R-89-644
.
RESOLUTION NO. 644
.
F&L DRAFT OF
10/23/89
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF CLERMONT, FLORIDA, PROVIDING FOR THE ACQUI-
SITION, CONSTRUCTION AND EQUIPPING OF CERTAIN
CAPITAL PROJECTS FOR THE CITY; AUTHORIZING THE
ISSUANCE BY THE CITY OF NOT EXCEEDING
$2,070,000 IN AGGREGATE PRINCIPAL AMOUNT OF
SALES TAX REVENUE BONDS, SERIES 1989, TO
FINANCE THE COST OF SUCH PROJECTS AND PAY THE
COSTS OF ISSUANCE OF SUCH BONDS; PLEDGING TO
SECURE PAYMENT OF THE PRINCIPAL OF AND INTER-
EST ON SUCH BONDS THE MONEYS RECEIVED BY THE
CITY FROM THE ONE-CENT DISCRETIONARY INFRA-
STRUCTURE SALES SURTAX AND FROM THE LOCAL
GOVERNMENT HALF-CENT SALES TAX, ALL MONEYS ON
DEPOSIT IN AND INVESTMENTS HELD FOR THE CREDIT
OF CERTAIN FUNDS CREATED HEREUNDER AND THE
EARNINGS ON ,SUCH INVESTMENTS; MAKING CERTAIN
COVENANTS AND AGREEMENTS FOR THE BENEFIT OF
THE HOLDERS OF SUCH BONDS; AND PROVIDING AN
EFFECTIVE DATE.
section 1.01
section 1. 02
Section 1. 03
section 1.04
section 1. 05
section 2.01
section 2.02
section 2.03
section 2.04
section 2.05
section 2.06
section 2.07
Section 2.08
section 2.09
section 2.10
section 3.01
section 3.02
section 3.03
section 3.04
section 3.05
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TABLE OF CONTENTS
PAGE
ARTICLE I
GENERAL
Definitions ................................. 1
Authority for Resolution .................... 12
Resolution to Constitute Contract ........... 12
Findings ..................................... 12
Initial Project Authorized .................. 13
ARTICLE II
AUTHORIZATION, TERMS, EXECUTION AND
REGISTRATION OF BONDS
Authorization of Bonds ...................... 13
Authorization and Description
of Series 1989 Bonds ................... 14
Application of Series 1989
Bond Proceeds .......................... 15
Execution of Bonds .......................... 15
Authentication .............................. 16
Temporary Bonds ............................. 16
Bonds Mutilated, Destroyed
Stolen or Lost ......................... 16
Interchangeability, Negotiability
and Transfer ........................... 17
Coupon Bonds ................................ 19
Form of Bonds ............................... 19
ARTICLE III
REDEMPTION OF BONDS
Privilege of Redemption ..................... 26
Selection of Bonds to be Redeemed ........... 26
Notice of Redemption ........................ 26
Redemption of Portions of Bonds ............. 28
Payment of Redeemed Bonds ................... 28
ARTICLE IV
SECURITY, SPECIAL FUNDS AND APPLICATION THEREOF
section 4.01
Section 4.02
section 4.03
section 4.04
section 4.05
Bonds not to be Indebtedness of Issuer ...... 29
Security for Bonds .......................... 29
Construction Fund ........................... 29
Funds and Accounts .......................... 31
Flow of Funds ............................... 31
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section 4.06
Section 4.07
Section 4.08
section 5.01
section 5.02
section 5.03
section 5.04
section 5.05
Section 5.06
section 5.07
section 5.08
section 5.09
section 5.10
section 5.11
section 5.12
section 5.13
section 6.01
section 6.02
section 6.03
section 6.04
section 6.05
section 6.06
section 6.07
section 7.01
section 7.02
Section 7.03
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Reba te Fund ................................. 38
Investments ................................. 39
Separate Accounts ........................... 40
ARTICLE V
SUBORDINATED INDEBTEDNESS,
ADDITIONAL BONDS AND COVENANTS OF ISSUER
Subordinated Indebtedness ................... 40
Issuance of Additional Bonds ................ 40
Bond Anticipation Notes ..................... 42
Accession of Subordinated Indebtedness
to Parity Status with Bonds ............ 42
Books and Records ........................... 43
Annual Audit................................ 43
No Impairment ............................... 44
Collection of Half-Cent Sales Tax and
Infrastructure Sales Surtax............. 44
Release of Half-Cent Sales Tax..........:.... 44
Special Covenants Relating to Reserve
Account Insurance Policy or Reserve
Account Letter of Credit................ 45
Covenants with Credit Banks and Insurers .... 45
Federal Income Tax Covenants;
Taxable Bonds .......................... 46
MBIA as Insurer.............................. 46
ARTICLE VI
DEFAULTS AND REMEDIES
Events of Default ........................... 47
Remed i e s .................................... 48
Directions to Trustee as to
Remedial Proceedings ................... 49
Remedies Cumulative ......................... 49
Waiver of Default ........................... 49
Application of Moneys After Default ......... 49
Control by Insurer or Credit Bank ........... 50
ARTICLE VII
SUPPLEMENTAL RESOLUTIONS
Supplemental Resolution without
Bondholders' Consent ................... 51
Supplemental Resolution with Bondholders',
Insurer's and Credit Bank's Consent..... 52
Amendment with Consent of
Insurer and/or Credit Bank Only......... 54
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section 8.01
section 8.02
section 8.03
section 8.04
section 8.05
section 8.06
section 8.07
section 8.08
section 8.09
section 8.10
section 8.11
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ARTICLE VIII
MISCELLANEOUS
Defeasance .................................. 54
capital Appreciation Bonds .................. 56
General Authority........................... 56
No Personal Liability....................... 57
No Third Party Beneficiaries ................ 57
Sale of Bonds ............................... 57
Severability of Invalid provisions .......... 57
Validation Authorized ....................... 57
Repeal of Inconsistent Resolutions .......... 58
Table of Contents and Headings
not Part Hereof ........................ 58
Effective Date .............................. 58
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BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
CLERMONT, FLORIDA:
ARTICLE I
GENERAL
SECTION 1.01. Definitions. When used in this Resolu-
tion, the following terms shall have the following meanings, un-
less the context clearly otherwise requires:
"Accreted Value" shall mean, as of any date of computa-
tion with respect to any capital Appreciation Bond, an amount
equal to the principal amount of such Capital Appreciation Bond
(the principal amount at its initial offering) plus the interest
accrued on such Capital Appreciation Bond from the date of deliv-
ery to the original purchasers thereof to the Interest Date next
preceding the date of computation or the date of computation if
an Interest Date, such interest to accrue at a rate not exceeding
the legal rate, compounded semiannually, plus, with respect to
matters related to the payment upon redemption or acceleration of
the capital Appreciation Bonds, if such date of computation shall
not be an Interest Date, a portion of the difference between the
Accreted Value as of the immediately preceding Interest Date and
the Accreted Value as of the immediately succeeding Interest Date,
calculated based on the assumption that Accreted Value accrues
during any semiannual period in equal daily amounts on the basis
of a 360-day year.
"Act" shall mean Chapter 166, Part II, Florida Statutes,
as amended, Chapter 218, Part VI, Florida Statutes, as amended,
Chapter 212, Part I, Florida Statutes, as amended, and other
applicable provisions of law.
"Additional Bonds" shall mean the obligations issued at
any time under the provisions of Section 5.02 hereof on a parity
with the Series 1989 Bonds.
"Additional Project" shall mean the acquisition, con-
struction, erection, renovation or reconstruction of capital im-
provements and shall include all property rights, appurtenances,
easements, rights of way, franchises and equipment relating
thereto and deemed necessary or convenient for the acquisition,
construction, erection, renovation, reconstruction, or the opera-
tion thereof which shall be authorized by the Act and financed
in whole or in part with the proceeds of Additional Bonds.
"Amortization Installment" shall mean a mandatory redemp-
tion amount designated as such by Supplemental Resolution and
established with respect to any Term Bonds.
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"Annual Audit" shall mean the annual audit prepared
pursuant to the requirements of section 5.06 hereof.
"Authorized Depository" shall mean the State Board of
Administration of Florida or a bank or trust company in the
State which is eligible under the laws of the State to receive
funds of the Issuer.
"Authorized Investments" shall mean any of the following
which shall be authorized from time to time by applicable laws of
the State for deposit or purchase by the Issuer for the invest-
ment of its funds:
(1) Direct obligations of (including obligations issued
or held in book entry form on the books of the Department of the
Treasury of the united states of America and stripped and zero
coupon obligations), or obligations the principal of and interest
on which are unconditionally guaranteed by, the United States of
America.
(2) Bonds, debentures or notes or other evidences of
indebtedness payable in cash issued by anyone or a combination
of any of the following federal agencies whose obligations
represent full faith and credit of the united States of America:
Export Import Bank of the united States, Federal Financing Bank,
Farmers Home Administration, Federal Housing Administration,
Maritime Administration, Public Housing Authority and Government
National Mortgage Association.
(3) certificates of deposit properly secured at all
times by collateral security described in either or both of para-
graphs (1) and (2) of this definition and issued by commercial
banks, savings and loan associations or mutual savings banks
chartered by the State or the united States of America. The col-
lateral must be held by a third party and the Bondholders must
have a perfected first security interest in the collateral.
(4) The following investments fully insured by the
Federal Deposit Insurance Corporation or the Federal Savings and
Loan Insurance Corporation: (A) certificates of deposit, (B)
savings accounts, (C) deposit accounts, or (D) money market
deposits of a bank, savings and loan association or mutual sav-
ings bank.
(5) Commercial paper rated, at the time of purchase,
"Prime - 1" by Moody's Investors Service or "A-1" or better by
standard & Poor's corporation.
(6) Subject to the prior written approval of the Insur-
er, written repurchase agreements with any bank, savings institu-
tion or trust company which is insured by the Federal Deposit
Insurance Corporation or the Federal Savings and Loan Insurance
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corporation, or with any broker-dealer with retail customers
which falls under Securities Investors Protection corporation
protection, provided that such repurchase agreements are fully
secured by collateral described in (1) above or obligations of
any agency or instrumentality of the united States of America,
and provided further that (A) such collateral is held by a bank
or trust company chosen by the Issuer which has no interest in
the repurchase agreement during the term of such repurchase
agreement, (B) such collateral is not subject to liens or claims
of third parties, (C) such collateral has a market value (deter-
mined at least once every 30 days) at least equal to the amount
invested in the repurchase agreement, (D) the entity holding the
collateral has a perfected first security interest in the collat-
eral for the benefit of the Bondholders, (E) the agreement shall
be for a term not longer than 270 days and (F) the failure to
maintain such collateral at the level required in (C) above will
require the entity holding the collateral to liquidate the col-
lateral.
(7) Money market funds registered under the Federal
Investment Company Act of 1940, whose shares are registered under
the Federal Securities Act of 1933, and having a rating by Stand-
ard & Poor's corporation of AAAm-G, AAAm, or AAm.
(8) units of participation in the Local Government Sur-
plus Funds Trust Fund established pursuant to Part IV, Chapter
218, Florida Statutes, as amended, or any similar common trust
fund which is established pursuant to State law as a legal deposi-
tory of public moneys. .
(9) Obligations of state or local government municipal
bond issuers that are rated in one of the two highest rating cate-
gories by Moody's Investors Service and Standard & Poor's Corpora-
tion.
(10) Subject to the prior written approval of the Insurer,
such other obligations as shall be permitted to be legal invest-
ments of the Issuer by the laws of the State.
Rating categories when referred to herein shall be with-
out regard to gradations within such categories, such as "plus"
or "minus."
"Authorized Issuer Officer" for the performance on the
behalf of the Issuer of any act of the Issuer or the execution of
any instrument on behalf of the Issuer shall mean any person
authorized by resolution or certificate of the Issuer to perform
such act or sign such document.
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"Bond Amortization Account" shall mean the separate
account of that name in the Debt Service Fund established
pursuant to Section 4.04 hereof.
"Bond Counsel" shall mean any attorney at law or firm
of attorneys, of nationally recognized standing in matters per-
taining to the federal tax exemption of interest on obligations
issued by states and political subdivisions, and duly admitted to
practice law before the highest court of any state of the united
States of America.
"Bond Insurance Policy" shall mean the municipal bond
new issue insurance policy or policies issued by an Insurer guar-
anteeing the payment of the principal of and interest on any por-
tion of the Bonds.
"Bond Year" pertaining to any Series shall mean the an-
nual period commencing each year on the day after the day of the
year on which the Bonds of such Series mature, whether or not
Bonds of such Series mature in every year or in the Bond Year
under consideration (except that the first Bond Year for every
Series shall commence on the date of issuance of the Bonds of
such Series), and ending on the next succeeding day of the year
which shall be such day of the year on which the Bonds of such
Series mature. Each Bond Year shall be designated with the number
of the calendar year in which such Bond Year ends.
"Bondholder" or "Holder" or "holder" shall mean any
Person who shall be the registered owner of any outstanding Bond
or Bonds according to the registration books of the Issuer.
"Bonds" shall mean the Series 1989 Bonds, together with
any Additional Bonds and any Subordinated Indebtedness which
acceeds to the status of Bonds pursuant to section 5.04 hereof.
"Capital Appreciation Bonds" shall mean those Bonds so
designated by Supplemental Resolution, which may be either serial
Bonds or Term Bonds and which shall bear interest payable at
maturity or redemption. In the case of Capital Appreciation Bonds
that are convertible to Bonds with interest payable prior to
maturity or prior to redemption of such Bonds, such Bonds shall
be considered capital Appreciation Bonds only during the period
of time prior to such conversion.
"Clerk" shall mean the City Clerk of of the Issuer or
such other person as may be duly authorized by the Issuer to act
on his or her behalf.
"Code" shall mean the united states Internal Revenue
Code of 1986, as the same may be amended from time to time, and
the regulations thereunder, whether proposed, temporary or
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final, promulgated by the Department of the Treasury, Internal
Revenue Service, and all other promulgations of said service
pertaining thereto.
"Construction Fund" shall mean the Construction Fund
established pursuant to section 4.03 hereof.
"Cost" when used in connection with a Project, shall
mean (1) the Issuer's cost of physical construction; (2) costs of
acquisition by or for the Issuer of such Project: (3) costs of
land and interests therein and the cost of the Issuer incidental
to such acquisition: (4) the cost of any indemnity and surety
bonds and premiums for insurance during construction; (5) all
interest due to be paid on the Bonds and other obligations relat-
ing to the Project during the construction period of such Project
and for a reasonable period thereafter; (6) engineering, legal
and other consultant fees and expenses; (7) costs and expenses
incidental to the issuance of the Bonds including bond insurance
premium, rating agency fees and the fees and expenses of any audi-
tors, Paying Agent, Registrar, Credit Bank or depository; (8)
payments, when due (whether at the maturity of principal or the
due date of interest or upon redemption) on any indebtedness of
the Issuer (other than the Bonds) incurred for such Project; (9)
costs of machinery or equipment required by the Issuer for the
commencement of operation of such Project; and (10) any other
costs properly attributable to the issuance of the Bonds, and
such construction or acquisition, as determined by generally
accepted accounting principles and shall include reimbursement
to the Issuer for any such items of Cost heretofore paid by the
Issuer. Any Supplemental Resolution may provide for additional
items to be included in the aforesaid Costs.
"Coupon Bonds" shall mean any Bonds the interest payable
on which shall be represented by bearer coupons attached thereto,
and the interest on which Bonds shall be payable only upon the
presentation and surrender of such coupons to the Paying Agent as
they severally fall due.
"Credit Bank" shall mean as to any particular Series of
Bonds, the Person (other than an Insurer) providing a letter of
credit, a line of credit or another credit or liquidity enhance-
ment facility, as designated in the Supplemental Resolution pro-
viding for the issuance of such Bonds.
"Credit Facility" shall mean as to any particular Ser-
ies of Bonds, a letter of credit, a line of credit or another
credit or liquidity enhancement facility (other than an insurance
policy issued by an Insurer), as approved in the Supplemental
Resolution providing for the issuance of such Bonds.
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"Debt Service Fund" shall mean the Debt Service Fund
established pursuant to section 4.04 hereof.
"Debt Service Requirement" for any Bond Year shall mean
the sum of:
(1) The aggregate amount required to pay the interest
becoming due on the Bonds, other than capital Appreciation Bonds,
during such Bond Year, except to the extent that such interest
shall have been provided by payments into the Interest Account
out of Bond proceeds or other sources for a specified period of
time. For purposes of this definition, the interest due on any
such Bonds which shall have a variable rate of interest shall be
assumed to be the greater of (a) 110% of the daily average inter-
est rate on such Variable Rate Bonds during the 12 months ending
with the month preceding the date of calculation, or such shorter
period that such Bonds shall have been outstanding, or (b) the
actual rate of interest borne by such Variable Rate Bonds on the
date of calculation.
(2) The aggregate amount required to pay the principal
becoming due on the Bonds, other than Capital Appreciation Bonds,
for such Bond Year. For purposes of this definition: (a) the
stated maturity date of any Term Bonds shall be disregarded and
the principal of such Term Bonds shall be deemed to be due in the
Bond Years and in the amounts of the Amortization Installments
applicable to such Term Bonds; and (b) the principal amount of
any single maturity of Term Bonds for which the Issuer shall have
established no Amortization Installments shall be deemed to be
due in the Bond Years and in such amounts as shall provide for
the amortization of such principal amount over a term equal
to the number of years such Term Bonds shall be outstanding to
such maturity and in equal annual installments of combined prin-
cipal and interest: provided, however, that if the Issuer has
employed a Credit Facility in connection with any such Term Bonds
having no Amortization Installments the amortization of such Term
Bonds shall be deemed to correspond to the applicable terms of
such Credit Facility.
(3) The aggregate amount required to pay the Accreted
Value due on any Capital Appreciation Bonds maturing in such Bond
Year.
"Federal Securities" shall mean direct obligations of
the united States of America and obligations the principal of and
interest on which are unconditionally guaranteed by the united
states of America, none of which permit redemption prior to matur-
ity at the option of the obligor. Federal Securities shall
include any certificates or any other evidences of an ownership
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interest in the aforementioned obligations or in specified por-
tions thereof (which may consist of specified portions of the
interest thereon) .
"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.
"Governing Body" shall mean the City Council of the
Issuer or its successor in function.
"Half-Cent Sales Tax" shall mean the proceeds of the
local government half-cent sales tax distributed to the Issuer
from the Local Government Half-Cent Sales Tax Clearing Trust
Fund, as defined and described in Chapter 218, Part VI, Florida
Statutes, as amended.
"Half-Cent Sales Tax Fund" shall mean the Half-Cent
Sales Tax Fund established pursuant to section 4.04 hereof.
"Infrastructure Sales Surtax" shall mean the proceeds
derived by the Issuer from the levy and collection of the one-
cent discretionary infrastructure sales surtax pursuant to
Chapter 212, Part I, Florida Statutes, as amended.
"Initial Project" shall mean the acquisition, construc-
tion, and equipping of certain capital projects for the Issuer,
including the development of a recreational park, the construc-
tion of a public works complex, the expansion or relocation of
City Hall and the expansion of the Police station, including,
without limitation, site preparation and equipment deemed neces-
sary or convenient for the operation thereof, as more particu-
larly described in and in accordance with certain plans on file
or to be on file with the Issuer, with such changes, deletions,
additions or modifications to the enumerated improvements, equip-
ment and facilities, or such other improvements as shall be
designated and approved by Supplemental Resolution in accordance
with the Act.
"Insurer" shall mean such Person as shall be in the
business of insuring or guaranteeing the payment of principal of
and interest on municipal securities and whose credit is such
that, at the time of any action or consent required or permitted
by the Insurer pursuant to the terms of this Resolution, all muni-
cipal securities insured or guaranteed by it are then rated,
because of such insurance or guarantee, in one of the two most
secure grades by either Moody's Investors Service or Standard and
Poor's corporation, and with respect to any Series of Bonds, the
Insurer which shall have insured or guaranteed payment of the
principal of or interest on such Bonds.
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"Interest Account" shall mean the separate account of
that name in the Debt Service Fund established pursuant to
section 4.04 hereof.
"Interest Date" shall mean such date or dates for the
paYment of interest on a Series of Bonds as shall be provided by
Supplemental Resolution.
"Issuer" shall mean the City of Clermont, Florida.
"Maximum Debt Service Requirement" shall mean, as of any
particular date of calculation, the greatest annual Debt Service
Requirement for the Bonds for the then current or any future Bond
Year.
"Maximum Interest Rate" shall mean, with respect to any
particular Variable Rate Bonds, a numerical rate of interest,
which shall be set forth in the Supplemental Resolution delinea-
ting the details of such Bonds, that shall be the maximum rate of
interest such Bonds may at any time bear in the future in accord-
ance with the terms of such Supplemental Resolution.
"Mayor" shall mean the Mayor of the Issuer or such
other person as may be duly authorized by the Issuer to act on
his or her behalf.
"Moody's Investors Service" shall mean Moody's Investors
Service, the nationally recognized securities rating firm, and
any successor or successors thereto; and if such corporation shall
be dissolved or liquidated or shall no longer perform securities
rating functions, shall mean any other nationally recognized
securities rating firm designated by the Issuer and approved by
the Insurer and/or the Credit Bank, as applicable.
"Outstanding" shall mean all Bonds theretofore and
thereupon being authenticated and delivered, except (1) any Bond
in lieu of which another Bond or other Bonds have been issued
under an agreement to replace lost, mutilated or destroyed Bonds,
(2) any Bond surrendered by the Holder thereof in exchange for
another Bond or other Bonds under Sections 2.06 and 2.08 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 be-
cause of payment at or redemption prior to maturity.
"Paying Agent" shall mean any paying agent for Bonds
appointed by or pursuant to Supplemental Resolution and its suc-
cessors or assigns, and any other Person which may at any time be
substituted in its place pursuant to Supplemental Resolution.
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"Person" shall mean an individual, a corporation, a
partnership, an association, a joint stock company, a trust, any
unincorporated organization or governmental entity.
"Pledged Funds" shall mean the Infrastructure Sales
Surtax, the Half-Cent Sales Tax and, until applied in accordance
with the provisions of this Resolution, the proceeds of the Bonds
and all moneys, including investments thereof, in the funds and
accounts established hereunder, other than the Unrestricted Reve-
nue Account and the Rebate Fund.
"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 redemp-
tion 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 consisting only of cash or Federal
Securities, secured in the manner set forth in Section 8.01 here-
of, which fund may be applied only to the payment of such princi-
pal 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 deposited in such fund
with any cash on deposit in such fund, are sufficient, as verified
by an independent certified public accountant, 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 redemp-
tion date or dates specified in such irrevocable instructions,
and (4) which are rated in the highest rating category of Standard
& Poor's corporation and of Moody's Investors Service.
"Principal Account" shall mean the separate account of
that name in the Debt Service Fund established pursuant to
Section 4.04 hereof.
"Project" shall mean the Initial Project and any Addi-
tional Project.
"Rebate Fund" shall mean the Rebate Fund established
pursuant to section 4.04 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 Supplemental Resolution.
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"Registrar" shall mean any registrar for the Bonds ap-
pointed by or pursuant to Supplemental Resolution and its succes-
sors and assigns, and any other Person which may at any time be
substituted in its place pursuant to Supplemental Resolution.
"Reserve Account" shall mean the separate account of
that name in the Debt Service Fund established pursuant to Section
4.04 hereof.
"Reserve Account Insurance Policy" shall mean a insur-
ance policy deposited in the Reserve Account in lieu of or in
partial substitution for cash on deposit therein pursuant to Sec-
tion 4.05(A)(4).
"Reserve Account Letter of Credit" shall mean a Credit
Facility (other than a Reserve Account Insurance Policy) issued
by any bank or national banking association, insurance company or
other financial institution and then on deposit in the Reserve
Account in lieu of or in partial substitution for cash on deposit
therein pursuant to Section 4.05(A) (4) hereof.
"Reserve Account Requirement" shall mean, as of any date
of calculation, an amount equal to the lesser of (1) the Maximum
Debt Service Requirement, (2) 125% of the average annual Debt
Service Requirement, or (3) 10% of the proceeds of all Outstand-
ing Bonds. In computing the Reserve Account Requirement, the
interest rate on Variable Rate Bonds shall be assumed to be the
lesser of (a) the 30-year Revenue Bond Index published by The
Bond Buyer no more than two weeks prior to the date of sale of
such Variable Rate Bonds, (b) the Maximum Interest Rate on such
Bonds, or (c) the maximum rate of interest allowed by applicable
law.
"Resolution" and "this Resolution" shall mean this in-
strument, as the same may from time to time be amended, modified
or supplemented by any and all Supplemental Resolutions.
"Restricted Revenue Account" shall mean the separate
account of that name in the Revenue Fund established pursuant to
section 4.04 hereof.
"Revenue Fund" shall mean the Revenue Fund established
pursuant to section 4.04 hereof.
"Securities" shall mean Federal Securities and Prere-
funded obligations.
"Serial Bonds" shall mean all of the Bonds other than
the Term Bonds.
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"Series" shall mean all the Bonds delivered on original
issuance in a simultaneous transaction and identified pursuant to
sections 2.01 and 2.02 hereof or in a Supplemental Resolution
authorizing the issuance by the Issuer of such Bonds as a separate
Series, regardless of variations in maturity, interest rate, Amor-
tization Installments or other provisions.
"Series 1989 Bonds" shall mean the Issuer's Sales Tax
Revenue Bonds, Series 1989, authorized pursuant to section 2.02
hereof.
"Standard and Poor's Corporation" shall mean Standard
and Poor's corporation, the nationally recognized securities
rating firm, and any successor and successors thereto; and if
such corporation shall be dissolved or liquidated or shall no
longer perform securities rating functions, shall mean any other
nationally recognized securities rating firm designated by the
Issuer and approved by the Insurer and/or the Credit Bank, as
applicable.
"State" shall mean the State of Florida.
"Subordinated Indebtedness" shall mean that indebted-
ness of the Issuer, subordinate and junior to the Bonds, issued
in accordance with the provisions of Section 5.01 hereof and any
Variable Rate Bonds which become Subordinated Indebtedness in ac-
cordance with section 5.02 hereof.
"Supplemental Resolution" shall mean any resolution of
the Issuer amending or supplementing this Resolution, adopted and
becoming effective prior to the issuance of the Series 1989 Bonds
or in accordance with the terms of Sections 7.01, 7.02 or 7.03
hereof.
"Taxable Bond" shall mean any Bond which states, in the
body thereof, that the interest income thereon is includable in
the gross income of the Holder thereof for federal income taxation
purposes.
"Term Bonds" shall mean those Bonds which shall be desig-
nated as Term Bonds hereby or by Supplemental Resolution and which
are subject to mandatory redemption by Amortization Installments.
"Unrestricted Revenue Account" shall mean the separate
account of that name in the Revenue Fund established pursuant to
Section 4.04 hereof.
"Variable Rate Bonds" shall mean Bonds issued with a
variable, adjustable, convertible or other interest rate which at
the date of issue is not fixed as one or more stated percentages
for the entire term of such Bonds.
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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 singular number include the plural
number, and vice versa.
SECTION 1.02. Authority for Resolution. This Resolu-
tion is adopted pursuant to the provisions of the Act.
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 deemed to be and shall
constitute a contract between the Issuer and the Holders from
time to time of the Bonds and shall be a part of the contract of
the Issuer with any Credit Bank and any Insurer. The pledge
made in this Resolution and the provisions, covenants and agree-
ments 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 the Bonds and for the benefit,
protection and security of any Credit Bank and any Insurer. 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. Findinqs. It is hereby ascertained,
determined and declared as follows:
(A) The Issuer deems it necessary, desirable and in
the best interests of the Issuer that the Initial Project be ac-
quired and constructed.
(B) The Cost of the Initial Project shall be financed
with the proceeds of the Series 1989 Bonds.
(C) The Issuer deems it necessary, desirable and in
the best interest of the Issuer that the Pledged Funds be
pledged to the payment of the principal of and interest on the
Bonds.
(D) The estimated Pledged Funds will be sufficient to
pay the principal of and interest on the Series 1989 Bonds, as
the same become due, and all other payments provided for in this
Resolution.
(E) The principal of and interest on the Bonds and all
other payments provided for in this Resolution will be paid solely
from the sources herein provided in accordance with the terms
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hereof; and no ad valorem taxing power of the Issuer will ever be
exercised nor will any Holder of any Bond or any Credit Bank or
any Insurer have the right to compel the exercise of such ad
valorem taxing power to pay the principal of or interest on the
Bonds or to make any other payments provided for in this Resolu-
tion, and the Bonds shall not constitute a lien upon any property
of the Issuer or situated within its territorial limits, except
the Pledged Funds.
SECTION 1.05. Initial Project Authorized. The acquisi-
tion and construction of the Initial Project in the manner herein
provided is hereby authorized.
ARTICLE II
AUTHORIZATION, TERMS, EXECUTION
AND REGISTRATION OF BONDS
SECTION 2.01. Authorization of Bonds. The Issuer here-
by authorizes the issuance of Bonds of the Issuer to be desig-
nated as "City of Clermont, Florida, Sales Tax Revenue Bonds,"
which may be issued in one or more Series as hereinafter pro-
vided. The aggregate principal amount of the Bonds which may be
executed and delivered under this Resolution is not limited
except as may hereafter be provided by Supplemental Resolution or
as limited by the Act or by other applicable law.
The Bonds may, if and when authorized by the Issuer
pursuant to this Resolution or Supplemental Resolution, be issued
in one or more Series, with such further appropriate particular
designations added to or incorporated in such title for the Bonds
of any particular Series as the Issuer may determine and as may
be necessary to distinguish such Bonds from the Bonds of any other
Series. Each Bond shall bear upon its face the designation so
determined for the Series to which it belongs.
The Bonds shall be issued for such purpose or purposes;
shall bear interest at such rate or rates not exceeding the maxi-
mum rate permitted by law; and shall be payable in lawful money
of the united States of America on such dates; all as determined
by this Resolution or by Supplemental Resolution. From and after
any maturity date of any of the Bonds (deposit of moneys and/or
Securities for the payment of the principal and interest on such
Bonds having been made by the Issuer with the Paying Agents),
notwithstanding that any of such Bonds shall not have been sur-
rendered for cancellation, no further interest shall accrue upon
the principal or upon the interest which shall have accrued and
shall then be due on such date, and such Bonds shall cease to be
entitled to any lien, benefit or security under this Resolution,
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and the Holders shall have no rights in respect of such Bonds
except to receive payment of such principal and unpaid interest
accrued to the maturity date.
The Bonds shall be issued in such denomination or denom-
inations and such form, whether coupon or registered; shall be
dated such date or dates; shall bear such numbers; shall be pay-
able at such place or places; shall contain such redemption pro-
visions; shall have such Paying Agents and Registrars; shall ma-
ture in such years and amounts; and the proceeds shall be used in
such manner all as determined by this Resolution or by Supple-
mental Resolution. The Issuer may issue Bonds which may be se-
cured by a Credit Facility or by a Bond Insurance Policy of an
Insurer all as shall be determined by this Resolution or by Sup-
plemental Resolution.
SECTION 2.02. Authorization and Description of Series
1989 Bonds. A Series of Bonds entitled to the benefit, protec-
tion and security of this Resolution is hereby authorized to be
issued in an aggregate principal amount not to exceed $2,070,000
for the principal purpose of financing the cost of acquiring and
constructing the Initial Project and paying certain costs of
issuance incurred with respect to such Series. Such Series shall
be designated as, and shall be distinguished from the Bonds of
all other Series by the title "City of Clermont, Florida, Sales
Tax Revenue Bonds, Series 1989," provided that the Issuer may
change such designation in the event the Series 1989 Bonds are
not issued in calendar year 1989.
The Series 1989 Bonds shall be dated as of the first day
of the month in which occurs the delivery of the Series 1989
Bonds to the purchaser or purchasers thereof or such other date
as may be set forth by Supplemental Resolution; shall be issued
as fully registered Bonds; and shall be numbered consecutively
from one upward in order of maturity preceded by the letter "R;"
shall be in such denominations and shall bear interest at a rate
or rates not exceeding the maximum rate permitted by law (calcu-
lated on the basis of a 360-day year of twelve 30-day months),
payable in such manner and on such dates; shall consist of such
amounts of Serial Bonds, Term Bonds, Variable Rate Bonds and
Capital Appreciation Bonds, maturing in such amounts and in such
years not exceeding fifteen (15) years from their date; shall be
payable in such place or places; shall have such Paying Agents
and Registrars; and shall contain such redemption provisions; all
as the Issuer shall hereafter provide by Supplemental Resolution.
The principal of or Redemption Price, if applicable, on
the Series 1989 Bonds are payable upon presentation and surrender
of the Series 1989 Bonds at the office of the Paying Agent.
Interest payable on any Series 1989 Bond on any Interest Date
will be paid by check or draft of the Paying Agent to the Holder
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in whose name such Bond shall be registered at the close of busi-
ness on the date which shall be the fifteenth day (whether or not
a business day) of the calendar month next preceding such Inter-
est Date, or, unless otherwise provided by Supplemental Resolu-
tion, at the option of the Paying Agent, and at the request and
expense of such Holder, by bank wire transfer for the account of
such Holder. In the event the interest payable on any Series
1989 Bond is not punctually paid or duly provided for by the
Issuer on such Interest Date, such defaulted interest will be
paid to the Holder in whose name such Bond shall be registered at
the close of business on a special record date for the payment of
such defaulted interest as established by notice to such Holder,
not less than ten (10) days preceding such special record date.
All payments of principal of or Redemption Price, if applicable,
and interest on the Series 1989 Bonds shall be payable in any
coin or currency of the United States of America which at the
time of payment is legal tender for the payment of public and
private debts.
SECTION 2.03. Application of Series 1989 Bond Proceeds.
Except as otherwise provided by Supplemental Resolution, the pro-
ceeds derived from the sale of the Series 1989 Bonds, including
accrued interest and premium, if any, shall, simultaneously with
the delivery of the Series 1989 Bonds to the purchaser or pur-
chasers thereof, be applied by the Issuer as follows:
(A) Accrued interest shall be deposited in the Interest
Account.
(B) All costs and expenses in connection with the prep-
aration, issuance and sale of the Series 1989 Bonds, including
fees of financial advisors, consulting fees, legal fees, bond
insurance premiums, reserve account surety bond premiums, print-
ing fees, rating agency fees and all other similar costs shall be
paid by the Issuer to the persons respectively entitled to
receive the same.
(C) The balance of the Series 1989 Bond proceeds
shall be deposited in the Construction Fund.
SECTION 2.04. Execution of Bonds. The Bonds shall be
executed in the name , of the Issuer with the manual or facsimile
signature of the Mayor and the official seal of the Issuer shall
be imprinted thereon, attested and countersigned with the manual
or facsimile signature of the Clerk. In case anyone or more of
the officers who shall have signed or sealed any of the Bonds or
whose facsimile signature shall appear thereon shall cease to be
such officer of the Issuer before the Bonds so signed and sealed
have been actually sold and delivered such Bonds may nevertheless
be sold and delivered as herein provided and may be issued as if
the person who signed or sealed such Bonds had not ceased to hold
such office. Any Bond may be signed and sealed on behalf of the
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Issuer by such person who at the actual time of the execution of
such Bond shall hold the proper office of the Issuer, although at
the date of such Bond such person may not have held such office
or may not have been so authorized. The Issuer may adopt and use
for such purposes the facsimile signatures of any such persons
who shall have held such offices at any time after the date of
the adoption of this Resolution, notwithstanding that either or
both shall have ceased to hold such office at the time the Bonds
shall be actually sold and delivered.
SECTION 2.05. Authentication. No Bond of any Series
shall be secured hereunder or entitled to the benefit hereof or
shall be valid or obligatory for any purpose unless there shall
be manually endorsed on such Bond a certificate of authentication
by the Registrar or such other entity as may be approved by the
Issuer for such purpose. Such certificate on any Bond shall be
conclusive evidence that such Bond has been duly authenticated
and delivered under this Resolution. The form of such certificate
shall be substantially in the form provided in section 2.10 hereof.
SECTION 2.06. Temporary Bonds. until the definitive
Bonds of any Series are prepared, the Issuer may execute, in the
same manner as is provided in Section 2.04, and deliver, upon
authentication by the Registrar pursuant to section 2.05 hereof,
in lieu of definitive Bonds, but subject to the same provisions,
limitations and conditions as the definitive Bonds, except as to
the denominations thereof, one or more temporary Bonds substanti-
ally 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 Supplemental 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 defini-
tive Bonds, which shall be authenticated by the Registrar. Upon
the surrender of such temporary Bonds for exchange, the Registrar,
without charge to the Holder thereof, shall deliver in exchange
therefor definitive Bonds, of the same aggregate principal amount
and Series and maturity as the temporary Bonds surrendered. Until
so exchanged, the temporary Bonds shall in all respects be entitled
to the same benefits and security as definitive Bonds issued pur-
suant 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 2.07. Bonds Mutilated, Destroyed, Stolen or
Lost. In case any Bond shall become mutilated, or be destroyed,
stolen or lost, the Issuer may, in its discretion, issue and de-
liver, and the Registrar shall authenticate, a new Bond of like
tenor as the Bond so mutilated, destroyed, stolen or lost, in
exchange and substitution for such mutilated Bond upon surrender
and cancellation of such mutilated Bond or in lieu of and substi-
tution for the Bond destroyed, stolen or lost, and upon the Holder
furnishing the Issuer and the Registrar proof of such Holder's
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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 or other-
wise substituted 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 Sec-
tion 2.07 shall constitute original, additional contractual obli-
gations on the part of the Issuer whether or not the lost, stolen
or destroyed Bond be at any time found by anyone, and such dupli-
cate Bond shall be entitled to equal and proportionate benefits
and rights as to lien on the Pledged Funds to the same extent as
all other Bonds issued hereunder and shall be entitled to the same
benefits and security as the Bond so lost, stolen or destroyed.
SECTION 2.08. Interchangeability, Negotiability and
Transfer. Bonds, upon surrender thereof at the office of the
Registrar with a written instrument of transfer satisfactory to
the Registrar, duly executed by the Holder thereof or such Holder's
attorney duly authorized in writing, may, at the option of the
Holder thereof, be exchanged for an equal aggregate principal
amount of registered Bonds of the same Series and maturity of any
other authorized denominations.
The Bonds issued under this Resolution shall be and
have all the qualities and incidents of negotiable instruments
under the laws of the State of Florida, subject to the provisions
for registration and transfer contained in this Resolution and in
the Bonds. So long as any of the Bonds shall remain outstanding,
the Issuer shall maintain and keep, at the office of the Registrar,
books for the registration and transfer of the Bonds.
Each Bond shall be transferable only upon the books of
the Issuer, at the office of the Registrar, under such reasonable
regulations as the Issuer may prescribe, by the Holder thereof in
person or by such Holder's attorney duly authorized in writing
upon surrender thereof together with a written instrument of trans-
fer satisfactory to the Registrar duly executed and guaranteed by
the Holder or such Holder's duly authorized attorney. Upon the
transfer of any such Bond, the Issuer shall issue, and cause to
be authenticated, in the name of the transferee a new Bond or
Bonds of the same aggregate principal amount and Series and matur-
ity 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
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receiving payment of, or on account of, the principal or Redemp-
tion 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 such Holder's order shall be valid and effectual to satisfy
and discharge the liability upon such Bond to the extent of the
sum or sums so paid and neither the Issuer nor the Registrar nor
any Paying Agent or other fiduciary of the Issuer shall be affected
by any notice to the contrary.
The Registrar, in any case where it is not also the
Paying Agent in respect to any Series of Bonds, shall forthwith
(a) following the fifteenth day prior to an interest payment date
for such Series, (b) following the fifteenth day next preceding
the date of first mailing of notice of redemption of any Bonds of
such Series, and (c) at any other time as reasonably requested by
the Paying Agent of such series, certify and furnish to such Pay-
ing 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 or draft to the Holder
entitled thereto or may, in lieu thereof, upon the request and at
the expense of such Holder, transmit such payment by bank wire
transfer for the account of such Holder.
In all cases in which the privilege of exchanging Bonds
or transferring Bonds is exercised, the Issuer shall execute and
the Registrar shall authenticate and deliver such Bonds in accor-
dance with the provisions of this Resolution. Execution of Bonds
by the Mayor and the Clerk for purposes of exchanging, replacing
or transferring Bonds may occur at the time of the original
delivery of the Series of which such Bonds are a part. All Bonds
surrendered in any such exchanges or transfers shall be cancelled
by the Registrar. For every such exchange or transfer of Bonds,
the Issuer or the Registrar may make a charge sufficient to reim-
burse it for any tax, fee, expense or other governmental charge
required to be paid with respect to such exchange or transfer.
The Issuer and the Registrar shall not be obligated to make any
such exchange or transfer of Bonds of any Series during the fif-
teen (15) days next preceding an Interest Date on the Bonds of
such Series (other than Capital Appreciation Bonds and Variable
Rate Bonds), or, in the case of any proposed redemption of Bonds,
during the fifteen (15) days next preceding the redemption date
established for such Bonds.
The Issuer may elect to issue any Bonds as uncertifi-
cated registered public obligations (not represented by instru-
ments), commonly known as book-entry obligations, provided it
shall establish a system of registration therefor by Supplemental
Resolution.
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SECTION 2.09. Coupon Bonds. The Issuer, at its dis-
cretion, may by Supplemental Resolution authorize the issuance of
Coupon Bonds, registrable as to principal only or as to both prin-
cipal and interest. Such Supplemental Resolution shall provide
for the negotiability, transfer, interchangeability, denominations
and form of such Bonds and coupons appertaining thereto. Coupon
Bonds (other than Taxable Bonds) shall only be issued if an opin-
ion of Bond Counsel is received to the effect that issuance of
such Coupon Bonds will not adversely affect the exclusion of the
interest payable on such Bonds from gross income for federal
income tax purposes.
SECTION 2.10. Form of Bonds. Except as otherwise pro-
vided pursuant to section 2.09 hereof and except for Capital Ap-
preciation Bonds and Variable Rate Bonds, the form of which shall
be provided by Supplemental Resolution, 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 Mayor or the Clerk prior to the issuance thereof (which
necessity and/or desirability and approval shall be evidenced
conclusively by the Issuer's delivery of the Bonds to the purchaser
or purchasers thereof):
No. R-
$
UNITED STATES OF AMERICA
STATE OF FLORIDA
CITY OF CLERMONT
SALES TAX REVENUE BONDS
SERIES
Interest
Rate
Maturity
Date
Date of
Original Issue
CUSIP
~
o
Registered Holder:
Principal Amount:
KNOW ALL MEN BY THESE PRESENTS, that the City of
Clermont, a municipal corporation created and existing under and
by virtue of the laws of the state of Florida (the "Issuer"), for
value received, hereby promises to pay, solely from the sources
of payment hereinafter described, to the Registered Holder iden-
tified above, or registered assigns as hereinafter provided, the
Principal Amount identified above on the Maturity Date identified
above and interest (calculated on the basis of a 360-day year of
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twelve 30-day months) on such Principal Amount from the Date of
Original Issue identified above or from the most recent interest
payment date to which interest has been paid, at the Interest
Rate per annum identified above on and
of each year commencing , until such Principal
Amount shall have been paid or provided for, except as the provi-
sions 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 pay-
ment thereof, shall be legal tender for the payment of public and
private debts. Such Principal Amount and the premium, if any, on
this bond, are payable, upon presentation and surrender hereof,
at the corporate trust office of
, Florida, as paying agent, or such other paying
agent as the Issuer shall hereafter duly appoint (the "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, or such other
registrar as the Issuer shall hereafter duly appoint (the "Regis-
trar"), at the close of business on the date which shall be the
fifteenth day (whether or not a business day) of the calendar
month next preceding each interest payment date and shall be paid
by a check or draft of the Paying Agent mailed to such Registered
Holder at the address appearing on such registration books or, at
the option of the Paying Agent, and at the request and expense of
such Registered Holder, by bank wire transfer for the account of
such Holder. In the event interest payable on this bond is not
punctually paid or duly provided for by the Issuer on such inter-
est payment date, payment of each installment of such defaulted
interest shall be made to the person in whose name this bond
shall be registered at the close of business on a special record
date for the payment of such defaulted interest as established by
notice to such Registered Holder, not less than ten (10) days
preceding such special record date.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF
THIS BOND SET FORTH ON THE REVERSE SIDE HEREOF AND SUCH FURTHER
PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS IF SET
FORTH IN THIS PLACE.
This bond shall not be valid or become obligatory for
any purpose until the certificate of authentication hereon shall
have been manually signed by the Registrar.
IN WITNESS WHEREOF, the City of Clermont, Florida, has
issued this bond and has caused the same to be executed by the
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manual or facsimile signature of its Mayor and attested and
countersigned by the manual or facsimile signature of its Clerk
and its official seal or a facsimile thereof to be affixed or
reproduced hereon, all as of the day of 19
CITY OF CLERMONT, FLORIDA
(SEAL)
By
Mayor
ATTESTED AND COUNTERSIGNED:
Clerk
CERTIFICATE OF AUTHENTICATION
This bond is one of the Bonds of the issue described
in the within-mentioned Resolution.
DATE OF AUTHENTICATION:
Registrar
By:
Authorized Officer
(provisions on Reverse Side of Bond)
This bond is one of an author.ized issue of bonds of the
Issuer in the aggregate principal amount of $ (the
"Bonds") of like date, tenor and effect, except as to maturity
date, interest rate, denomination and number, issued to finance
, in and for
the Issuer, under the authority of and in full compliance with
the Constitution and laws of the State of Florida, particularly
Chapter 166, Part II, Florida Statutes, as amended, Chapter 218,
Part VI, Florida Statutes, as amended, and Chapter 212, Part I,
Florida Statutes, as amended, and other applicable provisions of
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law (the "Act"), and a resolution duly adopted by the City Coun-
cil of the Issuer on , 1989, as supplemented (the "Reso-
lution"), and is subject to all the terms and conditions of the
Resolution.
The principal and interest on this bond is payable
solely from and secured by a lien upon and a pledge of (1) the
proceeds derived by the Issuer from the levy and collection of
the one-cent discretionary infrastructure sales surtax pursuant
to Chapter 212, Part I, Florida statutes, as amended, (2) the
proceeds of the local government half-cent sales tax distributed
to the Issuer from the Local Government Half-Cent Sales Tax
Clearing Trust Fund, as defined and described in Chapter 218,
Part VI, Florida Statutes, as amended (the "Half-Cent Sales
Tax"), and (3) until applied in accordance with the provisions of
the Resolution, the proceeds of the Bonds and all moneys, includ-
ing investments thereof, in certain of the funds and accounts
established pursuant to the Resolution, all in the manner and to
the extent described in the Resolution (collectively, the
"Pledged Funds"). The Issuer has the right, under certain cir-
cumstances described in the Resolution, to obtain the release of
the pledge of and lien upon the Half-Cent Sales Tax, in which
event Pledged Funds shall no longer include the Half-Cent Sales
Tax. It is expressly agreed by the Registered Holder of this
bond that the full faith and credit of neither the Issuer, the
State of Florida, nor any political subdivision thereof, is
pledged to the payment of the principal of or premium, if any, or
interest on this bond and that the Registered 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 sub-
division 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,
except the Pledged Funds, and shall be payable solely from the
Pledged Funds in accordance with the terms of the Resolution.
Neither the members of the City Council 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.
(INSERT REDEMPTION PROVISIONS)
Notice of redemption, unless waived, is to be given by
the Registrar by mailing an official redemption notice by first
class mail, postage prepaid, at least 30 days and not more than
60 days prior to the date fixed for redemption to the registered
holders of the Bonds to be redeemed at such holders' addresses
shown on the registration books maintained by the Registrar or at
such other addresses as shall be furnished in writing by such
registered holders to the Registrar; provided, however, that no
defect in any such notice to any registered holder of Bonds to be
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redeemed nor failure to give such notice to any such registered
holder nor failure of any such registered holder to receive such
notice shall in any manner defeat the effectiveness of a call for
redemption as to all other registered holders of Bonds to be re-
deemed. Notice of redemption having been given as aforesaid, the
Bonds or portions of Bonds to be redeemed shall, on the redemp-
tion 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
portion~ of Bonds shall cease to bear interest.
This bond is and has all the qualities and incidents of
a negotiable instrument under the laws of the state of Florida,
but may be transferred only in accordance with the terms of the
Resolution only upon the books of the Issuer kept for that pur-
pose at the office of the Registrar by the Registered Holder in
person or by such Holder's attorney duly authorized in writing,
upon the surrender of this bond together with a written instru-
ment of transfer satisfactory to the Registrar duly executed by
the Registered Holder or such Holder's attorney duly authorized
in writing, and thereupon a new bond or bonds in the same aggre-
gate principal amount shall be issued to the transferee in ex-
change therefor, and upon the payment of the charges, if any,
prescribed in the Resolution. Each of the Bonds is issuable in
fully registered form in the denomination of $5,000 or any inte-
gral multiple thereof not exceeding the aggregate principal
amount of the Bonds having the same maturity. 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 and the Registrar shall
not be obligated to make any exchange or transfer of any Bonds
during the fifteen (15) days next preceding an interest payment
date, or in the case of any proposed redemption of any Bonds,
then, during the fifteen (15) days next preceding the redemption
date established for such Bonds.
It is hereby certified and recited that all acts, condi-
tions and things required to exist, to happen and to be performed
precedent to and in the issuance of this bond, exist, have hap-
pened and have been performed, in regular and due form and time
as required by the Constitution and laws of the state of Florida
applicable thereto, and that the issuance of the Bonds does not
violate any constitutional or statutory limitations or provisions.
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LEGAL OPINION
[Insert appropriate approving opinion of bond counsel.]
The above is a true copy of the opinion rendered by
Foley & Lardner, Jacksonville, Florida, in connection with the
issuance of, and dated as of the original delivery of, the Bonds
of the issue of which this bond is one. An executed copy of
that opinion is on file in my office.
City Clerk, City of
Clermont, Florida
The following abbreviations, when used in the inscrip-
tion 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 Transfer to Minors Act of
(State)
Additional abbreviations may also be used though not in
list above.
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned sells, assigns and
transfers unto
Insert Social security or Other
Identifying Number of Assignee
(Name and Address of Assignee)
the within bond and does hereby irrevocably constitute and appoint
, as attorneys to
register the transfer of the said bond on the books kept for regis-
tration thereof with full power of substitution in the premises.
Dated:
signature Guaranteed:
NOTICE: Signature(s) must be
guaranteed by a member firm
of the New York Stock Exchange
or a commercial bank or trust
company.
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 iden-
tifying number of such assignee
must be supplied.
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ARTICLE III
REDEMPTION OF BONDS
SECTION 3.01. Privilege of Redemption. The terms of
this Article III shall apply to redemption of Bonds other than
capital Appreciation Bonds or Variable Rate Bonds. The terms and
provisions relating to redemption of Capital Appreciation Bonds
and Variable Rate Bonds shall be provided by Supplemental Resolu-
tion.
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
sixty (60) 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 par-
ticular Bonds or portions of Bonds to be redeemed shall be selected
not more than forty-five (45) days prior to the redemption date
by the Registrar from the outstanding Bonds of the maturity or
maturities designated by the Issuer by such method as the Regis-
trar shall deem fair and appropriate and which may provide for
the selection for redemption of Bonds or portions of Bonds in
principal amounts of $5,000 and integral multiples thereof.
If less than all of the outstanding Bonds of a single
maturity are to be redeemed, the Registrar shall promptly notify
the Issuer and Paying Agent (if the Registrar is not the Paying
Agent for such Bonds) in writing of the Bonds or portions of Bonds
selected for redemption and, in the case of any Bond selected for
partial redemption, the principal amount thereof to be redeemed.
SECTION 3.03. Notice of Redemption. Unless waived by
any Holder of Bonds to be redeemed, notice of any redemption made
pursuant to this section shall be given by the Registrar on be-
half of the Issuer by mailing a copy of an official redemption
notice by first class mail, postage prepaid, at least thirty (30)
days and not more than sixty (60) days prior to the date fixed
for redemption to each Holder of Bonds to be redeemed at the ad-
dress of such Holder shown on the registration books maintained
by the Registrar or at such other address as shall be furnished
in writing by such Holder to the Registrar; provided, however,
that no defect in any notice given pursuant to this section to
any Holder of Bonds to be redeemed nor failure to give such no-
tice shall in any manner defeat the effectiveness of a call for
redemption as to all other Holders of Bonds to be redeemed.
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Every official notice of redemption shall be dated and
shall state:
(1) the redemption date,
(2) the Redemption Price,
(3) if less than all outstanding Bonds are to be re-
deemed, the number (and, in the case of a partial redemption of
any Bond, the principal amount) of each Bond to be redeemed,
(4) that on the redemption date the Redemption Price
will become due and payable upon each such Bond or portion thereof
called for redemption, and that interest thereon shall cease to
accrue from and after said date, and
(5) that such Bonds to be redeemed, whether as a whole
or in part, are to be surrendered for paYment of the Redemption
Price plus accrued interest at the office of the Paying Agent.
Prior to any redemption date, the Issuer shall deposit
with the Paying Agent an amount of money sufficient to pay the
Redemption Price of and accrued interest on all the Bonds or por-
tions of Bonds which are to be redeemed on that date; provided,
however, that redemption of Bonds, other than mandatory sinking
fund redemptions and other than pursuant to the application of
refunding bond proceeds, shall be made only from and to the extent
of funds on deposit with the Paying Agent, or other paying agent
with respect to such Bonds, and available for such purpose on the
date the official notice of redemption is mailed.
In addition to the foregoing notice, further notice
shall be given by the Issuer as set out below, but no defect in
said further notice nor any failure to give all or any portion of
such further notice shall in any manner defeat the effectiveness
of a call for redemption if notice thereof is given as above pre-
scribed.
(1) Each further notice of redemption given hereunder
shall contain the information required above for an official notice
of redemption plus (a) the CUSIP numbers of all Bonds being re-
deemed; (b) the date of issue of the Bonds as originally issued;
(c) the rate of interest borne by each Bond being redeemed;
(d) the maturity date of each Bond being redeemed; and (e) any
other descriptive information needed to identify accurately the
Bonds being redeemed.
(2) Each further notice of redemption shall be sent at
least thirty-five (35) days before the redemption date by regis-
tered or certified mail or overnight delivery service to any
Insurer which shall have insured, or any Credit Bank which shall
have provided a Credit Facility for, any of the Bonds being
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redeemed and to all registered securities depositories then in
the business of holding substantial amounts of obligations of
types similar to the type of which the Bonds consist (such deposi-
tories now being Depository Trust Company of New York, New York,
Midwest Securities Trust Company of Chicago, Illinois, Pacific
Securities Depository Trust Company of San Francisco, California,
and Philadelphia Depository Trust Company of Philadelphia, Penn-
sylvania) and to one or more national information services that
disseminate notices of redemption of obligations such as the Bonds.
(3) Each such further notice shall be published one
time in the Bond Buyer of New York, New York or, if such pUblica-
tion is impractical or unlikely to reach a substantial number of
the Holders of the Bonds, in some other financial newspaper or
journal which regularly carries notices of redemption of obliga-
tions similar to the Bonds, such publication to be made at least
30 days prior to the date fixed for redemption.
SECTION 3.04. Redemption of Portions of Bonds. Any
Bond which is to be redeemed only in part shall be surrendered at
any place of payment specified in the notice of redemption (with
due endorsement by, or written instrument of transfer in form
satisfactory to the Registrar duly executed by, the Holder thereof
or such Holder's 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 the same interest rate and maturity, and of any
authorized denomination as requested by such Holder, in an aggre-
gate 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. Official
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. Each check
or other transfer of funds issued by the Registrar and/or Paying
Agent for the purpose of the payment of the Redemption Price of
Bonds being redeemed shall bear the CUSIP number identifying, by
issue and maturity, the Bonds being redeemed with the proceeds of
such check or other transfer. Installments of interest due on or
prior to the Redemption Date shall be payable as herein provided
for payment of interest. All Bonds which have been redeemed shall
be cancelled by the Registrar and shall not be reissued.
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ARTICLE IV
SECURITY, SPECIAL FUNDS AND
APPLICATION THEREOF
SECTION 4.01. Bonds not to be Indebtedness of Issuer.
The Bonds shall not be or constitute general obligations or in-
debtedness of the Issuer as "bonds" within the meaning of any
constitutional or statutory provision, but shall be special obli-
gations of the Issuer, payable solely from and secured by a lien
upon and pledge of the Pledged Funds in accordance with the terms
of this Resolution. The Issuer may cause any Series of Bonds to
be payable from and secured by a Credit Facility or a Bond Insur-
ance Policy of an Insurer not applicable to anyone or more other
Series of Bonds. No Holder of any Bond or any Credit Bank or any
Insurer shall ever have the right to compel the exercise of the
ad valorem taxing power of the Issuer to pay such Bond or shall
be entitled to payment of such Bond from any moneys of the Issuer
except the Pledged Funds, in the manner provided herein.
The Pledged Funds shall be subject to the lien of this
pledge immediately upon the issuance and delivery of the Series
1989 Bonds, without any physical delivery by the Issuer of the
Pledged Funds or further act, and the lien of this pledge shall
be valid and binding as against all parties having claims of any
kind against the Issuer, in tort, contract or otherwise.
SECTION 4.02. Security for Bonds. The payment of the
principal of or Redemption Price, if applicable, and interest on
the Bonds shall be secured forthwith equally and ratably by a
pledge of and lien upon the Pledged Funds; provided, however, a
Series of Bonds may be further secured by a Credit Facility or
any Bond Insurance Policy of an Insurer not applicable to anyone
or more other Series of Bonds, as shall be provided by Supplemental
Resolution, in addition to the security provided herein. The
Issuer does hereby irrevocably pledge the Pledged Funds to the
payment of the principal of or Redemption Price, if applicable,
and interest on the Bonds.
SECTION 4.03. Construction Fund. The Issuer covenants
and agrees to establish a separate fund with an Authorized Depos-
itory to be known as the "City of Clermont Sales Tax Revenue
Bonds Construction Fund," which shall be used only for payment of
the Cost of the Projects. Moneys in the Construction Fund, until
applied in payment of any item of the Cost of a Project in the
manner hereinafter provided, shall be held in trust by the Issuer
and shall be subject to a lien and charge in favor of the Bond-
holders and for the further security of such Holders.
There shall be paid into the Construction Fund the amounts
required to be so paid by the provisions of this Resolution or any
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Supplemental Resolution, and there may be paid into the Construc-
tion Fund, at the option of the Issuer, any moneys received for
or in connection with a Project by the Issuer from any other
source.
The Issuer shall establish within the Construction Fund
a separate account for the Initial Project and each Additional
Project, the Cost of which is to be paid in whole or in part out
of the Construction Fund.
The proceeds of insurance maintained pursuant to this
Resolution against physical loss of or damage to a Project, or of
contractors' performance bonds with respect thereto pertaining to
the period of construction thereof, shall be deposited into the
appropriate account of the Construction Fund.
The Issuer covenants that the acquisition and construc-
tion of each Project will be completed without delay and in
accordance with sound engineering practices. The Issuer shall
make disbursements or payments from the Construction Fund to pay
the Cost of a Project upon the filing with the Clerk of documents
and/or certificates signed by an Authorized Issuer Officer stat-
ing with respect to each disbursement or payment to be made: (1)
the item number of the payment, (2) the name and address of the
Person to whom payment is due, (3) the amount to be paid, (4) the
Construction Fund account from which payment is to be made, (5)
the purpose, by general classification, for which payment is to
be made, and (6) that (A) each obligation, item of cost or ex-
pense mentioned therein has been properly incurred, is in payment
of a part of the Cost of a Project and is a proper charge against
the account of the Construction Fund from which payment is to be
made and has not been the basis of any previous disbursement or
payment, or (B) each obligation, item of cost or expense men-
tioned therein has been paid by the Issuer, is a reimbursement of
a part of the Cost of a Project, is a proper charge against the
account of the Construction Fund from which payment is to be
made, has not been theretofore reimbursed to the Issuer or other-
wise been the basis of any previous disbursement or payment and
the Issuer is entitled to reimbursement thereof. The Clerk shall
retain all such documents and/or certificates of the Authorized
Issuer Officers for seven (7) years from the dates of such docu-
ments and/or certificates. The Clerk shall make available the
documents and/or certificates at all reasonable times for inspec-
tion by any Bondholder or the agent or representative of any Bond-
holder.
Notwithstanding any of the other provisions of this Sec-
tion 4.03, to the extent that other moneys are not available
therefor, amounts in the Construction Fund shall be applied to
the payment of principal of or Redemption Price, if applicable,
and interest on Bonds when due.
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The date of completion of a Project shall be determined
by the Authorized Issuer Officer who shall certify such fact in
writing to the Governing Body. Promptly after the date of the
completion of a Project, and after paying or making provisions
for the paYment of all unpaid items of the Cost of such project,
the Issuer shall deposit in the following order of priority any
balance of moneys remaining in the Construction Fund in (1)
another account of the Construction Fund for which the Authorized
Issuer Officer has stated that there are insufficient moneys
present to pay the Cost of the related Project, (2) the Reserve
Account, to the extent of a deficiency therein, and (3) such
other fund or account of the Issuer; including those established
hereunder, as shall be determined by the Governing Body, provided
the Issuer has received an opinion of Bond Counsel to the effect
that such transfer shall not adversely affect the exclusion, if
any, of interest on the Bonds from gross income for federal in-
come tax purposes.
SECTION 4.04. Funds and Accounts. The Issuer covenants
and agrees to establish with one or more Authorized Depositories
separate funds to be known as the "City of Clermont Sales Tax
Revenue Bonds Revenue Fund," the "City of Clermont Half-Cent
Sales Tax Fund," the "City of Clermont Sales Tax Revenue Bonds
Debt Service Fund" and the "City of Clermont Sales Tax Revenue
Bonds Rebate Fund." The Issuer shall maintain in the Revenue
Fund two accounts: the "Restricted Revenue Account" and the
"Unrestricted Revenue Account." The Issuer shall maintain in the
Debt Service Fund four accounts: the "Interest Account," the
"Principal Account," the "Bond Amortization Account," and the
"Reserve Account." Moneys in the Restricted Revenue Account, the
Half-Cent Sales Tax Fund and the Debt Service Fund, until applied
in accordance with the provisions hereof, shall be subject to a
lien and charge in favor of the Holders and for the further
security of the Holders.
The Issuer shall at any time and from time to time ap-
point one or more Authorized Depositories to hold, for the bene-
fit of the Issuer and/or the Bondholders, anyone or more of the
funds and accounts established hereby. Such depository or depos-
itaries shall perform at the direction of the Issuer the duties
of the Issuer in depositing, transferring and disbursing moneys
to and from each of such funds and accounts as herein set forth,
and all records of such depositary in performing such duties
shall be open at all reasonable times to inspection by the Issuer
and its agent and employees.
SECTION 4.05. Flow of Funds.
(A) The Issuer shall deposit the Infrastructure Sales
Surtax into the Restricted Revenue Account, promptly upon receipt
thereof. On or before the last day of each month, commencing
with the month in which delivery of the Series 1989 Bonds shall
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be made to the purchasers thereof, the moneys in the Restricted
Revenue Account shall be deposited or credited in the following
manner and in the following order of priority:
(1) Interest Account. The Issuer shall deposit into or
credit to the Interest Account the sum which, together with the
balance in said account, shall equal the interest on all Outstand-
ing Bonds accrued and unpaid and to accrue to the end of the then
current calendar month (assuming that a year consists of twelve
(12) equal calendar months of thirty (30) days each). Moneys in
the Interest Account shall be applied by the Issuer to pay inter-
est on the Bonds as and when the same become due, whether by
redemption or otherwise, and for no other purpose. The Issuer
shall adjust the amount of the 'deposit into the Interest Account
not later than the month immediately preceding any Interest Date
so as to provide sufficient moneys in the Interest Account to pay
the interest coming due on the Bonds on such Interest Date.
(2) Principal Account. Next, the Issuer shall deposit
into or credit to thé Principal Account the sum which, together
with the balance in said account, shall equal (a) the principal
amount of all outstanding Bonds other than Term Bonds due and
unpaid, (b) that portion of the principal amount of the Bonds
other than Term Bonds next due which would have accrued on such
Bonds next due during the then current calendar month if such
principal amount thereof were deemed to accrue monthly (assuming
that a year consists of twelve (12) equal calendar months of
thirty (30) days each) in equal installments from a date one year
preceding the due date of such Bonds next due and (c) the portion
of the principal amount of the Bonds next due which shall have
accrued on such basis in prior months. Serial Capital Apprecia-
tion Bonds (including their respective interest components) shall
be payable entirely from moneys in the Principal Account on their
respective maturity dates, and monthly deposits or credits to the
Principal Account to provide funds for such purpose shall com-
mence in the month which is one year prior to each such maturity
date. Not later than the month immediately preceding any princi-
pal payment date, the Issuer shall adjust the amount of the de-
posit into the Principal Account so as to provide sufficient
moneys in the Principal Account to pay the principal on Bonds
becoming due on such principal payment date. Moneys in the Prin-
cipal Account shall be applied by the Issuer to pay the principal
of the Bonds as and when the same shall mature, and for no other
purpose.
(3) Bond Amortization Account. Payments to the Bond
Amortization Account shall be on a parity with payments to the
Principal Account. Commencing in the month which is one year
prior to the due date of each Amortization Installment, the Issuer
shall deposit into or credit to the Bond Amortization Account the
sum which, together with the balance in said account held for the
credit of such Amortization Installment and all Outstanding Term
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Bonds due and unpaid, shall equal (a) the principal amount of all
such outstanding Term Bonds due and unpaid, (b) that portion of
such Amortization Installment which would have accrued during the
then current calendar month if such Amortization Installment were
deemed to accrue monthly (assuming that a year consists of twelve
(12) equal calendar months having thirty (30) days each) in equal
amounts from a date one year preceding such due date and (c) the
portion of such Amortization Installment which shall have accrued
on such basis in prior months. Term Capital Appreciation Bonds
(including their respective interest components) shall be payable
entirely from moneys in the Bond Amortization Account on the
respective due dates of the Amortization Installments applicable
thereto, and monthly deposits or credits to the Bond Amortization
Account to provide funds for such purpose shall commence in the
month which is one year prior to each such Amortization Install-
ment due date. The Issuer shall adjust the amount of the deposit
into the Bond Amortization Account not later than the month imme-
diately preceding any date for payment of an Amortization Install-
ment so as to provide sufficient moneys in the Bond Amortization
Account to pay such Amortization Installment on such date. Moneys
in the Bond Amortization Account shall be applied by the Issuer
to purchase or redeem Term Bonds in the manner herein provided,
and for no other purpose.
Amounts accumulated in the Bond Amortization Account
with respect to any Amortization Installment may be applied by
the Issuer, on or prior to the sixtieth (60th) day preceding the
due date of such Amortization Installment (i) to the purchase of
Term Bonds of the Series and maturity for which such Amortization
Installment was established, at a price not greater than the
Redemption Price at which such Term Bonds may be redeemed on the
first date thereafter on which such Term Bonds shall be subject
to redemption, or (ii) to the redemption at the applicable Redemp-
tion Price of such Term Bonds. The applicable Redemption Price
(or principal amount of maturing Term Bonds) of any Term Bonds so
purchased or redeemed shall be deemed to constitute part of the
Bond Amortization Account until such Amortization Installment
date, for the purposes of calculating the amount of such Account.
As soon as practicable after the sixtieth (60th) day preceding
the due date of any such Amortization Installment, the Issuer
shall proceed to call for redemption on such due date, by causing
notice to be given as provided in section 3.03 hereof, Term Bonds
of the Series and maturity for which such Amortization Installment
was established (except in the case of Term Bonds maturing on an
Amortization Installment date) in such amount as shall be neces-
sary to complete the retirement of the unsatisfied balance of
such Amortization Installment. The Issuer shall payout of the
Bond Amortization Account and the Interest Account to the respec-
tive Paying Agents, on or before the day preceding such redemption
date (or maturity date), the amount required for the redemption
(or for the payment of such Term Bonds then maturing), and such
amount shall be applied by such Paying Agents to such redemption
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(or payment). All expenses in connection with the purchase or
redemption of Term Bonds shall be paid by the Issuer from the
Restricted Revenue Account.
(4) Reserve Account. Next, the Issuer shall deposit
into or credit to the Reserve Account such sum, if any, as will
be necessary to immediately restore the funds on deposit therein
to an amount equal to the Reserve Account Requirement including
the reinstatement of any Reserve Account Insurance Policy or
Reserve Account Letter of Credit on deposit therein or the cash
replacement thereof. On or prior to each principal and interest
payment date for the Bonds, moneys in the Reserve Account shall
be applied by the Issuer to the payment of the principal of or
Redemption Price, if applicable, and interest on the Bonds to the
extent moneys in the Interest Account, the Principal Account and
the Bond Amortization Account shall be insufficient for such pur-
pose. Whenever there shall be surplus moneys in the Reserve
Account by reason of a decrease in the Reserve Account Require-
ment, such surplus moneys shall be deposited by the Issuer into
the Interest Account.
Upon the issuance of any Series of Bonds, under the
terms, limitations and conditions as herein provided, the Issuer
shall fund the Reserve Account in an amount equal to the Reserve
Account Requirement.
Whenever moneys on deposit in the Reserve Account, to-
gether with the other available amounts in the Debt Service Fund,
are sufficient to fully pay all Outstanding Bonds (including
principal and interest thereon) in accordance with their terms,
the funds on deposit in the Reserve Account shall be applied to
the payment of Bonds.
Notwithstanding the foregoing provisions, in lieu of the
required deposits into the Reserve Account, the Issuer may, at
its sole option and discretion, cause to be deposited a Reserve
Account Insurance Policy and/or Reserve Account Letter of Credit
in an amount equal to the difference between the Reserve Account
Requirement applicable thereto and the sums then on deposit in
the Reserve Account, if any. Such Reserve Account Insurance
Policy and/or Reserve Account Letter of Credit shall be payable
to the Paying Agent for such Series (upon the giving of notice as
required thereunder) on any interest payment or redemption date
on which a deficiency exists which cannot be cured by funds in
any other fund or account held pursuant to this Resolution and
available for such purpose. The issuer providing such Reserve
Account Insurance Policy and/or Reserve Account Letter of Credit
shall be either (a) an insurer (i) whose municipal bond insurance
policies insuring the payment, when due, of the principal of and
interest on municipal bond issues results in such issues being
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rated in the highest rating category (without regard to grada-
tions, such as "plus" or "minus" of such categories) by either
standard & Poor's corporation or Moody's Investors service, or
(ii) who holds the highest policyholder rating accorded insurers
by A. M. Best & Company, or any comparable service, or (b) a com-
mercial bank, insurance company or other financial institution
the bonds payable or guaranteed by which have, or whose obliga-
tion to pay is guaranteed by a commercial bank, insurance company
or other financial institution which has, been assigned a rating
by either Moody's Investors Service or Standard & Poor's Corpora-
tion in the highest rating category (without regard to gradations,
such as "plus" or "minus" of such categories).
If fifteen (15) days prior to an interest payment or
mandatory redemption date, the Issuer shall determine that a
deficiency exists in the amount of moneys available to pay in
accordance with the terms hereof interest and/or principal due on
Bonds on such date, the Issuer shall immediately notify (a) the
issuer of the applicable Reserve Account Insurance Policy and/or
the issuer of the Reserve Account Letter of Credit, and (b) the
Insurer, if any, of the amount of such deficiency and the date on
which such payment is due, and shall take all action to cause
such issuer or Insurer to provide moneys sufficient to pay all
amounts due on such interest payment or redemption date. All
moneys on deposit in the Reserve Account shall be applied to cure
any deficiency which exists in the Interest Account, the Princi-
pal Account or the Bond Amortization Account before the Reserve
Account Insurance Policy and/or the Reserve Account Letter of
Credit is drawn upon.
If a disbursement is made from a Reserve Account Insur-
ance Policy and/or Reserve Account Letter of Credit provided pur-
suant to this section 4.05(A) (4), the Issuer shall reinstate the
maximum limits of such Reserve Account Insurance Policy and/or
Reserve Account Letter of Credit immediately following such dis-
bursement from moneys available in the Reserve Account in accor-
dance with the provisions of the first paragraph of this section
4.05(A) (4), by depositing funds in the amount of the disbursement
made under such instrument, with the issuer thereof, together
with interest thereon to the date of reimbursement at the rate
set forth in such Reserve Account Insurance Policy or such Re-
serve Account Letter of Credit, but in no case greater than the
maximum rate of interest permitted by law. In addition, and in
the same manner, the Issuer shall reimburse the issuer of the
Reserve Account Insurance Policy and/or the issuer of the Reserve
Account Letter of Credit for all reasonable expenses incurred by
such issuer in connection with the draw on such Reserve Account
Insurance Policy or the Reserve Account Letter of Credit, as the
case may be. with regard to replenishment of the Reserve Account,
any available moneys shall be used first, to reimburse the Issuer
of the Reserve Account Insurance Policy or the Reserve Account
Letter of Credit, as the case may be, thereby reinstating the
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Reserve Account Insurance Policy or the Reserve Account Letter of
Credit, as the case may be, and second, to replenish the cash in
the Reserve Account.
The Issuer may evidence its obligation to reimburse the
issuer of any Reserve Account Letter of Credit or Reserve Account
Insurance Policy by executing and delivering to such issuer a
promissory note therefor, provided, however, any such note (a)
shall not be a general obligation of the Issuer the payment of
which is secured by the full faith and credit or taxing power of
the Issuer, and (b) shall be payable solely from the Pledged
Funds in the manner provided herein.
To the extent the Issuer causes to be deposited into the
Reserve Account, a Reserve Account Insurance policy and/or a
Reserve Account Letter of Credit for a term of years shorter than
the life of the Series of Bonds so insured or secured, then the
Reserve Account Insurance Policy and/or the Reserve Account Letter
of Credit shall provide, among other things, that the issuer
thereof shall provide the Issuer with notice as of each anniver-
sary of the date of the issuance of the Reserve Account Insurance
Policy and/or the Reserve Account Letter of Credit of the inten-
tion of the issuer thereof to either (a) extend the term of the
Reserve Account Insurance Policy and/or the Reserve Account Letter
of Credit beyond the expiration dates thereof, or (b) terminate
the Reserve Account Insurance Policy and/or the Reserve Account
Letter of Credit on the initial expiration dates thereof or such
other future date as the issuer thereof shall have established.
If the issuer of the Reserve Account Insurance Policy and/or the
Reserve Account Letter of Credit notifies the Issuer pursuant to
clause (b) of the immediately preceding sentence or if the Issuer
terminates the Reserve Account Letter of Credit and/or Reserve
Account Insurance Policy, then the Issuer shall deposit into the
Reserve Account, on or prior to the fifteenth (15th) day of the
first full calendar month following the date on which such notice
is received by the Issuer, such sums as shall be sufficient to
pay an amount equal to a fraction, the numerator of which is one
(1) and the denominator of which is equal to the number of months
remaining in the term of the Reserve Account Insurance Policy
and/or the Reserve Account Letter of Credit of the Reserve Account
Requirement on the date such notice was received (the maximum
amount available, assuming full reimbursement by the Issuer, under
the Reserve Account Letter of Credit and/or the Reserve Account
Insurance Policy to be reduced annually by an amount equal to the
deposit to the Reserve Account during the previous twelve (12)
month period) until amounts on deposit in the Reserve Account, as
a result of the aforementioned deposits, and no later than upon
the expiration of such Reserve Account Insurance Policy and/or
such Reserve A~count Letter of Credit, shall be equal to the
Reserve Account Requirement applicable thereto.
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If any Reserve Account Letter of Credit or Reserve
Account Insurance Policy shall terminate prior to the stated ex-
piration date thereof, the Issuer agrees that it shall fund the
Reserve Account over a period not to exceed sixty (60) months
during which it shall make consecutive equal monthly payments in
order that the amount on deposit in such account at the end of
such period shall equal to Reserve Account Requirement; provided,
the Issuer may, with the prior written consent of the Insurer, if
any, obtain a new Reserve Account Letter of Credit or a new
Reserve Account Insurance Policy in lieu of making the payments
required by this paragraph.
Prior to deposit in the Reserve Account, any Reserve
Account Letter of Credit or Reserve Account Insurance Policy
shall be approved in writing by any Insurer or Credit Bank and
shall conform to such additional or different restrictions as
such Insurer or Credit Bank shall reasonably require.
(5) Unrestricted Revenue Account. The balance of any
moneys remaining in the Restricted Revenue Account after the
deposits required by parts (1) through (4) of this subsection (A)
may be transferred, at the discretion of the Issuer, to the
Unrestricted Revenue Account or any other appropriate fund or
account of the Issuer and used by the Issuer for any lawful
purpose.
(B) The Issuer shall deposit the Half-Cent Sales Tax
into the Half-Cent Sales Tax Fund, promptly upon receipt thereof.
Whenever by reason of the insufficiency of moneys on deposit in
the Restricted Revenue Account the Issuer is not able to make
promptly the current monthly payments required to be made pursu-
ant to the provisions of parts (1) through (4) of subsection (A),
there shall be deposited into the Restricted Revenue Account from
the moneys on deposit in the Half-Cent Sales Tax Fund whatever
sums are necessary to cure such existing deficit. The balance of
any moneys remaining in the Half-Cent Sales Tax Fund after the
deposits required by this subsection (B) may be transferred, at
the discretion of the Issuer, to the Unrestricted Revenue Account
or any other appropriate fund or account of the Issuer and used
by the Issuer for any lawful purpose.
(C) The Issuer, in its discretion, may use moneys in
the Principal Account and the Interest Account to purchase or
redeem Bonds coming due on the next principal payment date, pro-
vided such purchase or redemption does not adversely affect the
Issuer's ability to pay the principal or interest coming due on
such principal payment date on the Bonds not so purchased or re-
deemed.
(D) At least one (1) business day prior to the date
established for payment of any principal of or Redemption Price,
if applicable, or interest on the Bonds, the Issuer shall withdraw
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from the Debt Service Fund sufficient moneys to pay such principal
or Redemption Price, if applicable, or interest and deposit such
moneys with the Paying Agent for the Bonds to be paid.
(E) In the case of Bonds secured by a Credit Facility,
amounts on deposit in any funds or accounts established for such
Bonds may be applied as provided in the applicable Supplemental
Resolution to reimburse the Credit Bank for amounts drawn under
such Credit Facility to pay the principal of or Redemption Price,
if applicable, and interest on such Bonds or to pay the purchase
price of any such Bonds which are tendered by the Holders thereof
for payment.
SECTION 4.06. Rebate Fund. Amounts on deposit in the
Rebate Fund shall be held in trust by the Issuer and used solely
to make required rebates to the United States Treasury (except to
the extent the same may be transferred to the Revenue Fund) and
the Bondholders shall have no right to have the same applied for
debt service on the Bonds. The Issuer agrees to undertake all
actions required of it in its arbitrage certificate relating to
each Series of the Bonds (other than Taxable Bonds) and other
instructions from Bond Counsel delivered in connection with or
subsequent to the issuance of such 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 from moneys in the Revenue Fund or from
other moneys of the Issuer derived from sources other than ad
valorem taxation and legally available for such purpose the amount
determined in clause (A) above into the Rebate Fund;
(C) paying on the dates and in the manner required by
the Code to the United States Treasury from the Rebate Fund and
any other legally available moneys of the Issuer such amounts as
shall be required by the Code to be rebated to the united States
Treasury; and
(D) keeping such records of the determinations made
pursuant to this section 4.06 as shall be required by the Code,
as well as evidence of the fair market value of any investments
purchased with proceeds of the Bonds.
The provisions of the above-described instructions of
Bond Counsel may be amended from time to time as shall be neces-
sary, in the opinion of Bond Counsel, to comply with the provisions
of the Code.
Arbitrage Rebate Company, Milwaukee, Wisconsin, is
hereby appointed to serve as rebate administrator hereunder with
respect to every Series of the Bonds (other than Taxable Bonds)
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until the Issuer shall by resolution appoint as successor rebate
administrator any Bond Counselor any certified public accountant,
bank or trust company, or other agent of the Issuer who shall be
qualified to assure compliance by the Issuer with the requirements
of this section. The rebate administrator is hereby authorized
to hire counsel, accountants, and other experts which the rebate
administrator may, in its sole discretion, determine advisable
for the purpose of obtaining the required calculations of the
rebate amounts and determinations as to the due dates for the
rebate thereof and other matters necessary for compliance with
section 148(f) of the Code as the same relates to the Bonds. The
rebate administrator will not be liable for any loss occasioned
by its reliance upon the instructions of such experts or upon the
Issuer's certification of the amounts earned on nonpurpose invest-
ments, as such term is defined in section 148(b) (2) of the Code,
in which gross proceeds of the Bonds shall be invested. The
duties and responsibilities of the rebate administrator may be
performed by more than one Person.
SECTION 4.07. Investments. The Construction Fund, the
Restricted Revenue Account, the Half-Cent Sales Tax Fund and the
Debt Service Fund shall be continuously secured in the manner by
which the deposit of public funds are authorized to be secured by
the laws of the State. Moneys on deposit in the Construction
Fund, the Restricted Revenue Account, the Half-Cent Sales Tax
Fund and the Debt Service Fund, other than the Reserve Account,
may be invested and reinvested in Authorized Investments maturing
not later than the date on which the moneys therein will be
needed. Moneys on deposit in the Reserve Account may be invested
or reinvested in securities provided in clauses (1) through (9)
of the definition of Authorized Investments which shall mature no
later than five (5) years from the date of acquisition thereof.
Any and all income received by the Issuer from the
investment of moneys in the Construction Fund, the Half-Cent
Sales Tax Fund and the Rebate Fund, in the Interest Account, the
Principal Account and the Bond Amortization Account in the Debt
Service Fund, in the Restricted Revenue Account in the Revenue
Fund and in the Reserve Account in the Debt Service Fund (to the
extent the amount therein is less than the Reserve Account
Requirement), shall be retained in such respective fund or
account unless otherwise required by applicable law.
Any and all income received by the Issuer from the
investment of moneys in the Reserve Account in the Debt Service
Fund (to the extent the amount therein is greater than the Reserve
Account Requirement) shall be deposited in the Interest Account.
All investments shall be valued at cost, except for
investments in the Reserve Account which shall be valued annually
at their fair market value. Nothing contained in this Resolution
shall prevent any Authorized Investments acquired as investments
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of or security for funds held under this Resolution from being
issued or held in book-entry form on the books of the Department
of the Treasury of the United states.
SECTION 4.08. Separate Accounts. The moneys required
to be accounted for in each of the foregoing funds and accounts
established herein may be deposited in a single bank account, and
funds allocated to the various funds and accounts established
herein may be invested in a common investment pool, provided that
adequate accounting records are maintained to reflect and control
the restricted allocation of the moneys on deposit therein and
such investments for the various purposes of such funds and ac-
counts as herein provided.
The designation and establishment of the various funds
and accounts in and by this Resolution shall not be construed to
require the establishment of any completely independent, self-
balancing funds as such term is commonly defined and used in govern-
mental accounting, but rather is intended solely to constitute an
earmarking of certain revenues for certain purposes and to estab-
lish certain priorities for application of such revenues as herein
provided.
ARTICLE V
SUBORDINATED INDEBTEDNESS
ADDITIONAL BONDS AND COVENANTS OF ISSUER
SECTION 5.01. Subordinated Indebtedness. The Issuer
will not issue any other obligations, except under the conditions
and in the manner provided herein, payable from the Pledged Funds
or voluntarily create or cause to be created any debt, lien,
pledge, assignment, encumbrance or other charge having priority
to or being on a parity with the lien thereon in favor of the
Bonds and the interest thereon. The Issuer may at any time or
from time to time issue evidences of indebtedness that are not
Additional Bonds and that are payable in whole or in part out of
the Pledged Funds and which may be secured by a pledge of the
Pledged Funds; provided, however, that such pledge shall be, and
shall be expressed to be, subordinated in all respects to the
pledge of the Pledged Funds created by this Resolution. The
Issuer shall have the right to covenant with the holders from
time to time of any Subordinated Indebtedness to add to the con-
ditions, limitations and restrictions under which any Additional
Bonds may be issued pursuant to Section 5.02 hereof. The Issuer
agrees to pay promptly any Subordinated Indebtedness as the same
shall become due.
SECTION 5.02. Issuance of Additional Bonds. The Issuer
may issue one or more Series of Additional Bonds for anyone or
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more of the following purposes: financing the Cost of an Addi-
tional Project, or the completion thereof or of the Initial Proj-
ect, or refunding any or all outstanding Bonds or of any Subor-
dinated Indebtedness of the Issuer. Additional Bonds shall be
deemed to have been issued pursuant to this Resolution the same
as the outstanding Bonds, and all of the other covenants and
other provisions of this Resolution (except as to details of such
Additional Bonds inconsistent therewith) shall be for the equal
benefit, protection and security of the Holders of all Bonds
issued pursuant to this Resolution; provided, however, any Supple-
mental Resolution authorizing the issuance of Additional Bonds
may provide that any of the covenants herein contained will not
be applicable to such Additional Bonds, provided that such provi-
sion shall not, in the opinion of Bond Counsel, adversely affect
the rights of the Holders of any Bonds which shall then be Out-
standing. Except as provided in sections 4.02 and 4.05 hereof,
all Bonds, regardless of the time or times of their issuance,
shall rank equally with respect to their lien on the Pledged
Funds and their sources and security for payment therefrom with-
out preference of any Bonds over any other; provided, however,
that the Issuer shall include a provision in any Supplemental
Resolution authorizing the issuance of Variable Rate Bonds pur-
suant to this section 5.02 that in the event the principal there-
of is accelerated due to such Bonds being held by the issuer of a
Credit Facility, the lien of such Bonds on the Pledged Funds
shall be subordinate in all respects to the pledge of the Pledged
Funds created by this Resolution. No such Additional Bonds shall
be issued by the Issuer unless the following conditions are
complied with:
(A) The Issuer shall certify that it is current in all
deposits into the various funds and accounts established hereby
and all payments theretofore required to have been deposited or
made by it under the provisions of this Resolution and has
complied with the covenants and agreements of this Resolution.
(B) There shall have been obtained and filed with the
Issuer a certificate of an independent certified public accoun-
tant: (1) stating that such accountant has examined the books and
records of the Issuer relating to collection and receipt of the
Infrastructure Sales Surtax and the Half-Cent Sales Tax, unless
the Half-Cent Sales Tax shall have been theretofore released from
the provisions of this Resolution; (2) setting forth the amount
of Infrastructure Sales Surtax and Half-Cent Sales Tax, if appli-
cable, for the immediately preceding Fiscal Year or any twelve
(12) consecutive months selected by the Issuer from the eighteen
(18) months immediately preceding the issuance of such Additional
Bonds; (3) (a) prior to the release of the Half-Cent Sales Tax
pursuant to Section 5.09 hereof, stating that such Infrastructure
Sales Surtax and Half-Cent Sales Tax equal at least (i) 1.50
times the Maximum Debt Service Requirement of all Outstanding
Bonds and such Additional Bonds then proposed to be issued and
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(ii) 1.00 times the maximum annual subordinated debt service for
all Subordinated Indebtedness then outstanding, and (b) after the
release of the Half-Cent Sales Tax pursuant to section 5.09 here-
of, stating that such Infrastructure Sales Surtax equals at least
(i) 1.50 times the Maximum Debt Service Requirement of all Out-
standing Bonds and such Additional Bonds then proposed to be
issued and (ii) 1.00 times the maximum annual subordinated debt
service for all Subordinated Indebtedness then outstanding; and
(4) stating that no Event of Default was disclosed in the report
of the most recent Annual Audit, or if such Event of Default was
so disclosed, that it shall have been cured.
(C) In computing Maximum Debt Service Requirement for
purposes of this section 5.02, the interest rate on outstanding
Variable Rate Bonds, and on additional parity Variable Rate Bonds
then proposed to be issued, shall be deemed to be the Maximum
Interest Rate applicable thereto.
(D) In the event any Additional Bonds are issued for
the purpose of refunding any Bonds then Outstanding, the condi-
tions of this section 5.02 shall not apply, provided that the
issuance of such Additional Bonds shall not result in an increase
in the aggregate amount of principal of and interest on the Out-
standing Bonds becoming due in the current Fiscal Year and all
subsequent Fiscal Years. The conditions of section 5.02(B) hereof
shall apply to Additional Bonds issued to refund Subordinated
Indebtedness and to Additional Bonds issued for refunding purposes
which cannot meet the conditions of this paragraph.
(E) In the event that the total amount of any Series of
Bonds authorized to be issued shall not be issued simultaneously,
such Bonds which shall be issued subsequently shall be subject to
the conditions of section 5.02(B) hereof.
(F) In addition to all of the other requirements speci-
fied in this section 5.02, the Issuer must comply with any appli-
cable provisions of any financing documents relating to outstand-
ing Subordinated Indebtedness to the extent such provisions impact
on the ability of the Issuer to issue Additional Bonds.
SECTION 5.03. Bond Anticipation Notes. The Issuer may
issue notes in anticipation of the issuance of Bonds which shall
have such terms and details and be secured in such manner, not
inconsistent with this Resolution, as shall be provided by resolu-
tion of the Issuer.
SECTION 5.04. Accession of Subordinated Indebtedness
to Parity Status with Bonds. The Issuer may provide for the ac-
cession of Subordinated Indebtedness to the status of complete
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parity with the Bonds, if (A) the Issuer shall meet all the re-
quirements imposed upon the issuance of Additional Bonds by Sec-
tion 5.02 hereof, assuming, for purposes of said requirements,
that such Subordinated Indebtedness shall be Additional Bonds,
and (B) the Issuer shall provide for the funding of the Reserve
Account, upon such accession, in an amount equal to the increase
in the amount of the Reserve Account Requirement occasioned by
such accession in accordance with section 4.05(A) (4) hereof. If
the aforementioned conditions are satisfied, the Subordinated
Indebtedness shall be deemed to have been issued pursuant to this
Resolution the same as the outstanding Bonds, and such Subordin-
ated Indebtedness shall be considered Bonds for all purposes pro-
vided in this Resolution.
SECTION 5.05. Books and Records. The Issuer will keep
books, records and accounts of the receipt of the Pledged Funds
in accordance with generally accepted accounting principles, and
any Credit Bank, Insurer, or Holder of any Bonds outstanding or
the duly authorized representatives thereof shall have the right
at all reasonable times to inspect all books, records and accounts
of the Issuer relating thereto.
The Issuer covenants that within one hundred eighty
(180) days of the close of each Fiscal Year it will cause to be
prepared and filed with the Clerk and mailed to all Credit Banks,
Insurers and Holders who shall have filed their names and addres-
ses with the Clerk for such purpose a statement setting forth in
respect of the preceding Fiscal Year: (A) the amount of the Half-
Cent Sales Tax and Infrastructure Sales Surtax, if applicable,
received in the preceding Fiscal Year; (B) the total amounts
deposited to the credit of each fund and account created under
the provisions of this Resolution; (C) the principal amount of
all Bonds issued, paid, purchased or redeemed; and (D) the amounts
on deposit at the end of such Fiscal Year to the credit of each
such fund or account.
SECTION 5.06. Annual Audit. The Issuer shall, immedi-
ately after the close of each Fiscal Year, cause the financial
statements of 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. Such Annual Audits
shall contain, but not be limited to, a balance sheet, an income
statement, a statement of changes in financial position, a state-
ment of change in retained earnings, a statement of insurance
coverage, and any other statements as required by law or accounting
convention, and a certificate by such accountants disclosing any
material default on the part of the Issuer of any covenant or
agreement herein. Each Annual Audit shall be in conformity with
generally accepted accounting principles. A copy of each Annual
Audit shall regularly be furnished to any Credit Bank, to any
Insurer and to any Holder who shall have furnished an address to
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the Clerk and requested in writing that the same be furnished to
such Holder. The Issuer shall be permitted to make a reasonable
charge for furnishing to any Holder such Annual Audit.
SECTION 5.07. No Impairment. The pledging of the
Pledged Funds in the manner provided herein shall not be subject
to repeal, modification or impairment by any subsequent ordi-
nance, resolution or other proceedings of the Governing Body.
SECTION 5.08. Collection of Half-Cent Sales Tax and
Infrastructure Sales Surtax. (A) The Issuer covenants to do all
things necessary on its part to maintain its eligibility to par-
ticipate in the distribution of funds from the Local Government
Half-Cent Sales Tax Clearing Trust Fund required by the Act
including, without limitation, meeting the eligibility require-
ments for revenue sharing as specified in section 218.23, Florida
Statutes, or any successor provision of law. The Issuer will
proceed diligently to perform legally and effectively all steps
required on its part in the levy and collection of the Half-Cent
Sales Tax and shall exercise all legally available remedies to
enforce such collections now or hereafter available under State
law.
(B) The Issuer covenants to do all things necessary on
its part to continue the levy and collection of the Infrastruc-
ture Sales Surtax at the maximum rate permitted by and in compli-
ance with Chapter 212, Part I, Florida Statutes, as amended, and
any successor provision of law. The Issuer will proceed dili-
gently to perform legally and effectively all steps required on
its part in the levy and collection of the Infrastructure Sales
Surtax and shall exercise all legally available remedies to
enforce such collections now or hereafter available under State
law. The Issuer will not take any action or enter into any
agreement that shall result in reducing the level of the Infra-
structure Sales Surtax distributed to the Issuer from that pre-
vailing at the time the Issuer takes such action or enters into
such agreement. The Issuer will not amend any interlocal agree-
ment with respect to the distribution of the Infrastructure Sales
Surtax unless the Infrastructure Sales Surtax received by the
Issuer shall remain at a fixed level which is not less than the
then current level and the term of such interlocal agreement
extends through the final maturity of the Bonds. The Issuer will
take every action which shall be necessary in order that the
Issuer shall remain qualified to receive the maximum distribution
of Infrastructure Sales Surtax to which the Issuer may be entitled
under applicable law.
SECTION 5.09. Release of Half-Cent Sales Tax. At such
time as the Issuer may be able to obtain and file in the minutes
of its Governing Body a certificate of an independent certified
public accountant stating that for the immediately preceding
Fiscal Year the Infrastructure Sales Surtax equaled at least one
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hundred thirty-five per centum (135%) of the Maximum Debt Service
Requirement for all outstanding Bonds and the maximum combined
principal and interest maturing in anyone ensuing Fiscal Year on
all other outstanding obligations payable from the Infrastructure
Sales Surtax, then upon a declaration by resolution of the Gov-
erning Body the lien hereby impressed upon the Half-Cent Sales
Tax as security for the paYment of the Bonds and the interest
thereon shall permanently be released, and thereafter the Bonds
and the interest thereon shall be payable from and secured by a
lien upon and pledge of only the remaining Pledged Funds; pro-
vided, however, the Half-Cent Sales Surtax shall not be so
released unless all paYments required by this Resolution to have
been made to the several accounts and funds herein specified
shall have been made in full and the Reserve Account shall have
on deposit therein the Reserve Account Requirement.
SECTION 5.10. Special Covenùnts Relatinq to Reserve
Account Insurance Policy or Reserve Account Letter of Credit.
(A) The Issuer shall annually submit to the issuer of
the Reserve Account Insurance Policy and/or the Reserve Account
Letter of Credit, records of withdrawals on such Reserve Account
Insurance Policy or such Reserve Account Letter of Credit, as the
case may be, received by the Paying Agent and remaining unpaid,
the respective dates of such withdrawals, the interest accrued on
such withdrawals and the aggregate amount of interest due by the
Issuer to the issuer of such Reserve Account Insurance Policy or
such Reserve Account Letter of Credit, as the case may be.
(B) The Issuer hereby acknowledges that the issuer of
the Reserve Account Insurance Policy and/or the Reserve Account
Letter of Credit shall be deemed a third-party beneficiary of
this Resolution for the purpose of enforcing the terms, conditions
and obligations of the Resolution which benefit the issuer of
such Reserve Account Insurance policy or such Reserve Account
Letter of Credit, as the case may be.
SECTION 5.11. Covenants with Credit Banks and Insurers.
The Issuer may make such covenants as it may in its sole discre-
tion determine to be appropriate with any Insurer, Credit Bank
or other financial institution that shall agree to insure or to
provide for Bonds, of anyone or more Series credit or liquidity
support that shall enhance the security or the value of such Bonds.
Such covenants may be set forth in the applicable Supplemental
Resolution and shall be binding on the Issuer, the Registrar, the
Paying Agent and all the Holders of Bonds the same as if such
covenants were set forth in full in this Resolution.
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SECTION 5.12. Federal Income Tax Covenants; Taxable
Bonds.
(A) The Issuer covenants with the Holders of each Ser-
ies of Bonds (other than Taxable Bonds), that it shall not use
the proceeds of such Series of Bonds in any manner which would
cause the interest on such Series of Bonds to be or become
includable in the gross income of the Holder thereof for federal
income tax purposes.
(B) The Issuer covenants with the Holders of each Ser-
ies of Bonds (other than Taxable Bonds) that neither the Issuer
nor any Person under its control or direction will make any use
of the proceeds of such Series of Bonds (or amounts deemed to be
proceeds under the Code) in any manner which would cause such
Series of Bonds to be "arbitrage bonds" within the meaning of
Section 148 of the Code, and neither the Issuer nor any such other
Person shall do any act or fail to do any act which would cause
the interest on such Series of Bonds to become includable in the
gross income of the Holder thereof for federal income tax pur-
poses.
(C) The Issuer hereby covenants with the Holders of
each Series of Bonds (other than Taxable Bonds) that it will com-
ply with all provisions of the Code necessary to maintain the
exclusion of interest on the Bonds from the gross income of the
Holder thereof for federal income tax purposes, including, in
particular, the payment of any amount required to be rebated to
the United States Treasury pursuant to the Code.
(D) The Issuer may, if it so elects, issue one or more
Series of Taxable Bonds the interest on which is (or may be) in-
cludible in the gross income of the Holder thereof for federal
income taxation purposes, so long as each Bond of such Series
states in the body thereof that interest payable thereon is (or
may be) subject to federal income taxation and provided that the
issuance thereof will not cause the interest on any other Bonds
theretofore issued hereunder to be or become includable in the
gross income of the Holder thereof for federal income tax pur-
poses. The covenants set forth in subsections (A), (B) and (C)
of this section 5.12 shall not apply to any Taxable Bonds.
SECTION 5.13. MBIA as Insurer. Notwithstanding any
provision to the contrary contained herein, the following provi-
sions will apply so long as Municipal Bond Investors Assurance
Corporation ("MBIA") shall be the Insurer with respect to the
Bonds and/or shall be the issuer of a Reserve Account Insurance
Policy and/or a Reserve Account Letter of Credit:
(A) Variable Rate Bonds shall be issued hereunder by
the Issuer only with the prior written consent of MBIA.
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(B) Copies of any material modifications or amendments
to this Resolution which shall have been consented to by MBIA
shall be furnished to Standard & Poor's corporation.
(C) Each Reserve Account Insurance Policy and/or
Reserve Account Letter of Credit shall be subject to the
approval of MBIA.
(D) A default under the Financial Guaranty Agreement
(the "Financial Guaranty Agreement") executed between the Issuer
and MBIA in connection with the Reserve Account Insurance Policy
provided by MBIA in connection with the issuance of the Series
1989 Bonds, shall constitute an Event of Default under the terms
of this Resolution.
(E) The Paying Agent shall deliver to MBIA a Demand for
Payment as described in the Reserve Account Insurance Policy pro-
vided by MBIA at least three days prior to the date on which
funds are required. It will be the responsibility of the Paying
Agent to maintain adequate records, verified by MBIA, as to the
amount available to be drawn at any time under such Reserve
Account Insurance Policy and as to the amounts paid and owing to
MBIA under the terms of the Financial Guaranty Agreement.
(F) The Issuer agrees to payor cause to be paid all
amounts owed to MBIA under the terms of the Financial Guaranty
Agreement. All such amounts shall be paid before this Resolution
may be defeased pursuant to section 8.01 hereof. There may be no
optional redemption of Bonds, refunding or distribution of funds
to the Issuer unless all amounts owed to MBIA under the terms of
the Financial Guaranty Agreement shall have been paid in full.
(G) No amendment to any substantive provisions of this
Resolution may be made without the prior written consent of MBIA,
such consent not to be unreasonably withheld.
(H) The Issuer shall furnish to MBIA a copy of any
notice to be given to the Bondholders and any certificate render-
ed pursuant to this Resolution at the following address: 113 King
street, Armonk, New York 10504, Attention: Surveillance Depart-
ment.
(I) All Bonds shall mature at least six (6) months
prior to the expiration date of the Infrastructure Sales Surtax.
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default. The following events
shall each constitute an "Event of Default" hereunder:
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(A) Default shall be made in the paYment of the princi-
pal of, Amortization Installment, redemption premium or interest
on any Bond when due by the Issuer.
(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 bank-
ruptcy, 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 thirty (30) days after written notice of
such default shall have been received from any Insurer or the
Holders of not less than twenty-five percent (25%) of the aggre-
gate principal amount of Bonds Outstanding or any Credit Bank.
Notwithstanding the foregoing, the Issuer shall not be deemed in
default hereunder if such default can be cured within a reasonable
period of time and if the Issuer in good faith institutes cura-
tive action and diligently pursues such action until the 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 com-
petent jurisdiction, protect and enforce any and all rights under
the laws of the State, or granted and contained in this Resolu-
tion, 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.
The Holder or Holders of Bonds in an aggregate princi-
pal amount of not less than twenty-five percent (25%) of the
Bonds then outstanding may by a duly executed certificate in writ-
ing appoint a trustee for Holders of Bonds issued pursuant to this
Resolution with authority to represent such Bondholders in any
legal proceedings for the enforcement and protection of the
rights of such Bondholders and such certificate shall be executed
by such Bondholders or their duly authorized attorneys or repre-
sentatives, and shall be filed in the office of the Clerk. No-
tice of such appointment, together with evidence of the requisite
signatures of the Holders of not less than twenty-five percent
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(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 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 subse-
quent successors at any time.
SECTION 6.03. Directions to Trustee as to Remedial Pro-
ceedings. The Holders of a majority in principal amount of the
Bonds then Outstanding (or any Insurer insuring, or any Credit
Bank providing a Credit Facility for, any then Outstanding Bonds)
have the right, by an instrument or concurrent instruments in
writing executed and delivered to the trustee, to direct the
method and place of conducting all remedial proceedings to be
taken by the trustee hereunder, 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 such 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 con-
strued to be a waiver of any such default, or an acquiescence
therein; and every power and remedy given by section 6.02 of this
Resolution 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 Pledged Funds 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, Registrar
and Paying Agent hereunder; and
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(B) To the payment of the interest and principal or
Redemption Price, if applicable, then due on the Bonds, as fol-
lows:
(1) Unless the principal of all the Bonds shall have
become due and payable, all such moneys shall be applied:
FIRST: to the payment to the Persons entitled thereto
of all installments of interest then due, in the order of
the maturity of such installments, and, if the amount avail-
able shall not be sufficient to pay in full any particular
installment, then to the payment ratably, according to the
amounts due on such installment, to the Persons entitled
thereto, without any discrimination or preference;
SECOND: to the payment to the Persons entitled thereto
of the unpaid principal of any of the Bonds which shall
have become due at maturity or upon mandatory redemption
prior to maturity (other than Bonds called for redemption
for the payment of which moneys are held pursuant to the
provisions of section 8.01 of this Resolution), in the order
of their due dates, with interest upon such Bonds from the
respective dates upon which they became due, and, if the
amount available shall not be sufficient to pay in full Bonds
due on any particular date, together with such interest,
then to the payment first of such interest, ratably according
to the amount of such interest due on such date, and then to
the payment of such principal, ratably according to the amount
of such principal due on such date, to the Persons entitled
thereto without any discrimination or preference; and
THIRD: to the payment of the Redemption Price of any
Bonds called for optional redemption pursuant to the provi-
sions 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 Per-
sons entitled thereto without any discrimination or preference.
(C) To the payment of any amounts due and owing to the
issuer of any Reserve Account Insurance Policy or Reserve Account
Letter of Credit.
SECTION 6.07. Control by Insurer or Credit Bank. Upon
the occurrence and continuance of an Event of Default, each
Insurer or Credit Bank, if such Insurer or Credit Bank shall have
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honored all of its commitments under its Bond Insurance Policy or
its Credit Facility, as the case may be, shall be entitled to
direct and control the enforcement of all rights and remedies
with respect to the Bonds it shall insure or for which such Credit
Facility is provided.
ARTICLE VII
SUPPLEMENTAL RESOLUTIONS
SECTION 7.01. Supplemental Resolution without Bond-
holders' 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 restric-
tions on the issuance of Bonds under the provisions of this Reso-
lution other conditions, limitations and restrictions thereafter
to be observed.
(D) To add to the covenants and agreements of the Is-
suer 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 at any time prior to the
first delivery of any Series of Bonds the matters and things re-
ferred to in sections 2.01, 2.02 or 2.09 hereof, and also any
other matters and things relative to such Bonds which are not
contrary to or inconsistent with this Resolution as theretofore
in effect, or to amend, modify or rescind any such authorization,
specification or determination.
(F) To authorize Additional Projects or to change or
modify the description of the Initial Project or any Additional
Project.
(G) To specify and determine matters necessary or de-
sirable for the issuance of Capital Appreciation Bonds or Variable
Rate Bonds.
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(H) To authorize Additional Bonds or Subordinated
Indebtedness.
(I) To make any other change that, in the opinion of
Bond Counsel, would not materially adversely affect the security
for the Bonds. In making such determination, Bond Counsel shall
not take into consideration any Bond Insurance Policy.
Except Supplemental Resolutions described in subsections
(E), (F) and (H) of this section 7.01 and Supplemental Resolu-
tions adopted for the purpose of authorizing Additional Bonds in
compliance with all applicable provisions hereof, no Supplemental
Resolution adopted pursuant to this Article VII shall become
effective unless approved by every Insurer; and the Issuer cove-
nants and agrees to furnish to each Insurer an executed original
transcript of the Issuer's proceedings with respect to the adop-
tion of each Supplemental Resolution.
SECTION 7.02. Supplemental Resolution with Bondholders',
Insurer's and Credit Bank's Consent. Subject to the terms and
provisions contained in this section 7.02 and Section 7.01 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 Resolution or Resolutions hereto as
shall be deemed necessary or desirable by the Issuer for the pur-
pose of supplementing, modifying, altering, amending, adding to
or rescinding, in any particular, any of the terms or provisions
contained in this Resolution; provided, however, that if such
modification or amendment will, by its terms, not take effect so
long as any Bonds of any specified Series or maturity remain out-
standing, the consent of the Holders of such Bonds shall not be
required and such Bonds shall not be deemed to be outstanding for
the purpose of any calculation of outstanding Bonds under this
Section 7.02. Any Supplemental Resolution which is adopted in
accordance with the provisions of this section 7.02 shall also
require the written consent of the Insurer of, or any Credit Bank
providing a Credit Facility for, any Bonds which are Outstanding
at the time such Supplemental Resolution shall take effect. No
Supplemental Resolution may be approved or adopted which shall
permit or require (A) an extension of the maturity of the princi-
pal of or the payment of the interest on any Bond issued hereunder,
(B) reduction in the principal amount of any Bond or the Redemp-
tion Price or the rate of interest thereon, (C) the creation of a
lien upon or a pledge of other than the lien and pledge created
by this Resolution which adversely affects any Bondholders, (D) a
preference or priority of any Bond or Bonds over any other Bond
or Bonds, or (E) a reduction in the aggregate principal amount of
the Bonds required for consent to such Supplemental Resolution.
Nothing herein contained, however, shall be construed as making
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necessary the approval by Bondholders, the Insurer or the Credit
Bank 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 pursu-
ant to this Section 7.02, the Clerk shall cause the Registrar to
give notice of the proposed adoption of such Supplemental Resolu-
tion and the form of consent to such adoption to be mailed, post-
age prepaid, to all Bondholders at their addresses as they appear
on the registration books and to all Insurers of, and Credit Banks
providing a Credit Facility for, Bonds Outstanding. 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 Bond-
holders. The Issuer shall not, however, be subject to any liabil-
ity 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 instru-
ment 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 adop-
tion 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 tak-
ing any action pursuant to the provisions thereof.
Upon the adoption of any Supplemental Resolution pursu-
ant 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 Resolu-
tion 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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SECTION 7.03. Amendment with Consent of Insurer and/or
Credit Bank Only. If all of the Bonds Outstanding hereunder are
insured or secured as to payment of principal and interest by an
Insurer or Insurers and/or by a Credit Facility provided by a
Credit Bank or Credit Banks, and the Insurer or Insurers and/or
the Credit Bank or Credit Banks, as applicable, are not in default,
and the Bonds, at the time of the hereinafter described amendment,
shall be rated by the rating agencies which shall have rated the
Bonds at the time such Bonds were insured or such Credit Facility
was provided no lower than the ratings assigned thereto by such
rating agencies on the date such Bonds were insured or such Credit
Facility was provided, the Issuer may enact one or more Supple-
mental Resolutions amending all or any part of Articles I, IV, V
and VI hereof with the written consent of said Insurer or Insurers
and/or said Credit Bank or Credit Banks, as applicable, and the
acknowledgment by said Insurer or Insurers and/or said Credit
Bank or Credit Banks that its Bond Insurance Policy or its Credit
Facility, as the case may be, will remain in full force and effect.
The consent of the Holders of any Bonds shall not be necessary.
The foregoing right of amendment, however, does not apply to any
amendment to Section 5.12 hereof with respect to the exclusion,
if applicable, of interest on said Bonds from the gross income of
the Holders thereof for federal income tax purposes nor may any
such amendment deprive the Holders of any Bond of right to payment
of the Bonds from, and their lien on, the Pledged Funds and any
additional security pledged hereunder. Upon filing with the Clerk
of evidence of such consent of the Insurer or Insurers and/or the
Credit Bank or Credit Banks as aforesaid, the Issuer may adopt
such Supplemental Resolution. After the adoption by the Issuer
of such Supplemental Resolution, notice thereof shall be mailed
in the same manner as notice of an amendment under section 7.02
hereof.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Defeasance. If the Issuer shall payor
cause to be paid or there shall otherwise be paid to the Holders
of all Bonds the principal or Redemption Price, if applicable,
and interest due or to become due thereon, at the times and in
the manner stipulated therein and in this Resolution, then the
pledge of the Pledged Funds and any additional security pledged
hereunder, and all covenants, agreements and other obligations of
the Issuer to the Bondholders, shall thereupon cease, terminate
and become void and be discharged and satisfied. In such event,
the Paying Agents shall pay over or deliver to the Issuer all
money or securities held by them pursuant to the Resolution which
are not required for the payment or redemption of Bonds not there-
tofore surrendered for such payment or redemption.
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Any Bonds or interest installments appertaining there-
to, whether at or prior to the maturity or redemption date of
such Bonds, shall be deemed to have been paid within the meaning
of this Section 8.01 if (A) in case any such Bonds are to be re-
deemed prior to the maturity thereof, there shall have been taken
all action necessary to call such Bonds for redemption and notice
of such redemption shall have been duly given or provision shall
have been made for the giving of such notice, and (B) there shall
have been deposited in irrevocable trust with a banking institu-
tion or trust company by or on behalf of the Issuer either moneys
in an amount which shall be sufficient, or Securities the princi-
pal of and the interest on which when due will provide moneys
which, together with the moneys, if any, deposited with such bank
or trust company at the same time shall be sufficient, to pay the
principal of or Redemption Price, if applicable, and interest due
and to become due on said Bonds on and prior to the redemption
date or maturity date thereof, as the case may be. Neither the
Securities nor any moneys so deposited with such bank or trust
company nor any moneys received by such bank or trust company on
account of principal of or Redemption Price, if applicable, or
interest on said Securities shall be withdrawn or used for any
purpose other than, and all such moneys shall be held in trust
for and be applied to, the payment, when due, of the principal of
or Redemption Price, if applicable, of the Bonds for the payment
or redemption of which they were deposited and the interest ac-
cruing thereon to the date of maturity or redemption thereof;
provided, however, the Issuer may substitute new Securities and
moneys for the deposited Securities and moneys if the new Secur-
ities and moneys are sufficient to pay the principal of or Redemp-
tion Price, if applicable, and interest on such Bonds.
For purposes of determining whether Variable Rate Bonds
shall be deemed to have been paid prior to the maturity or the
redemption date thereof, as the case may be, by the deposit of
moneys, or specified Securities and moneys, if any, in accordance
with this section 8.01, the interest to come due on such Variable
Rate Bonds on or prior to the maturity or redemption date thereof,
as the case may be, shall be calculated at the Maximum Interest
Rate; provided, however, that if on any date, as a result of such
Variable Rate Bonds having borne interest at less than the Maximum
Interest Rate for any period, the total amount of moneys and speci-
fied Securities on deposit for the payment of interest on such
Variable Rate Bonds is in excess of the total amount which would
have been required to be deposited on such date in respect of
such Variable Rate Bonds in order to satisfy this section 8.01,
such excess shall be paid to the Issuer free and clear of any
trust, lien, pledge or assignment securing the Bonds or otherwise
existing under this Resolution.
In the event the Bonds for which moneys are to be de-
posited fQr the payment thereof in accordance with this section
8.01 are not by their terms subject to redemption within the next
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succeeding sixty (60) days, the Issuer shall cause the Registrar
to mail a notice to the Holders of such Bonds that the deposit
required by this section 8.01 of moneys or 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 or re-
demption date upon which moneys are to be available for the pay-
ment of the principal of or Redemption Price, if applicable, and
interest on said Bonds.
Nothing herein shall be deemed to require the Issuer to
call any of the outstanding Bonds for redemption prior to maturity
pursuant to any applicable optional redemption provisions, or to
impair the discretion of the Issuer in determining whether to
exercise any such option for early redemption.
In the event that the principal of or Redemption Price,
if applicable, and interest due on the Bonds or any portion thereof
shall be paid by an Insurer or Insurers or a Credit Bank or Credit
Banks, such Bonds or any portion thereof shall remain outstanding,
shall not be defeased and shall not be considered paid by the
Issuer, and the pledge of the Pledged Funds and any additional
security pledged hereunder, and all covenants, agreements and
other obligations of the Issuer to the Bondholders shall continue
to exist and such Insurer or Insurers or such Credit Bank or Credit
Banks shall be subrogated to the rights of such Bondholders.
SECTION 8.02. Capital Appreciation Bonds. For the
purposes of (A) receiving payment of the Redemption Price if a
Capital Appreciation Bond is redeemed prior to maturity, or (B)
receiving payment of a Capital Appreciation Bond if the principal
of all Bonds becomes due and payable under the provisions of this
Resolution, or (C) computing the amount of Bonds held by the Holder
of a capital Appreciation Bond in giving to the Issuer or any
trustee or receiver appointed to represent the Bondholders any
notice, consent, request or demand pursuant to this Resolution
for any purpose whatsoever, the principal amount of a Capital
Appreciation Bond shall be deemed to be its Accreted Value.
SECTION 8.03 General Authoritv. The members of the
Governing Body and the Issuer's officers, attorneys and other
agents and employees are hereby authorized to do all acts and
things required of them by this Resolution or desirable or consis-
tent with the requirements hereof for the full, punctual and com-
plete performance of all of the terms, covenants and agreements
contained in the Bonds and this Resolution, and they are hereby
authorized to execute and deliver all documents which shall be
required by Bond Counselor the initial purchasers of the Bonds
to effectuate the sale of the Bonds to said initial purchasers.
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SECTION 8.04 No Personal Liability. No representation,
statement, covenant, warranty, stipulation, obligation or agree-
ment herein contained, or contained in the Bonds, or in any certi-
ficate or other instrument to be executed on behalf of the Issuer
in connection with the issuance of the Bonds, shall be deemed to
be a representation, statement, covenant, warranty, stipulation,
obligation or agreement of any member of the Governing Body, offi-
cer, employee or agent of the Issuer in his or her individual
capacity, and none of the foregoing persons nor any officer of
the Issuer executing the Bonds, or any certificate or other
instrument to be executed in connection with the issuance of the
Bonds, shall be liable personally thereon or be subject to any
personal liability or accountability by reason of the execution
or delivery thereof.
SECTION 8.05 No Third Party Beneficiaries. Except such
other Persons as may be expressly described herein or in the
Bonds, nothing in this Resolution, or in the Bonds, expressed or
implied, is intended or shall be construed to confer upon any
Person other than the Issuer and the Holders any right, remedy or
claim, legal or equitable, under and by reason of this Resolution
or any provision hereof, or of the Bonds, all provision hereof
and thereof being intended to be and being for the sole and ex-
clusive benefit of the Issuer and the Persons who shall from time
to time be the Holders.
SECTION 8.06. 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 consis-
tent with the provisions of the Act, the requirements of this
Resolution and other applicable provisions of law.
SECTION 8.'07. Severability of Invalid Provisions. If
anyone 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 ex-
pressly 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 8.08. Validation Authorized. The attorney for
the Issuer is hereby authorized and directed to institute appro-
priate proceedings on behalf of the Issuer in the Circuit Court
for Lake County, Florida, for the validation of the Bonds and the
proper officers of the Issuer are hereby authorized to verify on
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behalf of the Issuer any pleadings, in the event that such attor-
ney shall determine that such proceedings shall be necessary or
desirable.
SECTION 8.09. Repeal of Inconsistent Resolutions. All
resolutions or parts thereof in conflict herewith are hereby super-
seded and repealed to the extent of such conflict.
SECTION 8.10. Table of Contents and Headings not Part
Hereof. The Table of Contents preceding the body of this Resolu-
tion and the headings preceding the several articles and sections
hereof shall be solely for convenience of reference and shall not
constitute a part of this Resolution or affect its meaning, con-
struction or effect.
SECTION 8.11. Effective Date. This Resolution shall
take effect immediately upon its adoption.
PASSED, APPROVED AND ADOPTED this 24th day of October,
1989.
CITY COUNCIL OF THE CITY OF
CLERMONT, FLORIDA
~ () ¿~
(OFFICIAL SEAL)
ATTEST:
9J £~y/J
7Y Clerk / (
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I, Joseph E. Van zile, City Clerk of the City of Cler-
mont, Florida, hereby certify that the foregoing is a true and
correct copy of Resolution No. 644 of the city Council of the
City of Clermont, Florida, passed and adopted on October 24,
1989.
IN WITNESS WHEREOF, I have hereunto set my hand and
affixed the official seal of said City this 24th day of October,
1989.
(OFFICIAL SEAL)
Cit~k~~lermont,
Fl~~é!
GF02B34
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