Resolution a different
Reserve Account Requirement with respect to any particular Series of Bonds pursuant to
Section 4.05(A)(4) hereof, which Reserve Account Requirement may be $0.00. In
computing the Reserve Account Requirement in respect of a Series of Bonds that
constitutes Variable Rate Bonds, the interest rate on such Bonds shall be assumed to be
(A) if such Variable Rate Bonds have been Outstanding for at least 12 months prior to the
date of calculation, the highest of (i) the actual rate of interest on the date of calculation,
(ii) the average interest rate borne by such Variable Rate Bonds for the 12-month period
preceding each date of calculation, and (iii) the Bond Buyer Revenue Bond Index most
recently published prior to the time of calculation, and (B) if such Variable Rate Bonds
have not been Outstanding for at least 12 months prior to the date of calculation, the
higher of (i) the actual rate of interest on the date of calculation, and (ii) the Bond Buyer
Revenue Bond Index most recently published prior to the time of calculation. The
Reserve Account Requirement shall be calculated, and the investments on deposit in the
Reserve Account shall be valued, as of September 30 of each year with respect to the
next succeeding Fiscal Year.
"Resolution" shall mean this Resolution, as the same may from time to time be
amended, modified or supplemented by Supplemental Resolution.
10
"Restricted Revenue Account" shall mean the separate account in the Revenue
Fund established pursuant to Section 4.04(A) hereof.
"Revenue Fund" shall mean the fund created pursuant to Section 4.04(A) hereof.
"Serial Bonds" shall mean all of the Bonds other than the Term Bonds.
"Series" shall mean all the Bonds delivered on original issuance in a simultaneous
transaction and identified pursuant to Sections 2.01 and 2.02 hereof or a Supplemental
Resolution authorizing the issuance by the Issuer of such Bonds as a separate Series,
regardless of variations in maturity, interest rate, Amortization Installments or other
provisions.
"Series 2017 Bonds" shall mean the Collier County, Florida Tourist Development
Tax Revenue Bonds, Series 2017, authorized pursuant to Section 2.02 hereof. The Series
2017 Bonds shall collectively include all Series of the Series 2017 Bonds issued
hereunder if the Series 2017 Bonds are issued in more than one Series pursuant to Section
2.02 hereof.
"Standard and Poor's" or "S&P" shall mean Standard and Poor's Ratings
Services, and any assigns and successors thereto.
"State" shall mean the State of Florida.
"Subordinated Indebtedness" shall mean that indebtedness of the Issuer,
subordinate and junior to the Bonds, issued in accordance with the provisions of Section
5.01 hereof or deemed subordinate and junior to the Bonds in accordance with the
provisions hereof or in accordance with the provisions of such Subordinated
Indebtedness.
"Supplemental Resolution" shall mean any resolution of the Issuer amending or
supplementing this Resolution enacted and becoming effective in accordance with the
terms of Sections 7.01, 7.02 and 7.03 hereof.
"Taxable Bonds" shall mean any Bond which states, in the body thereof, that the
interest income thereon is includable in the gross income of the Holder thereof for federal
income taxation purposes or that such interest is subject to federal income taxation.
Notwithstanding the foregoing, except as otherwise provided herein, Taxable Bonds shall
not include Federal Subsidy Bonds.
"Term Bonds" shall mean those Bonds which shall be designated as or authorized
to be Term Bonds hereby or by Supplemental Resolution of the Issuer and which are
subject to mandatory redemption by Amortization Installments.
11
"Tourist Development Tax Ordinance" shall mean Ordinance No. 92-60
enacted by the Board on August 18, 1992, as amended and supplemented from time to
time, particularly as amended by an Ordinance enacted by the Board on July 11, 2017.
"Tourist Development Tax Revenues" shall mean the proceeds of the tourist
development tax received by the Issuer from its levy of such tax at the rate of five percent
(5%) pursuant to the Tourist Development Tax Ordinance, and, to the extent provided by
Supplemental Resolution of the Issuer, any additional tourist development tax moneys
received by the Issuer pursuant to the Act. "Tourist Development Tax Revenues" shall
not include proceeds of any future increases in the tourist development tax above the fifth
percent (5th%) received by the Issuer pursuant to the Act, except as otherwise provided
by Supplemental Resolution. Notwithstanding the foregoing, in the event a Series of
Bonds is issued hereunder the proceeds of which are to be used to finance or refinance a
Project for which not all of the tourist development tax proceeds received by the Issuer
may be used for the payment of Debt Service on such Series of Bonds pursuant to the
Act, or the Issuer determines that it does not want to utilize or pledge all of the tourist
development tax proceeds generated from the five percent (5%) tax rate, the Tourist
Development Tax Revenues with respect to such Series of Bonds shall be those tourist
development tax proceeds set forth in the Supplemental Resolution authorizing the
issuance of such Series of Bonds.
"Unrestricted Revenue Account" shall mean the separate account in the Revenue
Fund established pursuant to Section 4.04(A) hereof.
"Variable Rate Bonds" shall mean Bonds issued with a variable, adjustable,
convertible or other similar rate which is not fixed in percentage for the entire term
thereof at the date of issue.
The terms "herein," "hereunder," "hereby," "hereto," "hereof," and any similar
terms, shall refer to this Resolution; the term "heretofore" shall mean before the date of
adoption of this Resolution; and the term "hereafter" shall mean after the date of adoption
of this Resolution.
Words importing the masculine gender include every other gender.
Words importing the singular number include the plural number, and vice versa.
SECTION 1.02. AUTHORITY FOR RESOLUTION. This Resolution is
adopted pursuant to the provisions of the Act. The Issuer has ascertained and hereby
determined that adoption of this Resolution is necessary to carry out the powers, purposes
and duties expressly provided in the Act, that each and every matter and thing as to which
provision is made herein is necessary in order to carry out and effectuate the purposes of
the Issuer in accordance with the Act and to carry out and effectuate the plan and purpose
12
of the Act, and that the powers of the Issuer herein exercised are in each case exercised in
accordance with the provisions of the Act and in furtherance of the purposes of the Issuer.
SECTION 1.03. RESOLUTION TO CONSTITUTE CONTRACT. In
consideration of the purchase and acceptance of any or all of the Bonds by those who
shall hold the same from time to time, the provisions of this Resolution shall be a part of
the contract of the Issuer with the Holders of the Bonds, and shall be deemed to be and
shall constitute a contract between the Issuer, the Holders from time to time of the Bonds
and any Insurer or Credit Bank. The pledge made in the Resolution and the provisions,
covenants and agreements herein set forth to be performed by or on behalf of the Issuer
shall be for the equal benefit, protection and security of the Holders of any and all of said
Bonds and any Insurer or Credit Bank, but only in accordance with the terms hereof. All
of the Bonds, regardless of the time or times of their issuance or maturity, shall be of
equal rank without preference, priority or distinction of any of the Bonds over any other
thereof except as expressly provided in or pursuant to this Resolution.
SECTION 1.04. FINDINGS. It is hereby ascertained, determined and
declared that:
(A) Pursuant to the Act, the Issuer is authorized to pledge the Tourist
Development Tax Revenues to pay the principal of, premium, if any, and interest on
Bonds.
(B) It is necessary and desirable and in the best interests of the Issuer to borrow
moneys from time to time to finance and refinance capital improvements within the
Issuer.
(C) One of the main purposes of the Initial Project will be the attraction of
tourists and the Issuer intends to promote the Initial Project to attract tourists.
(D) The Issuer hereby determines that the Initial Project should be acquired,
constructed and equipped in order to promote tourism and attract tourists within the
Issuer and to improve the health, safety and welfare of the Issuer's inhabitants.
(E) It is in the best interest of the Issuer to f inance Costs of the Initial Project
through the issuance of the Series 2017 Bonds pursuant to the provisions of this
Resolution.
(F) The Series 2017 Bonds and any Additional Bonds and Subordinated
Indebtedness subsequently issued hereunder shall be secured by the Pledged Funds as
provided herein and such Pledged Funds have not previously been pledged or
encumbered.
13
(G) The estimated Pledged Funds to be received in each Fiscal Year hereafter
will be sufficient to pay the principal of and interest on the Series 2017 Bonds, as the
same become due, and all other payments provided for in this Resolution.
(H) The principal of and interest on the Bonds and any Subordinated
Indebtedness that may be issued pursuant to this Resolution, and all other payments
provided for in this Resolution, will be paid solely from the Pledged Funds in accordance
with the terms hereof and in the manner provided here; the Bonds and any Subordinated
Indebtedness issued hereunder shall not constitute a general obligation, or a pledge of the
faith, credit or taxing power of the Issuer, the State of Florida, or any political subdivision
thereof, within the meaning of any constitutional or statutory provisions and neither the
State of Florida, nor any political subdivision thereof, and the ad valorem taxing power of
the Issuer will never be necessary or authorized to pay the principal of and interest on the
Bonds or any Subordinated Indebtedness to be issued pursuant to this Resolution, or to
make any other payments provided for in this Resolution, and neither the Bonds nor any
Subordinated Indebtedness shall constitute a lien upon any other property whatsoever of
or in the Issuer.
SECTION 1.05. AUTHORIZATION OF THE INITIAL PROJECT;
REIMBURSEMENT. The acquisition, construction and equipping of the Initial Project
is hereby authorized and approved. The Issuer is authorized to reimburse itself for any of
its own funds it has expended for the Initial Project in accordance with the provisions of
the Code and which are approved by Bond Counsel.
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14
ARTICLE II
AUTHORIZATION, TERMS, EXECUTION AND REGISTRATION OF BONDS
SECTION 2.01. AUTHORIZATION OF BONDS. This Resolution creates
an issue of Bonds of the Issuer to be designated as "Collier County, Florida Tourist
Development Tax Revenue Bonds" which may be issued in one or more Series as
hereinafter provided. The aggregate principal amount of the Bonds which may be
executed and delivered under this Resolution is not limited except as is or may hereafter
be provided in this Resolution or as limited by the Act. The designation of any particular
Series of Bonds may be modified by the Supplemental Resolution authorizing such Series
in order to better describe it.
The Bonds may, if and when authorized by the Issuer pursuant to this Resolution,
be issued in one or more Series, with such further appropriate particular designations
added to or incorporated in such title for the Bonds of any particular Series as the Issuer
may determine and as may be necessary to distinguish such Bonds from the Bonds of any
other Series. Each Bond shall bear upon its face the designation so determined for the
Series to which it belongs.
The Bonds shall be issued for such purpose or purposes; shall bear interest at su ch
rate or rates not exceeding the maximum rate permitted by law; and shall be payable in
lawful money of the United States of America on such dates; all as determined by
Supplemental Resolution of the Issuer.
The Bonds shall be issued in such denominations and such form, whether coupon
or registered; shall be dated such date; shall bear such numbers; shall be payable at such
place or places; shall contain such redemption provisions; shall have such Paying Agents
and Registrars; shall mature in such years and amounts; shall bear interest at such rates,
shall have such Interest Dates and the proceeds shall be used in such manner; all as
determined or provided for by Supplemental Resolution of the Issuer. The Issuer may
issue Bonds which may be secured by a Credit Facility or by a Bond Insurance Policy of
an Insurer all as shall be determined by Supplemental Resolution of the Issuer. The
Board may delegate approval of the terms, details and sale of a Series of Bonds to an
Authorized Issuer Officer pursuant to Supplemental Resolution.
SECTION 2.02. AUTHORIZATION AND DESCRIPTION OF SERIES
2017 BONDS. A Series of Bonds entitled to the benefit, protection and security of this
Resolution is hereby authorized in the aggregate principal amount of not exceeding
$70,000,000 for the principal purposes of financing and/or refinancing costs of the Initial
Project, capitalizing a portion of the Series 2017 Bonds, if necessary or desirable, funding
the Reserve Account, if necessary or desirable, and paying costs of issuance of the Series
2017 Bonds, including but not limited to paying the premiums for any required or desired
15
Bond Insurance Policy or Reserve Account Insurance Policy. Such Series of Bonds shall
be designated as "Collier County, Florida Tourist Development Tax Revenue Bonds,
Series 2017;" provided, however, the Series designation may be changed to reflect the
year in which such Bonds are sold and/or issued. The aggregate principal amount of the
Series 2017 Bonds to be issued pursuant to the Resolution shall be determined by the
County Manager provided such aggregate principal amount does not exceed $70,000,000.
The Series 2017 Bonds shall be dated as of their date of delivery or such other date as the
County Manager may determine, shall be issued in the for m of fully registered Bonds in
the denomination of $5,000 or any integral multiple thereof, shall be numbered
consecutively from one upward in order of maturity preceded by the letter "R", shall bear
interest from their date of delivery, payable semi -annually, on April 1 and October 1 of
each year, commencing on such date as may be determined by the C ounty Manager (each
an "Interest Date"); provided, however, the County Manager may determine different
Interest Dates, in his discretion, prior to the issuance of the Series 2017 Bonds.
Interest on the Series 2017 Bonds shall be payable by check or draft of the Paying
Agent, made payable and mailed to the Holder in whose name such Series 2017 Bond
shall be registered at the close of business on the date which shall be the fifteenth day
(whether or not a business day) of the calendar month next preceding the applicable
Interest Date, or, at the request of such Holder, by bank wire transfer to the account of
such Holder. Principal of the Series 2017 Bonds is payable to the Holder upon
presentation, when due, at the designated corporate trust office of the Paying Agent. All
payments of principal, premium, if applicable, and interest on the Series 2017 Bonds
shall be payable in any coin or currency of the United States of America which at the
time of payment is legal tender for the payment of public and private debts. The Paying
Agent and Registrar shall be determined pursuant to Supplemental Resolution.
The Series 2017 Bonds shall bear interest at such rates (calculated on the basis of a
360 day year of twelve 30 day months) and yields, shall mature on October 1 (or such
other date as is determined by the County Manager in his discretion, prior to the issuance
of the Series 2017 Bonds) of each of the years and in the principal amounts
corresponding to such years, and shall have such redemption provisions as determined by
the County Manager, upon the advice of the Financial Advisor and Bond Counsel,
subject to the conditions to be set forth in a Supplemental Resolution relating to the
Series 2017 Bonds. The Series 2017 Bonds shall be sold in such manner as provided by a
Supplemental Resolution relating to the Series 2017 Bonds.
SECTION 2.03. EXECUTION OF BONDS. The Bonds shall be executed in
the name of the Issuer with the manual or facsimile signature of the Chairman and the
official seal of the Issuer shall be imprinted thereon, attested and countersigned with the
manual or facsimile signature of the Clerk. In case any one or more of the officers who
shall have signed or sealed any of the Bonds or whose facsimile signature shall appear
16
thereon shall cease to be such officer of the Issuer before the Bonds so signed and sealed
have been actually sold and delivered such Bonds may nevertheless be sold and deliv ered
as herein provided and may be issued as if the person who signed or sealed such Bonds
had not ceased to hold such office. Any Bond may be signed and sealed on behalf of the
Issuer by such person who at the actual time of the execution of such Bond shall hold the
proper office of the Issuer, although at the date of such Bond such person may not have
held such office or may not have been so authorized. The Issuer may adopt and use for
such purposes the facsimile signatures of any such persons who shall have held such
offices at any time after the date of the adoption of this Resolution, notwithstanding that
either or both shall have ceased to hold such office at the time the Bonds shall be actually
sold and delivered.
SECTION 2.04. AUTHENTICATION. No Bond of any Series shall be
secured hereunder or entitled to the benefit hereof or shall be valid or obligatory for any
purpose unless there shall be manually endorsed on such Bond a certificate of
authentication by the Registrar or such other entity as may be approved by the Issuer for
such purpose. Such certificate on any Bond shall be conclusive evidence that such Bond
has been duly authenticated and delivered under this Resolution. The form of such
certificate shall be substantially in the form provided in Section 2.08 hereof.
SECTION 2.05. TEMPORARY BONDS. Until the definitive Bonds of any
Series are prepared, the Issuer may execute, in the same manner as is provided in Section
2.03, and deliver, upon authentication by the Registrar pursuant to Section 2.04 hereof, in
lieu of definitive Bonds, but subject to the same provisions, limitations and conditions as
the definitive Bonds, except as to the denominations thereof, one or more temporary
Bonds substantially of the tenor of the definitive Bonds in lieu of which such temporary
Bond or Bonds are issued, in denominations authorized by the Issuer by subsequent
resolution and with such omissions, insertions and variations as may be appropriate to
temporary Bonds. The Issuer, at its own expense, shall prepare and execute definitive
Bonds, which shall be authenticated by the Registrar. Upon the surrender of such
temporary Bonds for exchange, the Registrar, without charge to the Holder thereof, shall
deliver in exchange therefor definitive Bonds, of the same aggregate principal amount
and Series and maturity as the temporary Bonds surrendered. Until so exchanged, the
temporary Bonds shall in all respects be entitled to the same benefits and security as
definitive Bonds issued pursuant to this Resolution. All temporary Bonds surrendered in
exchange for another temporary Bond or Bonds or for a definitive Bond or Bonds shall
be forthwith cancelled by the Registrar.
SECTION 2.06. BONDS MUTILATED, DESTROYED, STOLEN OR
LOST. In case any Bond shall become mutilated, or be destroyed, stolen or lost, the
Issuer may, in its discretion, issue and deliver, and the Registrar shall authenticate, a new
Bond of like tenor as the Bond so mutilated, destroyed, stolen or lost, in exchange and
17
substitution for such mutilated Bond upon surrender and cancellation of such mutilated
Bond or in lieu of and substitution for the Bond destroyed, stolen or lost, and upon the
Holder furnishing the Issuer and the Registrar proof of his ownership thereof and
satisfactory indemnity and complying with such other reasonable regulations and
conditions as the Issuer or the Registrar may prescribe and paying such expenses as the
Issuer and the Registrar may incur. All Bonds so surrendered shall be cancelled by the
Registrar. If any of the Bonds shall have matured or be about to mature, instead of
issuing a substitute Bond, the Issuer may pay the same or cause the Bond to be paid, upon
being indemnified as aforesaid, and if such Bonds be lost, stolen or destroyed, without
surrender thereof.
Any such duplicate Bonds issued pursuant to this Section 2.06 shall constitute
original, additional contractual obligations on the part of the Issuer whether or not the
lost, stolen or destroyed Bond be at any time found by anyone, and such duplicate Bond
shall be entitled to equal and proportionate benefits and rights as to lien on the Pledged
Funds to the same extent as all other Bonds issued hereunder.
SECTION 2.07. INTERCHANGEABILITY, NEGOTIABILITY AND
TRANSFER. Bonds, upon surrender thereof at the office of the Registrar with a written
instrument of transfer satisfactory to the Registrar, duly executed by the Holder thereof or
his attorney duly authorized in writing, may, at the option of the Holder thereof, be
exchanged for an equal aggregate principal amount of registered Bonds of the same
Series and maturity of any other authorized denominations.
The Bonds issued under this Resolution shall be and have all the qualities and
incidents of negotiable instruments under the law merchant and the Uniform Commercial
Code of the State of Florida, subject to the provisions for registration and transfer
contained in this Resolution and in the Bonds. So long as any of the Bonds shall remain
Outstanding, the Issuer shall maintain and keep, at the office of the Registrar, books for
the registration and transfer of the Bonds.
Each Bond shall be transferable only upon the books of the Issuer, at the office of
the Registrar, under such reasonable regulations as the Issuer may prescribe, by the
Holder thereof in person or by his attorney duly authorized in writing upon surrender
thereof together with a written instrument of transfer satisfactory to the Registrar duly
executed and guaranteed by the Holder or his duly authorized attorney. Upon the transfer
of any such Bond, the Issuer shall issue, and cause to be authenticated, in the name of the
transferee a new Bond or Bonds of the same aggregate principal amount and Series and
maturity as the surrendered Bond. The Issuer, the Registrar and any Paying Agent or
fiduciary of the Issuer may deem and treat the Person in whose name any Outstanding
Bond shall be registered upon the books of the Issuer as the absolute owner of such Bond,
whether such Bond shall be overdue or not, for the purpose of receiving payment of, or
on account of, the principal or Redemption Price, if applicable, and interest on such Bond
18
and for all other purposes, and all such payments so made to any such Holder or upon his
order shall be valid and effectual to satisfy and discharge the liability up on such Bond to
the extent of the sum or sums so paid and neither the Issuer nor the Registrar nor any
Paying Agent or other fiduciary of the Issuer shall be affected by any notice to the
contrary.
The Registrar, in any case where it is not also the Paying Agent in respect to any
Series of Bonds, forthwith (A) following the fifteenth day prior to an Interest Date for
such Series; (B) following the fifteenth day next preceding the date of first mailing of
notice of redemption of any Bonds of such Series; and (C) at any other time as reasonably
requested by the Paying Agent of such Series, shall certify and furnish to such Paying
Agent the names, addresses and holdings of Bondholders and any other relevant
information reflected in the registration books. Any Paying Agent of any fully registered
Bond shall effect payment of interest on such Bonds by mailing a check to the Holder
entitled thereto or may, in lieu thereof, upon the request of such Holder, transmit such
payment by bank wire transfer for the account of such Holder.
In all cases in which the privilege of exchanging Bonds or transferring Bonds is
exercised, the Issuer shall execute and deliver Bonds and the Registrar shall authenticate
such Bonds in accordance with the provisions of this Resolution. Execution of Bonds by
the Chairman and Clerk for purposes of exchanging, replacing or transferring Bonds may
occur at the time of the original delivery of the Series of which such Bonds are a part .
All Bonds surrendered in any such exchanges or transfers shall be held by the Registrar
in safekeeping until directed by the Issuer to be cancelled by the Registrar. For every
such exchange or transfer of Bonds, the Issuer or the Registrar may make a charge
sufficient to reimburse it for any tax, fee, expense or other governmental charge required
to be paid with respect to such exchange or transfer. The Issuer and the Registrar shall
not be obligated to make any such exchange or transfer of Bonds of any Series during the
15 days next preceding an Interest Date on the Bonds of such Series (other than Capital
Appreciation Bonds and Variable Rate Bonds), or, in the case of any proposed
redemption of Bonds of such Series, then, for the Bonds subject to redemption, during the
15 days next preceding the date of the first mailing of notice of such redemption and
continuing until such redemption date.
The Issuer may elect to issue any Bonds as uncertificated registered public
obligations (not represented by instruments), commonly known as book-entry
obligations, provided it shall establish a system of registration therefor by Supplemental
Resolution.
SECTION 2.08. FORM OF BONDS. The text of the Bonds, except for
Capital Appreciation Bonds and Variable Rate Bonds, the form of which shall be
provided by Supplemental Resolution of the Issuer, shall be in substantially the following
form with such omissions, insertions and variations as may be necessary and/or desirable
19
and approved by the Chairman prior to the issuance thereof (which necessity and/or
desirability and approval shall be presumed by such officer's execution of the Bonds and
the Issuer's delivery of the Bonds to the purchaser or purchasers thereof):
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20
No. R- $
UNITED STATES OF AMERICA
STATE OF FLORIDA
COLLIER COUNTY, FLORIDA
TOURIST DEVELOPMENT TAX REVENUE BOND,
SERIES
Interest Maturity Date of
Rate Date Original Issue CUSIP
Registered Holder:
Principal Amount:
KNOW ALL MEN BY THESE PRESENTS, that Collier County, Florida, a
political subdivision of the State of Florida (the "Issuer"), for value received, hereby
promises to pay, solely from the Pledged Funds hereinafter described, to the Registered
Holder identified above, or registered assigns as hereinafter provided, on the Maturity
Date identified above, the Principal Amount identified above and to pay interest on such
Principal Amount from the Date of Original Issue identified above or from the most
recent interest payment date to which interest has been paid at the Interest Rate per
annum identified above on _________________ and ____________________ of each
year commencing _______________________________ until such Principal Amount
shall have been paid, except as the provisions hereinafter set forth with respect to
redemption prior to maturity may be or become applicable hereto.
Such Principal Amount and interest and the premium, if any, on this Bond are
payable in any coin or currency of the United States of America which, on the respective
dates of payment thereof, shall be legal tender for the payment of public and private
debts. Such Principal Amount and the premium, if any, on this Bond, are payable at the
designated corporate trust office of __________, as Paying Agent. Payment of each
installment of interest shall be made to the person in whose name this Bond shall be
registered on the registration books of the Issuer maintained by _______________,
________, _______, as Registrar, at the close of business on the date which shall be the
fifteenth day (whether or not a business day) next preceding each interest payment date
21
and shall be paid by a check of such Paying Agent mailed to such Registered Holder at
the address appearing on such registration books or, at the request of such Registered
Holder, by bank wire transfer for the account of such Holder. Interest shall be calculated
on the basis of a 360-day year of twelve 30-day months.
This Bond is one of an authorized issue of Bonds in the aggregate principal
amount of $___________ (the "Bonds") of like date, tenor and effect, except as to
maturity date, interest rate, denomination and number, issued to
___________________________, under the authority of and in full compliance with the
Constitution and laws of the State of Florida, particularly Chapter 125, Florida Statutes,
Section 125.0104, Florida Statutes, the Tourist Development Tax Ordinance (as defined
in the hereinafter defined Resolution), the Constitution of the State of Florida and other
applicable provisions of law (the "Act"), and Resolution No. ___ duly adopted by the
Board of County Commissioners of the Issuer on July 11, 2017, as the same may be
amended and supplemented (the "Resolution"), and is subject to all the terms and
conditions of the Resolution.
This Bond and the interest hereon are payable solely from and secured by a lien
upon and a pledge of (1) the Tourist Development Tax Revenues (as defined in the
Resolution), and (2) until applied in accordance with the provisions of the Resolution, all
moneys, including investments thereof, in the funds and accounts established under the
Resolution except (A) for the Unrestricted Revenue Account and the Rebate Fund (as
each is defined in the Resolution) and (B) any moneys set aside in a particular subaccount
of the Reserve Account (as defined in the Resolution) if such moneys shall be pledged
solely for the payment of a different Series of Bonds for which it was established in
accordance with the provisions of the Resolution (collectively, the "Pledged Funds").
IT IS EXPRESSLY AGREED BY THE REGISTERED HOLDER OF THIS
BOND THAT THE FULL FAITH AND CREDIT OF THE ISSUER, THE STATE OF
FLORIDA, OR ANY POLITICAL SUBDIVISION OR AGENCY THEREOF, ARE
NOT PLEDGED TO THE PAYMENT OF THE PRINCIPAL OF, PREMIUM, IF ANY,
AND INTEREST ON THIS BOND AND THAT SUCH HOLDER SHALL NEVER
HAVE THE RIGHT TO REQUIRE OR COMPEL THE EXERCISE OF ANY TAXING
POWER OF THE ISSUER, THE STATE OF FLORIDA, OR ANY POLITICAL
SUBDIVISION OR AGENCY THEREOF, TO THE PAYMENT OF SUCH
PRINCIPAL, PREMIUM, IF ANY, AND INTEREST. THIS BOND AND THE
OBLIGATION EVIDENCED HEREBY SHALL NOT CONSTITUTE A LIEN UPON
ANY PROPERTY OF THE ISSUER, BUT SHALL CONSTITUTE A LIEN ONLY ON,
AND SHALL BE PAYABLE SOLELY FROM, THE PLEDGED FUNDS. THE
ISSUER MAY ISSUE ADDITIONAL OBLIGATIONS ON PARITY WITH THE
BONDS IN ACCORDANCE WITH THE TERMS OF THE RESOLUTION.
22
[The Issuer has established a book-entry system of registration for the Bonds.
Except as specifically provided otherwise in the Resolution, an agent will hold this Bond
on behalf of the beneficial owner thereof. By acceptance of a confirmation of purchase,
delivery or transfer, the beneficial owner of this Bond shall be deemed to have agreed to
such arrangement.]
This Bond is transferable in accordance with the terms of the Resolution only
upon the books of the Issuer kept for that purpose at the designated corporate trust office
of the Registrar by the Registered Holder hereof in person or by his attorney duly
authorized in writing, upon the surrender of this Bond together with a written instrument
of transfer satisfactory to the Registrar duly executed by the Registered Holder or his
attorney duly authorized in writing, and thereupon a new Bond or Bonds in the same
aggregate principal amount shall be issued to the transferee in exchange therefor, and
upon the payment of the charges, if any, therein prescribed. The Bonds are issuable in
the form of fully registered Bonds in the denomination of $5,000 and any integral
multiple thereof, not exceeding the aggregate principal amount of the Bonds. The Issuer,
the Registrar and any Paying Agent may treat the Registered Holder of this Bond as the
absolute owner hereof for all purposes, whether or not this Bond shall be overdue, and
shall not be affected by any notice to the contrary. The Issuer shall not be obligated to
make any exchange or transfer of the Bonds during the 15 days next preceding an interest
payment date or, in the case of any proposed redemption of the Bonds, then, for the
Bonds subject to such redemption, during the 15 days next preceding the date of the first
mailing of notice of such redemption.
(INSERT REDEMPTION PROVISIONS)
Redemption of this Bond under the preceding paragraphs shall be made as
provided in the Resolution upon notice given by first class mail sent a t least 30 days prior
to the redemption date to the Registered Holder hereof at the address shown on the
registration books maintained by the Registrar; provided, however, that failure to mail
notice to the Registered Holder hereof, or any defect therein, shall not affect the validity
of the proceedings for redemption of other Bonds as to which no such failure or defect
has occurred. In the event that less than the full principal amount hereof shall have been
called for redemption, the Registered Holder hereof shall surrender this Bond in
exchange for one or more Bonds in an aggregate principal amount equal to the
unredeemed portion of principal, as provided in the Resolution.
[As long as the book-entry only system is used for determining beneficial
ownership of the Bonds, notice of redemption will only be sent to Cede & Co. Cede &
Co. will be responsible for notifying participants in the registration system of the
Depository Trust Company (a "DTC Participant"), who will in turn be responsible for
notifying the beneficial owners of the Bonds. Any failure of Cede & Co. to notify any
23
DTC Participant, or of any DTC Participant to notify the beneficial owner of any such
notice, will not affect the validity of the redemption of the Bonds.]
Reference to the Resolution and any and all resolutions supplemental thereto and
modifications and amendments thereof and to the Act is made for a description of the
pledge and covenants securing this Bond, the nature, manner and extent of enforcement
of such pledge and covenants, and the rights, duties, immunities and obligations of the
Issuer.
It is hereby certified and recited that all acts, conditions and things required to
exist, to happen and to be performed precedent to and in the issuance of this Bond, exist,
have happened and have been performed, in regular and due form and time as required by
the laws and Constitution of the State of Florida applicable thereto, and that the issuance
of the Bonds does not violate any constitutional or statutory limitations or provisions.
Neither the members of the Board of County Commissioners of the Issuer nor any
person executing this Bond shall be liable personally hereon or be subject to any personal
liability or accountability by reason of the issuance hereof.
[This Bond is one of a series of Bonds which were validated by judgment of the
Circuit Court of the Twentieth Judicial Circuit of Florida in and for Collier County,
Florida, rendered on , .]
This Bond shall not be valid or become obligatory for any purpose until the
certificate of authentication hereon shall have been signed by the Registrar.
[Remainder of page intentionally left blank]
24
IN WITNESS WHEREOF, the Board of County Commissioners of Collier
County, Florida has issued this Bond and has caused the same to be executed by the
manual signature of the Chairman, and to be attested by the manual signature of the Clerk
of the Circuit Court of Collier County, Florida and Ex-Officio Clerk to the Board of
County Commissioners, and its corporate seal to be affixed or reproduced hereon, all
Date of Original Issue.
COLLIER COUNTY, FLORIDA
(SEAL)
Chairman, Board of County Commissioners
ATTEST:
Dwight E. Brock, Clerk
Approved as to Form and Legal
Sufficiency:
County Attorney
25
CERTIFICATE OF AUTHENTICATION
This Bond is one of the Bonds of the Issue described in the within-mentioned
Resolution.
DATE OF AUTHENTICATION:
__________________________________
Registrar
By:________________________________
Authorized Officer
26
[Unless this certificate is presented by an authorized representative of The
Depository Trust Company to the Issuer or its agent for registration of transfer, exchange
or payment, and any certificate issued is registered in the name of Cede & Co. or such
other name as requested by the authorized representative of The Depository Trust
Company and any payment is made to Cede & Co., ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL since the registered owner hereof, Cede & Co., has an interest herein.]
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned sells, assigns and transfers unto
Insert Social Security or Other Identifying Number of Assignee
(Name and Address of Assignee)
the within Bond and does hereby irrevocably constitute and appoint ________________,
as attorneys to register the transfer of the said Bond on the books kept for registration
thereof with full power of substitution in the premises.
Dated:
Signature guaranteed:
NOTICE: Signature must be
guaranteed by an institution which is a
participant in the Securities Transfer
Agent Medallion Program (STAMP) or
similar program.
NOTICE: The signature to this assignment
must correspond with the name of the
Registered Holder as it appears upon the face
of the within Bond in every particular,
without alteration or enlargement or any
change whatever and the Social Security or
other identifying number of such assignee
must be supplied.
27
The following abbreviations, when used in the inscription on the face of the within
Bond, shall be construed as though they were written out in full according to applicable
laws or regulations:
TEN COM -- as tenants in common
TEN ENT -- as tenants by the entireties
JT TEN -- as joint tenants with right of
survivorship and not as tenants
in common
UNIF TRANS MIN ACT --
(Cust.)
Custodian for
under Uniform Transfers to Minors Act of
(State)
Additional abbreviations may also be used though not in list above.
[Remainder of page intentionally left blank]
28
ARTICLE III
REDEMPTION OF BONDS
SECTION 3.01. PRIVILEGE OF REDEMPTION. The terms of this
Article III shall apply to redemption of Bonds other than Capital Appreciation Bonds or
Variable Rate Bonds. The terms and provisions relating to redemption of Capital
Appreciation Bonds and Variable Rate Bonds shall be provided by Sup plemental
Resolution. The provisions of this Article III may also be modified pursuant to
Supplemental Resolution to accommodate any redemption provisions with respect to
Federal Subsidy Bonds. Certain redemption provisions with respect to the Series 2017
Bonds shall be determined in accordance with a Supplemental Resolution.
SECTION 3.02. SELECTION OF BONDS TO BE REDEEMED. The
Bonds shall be redeemed only in the principal amount of $5,000 each and integral
multiples thereof. The Issuer shall, at least 45 days prior to the redemption date (unless a
shorter time period shall be satisfactory to the Registrar) notify the Registrar of such
redemption date and of the principal amount of Bonds to be redeemed. For purposes of
any redemption of less than all of the Outstanding Bonds of a single maturity, the
particular Bonds or portions of Bonds to be redeemed shall be selected not more than 45
days prior to the redemption date by the Registrar from the Outstanding Bonds of the
maturity or maturities designated by the Issuer by such method as the Registrar shall
deem fair and appropriate and which may provide for the selection for r edemption of
Bonds or portions of Bonds in principal amounts of $5,000 and integral multiples thereof.
If less than all of a Term Bond is to be redeemed the aggregate principal amount to be
redeemed shall be allocated to the Amortization Installments on a pro-rata basis unless
the Issuer, in its discretion, designates a different allocation.
If less than all of the Outstanding Bonds of a single maturity are to be redeemed,
the Registrar shall promptly notify the Issuer and Paying Agent (if the Registrar is not the
Paying Agent for such Bonds) in writing of the Bonds or portions of Bonds selected for
redemption and, in the case of any Bond selected for partial redemption, the principal
amount thereof to be redeemed.
SECTION 3.03. NOTICE OF REDEMPTION. Notice of such redemption,
which shall specify the Bond or Bonds (or portions thereof) to be redeemed and the date
and place for redemption, shall be given by the Registrar on behalf of the Issuer, and (A)
shall be filed with the Paying Agent of such Bonds, (B) shall be mailed first class,
postage prepaid, not less than 30 days nor more than 45 days prior to the redemption date
to all Holders of Bonds to be redeemed at their addresses as they appear on the
registration books kept by the Registrar as of the date of mailing of such notice, and (C)
shall be mailed, certified mail, postage prepaid, at least 35 days prior to the redemption
29
date to the registered securities depositories and one or more nationally recognized
municipal bond information services as hereinafter provided in this Section 3.03. Failure
to mail such notice to such depositories or services or the Holders of the Bonds to be
redeemed, or any defect therein, shall not affect the proceedings for redemption of Bonds
as to which no such failure or defect has occurred. Such notice shall also be mailed to the
Insurer, if any, of such redeemed Bonds. Failure of any Holder to receive any notice
mailed as herein provided shall not affect the proceedings for redemption of such
Holder's Bonds.
Each notice of redemption shall state: (1) the CUSIP numbers and any other
distinguishing number or letter of all Bonds being redeemed, (2) the original issue date of
such Bonds, (3) the maturity date and rate of interest borne by each Bond being
redeemed, (4) the redemption date, (5) the Redemption Price, (6) the date on which such
notice is mailed, (7) if less than all Outstanding Bonds are to be redeemed, the certificate
number (and, in the case of a partial redemption of any Bond, the principal amount) of
each Bond to be redeemed, (8) that on such redemption date there shall become due and
payable upon each Bond to be redeemed the Redemption Price thereof, or the
Redemption Price of the specified portions of the principal thereof in the case of Bonds to
be redeemed in part only, together with interest accrued thereon to the redemption date,
and that from and after such date interest thereon shall cease to accrue and be payable, (9)
that the Bonds to be redeemed, whether as a whole or in part, are to be surrendered for
payment of the Redemption Price at the designated office of the Registrar at an address
specified, (10) the name and telephone number of a person designated by the Registrar to
be responsible for such redemption, (11) unless sufficient funds have been set aside by
the Issuer for such purpose prior to the mailing of the notice of redemption, that such
redemption is conditioned upon the deposit of sufficient funds for such purpose on or
prior to the date set for redemption, and (12) any other conditions that must be satisfied
prior to such redemption.
In addition to the mailing of the notice described above, each notice of redemption
and payment of the Redemption Price shall meet the following requirements; provided,
however, the failure to provide such further notice of redemption or to comply with the
terms of this paragraph shall not in any manner defeat the effectiveness of a call for
redemption if notice thereof is given as prescribed above:
(A) Each further notice of redemption shall be sent by certified mail or
overnight delivery service or telecopy to all registered securities depositories then in the
business of holding substantial amounts of obligations of types comprising the Bonds and
to one or more national information services which disseminate notices of prepayment or
redemption of obligations such as the Bonds.
(B) Each further notice of redemption shall be sent to such other Person, if any,
as shall be required by applicable law or regulation.
30
The Issuer may provide that redemption will be contingent upon the occurrence of
certain condition(s) and that if such condition(s) do not occur the notice of redemption
will be rescinded, provided notice of rescission shall be mailed in the manner described
above to all affected Bondholders not later than three business days prior to the date of
redemption.
SECTION 3.04. REDEMPTION OF PORTIONS OF BONDS. Any Bond
which is to be redeemed only in part shall be surrendered at any place of payment
specified in the notice of redemption (with due endorsement by, or written instrument of
transfer in form satisfactory to the Registrar duly executed by, the Holder thereof or his
attorney duly authorized in writing) and the Issuer shall execute and the Registrar shall
authenticate and deliver to the Holder of such Bond, without service charge, a new Bond
or Bonds, of any authorized denomination, as requested by such Holder in an aggregate
principal amount equal to and in exchange for the unredeemed portion of the principal of
the Bonds so surrendered.
SECTION 3.05. PAYMENT OF REDEEMED BONDS. Notice of
redemption having been given substantially as aforesaid, the Bonds or portions of Bonds
so to be redeemed shall, on the redemption date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the Issuer shall
default in the payment of the Redemption Price) such Bonds or portions of Bonds shall
cease to bear interest. Upon surrender of such Bonds for redemption in accordance with
said notice, such Bonds shall be paid by the Registrar and/or Paying Agent at the
appropriate Redemption Price, plus accrued interest. All Bonds which have been
redeemed shall be cancelled and destroyed by the Registrar and shall not be reissued.
SECTION 3.06. PURCHASE IN LIEU OF OPTIONAL REDEMPTION.
Notwithstanding anything in this Resolution to the contrary, at any time the Bonds are
subject to optional redemption pursuant to this Resolution, all or a portion of the Bonds to
be redeemed as specified in the notice of redemption, may be purchased by t he Paying
Agent, as trustee, at the direction of the Issuer, on the date which would be the
redemption date if such Bonds were redeemed rather than purchased in lieu thereof, at a
purchase price equal to the redemption price which would have been applicable to such
Bonds on the redemption date for the account of and at the direction of the Issuer who
shall give the Paying Agent, as trustee, notice at least ten days prior to the scheduled
redemption date accompanied by an opinion of Bond Counsel to the effec t that such
purchase will not adversely affect the exclusion from gross income for federal income tax
purposes of interest on such Bonds or any other Outstanding Bonds (other than Taxable
Bonds) or shall not otherwise affect the status of any such Bonds issued as Federal
Subsidy Bonds or the Issuer's receipt of Federal Subsidy Payments with respect to said
Outstanding Federal Subsidy Bonds. In the event the Paying Agent, as trustee, is so
directed to purchase Bonds in lieu of optional redemption, no notice to the holders of the
31
Bonds to be so purchased (other than the notice of redemption otherwise required under
this Resolution) shall be required, and the Paying Agent, as trustee, shall be authorized to
apply to such purchase the funds which would have been used to pay the redemption
price for such Bonds if such Bonds had been redeemed rather than purchased. Each
Bond so purchased shall not be canceled or discharged and shall be registered in the
name of the Issuer. Bonds to be purchased under this Resolution in the manner set forth
above which are not delivered to the Paying Agent, as trustee, on the purchase date shall
be deemed to have been so purchased and not optionally redeemed on the purchase date
and shall cease to accrue interest as to the former holder thereof on the purchase date.
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32
ARTICLE IV
SECURITY, SPECIAL FUNDS AND APPLICATION THEREOF
SECTION 4.01. BONDS NOT TO BE INDEBTEDNESS OF ISSUER. The
Bonds shall not be or constitute general obligations or indebtedness of the Issuer as
"bonds" within the meaning of any constitutional or statutory provision, but shall be
special obligations of the Issuer, payable solely from and secured by a lien upon and
pledge of the Pledged Funds, in the manner and to the extent provided in this Resolution.
No Holder of any Bond shall ever have the right to compel the exercise of any ad
valorem taxing power to pay such Bond, or be entitled to payment of such Bond from any
moneys of the Issuer except from the Pledged Funds in the manner and to the extent
provided herein.
SECTION 4.02. SECURITY FOR BONDS. The payment of the principal of
or Redemption Price, if applicable, and interest on the Bonds shall be secured forthwith
equally and ratably by a pledge of and lien upon the Pledged Funds; provided, however, a
Series of Bonds may be further secured by a Credit Facility or Bond Insurance Policy in
addition to the security provided herein; and provided further that a Series of Bonds may
be secured independently of any other Series of Bonds by the establishment of a separate
subaccount in the Reserve Account for such Series of Bonds. Issuers of a Reserve
Account Insurance Policy and Reserve Account Letter of Credit shall be secured in
accordance with the provisions hereof. In addition, the Issuer does hereby irrevocably
pledge and grant a lien upon the Pledged Funds to the payment of the Policy Costs in
accordance with the provisions hereof; provided, however, such pledge and lien shall be
junior and subordinate in all respects to the pledge of and lien upon such Pledged Funds
granted hereby to the Bondholders. The Issuer does hereby irrevocably pledge the
Pledged Funds to the payment of the principal of or Redemption Price, if applicable, and
interest on the Bonds in accordance with the provisions hereof. Except as otherwise
provided by Supplemental Resolution, the obligation of the Issuer to make Hedge
Payments to a Counterparty pursuant to a Qualified Hedge Agreement shall be on parity
with the Bonds as to lien on and pledge of the Pledged Funds in accordance with the
terms hereof (any other payments related to a Qualified Hedge Agreement, including
fees, penalties, termination payments and the obligation to collateralize, shall be
Subordinated Indebtedness of the Issuer).
The Pledged Funds shall immediately be subject to the lien of this pledge without
any physical delivery thereof or further act, and the lien of this pledge shall be valid and
binding as against all parties having claims of any kind in tort, contract or otherwise
against the Issuer.
SECTION 4.03. CONSTRUCTION FUND. The Issuer covenants and agrees
to establish, a special fund to be known as the "Collier County, Florida Tourist
33
Development Tax Revenue Bonds Construction Fund," which shall be used only for
payment of the Cost of a Project. Moneys in the Construction Fund, until applied in
payment of any item of the Cost of a Project in the manner hereinafter provided, shall be
subject to a lien and charge in favor of the Holders of the Bonds and for the further
security of such Holders.
There shall be paid into the Construction Fund the amounts required to be so paid
by the provisions of this Resolution, and there may be paid into the Construction Fund, at
the option of the Issuer, any moneys received for or in connection with a Project by the
Issuer from any other source. The Issuer shall establish within the Construction Fund a
separate account for each Project, the Cost of which is to be paid in whole or in part out
of the Construction Fund.
The proceeds of insurance maintained pursuant to this Resolution against physical
loss of or damage to a Project, or of contractors' performance bonds with respect thereto
pertaining to the period of construction thereof, shall be deposited into the appropriate
account of the Construction Fund.
Any moneys received by the Issuer from the State or from the United States of
America or any agencies thereof for the purpose of financing part of the Cost of a Project
shall be deposited into the appropriate account of the Construction Fund and used in the
same manner as other Bond proceeds are used therein; provided that separate accounts or
subaccounts may be established in the Construction Fund for moneys received pursuant
to the provisions of this paragraph whenever required by Federal or State law.
The Issuer covenants that the acquisition, construction and installation of each
Project will be completed without delay and in accordance with sound engineering
practices. The Issuer shall make disbursements or payments from the applicable account
of the Construction Fund to pay Costs of the Project for which it was established, except
as otherwise provided below. The Issuer shall keep records of such disbursements and
payments and shall retain all such records for such period of time as required by
applicable law. The Issuer shall make available the records at all reasonable times for
inspection by any Holder of any of the Bonds or the agent or representative of any Holder
of any of the Bonds.
Notwithstanding any of the other provisions of this Section 4.03, to the extent that
other moneys are not available therefor, amounts in an account of the Construction Fund
shall be applied to the payment of principal and interest on the Bonds for which such
account was established or to reimburse a provider of a Credit Facility or Bond Insurance
Policy for the payment of such principal and interest, when due.
The date of completion of the acquisition, construction and equipping of a Project
shall be filed by an Authorized Issuer Officer in the appropriate records of the Issuer.
34
Promptly after the date of the completion of a Project, and after paying or making
provision for the payment of all unpaid items of the Cost of such Project, the Issuer shall
deposit in the following order of priority any balance of moneys remaining in an account
in the Construction Fund in (A) another account of the Construction Fund for which an
Authorized Issuer Officer has stated that there are insufficient moneys present to pay the
Cost of the related Project, (B) the Reserve Account, to the extent of a deficiency therein,
and (C) such other fund or account established hereunder as shall be determined by the
Board, provided the Issuer has received an Opinion of Bond Counsel to the effect that
such transfer shall not adversely affect the exclusion, if any, of interest on the Bonds
(other than Taxable Bonds) from gross income for purposes of Federal income taxation
or shall not otherwise affect the status of any Outstanding Bonds issued as Federal
Subsidy Bonds or the Issuer's receipt of Federal Subsidy Payments with respect to any
Outstanding Federal Subsidy Bonds.
SECTION 4.04. CREATION OF FUNDS AND ACCOUNTS. The Issuer
covenants and agrees to establish the following funds and accounts:
(A) The "Collier County, Florida Tourist Development Tax Revenue Bonds
Revenue Fund." The Issuer shall maintain two separate accounts in the Revenue Fund,
the "Restricted Revenue Account" and the "Unrestricted Revenue Account."
(B) The "Collier County, Florida Tourist Development Tax Revenue Bonds
Debt Service Fund." The Issuer shall maintain four separate accounts in the Debt Service
Fund, the "Interest Account," the "Principal Account," the "Bond Amortization Account"
and the "Reserve Account."
(C) The "Collier County, Florida Tourist Development Tax Revenue Bonds
Rebate Fund."
Moneys in the aforementioned funds and accounts, other than the Rebate Fund and
the Unrestricted Revenue Account, until applied in accordance with the provisions
hereof, shall be subject to a lien and charge in favor of the Holders of the Bonds and for
the further security of such Holders.
The Issuer may at any time and from time to time appoint one or more
depositories to hold, for the benefit of the Bondholders, any one or more of the funds,
accounts and subaccounts established hereby. Such depository or depositories shall
perform at the direction of the Issuer the duties of the Issuer in depositing, transferring
and disbursing moneys to and from each of such funds and accounts as herein set forth,
and all records of such depositary in performing such duties shall be open at all
reasonable times to inspection by the Issuer and its agent and employees. Any such
depositary shall be a bank or trust co mpany duly authorized to exercise corporate trust
35
powers and subject to examination by federal or state authority, of good standing, and be
qualified under applicable State law as a depository.
Notwithstanding the foregoing, none of the aforementioned funds and accounts is
required to be established prior to the time any such fund or account is required to be
funded or otherwise utilized hereunder.
SECTION 4.05. DISPOSITION OF TOURIST DEVELOPMENT TAX
REVENUES. (A) The Issuer shall promptly deposit upon receipt all of the Tourist
Development Tax Revenues into the Restricted Revenue Account. The moneys in the
Restricted Revenue Account shall be deposited or credited on or before the 25th day of
each month, commencing in the month immediately following delivery of any of the
Bonds to the purchasers thereof, or such later date as hereinafter provided, in the
following manner and in the following order of priority:
(1) Interest Account. There shall be deposited to the Interest Account
an amount which shall be sufficient to pay one-sixth (1/6) of the interest becoming
due on all Bonds Outstanding (except as to Capital Appreciation Bonds) on the
next succeeding Interest Date. With respect to the initial Interest Date following
the issuance of a Series of Bonds, the Issuer shall deposit each month an amount
which shall be sufficient to pay a fraction, the numerator of which is 1 and the
denominator of which is the number of months until such Interest Date, of the
interest becoming due on such Bonds on the initial Interest Date. Moneys in the
Interest Account shall be used to pay interest on the Bonds as and when the same
become due, whether by redemption or otherwise, and for no other purpose. All
Hedge Receipts and Federal Subsidy Payments shall be deposited directly to the
Interest Account upon receipt. With respect to interest on Bonds which the Issuer
has determined are subject to a Hedge Payment, interest on such Bonds during the
term of the Qualified Hedge Agreement shall be deemed to include the
corresponding Hedge Payments. Moneys in the Interest Account shall be applied
by the Issuer (a) for deposit with the Paying Agent to pay the interest on the Bonds
on or prior to the date the same shall become due, whether by maturity,
redemption or otherwise, and (b) for Hedge Payments. Any Federal Subsidy
Payments deposited to the Interest Account shall be deemed to have been applied
to the payment of interest on the Federal Subsid y Bonds to which such Payments
relate. The Issuer shall adjust the amount of the deposit to the Interest Account
not later than a month immediately preceding any Interest Date so as to provide
sufficient moneys in the Interest Account to pay the interest on the Bonds coming
due on such Interest Date. No further deposit need be made to the Interest Account
when the moneys therein are equal to the interest coming due on the Outstanding
Bonds on the next succeeding Interest Date. With respect to debt service on any
Bonds which are subject to a Qualified Hedge Agreement, any Hedge Payments
36
due to the Counterparty to such Qualified Hedge Agreement relating to such
Bonds shall be paid to the Counterparty to such Qualified Hedge Agreement on a
parity basis with the aforesaid required payments into the Debt Service Fund. In
computing the interest on Variable Rate Bonds which shall accrue during a
calendar month, the interest rate on such Variable Rate Bonds shall be assumed to
be (A) if such Variable Rate Bonds have been Outstanding for at least 24 months
prior to the commencement of such calendar month, the highest average interest
rate borne by such Variable Rate Bonds for any 30-day period, and (B) if such
Variable Rate Bonds have not been Outstanding for at least 24 months prior to the
date of calculation, the Bond Buyer Revenue Bond Index most recently published
prior to the commencement of such calendar month.
(2) Principal Account. Commencing in the month which is one year
prior to the first principal due date (or if the first principal due date is less than one
year from the date of issuance of the Bonds, the month immediately following the
issuance of the Bonds), the Issuer shall next deposit into the Principal Account an
amount which shall be sufficient to pay one-twelfth (1/12) of the principal on
Serial Bonds outstanding next due. With respect to the initial principal payment
date following the issuance of a Series of Bonds, the Issuer shall deposit each
month an amount which shall be sufficient to pay a fraction, the numerator of
which is 1 and the denominator of which is the number of months until such
principal payment date, of the principal becoming due on such Bonds on the initial
principal payment date. Moneys in the Principal Account shall be applied by the
Issuer for deposit with the Paying Agent to pay the principal of the Bonds on or
prior to the date the same shall mature, and for no other purpose. Serial Capital
Appreciation Bonds shall be payable from the Principal Account in the years in
which such Bonds mature and monthly payments into the Principal Account on
account of such Bonds shall commence in the twelfth month immediately
preceding the maturity date of such Bonds. The Issuer shall adjust the amount of
the deposit to the Principal Account not later than the month immediately
preceding any principal payment date so as to provide sufficient moneys in the
Principal Account to pay the principal on the Bonds becoming due on such
principal payment date. No further deposit need be made to the Principal Account
when the moneys therein are equal to the principal coming due on the Outstanding
Bonds on the next succeeding principal payment date.
(3) Bond Amortization Account. Commencing in the month which is
one year prior to any Amortization Installment due date, there shall be deposited
or credited to the Bond Amortization Account an amount which shall be sufficient
to pay one-twelfth (1/12) of the Amortization Installment next due. With respect
to the initial Amortization Installment date following the issuance of a Series of
Bonds, the Issuer shall deposit each month an amount which shall be sufficient to
37
pay a fraction, the numerator of which is 1 and the denominator of which is the
number of months until such Amortization Installment date, of the Amortization
Installment for such Amortization Installment date. Moneys in the Bond
Amortization Account shall be used to purchase or redeem Term Bonds in the
manner herein provided or as provided by Supplemental Resolution, and for no
other purpose. Term Capital Appreciation bonds shall be payable from the Term
Bonds Redemption Account in the years in which such Bonds mature and monthly
payments into the Bond Amortization Account on account of such Bonds shall
commence in the twelfth month immediately preceding the due date of the related
Amortization Fund Installments. The Issuer shall adjust the amount of the deposit
into the Bond Amortization Account not later than the month immediately
preceding any date for payment of an Amortization Installment so as to provide
sufficient moneys in the Bond Amortization Account to pay the Amortization
Installments on the Bonds coming due on such date. No further deposit need be
made to the Bond Amortization Account when the moneys therein are equal to the
Amortization Installments coming due on the Outstanding Bonds on the next
succeeding Amortization Installment due date. Payments to the Bond
Amortization Account shall be on a parity with payments to the Principal Account.
Amounts accumulated in the Bond Amortization Account with respect to
any Amortization Installment (together with amounts accumulated in the Interest
Account with respect to interest, if any, on the Term Bonds for which such
Amortization Installment was established) may be applied by the Issuer, on or
prior to the sixtieth (60th) day preceding the due date of such Amortization
Installment, (a) to the purchase of Term Bonds of the Series and maturity for
which such Amortization Installment was established at a price not exceeding par
plus accrued interest, or (b) to the redemption at the applicable Redemption Prices
of such Term Bonds, if then redeemable by their terms at a price not exceeding par
plus accrued interest. The applicable Redemption Price (or principal amount of
maturing Term Bonds) of any Term Bonds so purchased or redeemed shall be
deemed to constitute part of the Bond Amortization Account until such
Amortization Installment date, for the purposes of calculating the amount of such
Account. As soon as practicable after the sixtieth (60th) day preceding the due
date of any such Amortization Installment, the Issuer shall proceed to call for
redemption on such due date, by causing notice to be given as provided in Section
3.03 hereof, Term Bonds of the Series and maturity for which such Amortization
Installment was established (except in the case of Term Bonds maturing on an
Amortization Installment date) in such amount as shall be necessary to complete
the retirement of the unsatisfied balance of such Amortization Installment. The
Issuer shall pay out of the Bond Amortization Account and the Interest Account to
the appropriate Paying Agents, on or before the day preceding such redemption
date (or maturity date), the amount required for the redemption (or for the payment
38
of such Term Bonds then maturing), and such amount shall be applied by such
Paying Agents to such redemption (or payment). All expenses in connection with
the purchase or redemption of Term Bonds shall be paid by the Issuer from the
Restricted Revenue Fund.
(4) Reserve Account. There shall next be deposited to the Reserve
Account an amount which would enable the Issuer to restore the funds on deposit
in the Reserve Account to an amount equal to the Reserve Account Requirement
applicable thereto. All deficiencies in the Reserve Account must be made up no
later than 12 months from the date such deficiency first occurred, whether such
shortfall was caused by an increase in the applicable Reserve Account
Requirement, a decrease in the aggregate market value of the investments therein
of more than 5% or withdrawal (whether from cash or a Reserve Account
Insurance Policy or Reserve Account Letter of Credit). On or prior to each
principal payment date and Interest Date for the Bonds (in no event earlier than the
25th day of the month next preceding such payment date), moneys in the Reserve
Account shall be applied by the Issuer to the payment of the principal of or
Redemption Price, if applicable, and interest on the Bonds to the extent moneys in
the Interest Account, the Principal Account and the Bond Amortization Account
shall be insufficient for such purpose. Whenever there shall be surplus moneys in
the Reserve Account by reason of a decrease in the Reserve Account Requirement
or as a result of a deposit in the Reserve Account of a Reserve Account Letter of
Credit or a Reserve Account Insurance Policy, such surplus moneys, to the extent
practicable, shall be deposited by the Issuer into the Restricted Revenue Account
and applied as directed by Bond Counsel. The Issuer shall promptly inform each
Insurer and Credit Bank of any draw upon the Reserve Account for purposes of
paying the principal of and interest on the Bonds.
Upon the issuance of any Series of Bonds under the terms, limitations and
conditions as herein provided, the Issuer shall fund the Reserve Account in an
amount at least equal to the applicable Reserve Account Requirement to the extent
such Series of Bonds are to be secured by the Reserve Account or any subaccount
therein; provided, however, nothing herein shall be construed to require the Issuer
to fund the Reserve Account or any subaccount for any Series of Bonds. Upon the
adoption of the Supplemental Resolution authorizing the issuance of a Series of
Bonds, the Issuer shall determine whether such Series of Bonds shall be secured
by the Reserve Account or any subaccount therein and, if the Issuer determines
that the Series of Bonds will be secured by a separate subaccount therein, the
Issuer shall also establish the Reserve Account Requirement applicable thereto.
Such required amount, if any, shall be paid in full or in part from the proceeds of
such Series of Bonds or may be accumulated in equal monthly payments to the
39
Reserve Account or subaccount therein over a period of months from the date of
issuance of such Series of Bonds, which shall not exceed 36 months.
Notwithstanding the foregoing provisions, in lieu of or in substitution of
any required deposits into the Reserve Account or any subaccount therein, the
Issuer may cause to be deposited into the Reserve Account or subaccount a
Reserve Account Insurance Policy and/or Reserve Account Letter of Credit for the
benefit of the Bondholders in an amount equal to the difference between the
Reserve Account Requirement applicable thereto and the sums then on deposit in
the Reserve Account or subaccount, if any. The Issuer may also substitute a
Reserve Account Insurance Policy and/or Reserve Account Letter of Credit for
cash on deposit in the Reserve Account or a subaccount therein upon compliance
with the terms of this Section 4.05(A)(4). Such Reserve Account Insurance Policy
and/or Reserve Account Letter of Credit shall be payable to the Paying Agent
(upon the giving of notice as required thereunder) on any Interest Date or
redemption date on which a deficiency exists which cannot be cured by moneys in
any other fund or account held pursuant to this Resolution and available for such
purpose. Upon the initial deposit of any such Reserve Account Insurance Policy
and/or Reserve Account Letter of Credit, the provider thereof shall be either (a) an
insurer whose municipal bond insurance policies insuring the payment, when due,
or the principal of and interest on municipal bond issues results in such issues
being rated in one of the three highest rating categories by at least on e of the three
Rating Agencies (without regard to gradations, such as "plus" or "minus" or "1,"
"2" or "3"), or (b) a commercial bank, insurance company or other financial
institution which has been assigned a rating in one of the two highest rating
categories by at least one of the three Rating Agencies (without regard to
gradations, such as "plus" or "minus" or "1," "2" or "3"). Any Reserve Account
Insurance Policy and/or Reserve Account Letter of Credit shall equally secure all
Bonds secured by the Reserve Account or subaccount into which such Policy or
Letter of Credit is deposited.
Each Reserve Account Insurance Policy and Reserve Account Letter of
Credit 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 provider of the Reserve Account Insurance Policy or Reserve Account
Letter of Credit to reimbursement will be subordinated to cash replenishment of
the Reserve Account or subaccount to an amount equal to the difference between
the full original amount available under the Reserve Account Insurance Policy or
Reserve Account Letter of Credit and the amount then available for further draws
or claims. If (a) the provider of a Reserve Account Insurance Policy or Reserve
Account Letter of Credit becomes insolvent or (b) the provider of a Reserve
40
Account Insurance Policy or Reserve Account Letter of Credit defaults in its
payment obligations thereunder or (c) the rating of the provider of a Reserve
Account Insurance Policy falls below a rating of "A-" or "A3" by all of the Rating
Agencies then rating such provider or (d) the rating of the provider of a Reserve
Account Letter of Credit falls below a rating of "AA-" or "Aa3" by at least two of
the three Rating Agencies, the obligation to reimburse the provider of the Reserve
Account Insurance Policy or Reserve Account Letter of Credit shall be
subordinate to the cash replenishment of the Reserve Account or subaccount.
Where applicable, the amount available for draws or claims under a Reserve
Account Insurance Policy or Reserve Account Letter of Credit may be reduced by
the amount of cash or investments deposited in the Reserve Account or subaccount
pursuant to the provisions hereof.
If the revolving reinstatement feature described in the preceding paragraph
is suspended or terminated or if the Reserve Account Insurance Policy or Reserve
Account Letter of Credit is no longer valid and enforceable, the Issuer shall either
(i) deposit into the Reserve Account or subaccount an amount sufficient to cause
the cash or investments on deposit in the Reserve Account or applicable
subaccount to equal the Reserve Account Requirement on all Outstanding Bonds
then secured by such Reserve Account or subaccount, such amount to be paid over
the ensuing five years in equal installments deposited at least semi-annually or (ii)
replace such instrument with a Reserve Account Insurance Policy or a Reserve
Account Letter of Credit meeting the requirements described herein within six
months of such occurrence.
If three days prior to an Interest Date or principal payment date, or such
other period of time as shall be required by the terms of the Reserve Account
Insurance Policy or Reserve Account Letter of Credit, the Issuer shall determine
that a deficiency exists in the amount of moneys available to pay in accordance
with the terms hereof interest and/or principal due on the Bonds on such date, the
Issuer shall immediately notify (a) the issuer of the applicable Reserve Account
Insurance Policy and/or the issuer of the Reserve Account Letter of Credit and
submit a demand for payment pursuant to the provisions of such Reserve Account
Insurance Policy and/or the Reserve Account Letter of Credit, (b) the Paying
Agent, and (c) the Insurer or Credit Bank, if any, of the amount of such deficiency
and the date on which such payment is due.
The Issuer may evidence its obligation to reimburse the issuer of any
Reserve Account Letter of Credit or Reserve Account Insurance Policy by
executing and delivering to such issuer a promissory note or other evidence
therefor; provided, however, any such note or evidence (a) shall not be a general
obligation of the Issuer the payment of which is secured by the full faith and credit
41
or taxing power of the Issuer, and (b) shall be payable solely from the Pledged
Funds in the manner provided herein. The obligation to reimburse the provider of
a Reserve Account Insurance Policy or Reserve Account Letter of Credit for any
Policy Costs shall be subordinate to the payment of Debt Service on the Bonds.
The term "Paying Agent" as used in this Section 4.05(A)(4) may include
one or more Paying Agents for the Outstanding Bonds.
Whenever the amount of cash in the Reserve Account, together with the
other amounts in the Debt Service Fund, are sufficient to fully pay all Outstanding
Bonds in accordance with their terms (including principal or applicable
Redemption Price and interest thereon), the funds on deposit in the Reserve
Account may be transferred to the other Accounts of the Debt Service Fund for the
payment of the Bonds.
The Issuer may also establish a separate subaccount in the Reserve Account
for any Series of Bonds and such subaccount shall be pledged to the payment of
such Series of Bonds apart from the pledge provided herein. To the extent a Series
of Bonds is secured separately by a subaccount of the Reserve Account, the
Holders of such Bonds shall not be secured by any other moneys in the Reserve
Account. Moneys in a separate subaccount of the Reserve Account shall be
maintained at the Reserve Account Requirement applicable to such Series of
Bonds secured by the subaccount; provided the Supplemental Resolution
authorizing such Series of Bonds may establish the Reserve Account Requirement
relating to such separate subaccount of the Reserve Account at such level as the
Issuer deems appropriate. In the event the Issuer by Supplemental Resolution
establishes the Reserve Account Requirement for a particular Series of Bonds to
be zero (0.00) or it shall determine that such Series are not to be secured in any
manner by the Reserve Account or a subaccount, then it shall not be required to
establish a separate subaccount; provided, however, such Series of Bonds shall
have no lien on or pledge of any moneys on deposit in the Reserve Account.
Moneys used to replenish the Reserve Account shall be deposited in the separate
subaccounts in the Reserve Account and in the Reserve Account on a pro-rata
basis.
The County Manager shall determine the Reserve Account Requirement
with respect to the Series 2017 Bonds, upon the advice of the Financial Advisor
and Bond Counsel.
In the event the Issuer shall maintain a Reserve Account Insurance Policy
or Reserve Account Letter of Credit and moneys in the Reserve Account or any
subaccount, the moneys shall be used prior to making any disbursements under
such Reserve Account Insurance Policy or Reserve Account Letter of Credit. The
42
provisions of any insurance agreements executed in connection with any such
Policy or Letter of Credit, when executed and delivered, shall be incorporated
herein by reference. The provisions of such agreements shall supersede the
provisions hereof to the extent of any conflict herewith.
(5) Unrestricted Revenue Account. The balance of any moneys after the
deposits required by Sections 4.05(A)(1) through (A)(4) hereof may be
transferred, at the discretion of the Issuer, to the Unrestricted Revenue Account or
any other appropriate fund and account of the Issuer and may be used for any
lawful purpose including, without limitation, the early redemption of Bonds. In the
event moneys on deposit in the Interest Account and the Principal Account on the
third day prior to an Interest Date are not sufficient to pay the principal of and
interest on the Bonds coming due on such Interest Date, the Issuer shall transfer
moneys from the Unrestricted Revenue Account, if any, to the appropriate
Account of the Debt Service Fund to provide for such payment. Any moneys
remaining in the Unrestricted Revenue Account on each Interest Date may be used
for any lawful purpose in accordance with the Act.
(B) The Issuer, in its discretion, may use moneys in the Principal Account, the
Bond Amortization Account and the Interest Account to purchase or redeem Outstanding
Bonds coming due on the next principal payment date, provided such purchase or
redemption does not adversely affect the Issuer's ability to pay the principal or interest
coming due on such principal payment date on the Bonds not so purchased or redeemed.
(C) On or before the date established for payment of any principal of or interest
on the Bonds, the Issuer shall withdraw from the appropriate Account of the Debt Service
Fund sufficient moneys to pay such principal or interest and deposit such moneys with
the Paying Agent. Such deposits with the Paying Agent shall be made in moneys
available to make payments of the principal of and interest on the Bonds as the same
becomes due.
(D) In the event the Issuer shall issue a series of Bonds secured by a Credit
Facility, the Issuer may establish such separate subaccounts in the Interest Account, the
Principal Account and the Bond Amortization Account to provide for payment of the
principal of and interest on such Series as may be required by the Credit Facility
Provider; provided one Series of Bonds shall not have preference in payment from
Pledged Funds over any other Series of Bonds. The Issuer may also deposit moneys in
such subaccounts at such other times and in such other amounts from those provided in
this Section 4.05 as shall be necessary to pay the principal of and interest on such Bonds
as the same shall become due, all as provided by the Supplemental Resolution
authorizing such Bonds. In the case of Bonds secured by a Credit Facility, amounts on
deposit in any subaccounts established for such Bonds may be applied as provided in the
applicable Supplemental Resolution to reimburse the Credit Facility Provider for amounts
43
drawn under such Credit Facility to pay the principal of or redemption price, if
applicable, and interest on such Bonds or to pay the purchase price of any such Bonds
which are tendered by the Holders thereof for payment.
SECTION 4.06. REBATE FUND. Amounts on deposit in the Rebate Fund
shall be held in trust by the Issuer and used solely to make required rebates to the United
States (except to the extent the same may be transferred to the Revenue Fund) and the
Bondholders shall have no right to have the same applied for debt service on the Bonds.
For any Series of Bonds for which the rebate requirements of Section 148(f) of the Code
are applicable, the Issuer agrees to undertake all actions required of it in its arbitrage
certificate relating to such Series of Bonds, including, but not limited to:
(A) making a determination in accordance with the Code of the amount
required to be deposited in the Rebate Fund;
(B) depositing the amount determined in clause (A) above into the Rebate
Fund;
(C) paying on the dates and in the manner required by the Code to the United
States Treasury from the Rebate Fund and any other legally available moneys of the
Issuer such amounts as shall be required by the Code to be rebated to the United States
Treasury; and
(D) keeping such records of the determinations made pursuant to this Section
4.06 as shall be required by the Code, as well as evidence of the fair market value of any
investments purchased with proceeds of the Bonds.
The provisions of the above-described arbitrage certificates may be amended
without the consent of any Holder, Credit Bank or Insurer from time to time as shall be
necessary, in the opinion of Bond Counsel, to comply with the provisions of the Code.
SECTION 4.07. INVESTMENTS. Moneys on deposit in the Construction
Fund, the Restricted Revenue Account and the Debt Service Fund shall be continuously
secured in the manner by which the deposit of public funds are authorized to be secured
by the laws of the State. Moneys on deposit in the Construction Fund, the Restricted
Revenue Account and the Debt Service Fund, other than the Reserve Account, may be
invested and reinvested in Authorized Investments maturing not later than the date on
which the moneys therein will be needed for the purposes of such Fund or Account.
Moneys on deposit in the Reserve Account may be invested and reinvested in Authorized
Investments which mature no later than ten (10) years from the date of investment. All
investments shall be valued at market at least annually as of September 30 or each year.
44
Any and all income received by the Issuer from the investment of moneys in the
Construction Fund, the Interest Account, the Principal Account, the Bond Amortization
Account, the Restricted Revenue Account and the Reserve Account (to the extent such
income and the other amounts in the Reserve Account does not exceed the Reserve
Account Requirement) shall be retained in such respective Fund or Account. Any and all
income received by the Issuer from the investment of moneys in the Reserve Account
(only to the extent such income and other amounts in the Reserve Account exceeds the
Reserve Account Requirement) shall be deposited in the Interest Account.
Nothing contained in this Resolution shall prevent any Authorized Investments
acquired as investments of or security for funds held under this Resolution from being
issued or held in book-entry form on the books of the Department of the Treasury of the
United States.
SECTION 4.08. SEPARATE ACCOUNTS. The moneys required to be
accounted for in each of the foregoing funds, accounts and subaccounts established
herein may be deposited in a single bank account, and funds allocated to the various
funds, accounts and subaccounts established herein may be invested in a common
investment pool, provided that adequate accounting records are maintained to reflect and
control the restricted allocation of the moneys on deposit therein and such investments
for the various purposes of such funds, accounts and subaccounts as herein provided.
The designation and establishment of the various f unds, accounts and subaccounts
in and by this Resolution shall not be construed to require the establishment of any
completely independent, self-balancing funds as such term is commonly defined and used
in governmental accounting, but rather is intended solely to constitute an earmarking of
certain revenues for certain purposes and to establish certain priorities for application of
such revenues as herein provided.
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ARTICLE V
SUBORDINATED INDEBTEDNESS, ADDITIONAL BONDS
AND COVENANTS OF ISSUER
SECTION 5.01. SUBORDINATED INDEBTEDNESS. The Issuer will not
issue any other obligations payable from the Pledged Funds or voluntarily create or cause
to be created any debt, lien, pledge, assignment, encumbrance or other charge having
priority to or being on a parity with the lien thereon in favor of the Bonds and the interest
thereon except in compliance with the provisions of Section 5.02. The Issuer may at any
time or from time to time issue evidences of indebtedness payable in whole or in part out
of the Pledged Funds and which may be secured by a pledge of the Pledged Funds ;
provided, however, that such pledge shall be, and shall be expressed to be, subordinated
in all respects to the pledge of the Pledged Funds created by this Resolution and provided
further that the issuance of such Subordinated Indebtedness shall be subject to any
provisions contained in financing documents securing outstanding Subordinated
Indebtedness to the extent such provisions impact on the ability of the Issuer to issue
Subordinated Indebtedness. The Issuer shall have the right to covenant with the holders
from time to time of any Subordinated Indebtedness to add to the conditions, limitations
and restrictions under which any Additional Bonds may be issued pursuant to Section
5.02 hereof. The Issuer agrees to pay promptly any Subordinated Indebtedness as the
same shall become due.
SECTION 5.02. ISSUANCE OF ADDITIONAL BONDS. No Additional
Bonds, payable on a parity with the Bonds then Outstanding pursuant to this Resolution,
shall be issued except upon the conditions and in the manner herein provided.
The Issuer may issue one or more Series of Additional Bonds for any one or more
of the following purposes: financing or refinancing the Costs of a Project, or the
completion thereof, or refunding any or all Outstanding Bonds or of any Subordinated
Indebtedness of the Issuer or any other indebtedness of the Issuer that it may lawfully
refund with proceeds of Bonds. No such Additional Bonds shall be issued unless (1) no
Event of Default (as specified in Section 6.01 hereof) shall have occurred and be
continuing hereunder and (2) the following conditions are complied with:
(A) Except as otherwise provided in Section 5.02(D) hereof, there shall ha ve
been obtained and filed with the Issuer a certificate of an Authorized Issuer Officer: (1)
stating that he or she has examined the books and records of the Issuer relating to the
Tourist Development Tax Revenues which have been received by the Issuer; (2) setting
forth the amount of such Tourist Development Revenues received by the Issuer during
any twelve (12) consecutive months designated by the Issuer within the twenty-four (24)
months immediately preceding the date of delivery of such Additional Bonds with respect
to which such statement is made; and (3) stating that the aggregate amount of such
46
Tourist Development Tax Revenues received by the Issuer during the aforementioned 12
month period equals at least 1.75 times the Maximum Annual Debt Service on all Bonds
then Outstanding and such Additional Bonds with respect to which such statement is
made. Such report may be partially based upon a certification of certain matters related to
the calculation of the Maximum Annual Debt Service by the Issuer's Financial Advisor.
(B) An Authorized Issuer Officer shall certify in writing that the Issuer is in
compliance in all material respects with the provisions of the Tourist Development Tax
Ordinance.
(C) In the event the Issuer, by Supplemental Resolution, extends the pledge of
the Tourist Development Tax Revenues created pursuant to this Resolution to include
additional tourist development tax proceeds, then for the purposes of determining
whether there are sufficient Tourist Development Tax Revenues to meet the coverage test
specified in Section 5.02(A) hereof, an Authorized issuer Officer may adjust the amount
of Tourist Development Tax Revenues which were received during the applicable 12
consecutive month period to take into account the additional tourist development tax
proceeds that were or would have been received during the 12 consecutive month period.
(D) For the purpose of determining the Debt Service under this Section 5.02,
the interest rate on Additional Bonds that are proposed to be as Variable Rate Bonds shall
be deemed to be the Bond Buyer Revenue Bond Index most recently published prior to
the sale of such Additional Bonds.
(E) For the purpose of determining the Debt Service under this Section 5.02,
the interest rate on Outstanding Variable Rate Bonds (not subject to a Qualified Hedge
Agreement) shall be deemed to be (i) if such Variable Rate Bonds have been Outstanding
for at least 12 months prior to the date of sale of such Additional Bonds, the highest of
(a) the actual rate of interest borne by such Variable Rate Bonds on the date of sale, and
(b) the average interest rate borne by such Variable Rate Bonds during the 12 month
period preceding the date of sale, or (ii) if such Variable Rate Bonds have not been
Outstanding for at least 12 months prior to the date of sale of such Additional Bonds, the
higher of (a) the actual rate of interest borne by the Variable Rate Bonds on the date of
sale, and (b) the Bond Buyer Revenue Bond Index most recently published prior to the
sale of such Additional Bonds.
(F) Additional Bonds shall be deemed to have been issued pursuant to this
Resolution the same as the Outstanding Bonds, and all of the other covenants and other
provisions of this Resolution (except as to details of such Additional Bonds inconsistent
therewith) shall be for the equal benefit, protection and security of the Holders of all
Bonds issued pursuant to this Resolution. Except as otherwise provided in Sections 4.02
and 4.05 hereof, all Bonds, regardless of the time or times of their issuance, shall rank
equally with respect to their lien on the Pledged Funds and their sources and security for
47
payment therefrom without preference of any Bonds over any other; provided, however,
that the Issuer shall include a provision in any Supplemental Resolution authorizing the
issuance of Variable Rate Additional Bonds pursuant to this Section 5.02 that in the event
the principal thereof is accelerated due to such Bonds being held by the Credit Facility
Provider, the lien of any accelerated debt due and owing such Credit Facility Provider on
the Pledged Funds shall be subordinate in all respects to the pledge of the Pledged Funds
created by this Resolution.
(G) In the event any Additional Bonds are issued for the purpose of refunding
any Bonds then Outstanding, the conditions of Section 5.02(A) hereof shall not apply,
provided that the issuance of such Additional Bonds shall result in a reduction of
aggregate debt service. The conditions of Section 5.02(A) hereof shall apply to
Additional Bonds issued to refund Subordinated Indebtedness and to Additional Bonds
issued for refunding purposes which cannot meet the conditions of this paragraph.
SECTION 5.03. BOND ANTICIPATION NOTES. The Issuer may issue
notes in anticipation of the issuance of Bonds which shall have such terms and details and
be secured in such manner, not inconsistent with this Resolution, as shall be provided by
resolution of the Issuer.
SECTION 5.04. ACCESSION OF SUBORDINATED INDEBTEDNESS
TO PARITY STATUS WITH BONDS. The Issuer may provide for the accession of
Subordinated Indebtedness to the status of complete parity with the Bonds, if (A) the
Issuer shall meet all the requirements imposed upon the issuance of Additional Bonds by
Section 5.02 hereof, assuming, for purposes of said requirements, that such Subordinated
Indebtedness shall be Additional Bonds and (B) the Reserve Account, upon such
accession, shall contain an amount equal to the Reserve Account Requirement in
accordance with Section 4.05(A)(4) hereof. If the aforementioned conditions are
satisfied, the Subordinated Indebtedness shall be deemed to have been issued pursuant to
this Resolution the same as the Outstanding Bonds, and such Subordinated Indebtedness
shall be considered Bonds for all purposes provided in this Resolution.
SECTION 5.05. BOOKS AND RECORDS. The Issuer will keep books and
records of the receipt of the Tourist Development Tax Revenues in accordance with
generally accepted accounting principles, and any Credit Facility Provider, or Holder or
Holders of at least $1,000,000 aggregate principal amount of Bonds shall have the right at
all reasonable times to inspect the records, accounts and data of the Issuer relating
thereto.
SECTION 5.06. NO IMPAIRMENT. The pledging of the Pledged Funds in
the manner provided herein shall not be subject to repeal, modification or impairment by
any subsequent ordinance, resolution, agreement or other proceedings of the Issuer.
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SECTION 5.07. RECEIPT OF TOURIST DEVELOPMENT TAX
REVENUES. The Issuer covenants to do all things necessary or required on its part by
the Act or otherwise to maintain the levy and collection of the Tourist Development Tax
Revenues. The Issuer shall exercise all legally available remedies to enforce such levy
and collection now or hereafter available under law. The Issuer will not take any action
or enter into any agreement that shall result in impairing or reducing the level of the
Tourist Development Tax Revenues received by the Issuer from that level prevailing at
the time the Issuer takes such action or enters into such agreement. The Issuer shall not
amend the Tourist Development Tax Ordinance in any manner which would reduce the
amount of Tourist Development Tax Revenues received by the Issuer. The Issuer shall
ensure that the Tourist Development Tax Ordinance remains in effect for so long as any
Bonds remain Outstanding hereunder.
SECTION 5.08. FEDERAL INCOME TAX COVENANTS. (A) The Issuer
covenants with the Holders of the Bonds (other than Taxable Bonds and Federal Subsidy
Bonds) that it shall not use the proceeds of the Bonds in any manner which would cause
the interest on the Bonds to be or become includable in gross income for purposes of
federal income taxation.
(B) The Issuer covenants with the Holders of the Bonds (other than Taxable
Bonds and Federal Subsidy Bonds) that neither the Issuer nor any Person under its
control or direction will make any use of the proceeds of the Bonds (or amounts deemed
to be proceeds under the Code) in any manner which would cause the Bonds to be
"arbitrage bonds" within the meaning of the Code and neither the Issuer nor any other
Person shall do any act or fail to do any act which would cause the interest on the Bonds
to become includable in gross income for purposes of federal income taxation.
(C) The Issuer hereby covenants with the Holders of the Bonds (other than
Taxable Bonds and Federal Subsidy Bonds) that it will comply with all provisions of the
Code necessary to maintain the exclusion of interest on the Bonds from gross income for
purposes of federal income taxation, including, in particular, the payment of any amount
required to be rebated to the U.S. Treasury pursuant to the Code.
SECTION 5.09. COVENANTS RELATING TO FEDERAL SUBSIDY
BONDS. The Issuer covenants with respect to any Bonds issued as Federal Subsidy
Bonds that it will:
(A) File, on a timely basis, Internal Revenue Service Form 8038-CP or such
other form or forms required by the United States Department of Treasury to receive
Federal Subsidy Payments in connection with any Bonds issued as Federal Subsidy
Bonds.
49
(B) Deposit promptly the Federal Subsidy Payments received from the United
States Department of Treasury, if any, to the Interest Account of the Debt Service Fund
to pay interest on the Federal Subsidy Bonds.
(C) Comply with all provisions of the Code, all Treasury Regulations
promulgated thereunder, and any applicable notice, ruling or other formal interpretation
issued by the United States Department of Treasury or the Internal Revenue Service, in
order for the Bonds issued as Federal Subsidy Bonds to be and to remain Federal Subsidy
Bonds.
(D) Not take any action, or fail to take any action, if any such action or failure
to take such action would adversely affect the Issuer's receipt of Federal Subsidy
Payments or the status of the Bonds issued as Federal Subsidy Bonds, or any portion
thereof, as Federal Subsidy Bonds. The Issuer covenants that it will not directly or
indirectly use or permit the use of any proceeds of Bonds issued as Federal Subsidy
Bonds or any other of its funds or take or omit to take any action that would cause the
Bonds issued as Federal Subsidy Bonds to be or become "arbitrage bonds" within the
meaning of Section 148(a) or to fail to meet any other applicable requirements of the
Code.
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ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT. The following events shall each
constitute an "Event of Default":
(A) Default shall be made in the payment of the principal of Amortization
Installment, redemption premium or interest on any Bond when due. In determining
whether a payment default has occurred, no effect shall be given to payment made under
a Bond Insurance Policy.
(B) There shall occur the dissolution or liquidation of the Issuer, or the filing by
the Issuer of a voluntary petition in bankruptcy, or the commission by the Issuer of any
act of bankruptcy, or adjudication of the Issuer as a bankrupt, or assignment by the Issuer
for the benefit of its creditors, or appointment of a receiver for the Issuer, or the entry by
the Issuer into an agreement of composition with its creditors, or the approval by a court
of competent jurisdiction of a petition applicable to the Issuer in any proceeding for its
reorganization instituted under the provisions of the Federal Bankruptcy Act, as
amended, or under any similar act in any jurisdiction which may now be in effect or
hereafter enacted.
(C) The Issuer shall default in the due and punctual performance of any other of
the covenants, conditions, agreements and provisions contained in the Bonds or in this
Resolution on the part of the Issuer to be performed, and such default shall continue for a
period of 90 days after written notice of such default shall have been received from the
Holders of not less than 25% of the aggregate principal amount of Bonds Outstanding.
Notwithstanding the foregoing, the Issuer shall not be deemed to be in default hereunder
if such default can be cured within a reasonable period of time and if the Issuer in good
faith institutes appropriate curative action and diligently pursues such action until default
has been corrected; provided, however, no such curative action shall exceed 90 days
without the prior written consent of the Insurers.
SECTION 6.02. REMEDIES. Any Holder of Bonds issued under the
provisions of this Resolution or any trustee or receiver acting for such Bondholders may
either at law or in equity, by suit, action, mand amus or other proceedings in any court of
competent jurisdiction, protect and enforce any and all rights under the Laws of the State
of Florida, or granted and contained in this Resolution, and may enforce and compel the
performance of all duties required by this Resolution or by any applicable statutes to be
performed by the Issuer or by any officer thereof; provided, however, that no Holder,
trustee or receiver shall have the right to declare the Bonds immediately due and payable
without the consent of an y affected Insurers except to the extent the acceleration of any
Bonds that bear interest at a variable rate and that are secured by a Credit Facility is
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provided for in a Supplemental Resolution, the provisions of which are approved by the
Insurers.
The Holder or Holders of Bonds in an aggregate principal amount of not less than
25% of the Bonds then Outstanding may by a duly executed certificate in writing appoint
a trustee for Holders of Bonds issued pursuant to this Resolution with authority to
represent such Bondholders in any legal proceedings for the enforcement and protection
of the rights of such Bondholders and such certificate shall be executed by such
Bondholders or their duly authorized attorneys or representatives, and shall be filed in the
office of the Clerk. Notice of such appointment, together with evidence of the requisite
signatures of the Holders of not less than 25% in aggregate principal amount of Bonds
Outstanding and the trust instrument under which the trustee shall have agreed to serve
shall be filed with the Issuer and the trustee and notice of such appointment shall be given
to all Holders of Bonds in the same manner as notices of redemption are given hereunder.
After the appointment of the first trustee hereunder, no further trustees may be appointed;
however, the Holders of a majority in aggregate principal amount of all the Bonds then
Outstanding may remove the trustee initially appointed and appoint a successor and
subsequent successors at any time.
SECTION 6.03. DIRECTIONS TO TRUSTEE AS TO REMEDIAL
PROCEEDINGS. The Holders of a majority in principal amount of the Bonds then
Outstanding (or any Insurer insuring any then Outstanding Bonds) have the right, by an
instrument or concurrent instruments in writing executed and delivered to the trustee, to
direct the method and place of conducting all remedial proceedings to be taken by the
trustee hereunder with respect to the Series of Bonds owned by such Holders or insured
by such Insurer, provided that such direction shall not be otherwise than in accordance
with law or the provisions hereof, and that the trustee shall have the right to decline to
follow any direction which in the opinion of the trustee would be unjustly prejudicial to
Holders of Bonds not parties to such direction.
SECTION 6.04. REMEDIES CUMULATIVE. No remedy herein conferred
upon or reserved to the Bondholders is intended to be exclusive of any other remedy or
remedies, and each and every such remedy shall be cumulative, and shall be in addition
to every other remedy given hereunder or now or hereafter existing at law or in equity or
by statute.
SECTION 6.05. WAIVER OF DEFAULT. No delay or omission of any
Bondholder to exercise any right or power accruing upon any default shall impair any
such right or power or shall be construed to be a waiver of any such default, or an
acquiescence therein; and every power and remedy given by Section 6.02 to the
Bondholders may be exercised from time to time, and as often as may be deemed
expedient.
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SECTION 6.06. APPLICATION OF MONEYS AFTER DEFAULT. If an
Event of Default shall happen and shall not have been remedied, the Issuer or a trustee or
receiver appointed for the purpose shall apply all Pledged Funds (except as for amounts
in the subaccounts of the Reserve Account which shall be applied to the payment of the
Series of Bonds for which they were established) as follows and in the following order:
A. To the payment of the reasonable and proper charges, expenses and
liabilities of the trustee or receiver and Registrar hereunder;
B. To the payment of the interest (including Hedge Payments) and principal or
Redemption Price, if applicable, then due on the Bonds, as follows:
(1) Unless the principal of all the Bonds shall have become due and payable,
all such moneys shall be applied:
FIRST: to the payment to the Persons entitled thereto of all
installments of interest (including Hedge Payments) then due, in the order
of the maturity of such installments, and, if the amount available shall not
be sufficient to pay in full any particular installment, then to the payment
ratably, according to the amounts due on such installment, to the Persons
entitled thereto, without any discrimination or preference;
SECOND: to the payment to the Persons entitled thereto of the unpaid
principal of any of the Bonds which shall have become due at maturity or
upon mandatory redemption prior to maturity (other than Bonds called for
redemption for the payment of which moneys are held pursuant to the
provisions of Section 8.01 of this Resolution), in the order of their due
dates, with interest upon such Bonds from the respective dates upon which
they became due, and, if the amount available shall not be sufficient to pay
in full Bonds due on any particular date, together with such interest, then to
the payment first of such interest, ratably according to the amount of such
interest due on such date, and then to the payment of such principal, ratably
according to the amount of such principal due on such date, to the Persons
entitled thereto without any discrimination or preference; and
THIRD: to the payment of the Redemption Price of any Bonds called
for optional redemption pursuant to the provisions of this Resolution.
(2) If the principal of all the Bonds shall have become due and payable, all
such moneys shall be applied to the payment of the principal and interest (including
Hedge Payments) then due and unpaid upon the Bonds, with interest thereon as aforesaid,
without preference or priority of principal over interest or of interest over principal, or of
any installment of interest over any other installment of interest, or of any Bond over any
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other Bond, ratably, according to the amounts due respectively for principal and interest ,
to the Persons entitled thereto without any discrimination or preference.
C. To the payment of all amounts owed to the Insurers not covered by A or B
above and all amounts owed to Counterparties not covered by A or B above.
SECTION 6.07. CONTROL BY INSURER. To the extent an Insurer makes
any payment of principal of or interest on Bonds in accordance with its Bond Insurance
Policy, such Insurer shall become subrogated to the rights of the recipients of such
payments in accordance with the terms of its Bond Insurance Policy. Upon the
occurrence and continuance of an Event of Default, an Insurer of a Series of Bonds, if
such Insurer shall not be in payment default under its Bond Insurance Policy, shall be
deemed to be the sole owner of such Bonds for purposes of (A) directing and controlling
the enforcement of all rights and remedies with respect to such Series of Bonds, including
any waiver of an Event of Default and removal of any trustee, and (B) exercising any
voting right or privilege or giving any consent or direction or taking any other action that
the Holders of such Bonds are entitled to take pursuant to this Article VI hereof. No
provision expressly recognizing or granting rights in or to an Insurer shall be modified
without the consent of such Insurer. An Insurer's rights under this Section 6.07 shall be
suspended during any period in which such Insurer is in default in its payment obligations
under its Bond Insurance Policy (except to the extent of amounts previously paid by such
Insurer and due and owing to such Insurer) and shall be of no force or effect if its Bond
Insurance Policy is no longer in effect or if the Insurer asserts that its Bond Insurance
Policy is not in effect or if the Insurer waives such rights in writing. The rights granted to
an Insurer under this Section 6.07 are granted in consideration of such Insurer issuing its
Bond Insurance Policy. The Issuer shall provide each Insurer immediate notice of any
Event of Default described in Section 6.01(A) hereof and notice of any other Event of
Default occurring hereunder within 30 days of the occurrence thereof. Each Insurer of
any Bonds hereunder shall be considered a third-party beneficiary to the Resolution with
respect to such Bonds.
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ARTICLE VII
SUPPLEMENTAL RESOLUTIONS
SECTION 7.01. SUPPLEMENTAL RESOLUTION WITHOUT
BONDHOLDERS' CONSENT. The Issuer, from time to time and at any time, may
adopt such Supplemental Resolutions without the consent of the Bondholders (which
Supplemental Resolution shall thereafter form a part hereof) for any of the following
purposes:
(A) To cure any ambiguity or formal defect or omission or to correct any
inconsistent provisions in this Resolution or to clarify any matters or questions arising
hereunder.
(B) To grant to or confer upon the Bondholders any additional rights, remedies,
powers, authority or security that may lawfully be granted to or conferred upon the
Bondholders.
(C) To add to the conditions, limitations and restrictions on the issuance of
Bonds under the provisions of this Resolution other conditions, limitations and
restrictions thereafter to be observed.
(D) To add to the covenants and agreements of the Issuer in this Resolution
other covenants and agreements thereafter to be observed by the Issuer or to surrender
any right or power herein reserved to or conferred upon the Issuer.
(E) To specify and determine the matters and things referred to in Sections 2.01
or 2.02 hereof, including the issuance of Additional Bonds, and also any other matters
and things relative to such Bonds which are not contrary to or inconsistent with this
Resolution as theretofore in effect, or to amend, modify or rescind any such
authorization, specification or determination at any time prior to the first delivery of such
Bonds.
(F) To authorize Projects or to change or modify the description of any Project.
(G) To specify and determine matters necessary or desirable for the issuance of
Variable Rate Bonds, Federal Subsidy Bonds or Capital Appreciation Bonds.
(H) To provide for the establishment of a separate subaccount or subaccounts in
the Reserve Account which shall independently secure one or more Series of Bonds.
(I) To make any other change that, in the opinion of the Issuer, would not
materially adversely affect the interests of the Holders of the Bonds. In making such
determination, the Issuer shall not take into consideration any Bond Insurance Policy.
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SECTION 7.02. SUPPLEMENTAL RESOLUTION WITH
BONDHOLDERS', INSURERS' AND CREDIT BANKS' CONSENTS. Subject to
the terms and provisions contained in this Section 7.02 and Sections 7.01 and 7.03 hereof,
the Holder or Holders of not less than a majority in aggregate principal amount of the
Bonds then Outstanding shall have the right, from time to time, an ything contained in this
Resolution to the contrary notwithstanding, to consent to and approve the adoption of
such Supplemental Resolutions hereto as shall be deemed necessary or desirable by the
Issuer for the purpose of supplementing, modifying, altering, amending, adding to or
rescinding, in any particular, any of the terms or provisions contained in this Resolution;
provided, however, that if such modification or amendment will, by its terms, not take
effect so long as any Bonds of any specified Series or maturity remain Outstanding, the
consent of the Holders of such Bonds shall not be required and such Bonds shall not be
deemed to be Outstanding for the purpose of any calculation of Outstanding Bonds under
this Section 7.02. Any Supplemental Resolution which is adopted in accordance with the
provisions of this Section 7.02 shall also require the written consent of any Credit Bank
that has provided a Credit Facility and the Insurer of any Bonds which are Outstanding at
the time such Supplemental Resolution shall take effect if such Insurer and Credit Bank
are not in payment default under their Bond Insurance Policy or Credit Facility, as the
case may be. No Supplemental Resolution may be approved or adopted which shall
permit or require, without the consent of all affected Bondholders, (A) an extension of the
maturity of the principal of or the payment of the interest on any Bond issued hereunder,
(B) reduction in the principal amount of any Bond or the Redemption Price or the rate of
interest thereon, (C) the creation of a lien upon or a pledge of the Pledged Funds other
than the lien and pledge created by this Resolution, or except as otherwise permitted or
provided hereby, which materially adversely affects any Bondholders, (D) a preference or
priority of any Bond or Bonds over any other Bond or Bonds (except as to the
establishment of separate subaccounts in the Reserve Account provided in Section
4.05(A)(4) hereof), or (E) a reduction in the aggregate principal amount of the Bonds
required for consent to such Supplemental Resolution. Nothing herein contained,
however, shall be construed as making necessary the approval by Bondholders or the
Insurers or the Credit Banks of the adoption of any Supplemental Resolution as
authorized in Section 7.01 hereof.
If at any time the Issuer shall determine that it is necessary or desirable to adopt
any Supplemental Resolution pursuant to this Section 7.02, the Clerk shall cause the
Registrar to give notice of the proposed adoption of such Supplemental Resolution and
the form of consent to such adoption to be mailed, postage prepaid, to all Bondholders at
their addresses as they appear on the registration books. Such notice shall briefly set
forth the nature of the proposed Supplemental Resolution and shall state that copies
thereof are on file at the offices of the Clerk and the Registrar for inspection by all
Bondholders. The Issuer shall not, however, be subject to any liability to any Bondholder
by reason of its failure to cause the notice required by this Section 7.02 to be mailed and
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any such failure shall not affect the validity of such Supplemental Resolution when
consented to and approved as provided in this Section 7.02.
Whenever the Issuer shall deliver to the Clerk an instrument or instruments in
writing purporting to be executed by the Holders of not less than a majority in aggregate
principal amount of the Bonds then Outstanding, which instrument or instruments shall
refer to the proposed Supplemental Resolution described in such notice and shall
specifically consent to and approve the adoption thereof in substantially the form of the
copy thereof referred to in such notice, thereupon, but not otherwise, the Issuer may
adopt such Supplemental Resolution in substantially such form, without liability or
responsibility to any Holder of any Bond, whether or not such Holder shall have
consented thereto.
If the Holders of not less than a majority in aggregate principal amount of the
Bonds Outstanding at the time of the adoption of such Supplemental Resolu tion shall
have consented to and approved the adoption thereof as herein provided, no Holder of
any Bond shall have any right to object to the adoption of such Supplemental Resolution,
or to object to any of the terms and provisions contained therein or th e operation thereof,
or in any manner to question the propriety of the adoption thereof, or to enjoin or restrain
the Issuer from adopting the same or from taking any action pursuant to the provisions
thereof.
Upon the adoption of any Supplemental Resolution pursuant to the provisions of
this Section 7.02, this Resolution shall be deemed to be modified and amended in
accordance therewith, and the respective rights, duties and obligations under this
Resolution of the Issuer and all Holders of Bonds then Outstanding shall thereafter be
determined, exercised and enforced in all respects under the provisions of this Resolution
as so modified and amended.
Notwithstanding any other provision of this Section 7.02, Holders of Bonds shall
be deemed to have provided consent pursuant to this Section 7.02 if the offering
document for such Bonds expressly describes the Supplemental Resolution and the
amendments to this Resolution contained therein and states by virtue of the Holders'
purchase of such Bonds the Holders are deemed to have notice of, and consented to, such
Supplemental Resolution and amendments.
SECTION 7.03. AMENDMENT WITH CONSENT OF INSURERS AND
CREDIT BANKS ONLY. For purposes of amending this Resolution pursuant to
Section 7.02 hereof, an Insurer of Bonds and the Credit Bank providing a Credit Facility
shall be considered the Holder of such Bonds which it has insured or provided a Credit
Facility; provided that such Insurer and Credit Bank is not in default with respect to its
obligations under its Bond Insurance Policy or Credit Facility, and the consent of the
Holders of such Bonds shall not be required if the Insurer of such Bonds and any such
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Credit Bank shall consent to the amendment as provided by this Section 7.03. At least 15
days prior to adoption of any amendment made pursuant to this Section 7.03, notice of
such amendment shall be delivered to the Rating Agencies then rating the Bonds. Upon
filing with the Clerk of evidence of such consent the Insurers and Credit Banks as
aforesaid, the Issuer may adopt such Supplemental Resolution. After the adoption by the
Issuer of such Supplemental Resolution, notice thereof shall be mailed in the same
manner as notices of an amendment under Section 7.03 hereof. Notwithstanding the
foregoing, the consent of all affected Bondholders shall still be required with respect to
any amendment set forth in Clauses (A), (B), (C), (D) or (E) in the first paragraph of
Section 7.02 hereof.
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ARTICLE VIII
DEFEASANCE
SECTION 8.01. DEFEASANCE. If (A) the Issuer shall pay or cause to be
paid or there shall otherwise be paid to the Holders of any Series of Bonds the principal
and interest or Redemption Price due or to become due thereon, at the times and in the
manner stipulated therein and in this Resolution, and (B) the Issuer shall pay all Policy
Costs owing to any provider of a Reserve Account Letter of Credit or Reserve Account
Insurance Policy and all amounts owing to the Insurers, then all covenants, agreements
and other obligations of the Issuer to the holders of such Series of Bonds shall thereupon
cease, terminate and become void and be discharged and satisfied. In such event, the
Paying Agents shall pay over or deliver to the Issuer all money or securities held by them
pursuant to this Resolution which are not required for payment or redemption of any
Series of Bonds not theretofore surrendered for such payment or redemption.
Any Bonds or interest installments appertaining thereto shall be deemed to have
been paid within the meaning of this Section 8.01 if (i) in case any such Bonds are to be
redeemed prior to the maturity thereof, there shall have been taken all action necessary to
call such Bonds for redemption and notice of such redemption shall have been duly given
or provision shall have been made for the giving of such notice, and (ii) there shall have
been deposited in irrevocable trust with a banking institution or trust company by or on
behalf of the Issuer either moneys in an amount which shall be sufficient, or Refunding
Securities verified by an independent certified public accountant to be in such amount
that the principal of and the interest on or redemption price which when due will provide
moneys which, together with the moneys, if any, deposited with such banking institution
or trust company at the same time shall be sufficient, to pay the principal of and interest
due and to become due on said Bonds on and prior to the maturity date thereof. Except
as hereafter provided, neither the Refunding Securities nor any moneys so deposited with
such banking institution or trust company nor any moneys received by such bank or trust
company on account of principal of or redemption price, if applicable, or interest on said
Refunding Securities shall be withdrawn or used for any purpose other than, and all such
moneys shall be held in trust for and be applied to, the payment, when due, of the
principal of or redemption price of the Bonds for the payment of which they were
deposited and the interest accruing thereon to the date of maturity; provided, however,
the Issuer may substitute new Refunding Securities and moneys for the deposited
Refunding Securities and moneys if the new Refunding Securities and moneys are
sufficient to pay the principal of and interest on or redemption price of the refunded
Bonds.
For purposes of determining whether Variable Rate Bonds shall be deemed to
have been paid prior to the maturity or the redemption date thereof, as the case may be,
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by the deposit of moneys, or specified Refunding Securities and moneys, if any, in
accordance with this Section 8.01, the interest to come due on such Variable Rate Bonds
on or prior to the maturity or redemption date thereof, as the case may be, shall be
calculated at the Maximum Interest Rate; provided, however, that if on any date, as a
result of such Variable Rate Bonds having borne interest at less than the Maximum
Interest Rate for any period, the total amount of moneys and specified Refunding
Securities on deposit for the payment of interest on such Variable Rate Bonds is in excess
of the total amount which would have been required to be deposited on such date in
respect of such Variable Rate Bonds in order to satisfy this Section 8.01, such excess
shall be paid to the Issuer free and clear of any trust, lien, pledge or ass ignment securing
the Bonds or otherwise existing under this Resolution. In order to defease Variable Rate
Bonds under this Section 8.01 provision must be made in the escrow deposit agreement
for such Bonds to allow for optional tenders for purchase if such purchase is allowed
under the corresponding authorizing instrument for such Bonds. If adequate provision
cannot be made, then such Variable Rate Bonds may not be defeased under this Section
8.01.
If Bonds are not to be redeemed or paid within 60 days after any such defeasance
described in this Section 8.01, the Issuer shall cause the Registrar to mail a notice to the
Holders of such Bonds that the deposit required by this Section 8.01 of moneys or
Refunding Securities has been made and said Bonds are deemed to be paid in accordance
with the provisions of this Section 8.01 and stating such maturity date upon which
moneys are to be available for the payment of the principal of and interest on or
redemption price of said Bonds. Failure to provide said notice shall not affect the Bonds
being deemed to have been paid in accordance with the provisions of this Section 8.01.
Nothing herein shall be deemed to require the Issuer to call any of the Outstanding
Bonds for redemption prior to maturity pursuant to any applicable optional redemption
provisions, or to impair the discretion of the Issuer in determining whether to exercise
any such option for early redemption.
Notwithstanding anything herein to the contrary, in the event that the principal of
or interest due on the Bonds shall be paid by an Insurer or Insurers, such Bonds shall
remain Outstanding, shall not be defeased or otherwise satisfied and shall not be
considered paid by the Issuer, and the pledge of the Pledged Funds and all covenants,
agreements and other obligations of the Issuer to the Bondholders shall continue to exist
and such Insurer or Insurers shall be subrogated to the rights of such Bondholders.
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ARTICLE IX
MISCELLANEOUS
SECTION 9.01. CAPITAL APPRECIATION BONDS. For the purposes of
(A) receiving payment of the Redemption Price if a Capital Appreciation Bond is
redeemed prior to maturity, or (B) receiving payment of a Capital Appreciation Bond if
the principal of all Bonds becomes due and payable under the provisions of this
Resolution, or (C) computing the amount of Bonds held by the Holder of a Capital
Appreciation Bond in giving to the Issuer or any trustee or receiver appointed to represent
the Bondholders any notice, consent, request or demand pursuant to this Resolution for
any purpose whatsoever, the principal amount of a Capital Appreciation Bond shall be
deemed to be its Accreted Value.
SECTION 9.02. SALE OF BONDS. The Bonds shall be issued and sold at
public or private sale at one time or in installments from time to time and at such price or
prices as shall be consistent with the provisions of the Act, the requirements of this
Resolution and other applicable provisions of law.
SECTION 9.03. SEVERABILITY OF INVALID PROVISIONS. If any
one or more of the covenants, agreements or provisions of this Resolution shall be held
contrary to any express provision of law or contrary to the policy of express law, though
not expressly prohibited, or against public policy, or shall for any re ason whatsoever be
held invalid, then such covenants, agreements or provisions shall be null and void and
shall be deemed separable from the remaining covenants, agreements and provisions of
this Resolution and shall in no way affect the validity of any of the other covenants,
agreements or provisions hereof or of the Bonds issued hereunder.
SECTION 9.04. VALIDATION AUTHORIZED. To the extent deemed
necessary by Bond Counsel or desirable by the County Attorney, Bond Counsel is
authorized to institute appropriate proceedings for validation of a Series of Bonds herein
authorized pursuant to Chapter 75, Florida Statutes.
SECTION 9.05. REPEAL OF INCONSISTENT RESOLUTIONS. All
ordinances, resolutions or parts thereof in conflict herewith are hereby superseded and
repealed to the extent of such conflict.
SECTION 9.06. EFFECTIVE DATE. This Resolution shall become
effective immediately upon its adoption.
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DULY ADOPTED, in Regular Session this 11th day of July, 2017.
COLLIER COUNTY, FLORIDA
(SEAL)
Chairman, Board of County Commissioners
ATTEST:
Dwight E. Brock, Clerk
By: Deputy Clerk
Approved as to Form and Legal
Sufficiency:
County Attorney