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HomeMy WebLinkAboutCity of Tamarac Resolution R-2009-092Temp. Reso. #011653 - June 29, 2009 Page 1 Revision #2 - July 7, 2009 CITY OF TAMARAC, FLORIDA RESOLUTION NO. R-2009-_�&j A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF TAMARAC, FLORIDA AMENDING AND SUPPLEMENTING RESOLUTION NO. 98-156, AS REPLACED BY RESOLUTION NO. 99-178 AS FURTHER AMENDED AND SUPPLEMENTED BY RESOLUTION NO. 99-192 AND RESOLUTION NO. R-2002-125, AUTHORIZING THE ISSUANCE OF NOT EXCEEDING $7,000,000 SALES TAX REFUNDING REVENUE BOND, SERIES 2009 OF THE CITY OF TAMARAC, FLORIDA, TO CURRENTLY REFUND CERTAIN TAX-EXEMPT INDEBTEDNESS DESCRIBED HEREIN AND TO PAY ASSOCIATED TRANSACTIONAL COSTS; ADDING BACKUP SECURITY IN THE FORM OF A COVENANT TO BUDGET AND APPROPRIATE NON -AD VALOREM REVENUES OF THE CITY; FIXING CERTAIN TERMS AND DETAILS OF SUCH BOND; AUTHORIZING THE PRIVATE NEGOTIATED SALE OF SUCH BOND TO BANK OF AMERICA, N.A., PURSUANT TO THE TERMS AND CONDITIONS DESCRIBED HEREIN; APPROVING THE FORM OF AND AUTHORIZING THE EXECUTION OF AN ESCROW DEPOSIT AGREEMENT; SELECTING A PAYING AGENT, BOND REGISTRAR AND ESCROW AGENT; MAKING SUCH DETERMINATIONS AS ARE REQUIRED TO AFFORD SUCH BOND "BANK QUALIFIED" STATUS; AUTHORIZING NECESSARY MODIFICATIONS TO A DEBT SERVICE FORWARD DELIVERY AGREEMENT; AUTHORIZING OTHER REQUIRED ACTIONS; PROVIDING FOR SEVERABILITY AND AN EFFECTIVE DATE. BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF TAMARAC, FLORIDA: SECTION 1. AUTHORITY FOR THIS RESOLUTION. The City of Tamarac, Florida (the "City") is authorized to adopt this resolution (the "Resolution") under the authority granted by the Constitution and laws of the State of Florida, particularly Chapter 166, Florida Statutes, as amended, its municipal charter, and other applicable provisions of law. SECTION 2. DEFINITIONS. Unless otherwise defined in the Bond Resolution, the following words and phrases shall have the following meanings: 125233/009/00357769.DOCv8l Temp. Reso. #011653 - June 29, 2009 Page 2 Revision #2 - July 7, 2009 "Authorized Denominations" means a minimum denomination of $100,000. "Bond Resolution" means Resolution No. 98-156 adopted by the City Commission on May 27, 1998, as amended and supplemented from time to time, and as particularly replaced by Resolution No. 99-178 adopted by the City Commission on July 14, 1999, as amended and supplemented by Resolution No. 99-192 adopted by the City Commission on July 14, 1999, as amended and supplemented by Resolution No. R-2002-125 adopted by the City Commission on May 8, 2002, and as amended and supplemented hereby. "City Attorney" means the City Attorney of the City, or any deputy or assistant City Attorney. "City Clerk" means the City Clerk of the City, or any deputy or assistant City Clerk. "City Manager' means the City Manager of the City, or any deputy or assistant City Manager. "Escrow Agent" means The Bank of New York Mellon Trust Company, N.A., Jacksonville, Florida as the bank or trust company which shall execute the Escrow Deposit Agreement with the City simultaneous with the issuance of the Series 2009 Bond. "Escrow Deposit Agreement" means that certain Escrow Deposit Agreement by and between the City and the Escrow Agent, for the purpose of providing for the payment of the Refunded Bonds, which agreement shall be in substantially the form attached hereto as Exhibit E. "Maturity Date" means April 1, 2019, unless earlier redeemed. "Maximum Annual Covenant Debt Service" shall mean the maximum annual debt service on debt and obligations secured by a covenant to budget and appropriate Pledgeable Non -Ad Valorem Revenues for the payment thereof, or that are unsecured and expected by the City to be paid from Pledgeable Non -Ad Valorem Revenues. "Mayor' means the Mayor or Vice Mayor of the City. "Non -Ad Valorem Revenues" means all revenues of the City not derived from ad valorem taxation, and which are lawfully available to be used to pay debt service on the Series 2009 Bond. "Original Purchaser' means Bank of America, N.A., Naples, Florida, the original purchaser of the Series 2009 Bond. 125233/004/00357769.DOCv8l Temp. Reso. #011653 - June 29, 2009 Page 3 Revision #2 - July 7, 2009 "Person" shall mean an individual, a corporation, a partnership, an association, a joint stock company, a trust, any unincorporated organization or governmental entity. "Pledgeable Non -Ad Valorem Revenues" shall mean all legally available non -ad valorem revenues of the City (excluding revenues of any enterprise fund of the City), which are legally available to make payments required by this resolution. "Refunded Bonds" means the City's Sales Tax Revenue Bonds, Series 1999 which mature on and after April 1, 2010. "Series 2002 Bonds" means the City's Sales Tax Revenue Bonds, Series 2002. SECTION 3. FINDINGS. It is hereby found and determined that: A. Pursuant to the Bond Resolution, the City authorized the issuance of "Additional Parity Bonds" from time to time. B. In furtherance thereof and pursuant to the Bond Resolution, the City deems it to be in its best interest to issue its Sales Tax Refunding Revenue Bond, Series 2009 as "Additional Parity Bonds" in the aggregate principal amount of not to exceed $7,000,000 (the "Series 2009 Bond") in order to currently refund the Refunded Bonds to achieve present value debt service savings. C. The City has received an offer from the Original Purchaser to purchase the Series 2009 Bond to achieve this objective. D. In consideration of the purchase and acceptance of the Series 2009 Bond by those who shall own the same from time to time, the Bond Resolution shall be deemed to be and shall constitute a contract between the City and such Series 2009 Bondholders. E. All of the provisions, covenants, pledges and conditions in the Bond Resolution shall be applicable to the Series 2009 Bond herein authorized and such Series 2009 Bond shall constitute a "Bond" within the meaning of the Bond Resolution. F. The Bond Resolution provides that the Bond shall be dated, shall mature on such dates and in such amounts, shall bear such rates of interest, shall be payable in such places and shall be subject to such redemption provisions, among other matters, as shall be determined by resolution adopted by the City and it is now appropriate to determine by this Resolution such matters and the manner of finalizing such terms and details with respect to the Series 2009 Bond. f 25233/004/00357769.DOCvSl Temp. Reso. #011653 - June 29, 2009 Page 4 Revision #2 - July 7, 2009 G. The City deems it necessary, desirable and in the best interests of the City and its citizens to currently refund the Refunded Bonds for the reasons heretofore stated. H. Issuance of the Series 2009 Bond to currently refund the Refunded Bonds satisfies a paramount public purpose and will provide for and promote general economic benefit and social benefit to the City and its citizens. I. Except for the pledge thereof pursuant to the Bond Resolution to secure the Refunded Bonds and the Series 2002 Bonds, the Sales Tax Revenues have not heretofore been pledged or encumbered in any manner. J. The estimated Pledged Revenues will be sufficient to pay the principal of and interest on the Series 2002 Bonds and the Series 2009 Bond (collectively, the "Bonds"), as the same become due, and all other payments provided for in the Bond Resolution. K. The principal of and interest on the Bonds and all other payments provided for in the Bond Resolution will be payable solely from the Pledged Revenues, and the ad valorem taxing power of the City has not been pledged to pay the principal of and interest on the Bonds and, except as otherwise provided in the Bond Resolution, the Bonds shall not constitute a lien upon any property of the City. L. In order to conform the definition of "Sales Tax Revenues" to the practices of the State of Florida in light of legislation which occurred subsequent to the adoption of the Bond Resolution, and to conform the definition of "Annual Debt Service Requirement" to accommodate the issuance of "Direct Subsidy Build America Bonds" under Section 54AA(g) of the Internal Revenue Code of 1986, as amended (the "Code") in the future, if at all, it is in the best interests of the City to amend the meanings of such defined terms. M. Pursuant to Section 4.1 of the Bond Resolution, the amendment of such definitions requires the consent in writing of 51 % or more of the Bondholders, and will not become effective until such requirement is satisfied. N. The Debt Service Reserve Account currently secures the Refunded Bonds and the Series 2002 Bonds, and is fully funded with a Municipal Bond Debt Service Reserve Fund Policy issued by Financial Guaranty Insurance Company in an amount equal to $1,055,250 with a termination date of April 1, 2022 (the "Reserve Policy"). Following the issuance of the Series 2009 Bond, the Reserve Policy shall secure the Series 2002 Bonds, the Series 2009 Bond and any Additional Parity Bonds thereafter issued. f 25233/004/00357769.DOCv8} Temp. Reso. #011653 - June 29, 2009 Page 5 Revision #2 - July 7, 2009 O. The City desires to make such determinations as are required to afford the Series 2009 Bond "bank qualified" status for purposes of Section 265(b)(3) of the Code. P. Relating to the Refunded Bonds, the City entered into that certain Debt Service Forward Delivery Agreement dated as of April 30, 2004 with J.P. Morgan Trust Company, N.A. and Wachovia Bank, National Association (the "Provider"), as amended by that certain First Amendment to Debt Service Forward Delivery Agreement dated as of August 31, 2006 (as may be further amended, the "DSFDA"). In connection with the issuance of the Series 2009 Bond to currently refund the Refunded Bonds, the City desires to either terminate the DSFDA relating to the Refunded Bonds or enter into an amendment to the DSFDA to reflect revised monthly cash flows, whichever is in the best economic interests of the City based on advice of the Financial Advisor, and which, in either case, may require payment of a termination fee (including legal fees and expenses of counsel to the Provider) to the Provider pursuant to the DSFDA, and a brokerage fee and structuring agent fee to the Financial Advisor. Q. Debt service on the Series 2009 Bond will be additionally secured by the City's covenant to budget and appropriate Non -Ad Valorem Revenues as provided herein. R. The City shall never be required to maintain or continue any of the activities of the City which generate user service charges, regulatory fees or any other Non -Ad Valorem Revenues. SECTION 4. AUTHORIZATION OF THE SERIES 2009 BOND AND CURRENT REFUNDING; AMENDMENT OR TERMINATION OF DEBT SERVICE FORWARD DELIVERY AGREEMENT. A. There is hereby authorized to be issued a Bond designated as "City of Tamarac, Florida Sales Tax Refunding Revenue Bond, Series 2009" as "Additional Parity Bonds" authorized to be issued pursuant to the Bond Resolution for the purpose of currently refunding the Refunded Bonds and paying costs of issuing the Series 2009 Bond, in the aggregate principal amount of not to exceed $7,000,000. Because of the characteristics of the Series 2009 Bond, prevailing market conditions, and additional savings to be realized from an expeditious sale of the Series 2009 Bond, it is in the best interest of the City to accept the offer of the Original Purchaser to purchase the Series 2009 Bond at a private negotiated sale. Prior to the issuance of the Series 2009 Bond, the Issuer shall receive from the Original Purchaser a Purchaser's Certificate, the form of which is attached hereto as Exhibit B and the Disclosure Letter containing the information required by Section 218.385, Florida Statutes, a form of which is attached hereto as Exhibit C. 125233/004/00357769.DOCv8l Temp. Reso. #011653 - June 29, 2009 Page 6 Revision #2 - July 7, 2009 B. In connection with the issuance of the Series 2009 Bond to currently refund the Refunded Bonds, if in the best economic interest of the City based on the advice of the Financial Advisor, there is hereby authorized termination or amendment of the DSFDA, if required, and the payment of a termination fee to the Provider pursuant to the DSFDA and a brokerage fee to the Financial Advisor, if applicable. SECTION 5. DESCRIPTION OF THE SERIES 2009 BOND; APPROVAL OF RATE LOCK AGREEMENT. (A) The Series 2009 Bond shall be issued as a Serial Bond with a final maturity of the Maturity Date, to be dated the date of the execution and delivery, which shall be a date agreed upon by the City and the Original Purchaser, and shall have such other terms and provisions, including a fixed interest rate not exceeding the maximum interest rate permitted by the Act, principal and interest payment terms, and a redemption provision as stated herein and/or in the form of the Series 2009 Bond attached hereto as Exhibit A, provided, however, the Series 2009 Bond shall not be issued unless net present value debt service savings is equal to or in excess of 2% of the Refunded Bonds less the amount of other legally available monies being used to partially fund the refunding. Interest on the Series 2009 Bond shall be calculated on the basis of a 360 day year consisting of twelve 30-day months. The Series 2009 Bond is to be in substantially the form set forth on Exhibit A attached hereto, together with such non -material changes as shall be approved by the Mayor and the City Manager, such approval to be conclusively evidenced by the execution thereof by the Mayor. The Series 2009 Bond shall be executed on behalf of the City with the manual or facsimile signature of the Mayor and the City Manager and a facsimile of the official seal of the City, such signatures to be attested by the City Clerk and approved as to form by the City Attorney. In case any one or more of the officers who shall have signed or sealed the Series 2009 Bond or whose facsimile signature shall appear thereon shall cease to be such officer of the City before the Series 2009 Bond so signed and sealed has been actually sold and delivered, the Series 2009 Bond may nevertheless be sold and delivered as herein provided and may be issued as if the person who signed or sealed the Series 2009 Bond had not ceased to hold such office. The Series 2009 Bond may be signed and sealed on behalf of the City by such person who at the actual time of the execution of such Series 2009 Bond shall hold the proper office of the City, although, at the date of such Series 2009 Bond, such person may not have held such office or may not have been so authorized. The City 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 Series 2009 Bond shall be actually sold and delivered. (B) Prior to the issuance of the Series 2009 Bond, the Mayor and the City Manager are hereby authorized to enter into a Rate Lock Agreement on behalf of the City, in the form attached hereto as Exhibit D, with the Original Purchaser, in order to eliminate the risk that the fixed rate applicable to the Series 2009 Bond will thereafter increase. {25233/004/00357769.DOCv8J Temp. Reso. #011653 - June 29, 2009 Page 7 Revision #2 - July 7, 2009 SECTION 6. EXECUTION OF ESCROW DEPOSIT AGREEMENT; REDEMPTION OF REFUNDED BONDS. The City hereby approves the Escrow Deposit Agreement as set forth in the form attached hereto as Exhibit E. The Escrow Deposit Agreement shall be executed in the name of the City by the Mayor and the City Manager, such signatures to be attested to by the City Clerk, the official seal of the City to be imprinted thereon, and shall be approved as to form by the City Attorney, with such additional changes and insertions therein as are subsequently approved, and such execution and delivery shall be conclusive evidence of the approval thereof by such officers. The City hereby also authorizes the City Manager to engage such professionals as in his discretion are competent to provide a verification report with respect to the Refunded Bonds. Subject to the execution and delivery of the Series 2009 Bond to currently refund the Refunded Bonds, there is hereby authorized a deposit of proceeds of the Series 2009 Bond which, together with other legally available funds of the City and investment earnings thereon, is equal to the principal of and interest and redemption premiums, if any, on the Refunded Bonds when due in accordance with the schedules to be attached to the Escrow Deposit Agreement to pay principal and interest on the Refunded Bonds and to pay applicable call premiums and any costs with respect thereto. Subject to the execution and delivery of the Series 2009 Bond for the purpose of refunding the Refunded Bonds, the City hereby irrevocably calls the callable Refunded Bonds for early redemption on August 25, 2009, or such other date as determined by the Mayor and the City Manager in the Escrow Deposit Agreement, at a redemption price of 101 % of the principal amount of such callable Refunded Bonds to be redeemed, plus accrued interest thereon to the redemption date. Notwithstanding anything herein to the contrary, the redemption price reduces to 100% of the principal amount of such callable Refunded Bonds to be redeemed if said redemption date is on or after April 1, 2010. Not before issuance of the Series 2009 Bond and not less than thirty (30) days prior to such redemption date, the City hereby directs The Bank of New York Mellon Trust Company, N.A., in its capacity as Paying Agent and Bond Registrar for the Refunded Bonds (the "1999 Paying Agent"), to mail a notice of the redemption of the Refunded Bonds to each holder thereof in accordance with the requirements of Section 4 of Resolution No. 99-192 adopted by the City Commission on July 14, 1999 in the form to be prepared by Bond Counsel. Furthermore, upon issuance of the Series 2009 Bond for the purposes of refunding the Refunded Bonds, the City hereby directs the 1999 Paying Agent to mail a notice of defeasance to each holder of the Refunded Bonds in the form to be prepared by Bond Counsel. SECTION 7. REGISTRATION AND EXCHANGE OF THE SERIES 2009 BOND; PERSONS TREATED AS HOLDER. The Series 2009 Bond is initially registered to the Original Purchaser. So long as the Series 2009 Bond shall remain unpaid, the Bond Registrar will keep books for the registration and transfer of the Series 2009 Bond. The Series 2009 Bond shall be transferable only upon such registration books and not less than in Authorized Denominations. (25233/004/00357769.DOCv8) Temp. Reso. #011653 - June 29, 2009 Page 8 Revision #2 - July 7, 2009 The Person in whose name a Series 2009 Bond shall be registered and be deemed and regarded as the as the absolute owner thereof for all purposes, and payment of principal and interest on the Series 2009 Bond shall be made only to or upon the written order of the Holder. All such payments shall be valid and effectual to satisfy and discharge the liability upon such Series 2009 Bond to the extent of the sum or sums so paid. SECTION 8. REDEMPTION PROVISIONS. The Series 2009 Bond shall be subject to redemption in such amounts and at such times as set forth in the Series 2009 Bond attached hereto as Exhibit A. At least five (5) days before the redemption date, a notice of any such redemption, shall be mailed, first class mail, postage prepaid, to all registered owners of Series 2009 Bond to be redeemed at their addresses as they appear on the registration books. SECTION 9. APPOINTMENT OF BOND REGISTRAR AND PAYING AGENT. The City Clerk is hereby designated as the Paying Agent and Bond Registrar for the Series 2009 Bond. SECTION 10. BACKUP COVENANT TO BUDGET AND APPROPRIATE. Subject to the next paragraph, as additional security for the Series 2009 Bond, and only to the extent Sales Tax Revenues are insufficient, the City covenants and agrees and has a positive and affirmative duty to appropriate in its annual budget, by amendment, if necessary, from Non -Ad Valorem Revenues, amounts sufficient to pay principal of and interest on the Series 2009 Bond not being paid from other amounts as the same shall become due. Such covenant and agreement on the part of the City to budget and appropriate such amounts of Non -Ad Valorem Revenues shall be cumulative to the extent not paid, and shall continue until such Non -Ad Valorem Revenues or other legally available funds in amounts sufficient to make all such required payments shall have been budgeted, appropriated and actually paid. No lien upon or pledge of such budgeted Non -Ad Valorem Revenues shall be in effect until such monies are budgeted and appropriated as provided herein. The City further acknowledges and agrees that the obligations of the City to include the amount of such amendments in each of its annual budgets and to pay such amounts from Non -Ad Valorem Revenues may be enforced in a court of competent jurisdiction in accordance with the remedies set forth in the Bond Resolution. Until such monies are budgeted and appropriated as provided herein, such covenant to budget and appropriate does not create any lien upon or pledge of such Non -Ad Valorem Revenues, nor does it preclude the City from pledging in the future its Non -Ad Valorem Revenues, nor does it require the City to levy and collect any particular Non -Ad Valorem Revenues, nor does it give the holder of the Series 2009 Bond a prior claim on the Non -Ad Valorem Revenues as opposed to claims of general creditors of the City. Such covenant to budget and appropriate Non -Ad Valorem Revenues is subject in all respects to the prior payment of obligations secured by a pledge of such 125233/004/00357769.DOCv8l Temp. Reso. #011653 - June 29, 2009 Page 9 Revision #2 - July 7, 2009 Non -Ad Valorem Revenues heretofore or hereafter entered into (including the payment of debt service on bonds and other debt instruments). Anything in this Resolution to the contrary notwithstanding, it is understood and agreed that all obligations of the City hereunder shall be payable from the portion of Non -Ad Valorem Revenues budgeted and appropriated as provided for herein and nothing herein shall be deemed to pledge ad valorem tax power or ad valorem taxing revenues or to permit or constitute a mortgage or lien upon any assets owned by the City and no holder of the Series 2009 Bond nor any other person, may compel the levy of ad valorem taxes on real or personal property within the boundaries of the City or the use or application of ad valorem tax revenues in order to satisfy any payment obligations hereunder or to maintain or continue any of the activities of the City which generate user service charges, regulatory fees, or any other Non -Ad Valorem Revenues. The obligation of the City to budget, appropriate and make payments hereunder from its Non -Ad Valorem Revenues is subject to the availability of Non -Ad Valorem Revenues after the satisfaction of the funding requirements for obligations having an express lien on or pledge of such revenues, the provisions of Section 166.241, Florida Statutes, and the funding requirements for essential governmental services of the City. Notwithstanding any provisions of this Resolution or the Series 2009 Bond to the contrary, the City shall never be obligated to maintain or continue any of the activities of the City which generate user service charges, regulatory fees or any Non -Ad Valorem Revenues. Until such monies are budgeted and appropriated as provided herein, neither this Resolution nor the obligations of the City hereunder shall be construed as a pledge of or a lien on all or any legally available Non -Ad Valorem Revenues of the City other than Sales Tax Revenues, but shall be payable solely as provided herein. SECTION 11. INTERESTED PARTIES. Nothing in the Bond Resolution expressed or implied is intended or shall be construed to confer upon, or to give to any person or entity, other than the City, the Bond Registrar, the Paying Agent, and the registered owners of the Series 2009 Bond, any right, remedy or claim under or by reason of the Bond Resolution or any covenants, condition or stipulation thereof, and all covenants, stipulations, promises and agreements in the Bond Resolution contained by and on behalf of the City shall be for the sole and exclusive benefit of the City, the Bond Registrar, the Paying Agent, and the registered owners of the Series 2009 Bond. SECTION 12. EVENTS OF DEFAULT. The following events shall each constitute an event of default under the Bond Resolution and the Series 2009 Bond: A. failure to pay the principal of or interest on the Series 2009 Bond when due; B. the dissolution or liquidation of the City, or the filing by the City of a voluntary petition in bankruptcy, or the commission by the City of any act of bankruptcy, or adjudication of the City as a bankrupt, or assignment by the City for the benefit of its creditors, or appointment of a receiver for the City, or the entry by the City into an agreement of composition with its creditors, or the approval by a court of competent {25233/004/00357769.DOCv8] Temp. Reso. #011653 - June 29, 2009 Page 10 Revision #2 - July 7, 2009 jurisdiction of a petition applicable to the City 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 may hereafter be enacted; and C. the City shall default in the due and punctual performance of any of the other covenants, conditions, agreements and provisions contained in the Series 2009 Bond or the Bond Resolution on the part of the City to be performed, and such default shall continue for a period of thirty (30) days after written notice from the Paying Agent or any holder of Series 2009 Bond. SECTION 13. FEDERAL INCOME TAX COVENANTS. A. The City covenants with the Holder of the Series 2009 Bond that it shall not use the proceeds of such Series 2009 Bond in any manner which would cause the interest on such Series 2009 Bond to be or become includable in the gross income of the Holder thereof for federal income tax purposes. B. The City covenants with the Holder of the Series 2009 Bond that neither the City nor any person under its control or direction will make any use of the proceeds of such Series 2009 Bond (or amounts deemed to be proceeds under the Code) in any manner which would cause such Series 2009 Bond to be an "arbitrage bond" within the meaning of Section 148 of the Code and neither the City nor any other person shall do any act or fail to do any act which would cause the interest on such Series 2009 Bond to become includable in the gross income of the Holders thereof for federal income tax purposes. C. The City hereby covenants with the Holders of each Series 2009 Bond that it will comply with all provisions of the Code necessary to maintain the exclusion of interest on the Series 2009 Bond 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 U.S. Treasury pursuant to the Code. SECTION 14. AMENDMENT TO BOND RESOLUTION. Pursuant to Section 4.1 of the Bond Resolution, the following amendments are hereby adopted, but shall not become effective until the City receives the consent in writing of 51 % or more of the Bondholders. The following definitions in Section 1.1 of the Bond Resolution are hereby amended and restated as follows: "Annual Debt Service Requirement" shall mean the amount required to be deposited during any Fiscal Year into the Interest Account (except interest for this purpose shall not include interest to the extent it is to be paid from a direct subsidy payment expected to be received from the United States Treasury relating to 'Build America Bonds" issued pursuant to Section 54AA of the Code, or any other interest subsidy or similar payments made {25233/004/00357769.DOCv8) Temp. Reso. #011653 - June 29, 2009 Page 11 Revision #2 - July 7, 2009 by the Federal government), the Principal Account and the Bond Redemption Account as provided in this Resolution. "Sales Tax Revenues" shall mean the proceeds derived by the City from the local government half -cent sales tax levied and collected pursuant to Chapter 212, Part I, Florida Statutes, together with other moneys, distributed to the City from the local government half -cent sales tax clearing trust fund pursuant to Chapter 218, Part VI, Florida Statutes, as amended, and to the extent provided in any supplemental resolution of the City, any additional sales tax revenues distributed to the City. SECTION 15. TRANSFER OF FUNDS. On the date of issuance of the Series 2009 Bond, the City may transfer moneys on deposit in the Principal Account and Interest Account created pursuant to the Bond Resolution which were being held for the benefit of the Refunded Bonds to the Escrow Agent to be held on behalf of the City and to be used pursuant to the terms of the Escrow Deposit Agreement. SECTION 16. BANK QUALIFIED STATUS. The City Commission of the City designates the portion, if any, of the Series 2009 Bond that exceeds the current principal amount of the Refunded Bonds as "qualified tax-exempt obligations" within the meaning of Section 265(b)(3) of the Code. The City and any issuer of "tax-exempt" debt that issues "on behalf of the City do not reasonably expect during the calendar year 2009 to issue more than $30,000,000 of "tax-exempt" obligations including the portion of the Series 2009 Bond designated as described in this Section 16, exclusive of any private activity bonds as defined in Section 141(a) of the Code (except for qualified 501(c)(3) bonds as defined in Section 145 of the Code). The portion of the Series 2009 Bond that is not being designated as "qualified tax-exempt obligations" under the preceding paragraph is deemed designated as "qualified tax-exempt obligations" under Section 265(b)(3) of the Code. SECTION 17. SPECIAL COVENANTS AND FINANCIAL RATIOS. As a condition precedent to the issuance of any debt or the incurrence of any other obligations which are secured by and/or payable solely from Pledgeable Non -Ad Valorem Revenues, the City agrees to deliver to the Original Purchaser a certificate setting forth the calculations of the financial ratios provided below and certifying that it is in compliance with the following: (i) the average of the Pledgeable Non -Ad Valorem Revenues for the two most recent Fiscal Years for which audited financial statements of the City are available is equal to or greater than 2.Ox the projected maximum annual debt service on the proposed debt or obligations and the other debt and obligations secured by and/or payable solely from all or a portion of such Pledgeable Non -Ad Valorem Revenue to be outstanding following the issuance of the proposed debt or obligations; and {25233/004/00357769.DDCO) Temp. Reso. #011653 - June 29, 2009 Page 12 Revision #2 - July 7, 2009 (ii) the remainder of (A) the Pledgeable Non -Ad Valorem Revenues for the most recent Fiscal Year for which audited financial statements of the City are available, less (B) the product of (1) the quotient of such Pledgeable Non -Ad Valorem Revenues divided by the Non -Enterprise Fund Revenues for such Fiscal Year, multiplied by (II) the Costs of Essential Services for such Fiscal Year, and less (C) the maximum annual debt service on debt and obligations secured by an express lien on all or a portion of the Pledgeable Non -Ad Valorem Revenues to be outstanding following the issuance of the proposed debt or obligations is equal to or greater than 1.1 x the Maximum Annual Covenant Debt Service with respect to debt and obligations to be outstanding following the issuance of the proposed debt or obligations. [Pledgeable Non -Ad Valorem Revenues - ((Pledgeable Non -Ad Valorem Revenues = Non -Enterprise Fund Revenues) x (Costs of Essential Services)) - maximum annual debt service secured by lien on Pledgeable Non -Ad Valorem Revenues ;?. 1.1x Maximum Annual Covenant Debt Service]. For purposes of the covenants provided in this Section 17, "maximum annual debt service" (including, without limitation, as used in the definition of "Maximum Annual Covenant Debt Service") shall mean the lesser of the actual maximum annual debt service on such debt and obligations, or 15% of the original par amount thereof. For the purpose of calculating maximum annual non -ad valorem debt service on any indebtedness which bears interest at a variable rate, such indebtedness shall be deemed to bear interest at the greater of (i) 1.25 times the most recently published Bond Buyer Revenue Bond 30 Year Index or (ii) 1.25 times actual average interest rate during the prior Fiscal Year of such City. Notwithstanding anything herein to the contrary, the provisions of this Section 17 may be amended, supplemented, or waived from time to time only with the prior written consent of the Original Purchaser. SECTION 18. ANNUAL AUDIT. The City shall, immediately after the close of each Fiscal Year, cause the financial statements of the City to be properly audited by a recognized independent certified public accountant or recognized independent firm of certified public accountants, and shall require such accountants to complete their report on the annual financial statements in accordance with applicable law. The annual financial statements shall be prepared in conformity with generally accepted accounting principles. The City shall annually provide to the Original Purchaser a copy of its audited financial statements within 270 days of the fiscal year end. SECTION 19. PRIOR RESOLUTIONS. All prior resolutions of the City inconsistent with the provisions of the Bond Resolution are hereby amended and supplemented to conform with the provisions herein contained and, except as may otherwise amended and supplemented hereby, the Bond Resolution shall remain in full force and effect. SECTION 20. NO PERSONAL LIABILITY. Neither the members of the City Commission nor any person executing the Series 2009 Bond shall be personally liable 125233/004/00357769.DOCv8l Temp. Reso. #011653 - June 29, 2009 Page 13 Revision #2 - July 7, 2009 therefor or be subject to any personal liability or accountability by reason of the issuance thereof. SECTION 21. GENERAL AUTHORITY. The Mayor, the City Manager, the City Attorney and any other proper officials of the City are hereby authorized to do all acts and things required of them by this Resolution, the Bond Resolution, the Escrow Deposit Agreement, the Series 2009 Bond, or any other agreement or contract relating to the Series 2009 Bond, or that may otherwise be desirable or consistent with accomplishing the full, punctual and complete performance of all the terms, covenants and agreements contained in any of the foregoing and each member, employee, attorney and officer of the City is hereby authorized and directed to execute and deliver any and all papers and instruments, including without limitation tax returns, non - arbitrage certificates, and various other certificates, and to cause to be done any. and all acts and things necessary or proper for carrying out the transactions r- ontemplWed thereby. - =- SECTION 22. SEVERABILITY AND INVALID PROVISIONS. If -an5cone or m&e of the covenants, agreements or provisions herein contained shall be held contrary to any express provision of law or contrary to the policy of express law, but not -expressly prohibited or against public policy, or shall for any reason whatsoever be held invalid, then such covenants, agreements or provisions shall be null and void and shall be deemed separable from the remaining covenants, agreements or provisions and shall in no way affect the validity of the other provisions hereof or of the Series 2009 Bond. SECTION 23. BOND RESOLUTION TO CONTINUE IN FORCE. The Bond Resolution and all the terms and provisions thereof, are and shall remain in full force and effect. [Remainder of page intentionally left blank] (25233/004/00357769.DOCv8l Temp. Reso. #011653 - June 29, 2009 SECTION 24. EFFECTIVE DATE. immediately upon its adoption. Page 14 Revision #2 - July 7, 2009 This Resolution shall be effective PASSED AND ADOPTED the 8t" day of July, 2009. CITY OF TAMARAC, FLORIDA ATTEST: _rLcrvtl RECORD OF COMMISSION VOTE: MA7MQN SWEfVSON,,tMC MAYORFLANSBAUMTALABISCO CITY£f_-E'RK DIST 1: COMM BUSHNELL i�k,, DIST 2: VM ATKINS-GRAD DIST 3: COMM GLASSER DIST 4: COMM. DRESSLER G,�9✓ I HEREBY CERTIFY that I have approved this RESOLUTION as to form. 1*�A" 7 SAMUEL'S. G REN CITY ATTO NEY {25233/004/00357769.DOCv8} Temp. Reso. #011653 - June 29, 2009 EXHIBIT A FORM OF BOND Dated: July 21, 2009 Maturity Date: April 1, 2019 Page 15 Revision #2 - July 7, 2009 1 CITY OF TAMARAC, FLORIDA SALES TAX REFUNDING REVENUE BOND, SERIES 2009 KNOW ALL MEN BY THESE PRESENTS that the City of Tamarac, Florida (the "Issuer"), a municipal corporation created and existing pursuant to the Constitution and the laws of the State of Florida, for value received, promises to pay from the sources hereinafter provided, to the order of Bank of America, N.A. or registered assigns (hereinafter, the "Owner'), the principal sum of $ in the manner described below, together with interest on the principal balance outstanding at the rate of per annum of % (subject to adjustment as described below, the "Interest Rate") calculated on the basis of a 360 day year consisting of twelve 30-day months. Principal of and interest on this Bond is payable in lawful money of the United States of America at such place as the Owners may designate to the Issuer in writing. Interest shall be payable in arrears semi-annually to the Owner on each April 1 and October 1, commencing on October 1, 2009. Principal on this Bond shall be payable on April 1 of the following years: Year Principal Payment As described above, the final installment of the entire unpaid principal balance, together with all accrued and unpaid interest hereon, is due and payable on the Maturity Date. This Bond is being issued for the primary purpose of currently refunding all of the Issuer's Sales Tax Revenue Bonds, Series 1999, under the authority of and in full compliance with the Constitution and laws of the State of Florida, particularly Chapter 166, Florida Statutes, the municipal charter of the Issuer, and other applicable provisions of law (collectively, the "Act"), and Resolution No. 98-156 adopted by the City Commission on May 27, 1998, as amended and supplemented from time to time, and as particularly replaced by Resolution No. 99-178 adopted by the City Commission on 125233/004/00357769.DOCv8l Temp. Reso. #011653 - June 29, 2009 Page 16 Revision #2 - July 7, 2009 July 14, 1999, as amended and supplemented by Resolution No. 99-192 adopted by the City Commission on July 14, 1999, as amended and supplemented by Resolution No. R-2002-125 adopted by the City Commission on May 8, 2002, and as amended and supplemented by Resolution No. R-2009- adopted by the City Commission on July 8, 2009 (collectively, the "Resolution"), and is subject to the terms and conditions of the Resolution. All capitalized undefined terms shall have the meaning ascribed thereto in the Resolution. This Bond and the interest thereon are payable solely from and secured by a lien upon and a pledge of the Pledged Revenues on parity with the Issuer's Sales Tax Revenue Bonds, Series 2002 and any Additional Parity Bonds hereafter issued. In addition, this Bond is additionally secured by a covenant to budget and appropriate Non -Ad Valorem Revenues of the Issuer, as provided for in the Resolution. The Issuer is not obligated to pay this Bond or the interest hereon except from the sources described in the Resolution, and the full faith and credit of the Issuer is not pledged for the payment of this Bond and this Bond does not constitute an indebtedness of the Issuer within the meaning of any constitutional, statutory, or other provisions or limitation; and it is expressly agreed by the Holder of this Bond that such Holder shall never have the right to require or compel the exercise of the ad valorem taxing power of the Issuer, or taxation in any form of any real or personal property therein, for the payment of the principal of and interest on this Bond, or the making of any other sinking fund and other payments provided for in the Resolution. It is further agreed between the Issuer and the Holder of this Bond that this Bond and the obligation evidenced thereby shall not constitute a lien upon any property of or in the Issuer, but shall constitute a lien only on the Pledged Revenues pledged thereto, all in the manner provided in the Resolution. If the interest on this Bond becomes includable in the gross income of the Owner for federal income tax purposes (a "Determination of Taxability"), then the interest rate hereon shall be adjusted to 5.698% (the "Adjusted Interest Rate"), as of and from the date such Determination of Taxability would be applicable with respect to this Bond (the "Accrual Date"); and (i) the Issuer shall on the next interest payment date (or if this Bond shall have matured, within 30 days after demand by the Issuer) hereon pay to the Owner an amount equal to the sum of (1) the difference between (A) the total interest that would have accrued on this Bond at the Adjusted Interest Rate from the Accrual Date to such next interest payment date, and (B) the actual interest paid by the Issuer on this Bond from the Accrual Date to such next interest payment date, and (2) any interest and penalties required to be paid as a result of any additional State of Florida and federal income taxes imposed upon the Owner arising as a result of such Determination of Taxability; and (ii) from and after the date of the Determination of Taxability, this Bond shall continue to bear interest at the Adjusted Interest Rate for the period such Determination of Taxability continues to be applicable with respect to this Bond. This adjustment shall survive payment of this Bond until such time as the federal {25233/004/00357769.DOCv8} Temp. Reso. #011653 - June 29, 2009 Page 17 Revision #2 - July 7, 2009 statute of limitations under which the interest on this Bond could be declared taxable under the Code shall have expired. This Bond may be redeemed in whole or in part, on any date, with three (3) days prior written notice to the Owner by payment of an amount equal to the principal amount to be redeemed, plus accrued interest thereon to the date of redemption plus the Redemption Fee. For purposes hereof, the Redemption Fee will be the sum of fees calculated separately for each Redeemed Installment, as follows: (i) The Owner will first determine the amount of interest which would have accrued each month at the Taxable Equivalent Rate for the Redeemed Installment had it remained outstanding until the applicable Original Payment Date, using the interest rate applicable to the Redeemed Installment under this Bond. (ii) The Owner will then subtract from each monthly interest amount determined in (i) above, the amount of interest which would accrue for that Redeemed Installment if it were reinvested from the date of redemption through the Original Payment Date, using the Treasury Rate. (iii) If (i) minus (ii) for the Redeemed Installment is greater than zero, the Owner will discount the monthly differences to the date of redemption by the Treasury Rate. The Owner will then add together all of the discounted monthly differences for the Redeemed Installment. The following definitions will apply to the calculation of the Redemption Fee: (i) "Original Payment Dates" means the dates on which the redeemed principal would have been paid if there had been no early redemption. If any of the principal would have been paid later, than the end of the fixed rate interest period in effect at the time of redemption, then the Original Payment Date for that amount will be the last day of the interest period. (ii) "Redeemed Installment" means the amount of the redeemed principal which would have been paid on a single Original Payment Date. (iii) "Taxable Equivalent Rate" means the interest rate per annum derived from the following formula: [fixed interest rate on this Bond] divided by the difference of (1 minus the Maximum Corporate Income Tax Rate). The "Maximum Corporate Income Tax Rate" is the highest marginal federal income tax rate charged to U.S. corporations in effect at the time of the redemption calculation. The "Maximum Corporate Income Tax Rate" is currently 35% (or 0.35 in numerical terms). 125233/004/00357769. DOCv8 f Temp. Reso. #011653 - June 29, 2009 Page 18 Revision #2 - July 7, 2009 (iv) "Treasury Rate" means the yield on the Treasury Constant Maturity Series with maturity equal to the Original Payment Date of the Redeemed Installment which are principal payments (calculated as of the date of redemption in accordance with accepted financial practice and rounded to the nearest quarter -year), as reported in Federal Reserve Statistical Release H.15, Selected Interest Rates of the Board of Governors of the Federal Reserve System, or any successor publication. If no maturity exactly corresponding to such Original Payment Date appears in Release H.15, the Treasury Rate will be determined by linear interpolation between the yields reported in Release H.15. If for any reason Release H.15 is no longer published, the Owner shall select a comparable publication to determine the Treasury Rate. Notwithstanding anything in this Bond or the Resolution to the contrary and only during such time a payment default exists pursuant to the Resolution, interest at the lesser of 15% per annum or the maximum lawful rate per annum shall be payable on the entire principal balance owing hereunder from and after the occurrence of and during the continuation of a default described in the preceding paragraph, irrespective of a declaration of maturity. Upon the occurrence of a default pursuant to the Resolution, the Owner may declare the principal of this Bond (if not then due and payable) to be immediately due and payable, and upon such declaration, the same shall be immediately due and payable; and in any such default and acceleration, the Issuer shall also be obligated to pay (but only from the sources described herein) as part of the indebtedness evidenced by this Bond, all costs of collection and enforcement hereof, including such fees as may be incurred on appeal or incurred in any proceeding under bankruptcy laws as they now or hereafter exist, including specifically but without limitation, claims, disputes and proceedings seeking adequate protection or relief from the automatic stay. In addition to the remedies described in Resolution, the Owner may charge a late payment fee of four percent of any amount not paid within 15 days of the due date, which is in addition to interest due on this Bond. THE ISSUER, AND THE OWNER, BY ACCEPTANCE OF THIS BOND, AGREE TO WAIVE TRIAL BY JURY, IN ANY CONTROVERSY OR CLAIM BETWEEN THE PARTIES HERETO INCLUDING BUT NOT LIMITED TO THOSE ARISING OUT OF OR RELATING TO THE RESOLUTION OR ANY RELATED INSTRUMENTS, AGREEMENTS OR DOCUMENTS. BY ACCEPTANCE HEREOF, THE OWNER OF THIS BOND IS CONCLUSIVELY DEEMED TO HAVE CONSENTED TO AND APPROVED THE PROVISIONS IN THE BOND RESOLUTION, INCLUDING THE AMENDMENTS TO THE DEFINITIONS OF "SALES TAX REVENUES" AND "ANNUAL DEBT SERVICE REQUIREMENT" THEREIN, AND THE OWNER OF THIS BOND SHALL HAVE NO RIGHT TO OBJECT TO SUCH AMENDMENTS. SUCH AMENDMENTS WILL {25233/004/00357769.DOCv8} Temp. Reso. #011653 - June 29, 2009 Page 19 Revision #2 - July 7, 2009 BECOME EFFECTIVE, AFTER RECEIVING THE REQUISITE CONSENT OF THE HOLDERS OF 51 % OR MORE OF THE OUTSTANDING BONDS ISSUED PURSUANT TO THE RESOLUTION. REFERENCE IS MADE TO THE RESOLUTION FOR A DESCRIPTION OF SUCH AMENDMENTS. Additional Parity Bonds may be issued by the Issuer from time to time upon the conditions and within the limitations and in the manner provided in the Resolution. The original registered owner, and each successive registered owner of this Bond shall be further conclusively deemed to have agreed and consented to the following terms and conditions: a. The Bond Registrar shall keep books for the registration of this Bond and for the registration of transfers of this Bond as provided in the Resolution. This Bond shall be transferable by the registered owner thereof in person or by his attorney duly authorized in writing only upon the books of the Issuer kept by the Bond Registrar and only upon surrender hereof together with a written instrument of transfer satisfactory to the Bond Registrar duly executed by the registered owner or his duly authorized attorney. Upon the transfer of any such Bond, the Issuer shall issue in the name of the transferee a new Bond. b. The Issuer, the Paying Agent and the Bond Registrar may deem and treat the Person in whose name any Bond shall be registered upon the books kept by the Bond Registrar as the absolute owner of such Bond, whether such Bond shall be overdue or not, for the purpose of receiving payment of, or on account of, the principal of and interest on such Bond as the same becomes due, and for all other purposes. All such payments so made to any such registered owner or upon his 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, the Paying Agent, nor the Bond Registrar shall be affected by any notice to the contrary. C. At the option of the registered owner thereof and upon surrender hereto at the principal trust office of the Bond Registrar with a written instrument of transfer satisfactory to the Bond Registrar duly executed by the registered owner or his duly authorized attorney and upon payment by such registered owner of any charges which the Bond Registrar or the Issuer may make as provided in the Resolution, this Bond may be exchanged for Bonds of the same Series and maturity of any other authorized denominations. d. In all cases in which the privilege of exchanging this Bond or transferring this Bond is exercised, the Issuer shall execute and the Bond Registrar shall authenticate and deliver Bonds in accordance with the provisions of the Resolution. There shall be no charge for any such exchange or transfer of Bonds, but the Issuer or the Bond Registrar may require payment of a sum sufficient to pay any tax, fee or other governmental charge required to be paid with respect to such exchange or transfer. (25233/004/00357769.DOCv8} Temp. Reso. #011653 - June 29, 2009 Page 20 Revision #2 - July 7, 2009 Neither the Issuer nor the Bond Registrar shall be required (i) to transfer or exchange Bonds for a period of 15 days next preceding an interest payment date on such Bonds or next preceding any selection of Bonds to be redeemed or thereafter until after the mailing of any notice of redemption; or (ii) to transfer or exchange any Bonds called for redemption. It is hereby certified and recited that all acts, conditions and things required to exist, to happen, and to be performed, precedent to and in the issuance of this Bond exist, have happened and have been performed in regular and due form and time as required by the laws and Constitution of the State of Florida applicable thereto, and that the issuance of this Bond, and of the Series of Bonds of which this Bond is one, is in full compliance with all constitutional, statutory or charter limitations or provisions. [Remainder of page intentionally left blank] 1 1 {25233/004/00357769.DOCv8} Temp. Reso. #011653 - June 29, 2009 1 1 1 Page 21 Revision #2 - July 7, 2009 IN WITNESS WHEREOF, the City of Tamarac, Florida has caused this Bond to be executed in its name by the manual signature of its Mayor and City Manager, attested by the manual signature of its City Clerk, and approved as to form by the manual signature of its City Attorney, and its seal to be impressed hereon, all as of this 21 st day of July, 2009. (SEAL) r. _RT7- E!�TEb By: _ Name: Marion Swenson, CMC Title: City Clerk CITY OF TAMARAC, FLORIDA By: Name: Beth Flansbaum-Talabisco Title: Mayor By: /21al-e— Name:J rey . Miller Title: City Manager APPROVED AS TO FORM: By: 7 F v l - Nam .Samu I S. G ren Title: City Attorney FORM OF CERTIFICATE OF AUTHENTICATION This Bond is one of the Bonds delivered pursuant to the within mentioned Resolution. Date of Authentication: July 21, 2009 CITY CLERK, as-Sonrd'Rggistrar'. (25233/004/00357769.DQCv8) Temp. Reso. #011653 - June 29, 2009 Page 22 Revision #2 - July 7, 2009 ASSIGNMENT AND TRANSFER FOR VALUE RECEIVED the undersigned sells, assigns and transfers unto (please print or typewrite name and address of transferee) the written bond and rights thereunder, and hereby irrevocably constitutes and appoints Attorney to transfer the within bond on the books kept for registration thereof with full power of substitution in the.premises. Dated: In the presence of: C {25233/004/00357769.DOCv8j Temp. Reso. #011653 - June 29, 2009 Page 23 Revision #2 - July 7, 2009 EXHIBIT B FORM OF PURCHASER'S CERTIFICATE This is to certify that Bank of America, N.A. (the "Purchaser") has not required the City of Tamarac, Florida (the "Issuer") to deliver any offering document and has conducted its own investigation, to the extent it deems satisfactory or sufficient, into matters relating to business affairs or conditions (either financial or otherwise) of the Issuer in connection with the issuance of the $ City of Tamarac, Florida Sales Tax Refunding Revenue Bond, Series 2009, dated July 21, 2009 (the "Bond"), and no inference should be drawn that the Purchaser, in the acceptance of the Bond, is relying on Bond Counsel or Issuer's Counsel as to any such matters other than the legal opinion rendered by Bond Counsel, Bryant Miller Olive P.A. and by Issuer's Counsel, Goren, Cherof, Doody & Ezrol, P.A. Any capitalized undefined terms used herein not otherwise defined shall have the meaning set forth in Resolution No. 98-156 adopted by the City Commission on May 27, 1998, as supplemented and amended from time to time, and as particularly replaced by Resolution No. 99-178 adopted by the City Commission on July 14, 1999, as amended and supplemented by Resolution No. 99- 192 adopted by the City Commission on July 14, 1999, as amended and supplemented by Resolution No. R-2002-125 adopted by the City Commission on May 8, 2002, and as amended and supplemented by Resolution No. R-2009- adopted by the City Commission on July 8, 2009 (collectively, the "Resolution"). We are aware that investment in the Bond involves various risks, that the Bond is not a general obligation of the Issuer or payable from ad valorem tax revenues, and that the payment of the Bond is secured solely from the sources described in the Resolution (the "Bond Security"). We have made such independent investigation of the Bond Security as we, in the exercise of sound business judgment, consider to be appropriate under the circumstances. In making our investment decision, we have relied upon the accuracy of information which has been provided to us by the Issuer. We have knowledge and experience in financial and business matters and are capable of evaluating the merits and risks of our investment in the Bond and can bear the economic risk of our investment in the Bond. We acknowledge and understand that the Resolution is not being qualified under the Trust Indenture Act of 1939, as amended (the "1939 Act"), and is not being registered in reliance upon the exemption from registration under Section 3(a)(2) of the Securities Act of 1933, Section 517.051(1), Florida Statutes, and/or Section 517.061(7), Florida Statutes, and that neither the Issuer, Bond Counsel nor Issuer's Counsel shall have any obligation to effect any such registration or qualification. {25233/004/00357769.DOCv8} Temp. Reso. #011653 - June 29, 2009 Page 24 Revision #2 - July 7, 2009 We are not acting as a broker or other intermediary, and are purchasing the Bond as an investment for our own account and not with a present view to a resale or other distribution to the public. We understand that the Bond may not be transferred in a denomination less than $100,000 in any circumstances. We are a "national bank" under the laws of the United States of America. We are not purchasing the Bond for the direct or indirect promotion of any scheme or enterprise with the intent of violating or evading any provision of Chapter 517, Florida Statutes. DATED this 21 St of July, 2009. BANK OF AMERICA, N.A. By:_ Name Title: Holly L. Kuhlman Senior Vice President 1 1 (25233/004/00357769.DOCv8} Temp. Reso. #011653 - June 29, 2009 Page 25 Revision #2 - July 7, 2009 EXHIBIT C FORM OF DISCLOSURE LETTER The undersigned, as purchaser, proposes to negotiate with the City of Tamarac, Florida (the "Issuer") for the private purchase of its City of Tamarac, Florida Sales Tax Refunding Revenue Bond, Series 2009 (the "Bond") in the principal amount of $ . Prior to the award of the Bond, the followinq information is herebv furnished to the Issuer: 1. Set forth is an itemized list of the nature and estimated amounts of expenses to be incurred for services rendered to us (the "Purchaser") in connection with the issuance of the Bond (such fees and expenses to be paid by the Issuer): Holland & Knight LLP Purchaser Counsel Fees -- $4,500 2. (a) No other fee, bonus or other compensation is estimated to be paid by the Purchaser in connection with the issuance of the Bond to any person not regularly employed or retained by the Purchaser (including any "finder" as defined in Section 218.386(1)(a), Florida Statutes), except as specifically enumerated as expenses to be incurred by the Purchaser, as set forth in paragraph (1) above. (b) No person has entered into an understanding with the Purchaser, or to the knowledge of the Purchaser, with the Issuer, for any paid or promised compensation or valuable consideration, directly or indirectly, expressly or implied, to act solely as an intermediary between the Issuer and the Purchaser or to exercise or attempt to exercise any influence to effect any transaction in the purchase of the Bond. 3. The amount of the underwriting spread expected to be realized by the Bank is $0. 4. The management fee to be charged by the Bank is $0. 5. Truth -in -Bonding Statement: The Bond is being issued primarily to currently refund the Refunded Bonds, as described in the Resolution hereafter defined, and to pay costs related thereto. Unless earlier redeemed, the Bond is expected to be repaid by April 1, 2019. At an interest rate of %, total interest paid over the life of the Bond is estimated to be The Bond will be payable from Pledged Revenues sufficient to make such payments, appropriated and deposited as described in Resolution No. 98-156 adopted {25233/004/00357769.DOCv8) Temp. Reso. #011653 - June 29, 2009 Page 26 Revision #2 - July 7, 2009 by the City Commission on May 27, 1998, as amended and supplemented from time to time, and as particularly replaced by Resolution No. 99-178 adopted by the City Commission on July 14, 1999, as amended and supplemented by Resolution No. 99- 192 adopted by the City Commission on July 14, 1999, as amended and supplemented by Resolution No. R-2002-125 adopted by the City Commission on May 8, 2002, and as amended and supplemented by Resolution No. R-2009- adopted by the City Commission on July 8, 2009 (collectively, the "Resolution"). In addition, the Bond will be additionally payable from a covenant to budget and appropriate from Non -Ad Valorem Revenues as described in the Resolution. See the Resolution for a definition of Pledged Revenues. Based on the above assumptions, issuance of the Bond is estimated to result in an annual average of approximately $ of revenues of the Issuer not being available to finance the services of the Issuer during the life of the Bond. 6. The name and address of the Purchaser is as follows: Bank of America, N.A. 4501 North Tamiami Trail, Suite 400 Naples, Florida 34103 IN WITNESS WHEREOF, the undersigned has executed this Disclosure Statement on behalf of the Purchaser this 21 st day of July, 2009. BANK OF AMERICA, N.A. By: Name: Holly L. Kuhlman Title: Senior Vice President 1 125233/004/00357769. DOC v8 ) Temp. Reso. #011653 - June 29, 2009 Page 27 Revision #2 - July 7, 2009 EXHIBIT D FORM OF RATE LOCK AGREEMENT This Rate Lock Agreement is dated July 8, 2009, and is between Bank of America, N.A. (the "Bank") and the City of Tamarac, Florida (the "City"). Terms used herein and not otherwise defined herein have the meanings ascribed thereto in a resolution of the City (the "Resolution"), a copy of which is attached hereto as Schedule I. The Series 2009 Bond, if issued, is to be issued on or after July 10, 2009 and on or prior to August 28, 2009 (the "Closing Period"). The City understands that, if the Series 2009 Bond does not close during the Closing Period, the Bank may suffer breakage costs and other losses, expenses and liabilities, including lost revenue and lost profits, as a result of having locked in the interest rate in advance. Accordingly, in consideration of the Bank's agreement to lock in the interest rate on the Series 2009 Bond, the City agrees to pay to the Bank a prepayment fee as provided herein in the event the Series 2009 Bond does not close during the Closing Period for any reason other than the Bank's refusal to purchase the Series 2009 Bond having the terms and conditions as set forth herein and in the Resolution. The Bank and the City agree that in the event the Series 2009 Bond is issued by the City and purchased by the Bank, the interest rate to be borne by the Series 2009 Bond will be 3.70 per cent per annum (the "Series 2009 Bond Rate"). The principal amount of the Series 2009 Bond shall, for purposes of this Rate Lock Agreement, be deemed due on the dates and in the amounts set forth on Schedule II attached hereto. The Bank agrees that adjustments may be made to the principal amounts if not material. In the event that the City does not issue the Series 2009 Bond during the Closing Period, having the terms and conditions as set forth herein and in the Resolution and Series 2009 Bond attached thereto and offer to sell the same to the Bank for a price equal to the initial draw under the Series 2009 Bond at the time of delivery, then, unless after said offer the Bank fails to purchase the Series 2009 Bond on the date tendered by the City, said circumstance shall be deemed to be the issuance and simultaneous prepayment of the entire principal amount of the Series 2009 Bond, which shall be subject to the prepayment provisions set forth in the Bond. If under the terms of the Bond the prepayment would result in a Prepayment Fee, then the City will pay the Bank, on demand, the amount of the Prepayment Fee, provided that the City shall only be obligated to make such payment from the same sources and in the same manner as principal and interest on the Series 2009 Bond would have been payable had the Series 2009 Bond actually been issued. The parties acknowledge that in the event the City offers to sell the Series 2009 Bond and the Bank fails to purchase the Series 2009 Bond on the date tendered, on the terms described above, the City shall have no liability to pay a Prepayment Fee to the Bank. 125233/004/00357769.DOCv8} Temp. Reso. #011653 - June 29, 2009 Page 28 Revision #2 - July 7, 2009 The City agrees that the fee represents a reasonable estimate of the breakage costs and other losses, expenses and liabilities, including lost revenue and lost profits, that the Bank may suffer if the Series 2009 Bond is not delivered during the Closing Period. The City agrees that the Bank's willingness to lock in the Series 2009 Bond Rate in advance of the Closing Period is sufficient consideration for the City's agreement to pay the fee. This Agreement shall be governed by Florida law. Any amount due under this Agreement which is not paid upon demand by the Bank shall bear interest until paid at the Series 2009 Bond Rate plus five percentage points. Any disputes between the parties concerning this Agreement, at the election of any party, will be resolved by binding arbitration according to the applicable rules and procedures for the arbitration of disputes of the American Arbitration Association or any successor thereof. The prevailing party in any arbitration or litigation will be entitled to its reasonable attorneys' fees, including the allocated cost of in-house counsel. In the event of a dispute hereunder, any judicial proceeding shall be conducted without a jury trial, and the prevailing party shall be entitled to attorney's fees and costs including on appeal. Once the Series 2009 Bond is issued by the City and purchased by the Bank, this Agreement will terminate. BANK OF AMERICA, N.A. By: Name: Holly L. Kuhlman Title: Senior Vice President CITY OF TAMARAC, FLORIDA By:LZ r ;ga�r Name: Beth Flansbaum-Tal,,, Title: Mayor By: �1,41 Name:YEOrey L Miller Title: City Manager 1 125233/004/00357769.DOCv8} 1 1 1 Temp. Reso. #011653 - June 29, 2009 Page 29 Revision #2 - July 7, 2009 SCHEDULEI COPY OF AUTHORIZING RESOLUTION (25233/004/00357769.DOCvB] Temp. Reso. #011653 - June 29, 2009 Page 30 Revision #2 - July 7, 2009 SCHEDULEII ASSUMED PRINCIPAL PAYMENTS Date Principal 04/01/2010 $530,000 04/01 /2011 480,000 04/01 /2012 505,000 04/01/2013 520,000 04101 /2014 540,000 04/01/2015 560,000 04/01 /2016 585,000 04/01 /2017 605,000 04/01/2018 625,000 04/01 /2019 650,000 1 1 1 {25233/004/00357769.DQCv8) Temp. Reso. #011653 - June 29, 2009 Page 31 Revision #2 - July 7, 2009 EXHIBIT E FORM OF ESCROW DEPOSIT AGREEMENT THIS ESCROW DEPOSIT AGREEMENT, dated as of July 21, 2009, by and between the CITY OF TAMARAC, FLORIDA (the "Issuer"), and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., a national banking association organized under the laws of the United States of America, as Escrow Agent, and its successors and assigns (the "Escrow Agent"); WITNESSETH: WHEREAS, the Issuer previously issued its Sales Tax Revenue Bonds, Series 1999 (the "1999 Bonds"); and WHEREAS, the Issuer now desires to currently refund the 1999 Bonds which mature on and after April 1, 2010 (the "Refunded Bonds"); and WHEREAS, the execution of this Escrow Deposit Agreement and full performance of the provisions hereof shall defease and discharge the Issuer's obligations relating to the Refunded Bonds; NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, the Issuer and the Escrow Agent agree as follows: SECTION 1. Definitions. As used herein, the following terms mean: (a) "Agreement" means this Escrow Deposit Agreement. (b) "Bond" means the $ City of Tamarac, Florida Sales Tax Refunding Revenue Bond, Series 2009, issued under the Bond Resolution. (c) "Bond Counsel" means Bryant Miller Olive P.A., or any other law firm nationally -recognized in the area of public finance. (d) "Bond Resolution" shall mean Resolution No. 98-156 adopted by the City Commission on May 27, 1998, as amended and supplemented from time to time, and as particularly replaced by Resolution No. 99-178 adopted by the City Commission on July 14, 1999, as amended and supplemented by Resolution No. 99-192 adopted by the City Commission on July 14, 1999, as amended and supplemented by Resolution No. R-2002-125 adopted by the City Commission on May 8, 2002, and as amended and supplemented by Resolution No. R-2009- adopted by the City Commission on July 8, 2009. 125233/004/00357769.DOCv8l Temp. Reso. #011653 - June 29, 2009 Page 32 Revision #2 - July 7, 2009 (e) "Escrow Account" means the account hereby created and entitled Escrow Account established and held by the Escrow Agent pursuant to this Agreement in which cash and investments will be held for payment of the principal, interest, and redemption premium, if any, on the Refunded Bonds. (f) "Federal Securities" shall mean securities of the type which are described in clause (ii) of the definition of "Permitted Investments" in Section 1.1 of the Bond Resolution. (g) "Issuer" means the City of Tamarac, Florida, and its successors and assigns. (h) "Refunded Bonds" has the meaning ascribed above. (i) "Total Debt Service for the Refunded Bonds" means the sum of the principal of, redemption premium, if any, and interest remaining unpaid with respect to the Refunded Bonds in accordance with Schedule A attached hereto assuming the Refunded Bonds are called for early redemption on August 25, 2009. SECTION 2. Deposit of Funds. The Issuer hereby deposits $ with the Escrow Agent for deposit into the Escrow Account, in immediately available funds, which funds the Escrow Agent acknowledges receipt of, to be held in irrevocable escrow by the Escrow Agent separate and apart from other funds of the Escrow Agent and applied solely as provided in this Agreement. An amount equal to $ of such funds are being derived from proceeds of the Bond. An amount equal to $ of such funds are being derived from the Principal Account and Interest Account (as such terms are defined in the Bond Resolution). The Issuer represents that the Federal Securities, the interest to be earned thereon, and the cash deposited to the Escrow Account (i) are at least equal to the Total Debt Service for the Refunded Bonds as of the date of such deposit, and (ii) are sufficient to pay principal, interest and redemption premium on the Refunded Bonds as they become due and payable in accordance with Schedule A attached hereto. SECTION 3. Use and Investment of Funds. The Escrow Agent acknowledges receipt of the sum described in Section 2 and agrees: (a) to hold the funds and investments purchased pursuant to this Agreement in irrevocable escrow during the term of this Agreement for the sole benefit of the holders of the Refunded Bonds; (b) to immediately invest $ of such funds derived from the proceeds of the Bond and other legally available funds of the Issuer in the Federal Securities set forth on Schedule C-1 attached hereto and to hold such securities and $ of such funds in cash in accordance with the terms of this Agreement; 1 1 1 125233/004/00357769.DOCv8l Temp. Reso. #011653 - June 29, 2009 Page 33 Revision #2 - July 7, 2009 (c) in the event the securities described on Schedule C cannot be purchased, substitute securities may be purchased with the consent of the Issuer but only upon receipt of verification from an independent certified public accountant that the Federal Securities, the interest to be earned thereon, and the cash deposited in the Escrow Account will not be less than the Total Debt Service for the Refunded Bonds, and only upon receipt of an opinion of Bond Counsel that such securities constitute Federal Securities for purposes of this Agreement; and (d) there will be no investment or reinvestment of funds except as set forth in this Section 3 and except as set forth in Section 5. SECTION 4. Payment of Bond and Expenses. (a) Refunded Bonds. On the dates and in the amounts set forth on Schedule A, the Escrow Agent shall transfer to The Bank of New York Mellon Trust Company, N.A., the Paying Agent for the Refunded Bonds (the "Paying Agent'), in immediately available funds solely from amounts available in the Escrow Account, a sum sufficient to pay the principal of, interest on and redemption premium, if applicable, on the Refunded Bonds, as shown on Schedule A. (b) Expenses. The Issuer shall pay the fees and expenses of the Escrow Agent as set forth on Schedule B attached hereto. (c) Surplus. After making the payments from the Escrow Account described in Subsections 4(a) and (b) above, the Escrow Agent shall retain in the Escrow Account any remaining cash in the Escrow Account in excess of the Total Debt Service for the Refunded Bonds until the termination of this Agreement pursuant to the terms of Section 13 hereof, and shall then pay any remaining funds to the Issuer. (d) Priority of Payments. The holders of the Refunded Bonds shall have an express first priority security interest in the funds and Federal Securities in the Escrow Account until such funds and Federal Securities are used and applied as provided in this Agreement. SECTION 5. Reinvestment. (a) Except as provided in Section 3 and in this Section 5, the Escrow Agent shall have no power or duty to invest any funds held under this Agreement or to sell, transfer or otherwise dispose of or make substitutions of the Federal Securities held hereunder. (b) At the written request of the Issuer and upon compliance with the conditions hereinafter stated, the Escrow Agent shall sell, transfer or otherwise dispose of any of the Federal Securities acquired hereunder and shall substitute other Federal Securities and reinvest any excess receipts in Federal Securities. The Issuer will not {25233/004/00357769.DOCv8) Temp. Reso. #011653 - June 29, 2009 Page 34 Revision #2 - July 7, 2009 request the Escrow Agent to exercise any of the powers described in the preceding sentence in any manner which will cause interest on the Bond to be included in the gross income of the holders thereof for purposes of Federal income taxation. The transactions may be effected only if (i) an independent certified public accountant selected by the Issuer shall certify or opine in writing to the Issuer and the Escrow Agent that Federal Securities, interest to be earned thereon, and cash remaining on hand after the transactions are completed will, assuming no reinvestment or any earnings, be not less than the Total Debt Service for the Refunded Bonds, and that reinvestment in such Federal Securities will not postpone the anticipated transfer of moneys from the Escrow Account to the Paying Agent pursuant to Section 4(a) hereof, and (ii) the Escrow Agent shall receive an opinion from a nationally recognized bond counsel acceptable to the Issuer to the effect that the transactions, in and by themselves, will not cause interest on such Bond or the Refunded Bonds to be included in the gross income of the holders thereof for purposes of Federal income taxation and such substitution is in compliance with this Agreement. Subsection 4(c) above notwithstanding, cash in excess of the Total Debt Service for the Refunded Bonds caused by substitution of Federal Securities shall, as soon as practical, be paid to the Issuer. Notwithstanding any provision of this Agreement to the contrary, no forward purchase agreement relating to the future reinvestment of cash held hereunder shall be executed unless the following condition is met: to the extent either Moody's Investors Service, Inc., Fitch Ratings, and/or Standard & Poor's Ratings Services have an outstanding rating on the Refunded Bonds, at least one of such rating agencies must give written confirmation that it will not lower or withdraw the rating as a result of the Issuer's execution of such forward purchase agreement. In the event of any inconsistency between the terms and conditions of such forward purchase agreement and this Agreement, the terms and conditions of this Agreement shall control. SECTION 6. Redemption or Acceleration of Maturity. The Issuer will not accelerate the maturity of, or exercise any option to redeem before maturity, any Refunded Bonds, except as set forth on Schedule A attached hereto. SECTION i. Indemni . To the extent permitted by law and without waiving sovereign immunity, the Issuer hereby assumes liability for, and hereby agrees to indemnify, protect, save and keep harmless, the Escrow Agent and its respective successors, assigns, agents and servants, from and against any and all liabilities, obligations, losses, damages, penalties, claims, actions, suits, costs, expenses and disbursements (including reasonable legal fees and disbursements) of whatsoever kind and nature which may be imposed on, incurred by, or asserted against at any time, the Escrow Agent (whether or not also indemnified against the same by the Issuer or any other person under any other agreement or instrument) and in any way relating to or arising out of the execution and delivery of this Agreement, the establishment of the Escrow Account established hereunder, the acceptance of the funds and securities deposited therein, the purchase of the Federal Securities, the retention of the Federal Securities or the proceeds thereof and any payment, transfer or other application of funds or securities by the Escrow Agent in accordance with the provisions of this 1 1 1 (25233/004/00357769.DQCv8l Temp. Reso. #011653 - June 29, 2009 Page 35 Revision #2 - July 7, 2009 Agreement; provided, however, that the Issuer shall not be required to indemnify the Escrow Agent against its own negligence or willful misconduct. In no event shall the Issuer be liable to any person by reason of the transactions contemplated hereby other than to the Escrow Agent as set forth in this Section. The indemnities contained in this Section shall survive the termination of this Agreement. The Escrow Agent shall not be liable for any deficiencies in the amounts necessary to pay the Total Debt Service for the Refunded Bonds. Furthermore, the Escrow Agent shall not be liable for the accuracy of the calculation as to the sufficiency of moneys and the principal amount of Federal Securities and the earnings thereon to pay the Total Debt Service for the Refunded Bonds. SECTION 8. Responsibilities of Escrow Agent. The Escrow Agent and its respective successors, assigns, agents and servants shall not be held to any personal liability whatsoever, in tort, contract, or otherwise, in connection with the execution and delivery of this Agreement, the establishment of the Escrow Account, the acceptance of the funds deposited therein, the purchase of the Federal Securities, the retention of the Federal Securities or the proceeds thereof or for any payment, transfer or other application of moneys or securities by the Escrow Agent in accordance with the provisions of this Agreement or by reason of any non -negligent or non -willful act, omission or error of the Escrow Agent made in good faith in the conduct of its duties. The Escrow Agent shall, however, be responsible for its negligent or willful failure to comply with its duties required hereunder, and its negligent or willful acts, omissions or errors hereunder. The duties and obligations of the Escrow Agent may be determined by the express provisions of this Agreement. The Escrow Agent may consult with counsel, who may or may not be counsel to the Issuer, at the Issuer's expense, and in reliance upon the opinion of such counsel, shall have full and complete authorization and protection in respect of any action taken, suffered or omitted by it in good faith in accordance therewith. Whenever the Escrow Agent shall deem it necessary or desirable that a matter be proved or established prior to taking, suffering or omitting any action under this Agreement, such matter may be deemed to be conclusively established by a certificate signed by an authorized officer of the Issuer. SECTION 9. Resignation of Escrow Agent. The Escrow Agent may resign and thereby become discharged from the duties and obligations hereby created, by notice in writing given to the Issuer, any rating agency then providing a rating on either the Refunded Bonds or the Bond, and the Paying Agent for the Refunded Bonds not less than sixty (60) days before such resignation shall take effect. Such resignation shall not take effect until the appointment of a new Escrow Agent hereunder. SECTION 10. Removal of Escrow Agent. (a) The Escrow Agent may be removed at any time by an instrument or concurrent instruments in writing, executed by the holders of not less than fifty-one percentum (51 %) in aggregate principal amount of the Refunded Bonds then outstanding, such instruments to be filed with the Issuer, and notice in writing given by 125233/004/00357769.DOCv8) Temp. Reso. #011653 - June 29, 2009 Page 36 Revision #2 - July 7, 2009 such holders to the original purchaser or purchasers of the Bond and published by the Issuer once in a newspaper of general circulation in the territorial limits of the Issuer, and in a daily newspaper or financial journal of general circulation in the City of New York, New York, not less than sixty (60) days before such removal is to take effect as stated in said instrument or instruments. A photographic copy of any instrument filed with the Issuer under the provisions of this paragraph shall be delivered by the Issuer to the Escrow Agent. (b) The Escrow Agent may also be removed at any time for any breach of trust or for acting or proceeding in violation of, or for failing to act or proceed in accordance with, any provisions of this Agreement with respect to the duties and obligations of the Escrow Agent by any court of competent jurisdiction upon the application of the Issuer or the holders of not less than five percentum (5%) in aggregate principal amount of the Bond then outstanding, or the holders of not less than five percentum (5%) in aggregate principal amount of the Refunded Bonds then outstanding. (c) The Escrow Agent may not be removed until a successor Escrow Agent has been appointed in the manner set forth herein. SECTION 11. Successor Escrow Agent. (a) If, at any time hereafter, the Escrow Agent shall resign, be removed, be dissolved or otherwise become incapable of acting, or shall be taken over by any governmental official, agency, department or board, the position of Escrow Agent shall thereupon become vacant. If the position of Escrow Agent shall become vacant for any of the foregoing reasons or for any other reason, the Issuer shall immediately appoint an Escrow Agent to fill such vacancy and, upon such appointment, all assets held hereunder shall be transferred to such successor. The Issuer shall either (i) publish notice of any such appointment made by it once in each week for four (4) successive weeks in a newspaper of general circulation published in the territorial limits of the Issuer and in a daily newspaper or financial journal of general circulation in the City of New York, New York, or (ii) mail a notice of any such appointment made by it to the holders of the Refunded Bonds within thirty (30) days after such appointment. (b) At any time within one year after such vacancy shall have occurred, the holders of a majority in principal amount of the Bond then outstanding or a majority in principal amount of the Refunded Bonds then outstanding, by an instrument or concurrent instruments in writing, executed by either group of such Bondholders and filed with the governing body of the Issuer, may appoint a successor Escrow Agent, which shall supersede any Escrow Agent theretofore appointed by the Issuer. Photographic copies of each such instrument shall be delivered promptly by the Issuer, to the predecessor Escrow Agent and to the Escrow Agent so appointed by such Bondholders. In the case of conflicting appointments made by such Bondholders under {25233/004/00357769.DOCv8} Temp. Reso. #011653 - June 29, 2009 Page 37 Revision #2 - July 7, 2009 this paragraph, the first effective appointment made during the one year period shall govern. (c) If no appointment of a successor Escrow Agent shall be made pursuant to the foregoing provisions of this Section, the holder of any Refunded Bonds then outstanding, or any retiring Escrow Agent, may apply to any court of competent jurisdiction to appoint a successor Escrow Agent. Such court may thereupon, after such notice, if any, as such court may deem proper and prescribe, appoint a successor Escrow Agent. (d) Any corporation or association into which the Escrow Agent may be converted or merged, or with which it may be consolidated, or to which it may sell or transfer its corporate trust business and assets as a whole or substantially as a whole, or any corporation or association resulting from any such conversion, sale, merger, consolidation or transfer to which it is a party, ipso facto, shall be and become successor Escrow Agent hereunder and vested with all the trust, powers, discretions, immunities, privileges and all other matters as was its predecessor, without the execution or filing of any instrument or any further act, deed or conveyance on the part of any parties hereto, anything herein to the contrary notwithstanding, provided such successor shall have reported total capital and surplus in excess of $15,000,000, provided that such successor Escrow Agent assumes in writing all the trust, duties and responsibilities of the Escrow Agent hereunder. SECTION 12. Payment to Escrow Agent. The Escrow Agent hereby acknowledges that it has agreed to accept compensation under the Agreement pursuant to the terms of Schedule B attached hereto for services to be performed by the Escrow Agent pursuant to this Agreement. The Escrow Agent shall not be compensated from amounts on deposit in the Escrow Account, and the Escrow Agent shall have no lien or claim against funds in the Escrow Account for payment of obligations due it under this Section. SECTION 13. Term. This Agreement shall commence upon its execution and delivery and shall terminate when the Refunded Bonds have been paid and discharged in accordance with the proceedings authorizing the Refunded Bonds, except as provided in Section 8. SECTION 14. Severability. If any one or more of the covenants or agreements provided in this Agreement on the part of the Issuer or the Escrow Agent to be performed should be determined by a court of competent jurisdiction to be contrary to law, notice of such event shall be sent to the municipal bond insurers) for the Refunded Bonds, if any, as well as Moody's Investors Service, Inc., Fitch Ratings and Standard & Poor's Ratings Services (but only to the extent such agencies have a rating outstanding on any of the Refunded Bonds), and while such covenant or agreements herein contained shall be null and void, they shall in no way affect the validity of the remaining provisions of this Agreement. (25233/004/00357769.DOCv$) Temp. Reso. #011653 - June 29, 2009 Page 38 Revision #2 - July 7, 2009 SECTION 15. Amendments to this Agreement. This Agreement is made for the benefit of the Issuer and the holders from time to time of the Refunded Bonds and the Bond and it shall not be repealed, revoked, altered or amended in whole or in part without the written consent of all holders of Refunded Bonds, the Escrow Agent and the Issuer; provided, however, that the Issuer and the Escrow Agent may, without the consent of, or notice to, such holders, enter into such agreements supplemental to this Agreement as shall not adversely affect the rights of such holders and as shall not be inconsistent with the terms and provisions of this Agreement, for any one or more of the following purposes: (a) to cure any ambiguity or formal defect or omission in this Agreement; (b) to grant to, or confer upon, the Escrow Agent, for the benefit of the holders of the Bond and the Refunded Bonds any additional rights, remedies, powers or authority that may lawfully be granted to, or conferred upon, such holders or the Escrow Agent; and (c) to subject to this Agreement additional funds, securities or properties. The Escrow Agent shall, at its option, be entitled to request, at the Issuer's expense, and rely exclusively upon an opinion of nationally recognized attorneys on the subject of municipal bonds acceptable to the Issuer with respect to compliance with this Section, including the extent, if any, to which any change, modification, addition or elimination affects the rights of the holders of the Refunded Bonds, or that any instrument executed hereunder complies with the conditions and provisions of this Section. Prior written notice of such amendments, together with proposed copies of such amendments, shall be provided to Moody's Investors Service, Inc., Fitch Ratings, and Standard & Poor's Ratings Services (but only to the extent such agencies have a rating outstanding on any of the Refunded Bonds). SECTION 16. Counterparts. This Agreement may be executed in several counterparts, all or any of which shall be regarded for all purposes as one original and shall constitute and be but one and the same instrument. SECTION 17. Governing Law. This Agreement shall be governed by and construed under the laws of the State of Florida. [Remainder of page intentionally left blank] (25233/004/00357769.DOCv8l 1 Temp. Reso. #011653 - June 29, 2009 Page 39 Revision #2 - July 7, 2009 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized officers and their corporate seals to be hereunto affixed and attested as of the date first above written. (SEAL) Y=AT1D: =. Nam-rae: Mf rion Swens n, CMC Title: City Clerk CITY OF TAMARAC, FLORIDA r By: &WA&A&K Name: Beth Flansbaum-Talabisco Title: Mayor By:- Name:Je ey C Miller Title: City Manager APPROVED AS TO FORM: By: i*j, -'a" " Nam .Samu I S. Goren Title: City Attorney [Signature page to Escrow Deposit Agreement between City of Tamarac, Florida and The Bank of New York Mellon Trust Company, N.A.] 125233/004/00357769.DOCv8l Temp. Reso. #011653 - June 29, 2009 Page 40 Revision #2 - July 7, 2009 THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Escrow Agent By: Name: Title: [Signature page to Escrow Deposit Agreement between City of Tamarac, Florida and The Bank of New York Mellon Trust Company, N.A.] 125233/004/00357769.DOCv8l 1 1 Temp. Reso. #011653 - June 29, 2009 SCHEDULE A TOTAL DEBT SERVICE FOR THE REFUNDED BONDS Redemption Date Principal Premium Page 41 Revision #2 - July 7, 2009 Total Debt Service Interest Service 125233/004/00357769.DpCv8) Temp. Reso. #011653 - June 29, 2009 Page 42 Revision #2 - July 7, 2009 SCHEDULE B EXPENSES TO BE PAID TO ESCROW AGENT 1 1 125233/004/00357769. DO Cv8 ) 1 1 Temp. Reso. #011653 - June 29, 2009 Page 43 Revision #2 - July 7, 2009 SCHEDULE C SCHEDULE OF FEDERAL SECURITIES TO BE PURCHASED ON , 2009 Maturity Date Principal Amount Interest Rate Type {25233/004/00357769.DOCv8}