Resolution 2013-070COLLIER COUNTY, FLORIDA
SPECIAL OBLIGATION REFUNDING REVENUE BONDS, SERIES 2013
BOND RESOLUTION
ADOPTED MARCH 12, 2013
,r
SECTION 1.01.
SECTION 1.02.
SECTION 1.03.
SECTION 1.04.
SECTION 1.05.
TABLE OF CONTENTS
PAGE
ARTICLE I
GENERAL
DEFINITIONS.................................................... ............................... 1
AUTHORITY FOR RESOLUTION ................... ............................... 7
RESOLUTION TO CONSTITUTE CONTRACT ............................ 8
FINDINGS.......................................................... ............................... 8
AUTHORIZATION OF REFUNDING OF REFUNDED
BONDS.......................................................... ............................... 9
ARTICLE II
AUTHORIZATION, TERMS, SALE, EXECUTION AND REGISTRATION OF
BONDS
SECTION 2.01.
AUTHORIZATION AND DESCRIPTION OF BONDS ...............
10
SECTION 2.02.
APPLICATION OF BOND PROCEEDS ......... ...............................
I 1
SECTION 2.03.
EXECUTION OF BONDS ............................... ...............................
I 1
SECTION 2.04.
AUTHENTICATION ........................................ ...............................
12
SECTION 2.05.
TEMPORARY BONDS .................................... ...............................
12
SECTION 2.06.
BONDS MUTILATED, DESTROYED, STOLEN OR LOST .......
12
SECTION 2.07.
INTERCHANGEABILITY, NEGOTIABILITY AND
TRANSFER................................................. ...............................
13
SECTION 2.08.
FULL BOOK ENTRY FOR BONDS ............... ...............................
14
SECTION 2.09.
FORM OF BONDS ........................................... ...............................
16
ARTICLE III
REDEMPTION OF BONDS
SECTION 3.01. PRIVILEGE OF REDEMPTION ..................... ............................... 24
SECTION 3.02. SELECTION OF BONDS TO BE REDEEMED ............................ 24
SECTION 3.03. NOTICE OF REDEMPTION ........................... ............................... 24
SECTION 3.04. REDEMPTION OF PORTIONS OF BONDS .. ............................... 26
SECTION 3.05. PAYMENT OF REDEEMED BONDS ............ ............................... 26
ARTICLE IV
SECURITY; FUNDS; COVENANTS OF THE ISSUER
SECTION 4.01. BONDS NOT TO BE INDEBTEDNESS OF ISSUER ................... 27
SECTION 4.02. COVENANT TO BUDGET AND APPROPRIATE;
PAYMENT OF BONDS ............................. ............................... 27
SECTION 4.03. REBATE FUND ............................................... ............................... 28
SECTION 4.04. ANTI - DILUTION ............................................. ............................... 28
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ARTICLE V
COVENANTS
SECTION 5.01.
GENERAL ........................................................ ...............................
30
SECTION 5.02.
ANNUAL BUDGET ......................................... ...............................
30
SECTION 5.03.
ANNUAL AUDIT ............................................. ...............................
30
SECTION 5.04.
FEDERAL INCOME TAXATION COVENANTS ........................
30
SECTION 7.02.
ARTICLE VI
DEFAULTS AND REMEDIES
35
SECTION 6.01.
EVENTS OF DEFAULT .................................. ...............................
32
SECTION 6.02.
REMEDIES ....................................................... ...............................
32
SECTION 6.03.
DIRECTIONS TO TRUSTEE AS TO REMEDIAL
38
PROCEEDINGS.......................................... ...............................
33
SECTION 6.04.
REMEDIES CUMULATIVE ........................... ...............................
33
SECTION 6.05.
WAIVER OF DEFAULT .................................. ...............................
33
SECTION 6.06.
APPLICATION OF MONEYS AFTER DEFAULT .......................
33
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ARTICLE VII
SUPPLEMENTAL RESOLUTIONS
SECTION 7.01.
SUPPLEMENTAL RESOLUTION WITHOUT
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BONDHOLDERS' CONSENT ................... ...............................
35
SECTION 7.02.
SUPPLEMENTAL RESOLUTION WITH
BONDHOLDERS' CONSENT .................... ...............................
35
ARTICLE VIII
DEFEASANCE
SECTION 8.01.
DEFEASANCE ................................................. ...............................
38
ARTICLE IX
PROVISIONS RELATING TO BONDS
SECTION 9.01.
OFFICIAL NOTICE OF SALE ........................ ...............................
40
SECTION 9.02.
PRELIMINARY OFFICIAL STATEMENT; OFFICIAL
STATEMENT.............................................. ...............................
40
SECTION 9.03.
APPOINTMENT OF PAYING AGENT AND REGISTRAR........
40
SECTION 9.04.
SECONDARY MARKET DISCLOSURE ....... ...............................
41
SECTION 9.05.
AUTHORIZATION TO EXECUTE ESCROW AGREEMENT....
41
ARTICLE X
MISCELLANEOUS
SECTION 10.01.
SALE OF BONDS ............................................ ...............................
42
SECTION 10.02.
SEVERABILITY OF INVALID PROVISIONS .............................
42
SECTION 10.03.
VALIDATION AUTHORIZED ....................... ...............................
42
SECTION 10.04.
REPEAL OF INCONSISTENT RESOLUTIONS ...........................
42
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SECTION 10.05. EFFECTIVE DATE .......................................... ............................... 43
EXHIBIT A - FORM OF OFFICIAL NOTICE OF SALE
EXHIBIT B - FORM OF CONTINUING DISCLOSURE CERTIFICATE
EXHIBIT C - FORM OF PRELIMINARY OFFICIAL STATEMENT
EXHIBIT D - FORM OF ESCROW DEPOSIT AGREEMENT
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RESOLUTION 2013-70
A RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS
OF COLLIER COUNTY, FLORIDA AUTHORIZING THE ISSUANCE
OF NOT EXCEEDING $78,000,000 IN AGGREGATE PRINCIPAL
AMOUNT OF COLLIER COUNTY, FLORIDA SPECIAL
OBLIGATION REFUNDING REVENUE BONDS, SERIES 2013, TO
REFUND ALL OF THE COUNTY'S OUTSTANDING CAPITAL
IMPROVEMENT AND REFUNDING REVENUE BONDS, SERIES
2003 AND CAPITAL IMPROVEMENT AND REFUNDING REVENUE
BONDS, SERIES 2005; COVENANTING TO BUDGET AND
APPROPRIATE CERTAIN LEGALLY AVAILABLE NON -AD
VALOREM REVENUES TO PAY DEBT SERVICE ON THE BONDS;
PROVIDING FOR THE RIGHTS OF THE HOLDERS OF THE BONDS;
MAKING CERTAIN OTHER COVENANTS AND AGREEMENTS IN
CONNECTION WITH THE BONDS; AUTHORIZING THE
AWARDING OF SAID BONDS PURSUANT TO A PUBLIC BID;
DELEGATING CERTAIN AUTHORITY TO THE CHAIR FOR THE
AWARD OF THE BONDS, AND THE APPROVAL OF THE TERMS
AND DETAILS OF SAID BONDS; AUTHORIZING THE
PUBLICATION OF A NOTICE OF SALE FOR THE BONDS OR A
SUMMARY THEREOF; APPOINTING THE PAYING AGENT AND
REGISTRAR FOR SAID BONDS; AUTHORIZING THE
DISTRIBUTION OF A PRELIMINARY OFFICIAL STATEMENT AND
THE EXECUTION AND DELIVERY OF AN OFFICIAL STATEMENT
WITH RESPECT TO SUCH BONDS; AUTHORIZING THE
EXECUTION AND DELIVERY OF AN ESCROW DEPOSIT
AGREEMENT AND THE APPOINTMENT OF AN ESCROW AGENT
THERETO; AUTHORIZING THE EXECUTION AND DELIVERY OF
A CONTINUING DISCLOSURE CERTIFICATE; AND PROVIDING
FOR AN EFFECTIVE DATE FOR THIS RESOLUTION.
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:
"Act" shall mean Chapter 125, Florida Statutes, and other applicable provisions
of law.
"Amortization Installments" shall mean an amount determined as such pursuant
to the provisions of this Resolution and the Official Notice of Sale and established with
respect to Term Bonds.
"Annual Audit" shall mean the annual audit prepared pursuant to the
requirements of Section 5.03 hereof.
"Annual Budget" shall mean the annual budget prepared pursuant to the
requirements of Section 5.02 hereof.
"Annual Debt Service" shall mean the aggregate amount of Debt Service on the
Bonds for each applicable Fiscal Year.
"Authorized Issuer Officer" shall mean the Chair, the County Manager 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 Collier County,
Florida.
"Bond Counsel" shall mean Nabors, Giblin & Nickerson, P.A. or any other
attorney at law or firm of attorneys, of nationally recognized standing in matters
pertaining to the federal tax exemption of interest on obligations issued by states and
political subdivisions, and duly admitted to practice law before the highest court of any
state of the United States of America.
"Bondholder" or "Holder" or "holder" or any similar term, when used with
reference to a Bond or Bonds, shall mean any person who shall be the registered owner of
any Outstanding Bond or Bonds as provided in the registration books of the Issuer.
"Bonds" shall mean the Collier County, Florida Special Obligation Refunding
Revenue Bonds, Series 2013.
"Capital Projects Funds" shall mean the "Capital Projects Funds" of the Issuer
as described and identified in the Annual Audit.
"Chair" shall mean the Chairwoman or Chairman of the Board or, in her or his
absence or unavailability, the Vice Chairman or Vice Chairwoman of the Board.
"Clerk" shall mean the Clerk of the Circuit Court of Collier County, Florida and
Ex- Officio Clerk of the Board of County Commissioners of the Collier County, Florida
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and such other person as may be duly authorized to act on her or his behalf, including any
Deputy Clerk.
"Code" shall mean the Internal Revenue Code of 1986, as amended, and the
regulations and rules thereunder in effect or proposed.
"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 or, in his or her
absence or unavailability, any Assistant County Manager or a designee of the County
Manager.
"Debt" means at any date (without duplication) all of the following to the extent
that they are secured by or payable in whole or in part from any Non -Ad Valorem
Revenues (A) all obligations of the Issuer for borrowed money or evidenced by bonds,
debentures, notes or other similar instruments; (B) all obligations of the Issuer to pay the
deferred purchase price of property or services, except trade accounts payable under
normal trade terms and which arise in the ordinary course of business; (C) all obligations
of the Issuer as lessee under capitalized leases; and (D) all indebtedness of other Persons
�. to the extent guaranteed by, or secured by, Non -Ad Valorem Revenues of the Issuer;
provided, however, if with respect to any obligation contemplated in (A), (B), or (C)
above, the Issuer has covenanted to budget and appropriate sufficient Non -Ad Valorem
Revenues to satisfy such obligation but has not secured such obligation with a lien on or
pledge of any Non -Ad Valorem Revenues then, and with respect to any obligation
contemplated in (D) above, such obligation shall not be considered "Debt" for purposes
of this Resolution unless the Issuer has actually used Non -Ad Valorem Revenues to
satisfy such obligation during the immediately preceding Fiscal Year or reasonably
expects to use Non -Ad Valorem Revenues to satisfy such obligation in the current or
immediately succeeding Fiscal Year. After an obligation is considered "Debt" as a result
of the proviso set forth in the immediately preceding sentence, it shall continue to be
considered "Debt" until the Issuer has not used any Non -Ad Valorem Revenues to satisfy
such obligation for two consecutive Fiscal Years.
"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 Bond
proceeds for such purpose, (2) principal of Outstanding Serial Bonds maturing in such
period of time, and (3) the Amortization Installments with respect to Outstanding Term
Bonds coming due in such period of time. For purposes of this definition, (A) if the
Bonds have 25% or more of the aggregate principal amount coming due in any one year,
Debt Service shall be determined on the Bonds during such period of time as if the
^ principal of, Amortization Installments on and interest on such Bonds were being paid
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from the date of incurrence thereof in substantially equal annual amounts over a period of
25 years, and (B) with respect to debt service on any Bonds which are subject to a
Qualified Hedge Agreement, interest on such Bonds during the term of such Qualified
Hedge Agreement shall be deemed to be the Hedge Payments coming due during such
period of time.
"Escrow Agent" shall mean Regions Bank, Orlando, Florida, its successors and
assigns.
"Escrow Agreement" shall mean the Escrow Deposit Agreement to be executed
between the Issuer and the Escrow Agent in connection with the refunding of the
Refunded Bonds, the form of which is attached hereto as Exhibit D.
"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.
"Financial Advisor" shall mean Public Financial Management, Inc., Coral
Gables, Florida.
"Fiscal Year" shall mean the period commencing on October 1 of each year and
continuing through the next succeeding September 30, or such other period as may be
prescribed by law.
"Fitch" shall mean Fitch Ratings, and any assigns and successors thereto.
"General Fund" shall mean the "General Fund" of the Issuer as described and
identified in the Annual Audit.
"General Fund Revenues" shall mean total revenues of the Issuer derived from
any source whatsoever and that are allocated to and accounted for in the General Fund as
shown in the Annual Audit.
"Hedge Agreement" shall mean an agreement in writing between the Issuer and
the Counterparty pursuant to which (1) the Issuer agrees to pay to the Counterparty an
amount, either at one time or periodically, which may, but is not required to, be
determined by reference to the amount of interest (which may be at a fixed or variable
rate) payable on debt (or 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
determined by reference to the amount of interest (which may be at a fixed or variable
rate) payable on debt (or a notional amount) specified in such agreement during the
period specified in such agreement.
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"Hedge Payments" shall mean any amounts payable by the Issuer on the debt or
the related notional amount under a Qualified Hedge Agreement; excluding, however,
any payments due as a penalty or by virtue of termination of a Qualified Hedge
Agreement or any obligation of the Issuer to provide collateral.
"Impact Fee Proceeds" shall mean the proceeds of all impact fees levied by the
Issuer that are allocated to and accounted for in the Capital Projects Funds as shown in
the Annual Audit.
"Interest Date" or "interest payment date" shall be April 1 and October 1 of
each year.
"Issuer" or "County" shall mean Collier County, Florida.
"Maximum Annual Debt Service" shall mean the largest aggregate amount of
the Annual Debt Service coming due in any Fiscal Year in which Bonds are Outstanding.
" Moody's" shall mean Moody's Investors Service, and any assigns and successors
thereto.
"MSTD Revenues" shall mean all revenues of the Issuer derived from any source
� whatsoever and that are allocated to and accounted for in the Unincorporated Area
Municipal Services Taxing District Fund as shown in the Annual Audit.
"Non -Ad Valorem Revenues" shall mean all General Fund Revenues and MSTD
Revenues, other than revenues generated from ad valorem taxation on real or personal
property, and all Impact Fee Proceeds, but only to the extent they are legally available to
make the payments required herein.
"Official Notice of Sale" shall meant the Official Notice of Sale as described in
Section 9.01 hereof, the form of which is attached hereto as Exhibit A.
"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
Section 2.06 hereof 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 the paying agent appointed by the Issuer for the
Bonds and its successor or assigns, if any. The Paying Agent initially shall be Regions
Bank, Orlando, Florida.
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d
"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.
"Prerefunded Obligations" shall mean any bonds or other obligations of any
state of the United States of America or of any agency, instrumentality or local
governmental unit of any such state (1) which are (A) not callable prior to maturity or (B)
as to which irrevocable instructions have been given to the fiduciary for such bonds or
other obligations by the obligor to give due notice of redemption and to call such bonds
for redemption on the date or dates specified in such instructions, (2) which are fully
secured as to principal, redemption premium, if any, and interest by a fund held by a
fiduciary consisting only of cash or Federal Securities, secured in substantially the
manner set forth in Section 8.01 hereof, which fund may be applied only to the payment
of such principal of, redemption premium, if any, and interest on such bonds or other
obligations on the maturity date or dates thereof or the specified redemption date or dates
pursuant to such irrevocable instructions, as the case may be, (3) as to which the principal
of and interest on the Federal Securities, which have been deposited in such fund along
with any cash on deposit in such fund are sufficient, 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 "I,
2 or 3" of such categories) of one of the Rating Agencies.
"Qualified Hedge Agreement" shall mean a Hedge Agreement with respect to
which the Issuer has received written notice from at least two of the Rating Agencies that
the rating of the Counterparty is not less than "A."
"Rating Agencies" means Fitch, Moody's and Standard & Poor's.
"Rebate Fund" shall mean the Rebate Fund established pursuant to Section 4.03
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.
"Refunded Bonds" shall mean all of the outstanding Series 2003 Bonds and
Series 2005 Bonds.
"Refunding Securities" shall mean Federal Securities and Prerefunded
Obligations.
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"Registrar" shall mean the bond registrar appointed by the Issuer for the Bonds
and its successor or assigns, if any. The Registrar initially shall be Regions Bank,
Orlando, Florida.
"Resolution" shall mean this Resolution, as the same may from time to time be
amended, modified or supplemented by Supplemental Resolution.
"Serial Bonds" shall mean all of the Bonds other than the Term Bonds.
"Series 2003 Bonds" shall mean the outstanding Collier County, Florida Capital
Improvement and Refunding Revenue Bonds, Series 2003.
"Series 2005 Bonds" shall mean the outstanding Collier County, Florida Capital
Improvement and Refunding Revenue Bonds, Series 2005.
"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.
"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 and 7.02 hereof.
"Term Bonds" shall mean those Bonds which shall be designated as Term Bonds
hereby.
"Unincorporated Area Municipal Services Taxing District Fund" shall mean
the "Unincorporated Area Municipal Services Taxing District Fund" of the "Special
Revenue Funds" of the Issuer as such Funds are described and identified in the Annual
Audit.
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
7
provision is made herein is necessary in order to carry out and effectuate the purposes of
the Issuer in accordance with the Act and to carry out and effectuate the plan and purpose
of the Act, and that the powers of the Issuer herein exercised are in each case exercised in
accordance with the provisions of the Act and in furtherance of the purposes of the Issuer.
SECTION 1.03. RESOLUTION TO CONSTITUTE CONTRACT. In
consideration of the purchase and acceptance of any or all of the Bonds by those who
shall hold the same from time to time, the provisions of this Resolution shall be a part of
the contract of the Issuer with the Holders of the Bonds, and shall be deemed to be and
shall constitute a contract between the Issuer, the Holders from time to time of the Bonds.
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 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) The Issuer previously issued the Refunded Bonds to finance and refinance
various capital improvements within the Issuer.
(B) The Issuer, upon the advice of the Financial Advisor and Bond Counsel,
hereby deems it to be in its best interests to refund all of the Refunded Bonds through the
issuance of the Bonds in order to allow for the release of certain debt service reserve
funds securing such Refunded Bonds and potentially to achieve debt service savings.
(C) A portion of the proceeds derived from the sale of the Bonds, together with
other legally available moneys of the Issuer, shall be deposited to a special escrow
deposit trust fund to purchase Federal Securities which shall be sufficient, together with
the investment earnings therefrom and a cash deposit, if any, to pay the Refunded Bonds
as the same become due and payable or are redeemed prior to maturity, all as provided
herein and in the Escrow Agreement.
(D) Upon the advice of the Financial Advisor and in light of the current interest
rate market, the Issuer deems it to be in its best interest to issue the Bonds for the purpose
of refunding the Refunded Bonds, as determined pursuant to the provisions herein.
(E) In accordance with Section 218.385, Florida Statutes, and pursuant to this
Resolution, the Bonds shall be advertised for competitive bids pursuant to the Official
Notice of Sale, the form of which is attached hereto as Exhibit A, or a summary thereof.
E:1
(F) Pursuant to the Official Notice of Sale, competitive bids for the purchase of
the Bonds received in accordance with the Official Notice of Sale on or prior to
10:30 a.m., Eastern standard time, on March 26, 2013, or such other date or time as is
determined by the Chair in accordance with the terms and provisions hereof and of the
Official Notice of Sale, shall be publicly opened and announced.
(G) Due to the present volatility and uncertainty of the market for tax - exempt
obligations such as the Bonds, it is desirable for the Issuer to be able to advertise and
award the Bonds at the most advantageous time and date instead of restricting the sale
and award to the date of a particular meeting of the Board; and, accordingly, the Issuer
hereby determines to delegate the advertising and awarding of the Bonds to the Chair
within the parameters described herein.
(H) It is necessary and appropriate that the Issuer determine certain parameters
for the terms and details of the Bonds and to delegate certain authority to the Chair for
the award of the Bonds and the approval of the terms of the Bonds in accordance with the
provisions hereof and of the Official Notice of Sale.
(I) In the event Bond Counsel shall determine that the Bonds have not been
awarded competitively in accordance with the provisions of Section 218.385, Florida
Statutes, the Issuer shall adopt such resolutions and make such findings as shall be
'~ necessary to authorize and ratify a negotiated sale of the Bonds in accordance with said
Section 218.385.
(J) The Bonds shall be secured solely by a covenant of the Issuer, subject to
certain conditions set forth herein, to budget and appropriate from Non -Ad Valorem
Revenues amounts sufficient to pay the principal of and interest on the Bonds, when due.
(K) The principal of and interest on the Bonds to be issued pursuant to this
Resolution and all other payments provided for in this Resolution will be paid solely from
Non -Ad Valorem Revenues in accordance with the terms hereof, 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 to be issued pursuant to this Resolution, or to make any other
payments provided for in this Resolution, and the Bonds shall not constitute a lien upon
any property whatsoever of or in the Issuer.
SECTION 1.05. AUTHORIZATION OF REFUNDING OF REFUNDED
BONDS. The refunding of the Refunded Bonds in order to achieve debt service savings
and release certain debt service reserve funds that secure the Refunded Bonds is hereby
authorized.
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ARTICLE II
AUTHORIZATION, TERMS, SALE, EXECUTION AND REGISTRATION OF
BONDS
SECTION 2.01. AUTHORIZATION AND DESCRIPTION OF BONDS.
(A) This Resolution creates an issue of Bonds of the Issuer to be designated as "Collier
County, Florida Special Obligation Refunding Revenue Bonds, Series 2013," issued in
the aggregate principal amount of not exceeding $78,000,000. The Chair is authorized to
modify the series designation of such Bonds, in her discretion, prior to the issuance
thereof. The Chair shall determine the aggregate principal amount of the Bonds prior to
their issuance in accordance with the Official Notice of Sale provided such principal
amount does not exceed $78,000,000. The Bonds are issued for the principal purposes of
refunding the Refunded Bonds and paying certain costs of issuance incurred with respect
to the Bonds.
The Bonds shall be dated as of their date of delivery (or such other date as the
Chair may determine), shall be numbered consecutively from one upward in order of
maturity preceded by the letter "R ", shall be issued in the form of fully registered Bonds
in denominations of $5,000 and any integral multiple thereof, shall be initially in book -
entry only form of registration, shall bear interest from their date of delivery (or such
n other date as the Chair may determine), payable semi - annually on each Interest Date,
commencing on October 1, 2013 (or such other date as the Chair may determine). The
Bonds shall bear interest computed on the basis of a 360 -day year consisting of twelve
30 -day months.
The Bonds shall bear interest at such rates and yields, shall mature on October 1 of
each of the years and in the principal amounts corresponding to such years, and, except as
otherwise provided herein, shall have such redemption provisions, all as determined by
the Chair, upon the advice of the Financial Advisor, subject to the conditions set forth in
this Section 2.01. The final maturity of the Bonds shall not be later than October 1, 2035.
All of the terms of the Bonds will be included in a certificate to be executed by the Chair
or other Authorized Issuer Officer following the award of the Bonds (the "Award
Certificate ") and shall be set forth in the final Official Statement, as described herein.
The principal of, or Redemption Price, if applicable, on the Bonds are payable
upon presentation and surrender of the Bonds at the office of the Paying Agent. Interest
payable on any Bond on any Interest Date will be paid by check or draft of the Paying
Agent to the Holder in whose name such Bond shall be registered at the close of business
on the date which shall be the fifteenth day (whether or not a business day) of the
calendar month next preceding such Interest Date, or at the request of such Holder, by
bank wire transfer for the account of such Holder. All payments of principal of, or
Redemption Price, if applicable, and interest on the 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.
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(B) The Chair, on behalf of the Issuer and only in accordance with the terms
hereof and of the Official Notice of Sale, shall award the Bonds to the underwriter or
underwriters that submit a bid proposal which complies in all respects with this
Resolution and the Official Notice of Sale and offers to purchase the Bonds at the lowest
true interest cost to the Issuer, as calculated by the Financial Advisor in accordance with
the terms and provisions of the Official Notice of Sale; provided, however, the Bonds
shall not be awarded to any bidder unless the true interest cost set forth in the winning bid
(as calculated by the Financial Advisor) is equal to or less than 4.00% and the net present
value savings with respect to the refunding of the Refunded Bonds is not less than 0.00 %.
In accordance with the provisions of the Official Notice of Sale, the Chair may, in her or
his sole discretion, reject any and all bids.
(C) The Bonds may be redeemed prior to their respective maturities from any
moneys legally available therefor, upon notice as provided in this Resolution, and upon
the terms and provisions as shall be determined by the Chair, upon the advice of the
Financial Advisor. Notwithstanding the foregoing, with respect to any optional
redemption terms for the Bonds, the first call date may be no later than October 1, 2022,
and the call premium, if any, for the Bonds may not exceed 2.00% of the par amount of
the Bonds to be redeemed. The Chair, upon the advice of the Issuer's Financial Advisor,
shall also determine which Bonds, if any, shall be subject to optional redemption. Term
Bonds and the Amortization Installments thereto may be established in accordance with
the terms of the Official Notice of Sale.
SECTION 2.02. APPLICATION OF BOND PROCEEDS. The proceeds
derived from the sale of the Bonds, including premium, if any, shall be applied by the
Issuer as follows:
(A) A sufficient amount of Bond proceeds, together with other legally available
moneys of the Issuer, shall be deposited irrevocably in trust in an escrow deposit trust
fund or funds established under the terms and provisions of the Escrow Agreement and,
other than a cash deposit, shall be invested in Federal Securities in the manner set forth in
the Escrow Agreement, which investments shall mature at such times and in such
amounts as shall be sufficient, together with such cash deposit, to pay the principal of,
premium, if applicable, and interest on the Refunded Bonds as the same mature or are
redeemed on their respective redemption dates.
(B) The balance of the Bond proceeds shall be used to pay costs and expenses
relating to the issuance of the 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 Chair and the official
seal of the Issuer shall be imprinted thereon, attested with the manual or facsimile
signature of the Clerk. In case any one or more of the officers who shall have signed or
sealed any of the Bonds or whose facsimile signature shall appear thereon shall cease to
11
be such officer of the Issuer before the Bonds so signed and sealed have been actually
sold and delivered such Bonds may nevertheless be sold and delivered as herein provided
and may be issued as if the person who signed or sealed such Bonds had not ceased to
hold such office. Any Bond may be signed and sealed on behalf of the Issuer by such
person who at the actual time of the execution of such Bond shall hold the proper office
of the Issuer, although at the date of such Bond such person may not have held such
office or may not have been so authorized. The Issuer may adopt and use for such
purposes the facsimile signatures of any such persons who shall have held such offices at
any time after the date of the adoption of this Resolution, notwithstanding that either or
both shall have ceased to hold such office at the time the Bonds shall be actually sold and
delivered.
SECTION 2.04. AUTHENTICATION. No Bond shall be secured hereunder
or entitled to the benefit hereof or shall be valid or obligatory for any purpose unless
there shall be manually endorsed on such Bond a certificate of authentication by the
Registrar or such other entity as may be approved by the Issuer for such purpose. Such
certificate on any Bond shall be conclusive evidence that such Bond has been duly
authenticated and delivered under this Resolution. The form of such certificate shall be
substantially in the form provided in Section 2.09 hereof.
SECTION 2.05. TEMPORARY BONDS. Until definitive Bonds 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 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
substitution for such mutilated Bond upon surrender and cancellation of such mutilated
12
,1-IN,
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 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
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, 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 maturity as
the surrendered Bond. The Issuer, the Registrar and any Paying Agent or fiduciary of the
Issuer may deem and treat the Person in whose name any Outstanding Bond shall be
registered upon the books of the Issuer as the absolute owner of such Bond, whether such
Bond shall be overdue or not, for the purpose of receiving payment of, or on account of,
the principal or Redemption Price, if applicable, and interest on such Bond and for all
other purposes, and all such payments so made to any such Holder or upon his order shall
be valid and effectual to satisfy and discharge the liability upon such Bond to the extent
13
0-111,
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
Bonds, forthwith (A) following the fifteenth (15th) day prior to an Interest Date for the
Bonds; (B) following the fifteenth day next preceding the date of first mailing of notice
of redemption of any Bonds; and (C) at any other time as reasonably requested by the
Paying Agent of such Bonds, shall certify and furnish to such Paying Agent the names,
addresses and holdings of Bondholders and any other relevant information reflected in
the registration books. Any Paying Agent of any fully registered Bond shall effect
payment of interest on such Bonds by mailing a check to the Holder entitled thereto or
may, in lieu thereof, upon the request and expense of such Holder, transmit such payment
by bank wire transfer for the account of such Holder.
In all cases in which the privilege of exchanging Bonds or transferring Bonds is
exercised, the Issuer shall execute and deliver Bonds and the Registrar shall authenticate
such Bonds in accordance with the provisions of this Resolution. Execution of Bonds by
the Chair and Clerk for purposes of exchanging, replacing or transferring Bonds may
occur at the time of the original delivery of the Bonds. All Bonds surrendered in any
such exchanges or transfers shall be held by the Registrar in safekeeping until directed by
n 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 during the fifteen (15) days next preceding an Interest Date
on the Bonds or, in the case of any proposed redemption of Bonds, 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.
SECTION 2.08. FULL BOOK ENTRY FOR BONDS. Notwithstanding the
provisions set forth in Section 2.07 hereof, the Bonds shall be initially issued in the form
of a separate single certificated fully registered bond certificate for each of the maturities
of the Bonds. Upon initial issuance, the ownership of each such Bond shall be registered
in the registration books kept by the Registrar in the name of Cede & Co., as nominee of
The Depository Trust Company ( "DTC "). All of the Outstanding Bonds shall be
registered in the registration books kept by the Registrar in the name of Cede & Co., as
nominee of DTC. As long as the Bonds shall be registered in the name of Cede & Co.,
all payments of principal on the Bonds shall be made by the Paying Agent by check or
draft or by bank wire transfer to Cede & Co., as Holder of the Bonds, upon presentation
of the Bonds to be paid, to the Paying Agent.
With respect to the Bonds registered in the registration books kept by the Registrar
in the name of Cede & Co., as nominee of DTC, the Issuer, the Registrar and the Paying
Agent shall have no responsibility or obligation to any direct or indirect participant in the
14
DTC book -entry program (the "Participants "). Without limiting the immediately
preceding sentence, the Issuer, the Registrar and the Paying Agent shall have no
responsibility or obligation with respect to (A) the accuracy of the records of DTC, Cede
& Co. or any Participant with respect to any ownership interest on the Bonds, (B) the
delivery to any Participant or any other Person other than a Bondholder, as shown in the
registration books kept by the Registrar, of any notice with respect to the Bonds,
including any notice of redemption, or (C) the payment to any Participant or any other
Person, other than a Bondholder, as shown in the registration books kept by the Registrar,
of any amount with respect to principal of, Redemption Price, if applicable, or interest on
the Bonds. The Issuer, the Registrar and the Paying Agent shall treat and consider the
Person in whose name each Bond is registered in the registration books kept by the
Registrar as the Holder and absolute owner of such Bond for the purpose of payment of
principal, Redemption Price, if applicable, and interest with respect to such Bond, for the
purpose of giving notices of redemption and other matters with respect to such Bond, for
the purpose of registering transfers with respect to such Bond, and for all other purposes
whatsoever. The Paying Agent shall pay all principal of, Redemption Price, if applicable,
and interest on the Bonds only to or upon the order of the respective Holders, as shown in
the registration books kept by the Registrar, or their respective attorneys duly authorized
in writing, as provided herein and all such payments shall be valid and effective to fully
satisfy and discharge the Issuer's obligations with respect to payment of principal,
Redemption Price, if applicable, and interest on the Bonds to the extent of the sum or
sums so paid. No Person other than a Holder, as shown in the registration books kept by
the Registrar, shall receive a certificated Bond evidencing the obligation of the Issuer to
make payments of principal, Redemption Price, if applicable, and interest pursuant to the
provisions of this Resolution. Upon delivery by DTC to the Issuer of written notice to
the effect that DTC has determined to substitute a new nominee in place of Cede & Co.,
and subject to the provisions in Section 2.07 with respect to transfers during the 15 days
next preceding an Interest Date or mailing of notice of redemption, the words "Cede &
Co." shall refer to such new nominee of DTC; and upon receipt of such notice, the Issuer
shall promptly deliver a copy of the same to the Registrar and the Paying Agent.
Upon (A) receipt by the Issuer of written notice from DTC (i) to the effect that a
continuation of the requirement that all of the Outstanding Bonds be registered in the
registration books kept by the Registrar in the name of Cede & Co., as nominee of DTC,
is not in the best interest of the beneficial owners of the Bonds or (ii) to the effect that
DTC is unable or unwilling to discharge its responsibilities and no substitute depository
willing to undertake the functions of DTC hereunder can be found which is willing and
able to undertake such functions upon reasonable and customary terms, or
(B) determination by the Issuer that such book -entry only system is burdensome or
undesirable to the Issuer and compliance by the Issuer of all applicable policies and
procedures of DTC regarding discontinuance of the book entry registration system, the
Bonds shall no longer be restricted to being registered in the registration books kept by
the Registrar in the name of Cede & Co., as nominee of DTC, but may be registered in
15
r-�
whatever name or names Holders shall designate, in accordance with the provisions of
this Resolution. In such event, the Issuer shall issue, and the Registrar shall authenticate,
transfer and exchange the Bonds of like principal amount and maturity, in denominations
of $5,000 or any integral multiple thereof to the Holders thereof. The foregoing
notwithstanding, until such time as participation in the book -entry only system is
discontinued, the provisions set forth in the Blanket Letter of Representations previously
executed by the Issuer and delivered to DTC shall apply to the payment of principal of,
Redemption Price, if applicable, and interest on the Bonds.
SECTION 2.09. FORM OF BONDS. The text of the Bonds shall be in
substantially the following form with such omissions, insertions and variations as may be
necessary and /or desirable and approved by the Chair 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):
16
No. R-
UNITED STATES OF AMERICA
STATE OF FLORIDA
COLLIER COUNTY, FLORIDA
SPECIAL OBLIGATION REFUNDING REVENUE BONDS,
SERIES 2013
Interest Maturity Date of
Rate Date Original Issue CUSIP Number
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 Non -Ad Valorem Revenues 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 April 1 and October 1 of each year commencing October 1,
2013 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 on this Bond is payable at the designated corporate trust
office of I , Florida, 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
Florida, as Registrar, at the close of
business on the date which shall be the fifteenth day (whether or not a business day) of
/01� the calendar month next preceding each interest payment date and shall be paid by a
17
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 under the authority of and in
full compliance with the Constitution and laws of the State of Florida, particularly
Chapter 125, Florida Statutes, and other applicable provisions of law (collectively, the
"Act "), and a resolution duly adopted by the Board of County Commissioners of the
Issuer, on , 2013, as the same may be amended and supplemented (the
"Resolution "), and is subject to all the terms and conditions of the Resolution.
Capitalized undefined terms used herein shall have the meanings ascribed thereto in the
Resolution. The Bonds are being issued to refund certain outstanding indebtedness of the
Issuer.
Pursuant to the Resolution, the Issuer has covenanted to appropriate in its annual
budget, by amendment, if necessary, such amounts of Non -Ad Valorem Revenues which
are not otherwise pledged, restricted or encumbered, as shall be necessary to pay the
principal of and interest on the Bonds when due and all required rebate payments. Such
covenant to appropriate Non -Ad Valorem Revenues is not a pledge by the Issuer of such
Non -Ad Valorem Revenues and is subject in all respects to the payment of obligations
secured by a pledge of such Non -Ad Valorem Revenues heretofore or hereafter entered
into (including the payment of debt service on bonds or other debt instruments) and also
to the payment of services and programs which are for essential public purposes affecting
the health, safety and welfare of the inhabitants of the Issuer or which are legally
mandated by applicable law.
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 BE PAYABLE SOLELY FROM
THE AMOUNTS BUDGETED AND APPROPRIATED BY THE ISSUER AS
DESCRIBED ABOVE AND AS PROVIDED IN THE RESOLUTION.
n
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 fifteen (15) days next preceding
n an interest payment date or, in the case of any proposed redemption of Bonds, 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.
(INSERT REDEMPTION PROVISIONS)
Redemption of this Bond under the preceding paragraphs shall be made as
provided in the Resolution upon notice given by first class mail sent at least 30 days prior
to the redemption date to the Registered Holder hereof at the address shown on the
registration books maintained by the Registrar; provided, however, that failure to mail
notice to the Registered Holder hereof, or any defect therein, shall not affect the validity
of the proceedings for redemption of other Bonds as to which no such failure or defect
has occurred. In the event that less than the full principal amount hereof shall have been
called for redemption, the Registered Holder hereof shall surrender this Bond in
exchange for one or more Bonds in an aggregate principal amount equal to the
unredeemed portion of principal, as provided in the Resolution.
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 the DTC Participants, who will in turn be
responsible for notifying the beneficial owners of the Bonds. Any failure of Cede & Co.
to notify any 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.
19
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 Chair nor the members of the Board of County Commissioners of the
Issuer nor any person executing this Bond shall be liable personally hereon or be subject
to any personal liability or accountability by reason of the issuance hereof.
This Bond shall not be valid or become obligatory for any purpose until the
certificate of authentication hereon shall have been signed by the Registrar.
IN WITNESS WHEREOF, Collier County, Florida has issued this Bond and has
caused the same to be executed by the manual or facsimile signature of the Chairwoman
/0-N of the Board of County Commissioners and attested by the manual or facsimile signature
of the Clerk of the Circuit Court for Collier County, Florida and Ex- Officio Clerk of the
Board of County Commissioners, and its official seal or a facsimile thereof to be affixed
or reproduced hereon, all Date of Original Issue.
COLLIER COUNTY, FLORIDA
(SEAL)
Chairwoman, Board of County Commissioners
ATTESTED:
Clerk, Circuit Court for Collier County,
Florida and Ex- Officio Clerk of the Board
of County Commissioners
Approved as to Form and Legal
Sufficiency:
County Attorney
20
n
CERTIFICATE OF AUTHENTICATION
This Bond is one of the Bonds of the Issue described in the within - mentioned
Resolution.
DATE OF AUTHENTICATION:
n
Registrar
By:
Authorized Officer
21
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)
n 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.
22
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.
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.
23
ARTICLE III
REDEMPTION OF BONDS
SECTION 3.01. PRIVILEGE OF REDEMPTION. (A) The terms of this
Article III shall apply to redemption of Bonds.
(B) The Bonds may be subject to such optional and mandatory sinking fund
redemption provisions as are determined by the Chair in accordance with Section 2.01
hereof and as set forth in the Official Statement.
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 and not less than 35 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 redemption of Bonds or portions of Bonds in principal amounts of $5,000 and integral
multiples thereof. Notwithstanding the foregoing, in the event that less than the entire
principal amount of a Term Bond is to be optionally redeemed, the Issuer shall determine
how the principal amount of such refunded Term Bond is to be allocated to the
Amortization Installments for the Term Bond and shall notify the Paying Agent and
Registrar of such 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 date to the registered securities depositories and two or more nationally
n recognized municipal bond information services as hereinafter provided in this Section
24
n
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. 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
n 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
(such depositories now being The Depository Trust Company, New York, New York,
Midwest Securities Trust Company, Chicago, Illinois and Philadelphia Depository Trust
Company, Philadelphia, Pennsylvania) and to two or more national information services
which disseminate notices of prepayment or redemption of obligations such as the Bonds
(such information services now being called Financial Information, Inc.'s "Daily Called
Bond Service," Jersey City, New Jersey, Kenny Information Service's "Called Bond
Service," New York, New York, Moody's "Municipal and Government," New York, New
York and Standard & Poor's "Called Bond Record," New York, New York).
25
(B) Each further notice of redemption shall be sent to such other Person, if any,
as shall be required by applicable law or regulation.
The Issuer may provide that a redemption will be contingent upon the occurrence
of certain conditions and that if such conditions 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 as soon as practicable but in no event later than three
business days following knowledge by the Issuer and/or the Registrar that the condition
for redemption has not or will not occur.
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
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.
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C
ARTICLE IV
SECURITY; FUNDS; COVENANTS OF THE ISSUER
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 amounts budgeted and appropriated
by the Issuer from Non -Ad Valorem Revenues in accordance with Section 4.02 hereof.
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 Non -Ad Valorem Revenues in the manner and to
the extent provided herein.
SECTION 4.02. COVENANT TO BUDGET AND APPROPRIATE;
PAYMENT OF BONDS. The Issuer covenants and agrees to appropriate in its annual
budget, by amendment, if necessary, from Non -Ad Valorem Revenues amounts sufficient
to (A) pay principal of and interest on the Bonds when due, and (B) pay all required
deposits to the Rebate Fund pursuant to Section 4.03 hereof. Such covenant and
agreement on the part of the Issuer to budget and appropriate such amounts of Non -Ad
Valorem Revenues shall be cumulative to the extent not paid, and shall continue until
such Non -Ad Valorem Revenues or other legally available funds in amounts sufficient to
make all such required payments shall have been budgeted, appropriated and actually
paid. Notwithstanding the foregoing covenant of the Issuer, the Issuer does not covenant
to maintain any services or programs, now provided or maintained by the Issuer, which
generate Non -Ad Valorem Revenues.
Such covenant to budget and appropriate does not create any lien upon or pledge
of such Non -Ad Valorem Revenues, nor does it preclude the Issuer from pledging in the
future its Non -Ad Valorem Revenues, nor does it require the Issuer to levy and collect
any particular Non -Ad Valorem Revenues, nor does it give the Bondholders a prior claim
on the Non -Ad Valorem Revenues as opposed to claims of general creditors of the Issuer.
Such covenant to appropriate Non -Ad Valorem Revenues is subject in all respects to the
payment of obligations secured by a pledge of such Non -Ad Valorem Revenues
heretofore or hereafter entered into (including the payment of debt service on bonds and
other debt instruments). However, the covenant to budget and appropriate for the
purposes and in the manner stated herein shall have the effect of making available for the
payment of the Bonds, in the manner described herein, Non -Ad Valorem Revenues and
placing on the Issuer a positive duty to appropriate and budget, by amendment, if
necessary, amounts sufficient to meet its obligations hereunder; subject, however, in all
respects to the restrictions of Section 129.07, Florida Statutes, which generally provide
that the governing body of each county may only make appropriations for each fiscal year
which, in any one year, shall not exceed the amount to be received from taxation or other
revenue sources; and subject, further, to the payment of services and programs which are
27
11-%,
for essential public purposes affecting the health, safety and welfare of the inhabitants of
the Issuer or which are legally mandated by applicable law.
The Issuer covenants and agrees to transfer to the Paying Agent for the Bonds,
solely from funds budgeted and appropriated as described in this Section 4.02, at least
one business day prior to the date designated for payment of any principal of or interest
on the Bonds, sufficient moneys to pay such principal or interest. The Registrar and
Paying Agent shall utilize such moneys for payment of the principal and interest on the
Bonds when due.
SECTION 4.03. REBATE FUND. The Issuer covenants and agrees to
establish a special fund to be known as the "Collier County, Florida Special Obligation
Refunding Revenue Bonds, Series 2013 Rebate Fund," which 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 used to pay debt service on the Bonds) and the Bondholders shall have
no right to have the same applied for debt service on the Bonds. The Issuer agrees to
undertake all actions required of it in its arbitrage certificate relating to the 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
4.03 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 from time to time as shall be necessary, in the opinion
of Bond Counsel, to comply with the provisions of the Code.
SECTION 4.04. ANTI - DILUTION. During such time as any Bonds are
Outstanding hereunder, the Issuer agrees and covenants with the Bondholders that
(1) Non -Ad Valorem Revenues shall cover projected Maximum Annual Debt Service on
the Bonds and maximum annual debt service on Debt by at least 1.5x; and (2) projected
Maximum Annual Debt Service on the Bonds and maximum annual debt service for all
Debt will not exceed 20% of the aggregate of General Fund Revenues, MSTD Revenues
and Impact Fee Proceeds exclusive of (a) ad valorem tax revenues restricted to payment
of debt service on any Debt and (b) any proceeds of the Bonds or Debt. The calculations
required by clauses (1) and (2) above shall be determined using the average of actual
Non -Ad Valorem Revenues, General Fund Revenues, MSTD Revenues and Impact Fee
Proceeds for the prior two Fiscal Years based on the Issuer's Annual Audits. For
purposes of the calculations required by clauses (1) and (2) above, Maximum Annual
Debt Service on the Bonds and maximum annual debt service on Debt shall be done on
an aggregate basis whereby the annual debt service for each is combined and the overall
maximum is determined.
For the purposes of the covenants contained in this Section 4.04, maximum annual
debt service on Debt means, with respect to Debt that bears interest at a fixed interest
rate, the actual maximum annual debt service, and, with respect to Debt which bears
interest at a variable interest rate, maximum annual debt service on such Debt shall be
determined assuming that interest accrues on such Debt at the current "Bond Buyer
Revenue Bond Index" as published in The Bond Buyer no more than two weeks prior to
any such calculation; provided, however, if any Debt, whether bearing interest at a fixed
or variable interest rate, constitutes Balloon Indebtedness, as defined in the immediately
following sentence, maximum annual debt service on such Debt shall be determined
assuming such Debt is amortized over 20 years on an approximately level debt service
basis. For purposes of the foregoing sentence, "Balloon Indebtedness" means Debt, 25%
or more of the original principal of which matures during any one Fiscal Year. In
addition, with respect to debt service on any Debt which is subject to a Qualified Hedge
Agreement, interest on such Debt during the term of such Qualified Hedge Agreement
shall be deemed to be the Hedge Payments coming due during such period of time. With
respect to debt service on any Debt with respect to which the Issuer elects to receive or is
otherwise entitled to receive direct subsidy payments from the United States Department
of Treasury, when determining the interest on such Debt for any particular interest
payment date the amount of the corresponding subsidy payment shall be deducted from
the amount of interest which is due and payable with respect to such Debt on the interest
payment date, but only to the extent that the Issuer reasonably believes that it will be in
receipt of such subsidy payment on or prior to such interest payment date.
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ARTICLE V
COVENANTS
SECTION 5.01. GENERAL. The Issuer hereby makes the following
covenants, in addition to all other covenants in this Resolution, with each and every
successive Holder of any of the Bonds so long as any of said Bonds remain Outstanding.
SECTION 5.02. ANNUAL BUDGET. The Issuer shall annually prepare and
adopt, prior to the beginning of each Fiscal Year, an Annual Budget in accordance with
applicable law.
If for any reason the Issuer shall not have adopted the Annual Budget before the
first day of any Fiscal Year, the preliminary budget for such year shall be deemed to be in
effect for such Fiscal Year until the Annual Budget for such Fiscal Year is adopted.
The Issuer shall provide the Annual Budget to any Holder or Holders of Bonds
upon written request. The Issuer shall be permitted to make a reasonable charge for
furnishing such information to such Holder or Holders.
SECTION 5.03. ANNUAL AUDIT. The Issuer shall, immediately after the
close of each Fiscal Year, cause the books, records and accounts relating to the Issuer to
be properly audited by a recognized independent firm of certified public accountants, and
shall require such accountants to complete their report of such Annual Audit in
accordance with applicable law. Each Annual Audit shall be in conformity with
generally accepted accounting principles as applied to governmental entities.
The Issuer shall provide the Annual Audit to any Holder or Holders of Bonds upon
written request. The Issuer shall be permitted to make a reasonable charge for furnishing
such information to such Holder or Holders.
SECTION 5.04. FEDERAL INCOME TAXATION COVENANTS. The
Issuer covenants with the Holders of the Bonds that it shall not use the proceeds of the
Bonds in any manner which would cause the interest on such Bonds to be or become
included in gross income for purposes of federal income taxation.
The Issuer covenants with the Holders of the 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 subject to inclusion within gross income for purposes of federal
income taxation.
30
The Issuer hereby covenants with the Holders of the Bonds that it will comply
with all provisions of the Code necessary to maintain the exclusion from gross income of
interest on the Bonds for purposes of federal income taxation, including, in particular, the
payment of any amount required to be rebated to the U.S. Treasury pursuant to the Code.
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31
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, Redemption Price,
if applicable, or interest on any Bond when due.
(B) There shall occur the dissolution or liquidation of the Issuer, or the filing by
the Issuer of a voluntary petition in bankruptcy, or the commission by the Issuer of any
act of bankruptcy, or adjudication of the Issuer as a bankrupt, or assignment by the Issuer
for the benefit of its creditors, or appointment of a receiver for the Issuer, or the entry by
the Issuer into an agreement of composition with its creditors, or the approval by a court
of competent jurisdiction of a petition applicable to the Issuer in any proceeding for its
reorganization instituted under the provisions of the Federal Bankruptcy Act, as
amended, or under any similar act in any jurisdiction which may now be in effect or
hereafter 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 30 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.
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, mandamus or other proceedings in any court of
competent jurisdiction, protect and enforce any and all rights under the Laws of the State,
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.
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
/01-N of the rights of such Bondholders and such certificate shall be executed by such
32
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) 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 Bonds
owned by such Holders, 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.
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 moneys received from the Issuer for
payment of the Outstanding Bonds 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 and principal or Redemption Price, if
All-N applicable, then due on the Bonds, as follows:
33
(1) Unless the principal of all the Bonds shall have become due and
payable, all such moneys shall be applied:
FIRST: to the payment to the Persons entitled thereto of all
installments of interest then due (other than interest on Bonds for the
payment of which moneys are held pursuant to the provisions of
Section 8.01 of this Resolution), 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 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 (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).
(2) If the principal of all the Bonds shall have become due and payable,
all such moneys shall be applied to the payment of the principal and interest then
due and unpaid upon the Bonds, with interest thereon as aforesaid, without
preference or priority of principal over interest or of interest over principal, or of
any installment of interest over any other installment of interest, or of any Bond
over any other Bond, ratably, according to the amounts due respectively for
principal and interest, to the Persons entitled thereto without any discrimination or
preference.
34
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 Section 2.01
hereof and also any other matters and things relative to such Bonds which are not
contrary to or inconsistent with this Resolution as theretofore in effect, or to amend,
modify or rescind any such authorization, specification or determination at any time prior
to the first delivery of the Bonds.
(F) To make any other change that, in the reasonable opinion of the Issuer,
would not materially adversely affect the interests of the Holders of the Bonds.
SECTION 7.02. SUPPLEMENTAL RESOLUTION WITH
BONDHOLDERS'CONSENT. 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, anything contained in this Resolution to the contrary
notwithstanding, to consent to and approve the adoption of such Supplemental
Resolutions hereto as shall be deemed necessary or desirable by the Issuer for the purpose
of supplementing, modifying, altering, amending, adding to or rescinding, in any
particular, any of the terms or provisions contained in this Resolution; provided,
n however, that if such modification or amendment will, by its terms, not take effect so
35
long as any Bonds of any specified 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. 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) a preference or priority of any Bond or Bonds over any other Bond
or Bonds, or (D) a reduction in the aggregate principal amount of the Bonds required for
consent to such Supplemental Resolution. Nothing herein contained, however, shall be
construed as making necessary the approval by Bondholders 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
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 Resolution shall
have consented to and approved the adoption thereof as herein provided, no Holder of
any Bond shall have any right to object to the adoption of such Supplemental Resolution,
or to object to any of the terms and provisions contained therein or the operation thereof,
or in any manner to question the propriety of the adoption thereof, or to enjoin or restrain
the Issuer from adopting the same or from taking any action pursuant to the provisions
n thereof.
9M
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.
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37
ARTICLE VIII
DEFEASANCE
SECTION 8.01. DEFEASANCE. If the Issuer shall pay or cause to be paid
or there shall otherwise be paid to the Holders of any 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, all covenants, agreements and other obligations of the
Issuer to the holders of such 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 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 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, Redemption Price, if
applicable and interest due and to become due on said Bonds on and prior to the
redemption date or maturity date thereof, as the case may be. Except as hereafter
provided, neither the Refunding Securities nor any moneys so deposited with such
banking institution or trust company nor any moneys received by such bank or trust
company on account of principal of 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 redemption or maturity, as the case may be; 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, if applicable, of the refunded Bonds.
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.
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39
ARTICLE IX
PROVISIONS RELATING TO BONDS
SECTION 9.01. OFFICIAL NOTICE OF SALE. The form of the Official
Notice of Sale attached hereto as Exhibit A and the terms and provisions thereof are
hereby authorized and approved. The Chair is hereby authorized to make such changes,
insertions and modifications as he or she shall deem necessary prior to the advertisement
of such Official Notice of Sale or a summary thereof. The Chair is hereby authorized to
advertise and publish the Official Notice of Sale or a summary thereof at such time as he
or she shall deem necessary and appropriate, upon the advice of the Financial Advisor
and Bond Counsel, to accomplish the competitive sale of the Bonds in accordance with
applicable law.
SECTION 9.02. PRELIMINARY OFFICIAL STATEMENT; OFFICIAL
STATEMENT. (A) The Issuer hereby authorizes the distribution and use of the
Preliminary Official Statement in substantially the form attached hereto as Exhibit C in
connection with the offering of the Bonds for sale. If between the date hereof and the
mailing of the Preliminary Official Statement, it is necessary to make insertions,
modifications or changes in the Preliminary Official Statement, any Authorized Issuer
Officer is hereby authorized to approve such insertions, changes and modifications. Any
Authorized Issuer Officer is hereby authorized to deem the Preliminary Official
Statement "final' within the meaning of Rule 15c2- 12(b)(1) under the Securities
Exchange Act of 1934 in the form as mailed. Execution of a certificate by an Authorized
Issuer Officer deeming the Preliminary Official Statement "final" as described above
shall be conclusive evidence of the approval of any insertions, changes or modifications.
(B) Subject in all respects to the satisfaction of the conditions set forth in
Section 2.01 hereof, the Chair is hereby authorized and directed to execute and deliver a
final Official Statement, dated the date of the sale of the Bonds, which shall be in
substantially the form of the Preliminary Official Statement relating to the Bonds, in the
name and on behalf of the Issuer, and thereupon to cause such Official Statement to be
delivered to the Underwriter with such changes, amendments, modifications, omissions
and additions as may be approved by the Chair. Said Official Statement, including any
such changes, amendments, modifications, omissions and additions as approved by the
Chair, and the information contained therein are hereby authorized to be used in
connection with the sale of the Bonds to the public. Execution by the Chair of the
Official Statement shall be deemed to be conclusive evidence of approval of such
changes.
SECTION 9.03. APPOINTMENT OF PAYING AGENT AND
REGISTRAR. Subject in all respects to the satisfaction of the conditions set forth in
Section 2.01 hereof, Regions Bank, Orlando, Florida is hereby designated Registrar and
Paying Agent for the Bonds. Any Authorized Issuer Officer is hereby authorized to enter
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into any agreement which may be necessary to effect the transactions contemplated by
this Section 9.02 and by this Resolution.
SECTION 9.04. SECONDARY MARKET DISCLOSURE. Subject to the
satisfaction in all respects with the conditions set forth in Section 2.01 hereof, the Issuer
hereby covenants and agrees that, in order to provide for compliance by the Issuer with
the secondary market disclosure requirements of Rule 15c2 -12 of the Security and
Exchange Commission (the 'Rule "), it will comply with and carry out all of the
provisions of the Continuing Disclosure Certificate (the 'Disclosure Certificate ") to be
executed by the Issuer and dated the date of delivery of the Bonds, as it may be amended
from time to time in accordance with the terms thereof. The Disclosure Certificate shall
be substantially in the form attached hereto as Exhibit B with such changes, amendments,
modifications, omissions and additions as shall be approved by the Chair who is hereby
authorized to execute and deliver such Disclosure Certificate. Notwithstanding any other
provision of the Resolution, failure of the Issuer to comply with such Disclosure
Certificate shall not be considered an event of default hereunder; provided, however, any
Bondholder may take such actions as may be necessary and appropriate, including
seeking mandate or specific performance by court order, to cause the Issuer to comply
with its obligations under this Section 9.04 and the Disclosure Certificate. For purposes
of this Section 9.04 'Bondholder" shall mean any person who (A) has the power, directly
or indirectly, to vote or consent with respect to, or to dispose of ownership of, any Bonds
(including persons holding Bonds through nominees, depositories or other
intermediaries), or (B) is treated as the owner of any Bonds for federal income tax
purposes.
SECTION 9.05. AUTHORIZATION TO EXECUTE ESCROW
AGREEMENT. Subject in all respects to the satisfaction of the conditions set forth in
Section 2.01 hereof, the Issuer hereby authorizes the Chair to execute and the Clerk to
attest the Escrow Agreement and to deliver the Escrow Agreement to Regions Bank,
Orlando, Florida, which is hereby appointed as Escrow Agent thereunder. All of the
provisions of the Escrow Agreement when executed and delivered by the Issuer as
authorized herein and when duly authorized, executed and delivered by the Escrow
Agent, shall be deemed to be a part of this Resolution as fully and to the same extent as if
incorporated verbatim herein, and the Escrow Agreement shall be in substantially the
form attached hereto as Exhibit D, with such changes, amendments, modifications,
omissions and additions, including the date of such Escrow Agreement, as may be
approved by the Chair. Execution by the Chair of the Escrow Agreement shall be
deemed to be conclusive evidence of the approval of such changes.
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ARTICLE X
MISCELLANEOUS
SECTION 10.01. 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 10.02. SEVERABILITY OF INVALID PROVISIONS. If any
one or more of the covenants, agreements or provisions of this Resolution shall be held
contrary to any express provision of law or contrary to the policy of express law, though
not expressly prohibited, or against public policy, or shall for any reason whatsoever be
held invalid, then such covenants, agreements or provisions shall be null and void and
shall be deemed separable from the remaining covenants, agreements and provisions of
this Resolution and shall in no way affect the validity of any of the other covenants,
agreements or provisions hereof or of the Bonds issued hereunder.
SECTION 10.03. 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 the Bonds herein
authorized pursuant to Chapter 75, Florida Statutes.
SECTION 10.04. REPEAL OF INCONSISTENT RESOLUTIONS. All
ordinances, resolutions or parts thereof in conflict herewith are hereby superseded and
repealed to the extent of such conflict.
[Remainder of page intentionally left blank]
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'*—N,
SECTION 10.05. EFFECTIVE DATE. This Resolution shall become
effective immediately upon its adoption.
DULY ADOPTED this 12th day of March, 2013.
1:
(SEAL)
I /i A
I ., 'rr
w,l�,� �., Chai o n, oa of County Commissioners
f• C
D%vAghf r� •..._ aS.
By: De p ut .: A r�
Approved As to Form and Legal
County
43
641
EXHIBIT A
Form of Official Notice of Sale
EXHIBIT B
Form of Continuing Disclosure Certificate
EXHIBIT C
Form of Preliminary Official Statement
EXHIBIT D
Form of Escrow Agreement