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HomeMy WebLinkAboutCity of Tamarac Resolution R-2001-273I-] V Temp. Reso. #9517 September 6, 2001 Revision #1 — September 20, 2001 Page 1 CITY OF TAMARAC, FLORIDA RESOLUTION NO. R-2001-273 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF TAMARAC, FLORIDA, AUTHORIZING THE EXECUTION AND DELIVERY OF AN AMENDMENT TO LOAN AGREEMENT IN CONNECTION WITH THE CITY OF TAMARAC'S INDUSTRIAL DEVELOPMENT REVENUE BONDS, SERIES 1995 (ARCH ALUMINUM CO., INC. PROJECT); PROVIDING FOR CONFLICTS; PROVIDING FOR SEVERABILITY; AND PROVIDING FOR AN EFFECTIVE DATE. BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF TAMARAC, FLORIDA AS FOLLOWS: Section 1. AUTHORITY FOR THIS RESOLUTION. This resolution is adopted pursuant to the provisions of Chapter 159, Part II Florida Statutes, as amended and other applicable provisions of law (the "Act"). Section 2. FINDINGS. It is hereby ascertained, determined and declared as follows: A. In connection with the issuance by the City of Tamarac, Florida (the "City") of its $4,300,000 City of Tamarac, Florida Industrial Development Revenue Bonds Series 1995 (Arch Aluminum & Glass, Co., Inc. Project) (the "Bonds"), the City entered into a Loan Agreement, dated as of November 1, 1995 (the "Agreement") with Arch Aluminum & Glass Co., Inc. (the "Company"). B. The Agreement requires that the principal of and interest on the Bonds be secured by a Letter of Credit, which is currently issued by First Union National Bank ("First Union").. C. The Company desires to substitute the Letter of Credit with the Substitute Letter of Credit to be issued by Comerica Bank ("Comerica"). D. Section 4.4(b) of the Loan Agreement requires that the issuer of the Substitute Letter of Credit have both a long and short term unsecured debt rating assigned by Moody's Investor Service ("Moody"s) and Standard and Poor's ("S&P") as least as high as that rating assigned by both rating agencies to the issuer of the Letter of Credit being replaced. E. First Union has a long term unsecured debt rating assigned by Moody's of Aa3 and P-1, respectively and a long-term and short-term unsecured debt rating assigned by S&P of A+ and A-1, respectively; (OR426713;11 OR246234;3 y Temp. Reso. #9517 September 6, 2001 Revision #1 — September 20, 2001 Page 2 F. Comerica has a long-term and short-term unsecured debt rating issued by Moody's of A-1 and P-1, respectively and a long-term and short-term unsecured debt rating issued by S&P of A and A-1; G. The City and the Company desire to enter into the First Amendment to Loan Agreement in order to amend Section 4.4(b) of the Agreement to provide that (i) when the Bonds bear interest at the Fixed Rate, the long-term unsecured debt rating of the issuer of the Substitute Letter of Credit be assigned by Moody's or S&P (but not necessarily both) a long term unsecured debt rating at least as high as the issuer of the existing Letter of Credit; and (ii) when the Bonds bear interest at the Adjustable Rate, the short-term unsecured debt rating of the issuer of the Substitute Letter of Credit be assigned by Moody's or S&P (but not necessarily both) a short term unsecured debt rating at least as high as the issuer of the existing fetter of Credit. H. The agreement provides that the Issuer, First Union National Bank as trustee and as issuer of the existing Letter of Credit and one hundred percent of the owners of the Bonds must consent to the First Amendment to Loan Agreement before it becomes effective. Section 3. AUTHORIZATION OF EXECUTION AND DELIVERY OF FIRST AMENDMENT TO LOAN AGREEMENT. The First Amendment to Loan Agreement, in substantially the form on file with the City Clerk as Exhibit "A", with such changes, alterations and corrections as may be approved by the Mayor, such approval to be presumed by his execution thereof, is hereby approved by the City, and the City hereby authorizes and directs the Mayor to execute, and the City Clerk to attest under the seal of the City, the First Amendment to Loan Agreement and to deliver to the Company the First Amendment to Loan Agreement, all of the provisions of which, when executed and delivered by the City as authorized herein and by the Borrower duly authorized, shall be deemed to be a part of this instrument as fully and to the same extent as if incorporated verbatim herein. Section 4. SEVERABILITY OF INVALID PROVISIONS. If any one or more of the covenants, agreements or provisions herein contained shall be held contrary to any express provisions of law or contrary to the policy of express law, though not expressly prohibited, or against public policy, or shall for any reason whatsoever be held invalid, then such covenants, agreements or provisions shall be null and void and shall be deemed separable from the remaining covenants, agreements or provisions and shall in no way affect the validity of any of the other provisions hereof. Section 5. REPEALING CLAUSE. All resolutions of the City or parts thereof in conflict with the provisions herein contained are, to the extent of such conflict, hereby superseded and repealed. Section 6. EFFECTIVE DATE. This resolution shall become effective upon signature by the Mayor or upon becoming effective without the Mayor's signature. {OR426713;11 OR246234;3 E �" Temp. Reso. #9517 September 6, 2001 Revision #1 — September 20, 2001 Page 3 PASSED, ADOPTED AND APPROVED, this 271h day of September, 2001. e oe Schreiber Mayor Attest: -/W""j -4�" RECORD OF COMMISSION VOTE: Marion Swens n, CMC Mayor Schreiber fl Y—er City Clerk Dist. 1: Comm. Portner fl e, Dist. 2: Comm. Mishkin fl ei Dist. 3: V/M Sultanof , xq I HE EBY CERTIFY that I have approved Dist. 4: Comm. Roberts—APi t 's ESOLUTI0 s to form. NMtchell S. K; City Attorney {OR426713;1} OR246234;3 3 Temp. Reso N5'17 September 6, 2001 Exhibit 3 FIRST AMENDMENT TO LOAN AGREEMENT This First Amendment to Loan Agreement dated as of September 1, 2001, (the "Amendment") is by and between Arch Aluminum & Glass Co., Inc. a Florida corporation (the "Company"), and the City of Tamarac, Florida (the "Issuer"), and amends the Loan Agreement, dated as o f November 1, 1995 (the "Loan Agreement") by and between the Company and the Issuer. 0' WHEREAS, the Issuer has issued its $4,300, 000 Industrial Development Revenue Bonds (Arch Aluminum & Glass Co. Inc. Project) Series 1995 (the "Bonds"), which are to be paid by the Pledge of revenues of the Company pursuant to the terms of the Agreement, WHEREAS, the Issuer has assigned the payments of the Company under the Loan Agreement to First Union National Bank, as successor trustee (the "Trustee"), pursuant to an Indenture of Trust, dated as of November 1, 1995 (the "Indenture"), WHEREAS, the Loan Agreement requires that the principal of and interest on the Bonds be further secured by a Letter of Credit (the "First Union Letter of Credit"), which is currently issued by First Union National Bank, WHEREAS, the Company has formed a banking relationship with Comerica Bank, a Michigan banking corporation ("Comerica Bank ") and desires to have a letter of credit issued by Comerica Bank substituted for the existing First Union Letter of Credit; WHEREAS, Section 4.4 of the Loan Agreement provides as a condition to providing a Substitute Letter of Credit that both the long and short-term unsecured debt rating assigned by Moody's and Standard & Poor's to the issuer of the Substitute Letter of Credit are at least as high as those assigned to the issuer of the Letter of Credit being replaced; WHEREAS, First Union National Bank has a long and short-term unsecured debt rating assigned by Moody's Investors Service ("Moody's") of Aa3 and P-1, respectively and a long term and short-term unsecured debt rating assigned by Standard & Poor's o f A+ and A-1, respectively; WHEREAS, Comerica Bank has a long-term and short-term unsecured debt rating issued by Moody's of A-1 and P-1, respectively and a long-term and short-term unsecured debt rating issued by Standard & Poor's of A and A-1, respectively; WHEREAS, the Issuer and the Company desire to amend Section 4.4(b) of the Loan Agreement to provide that (i) when the Bonds bear interest at the Fixed Rate, the long-term unsecured debt rating of the issuer o f the Substitute Letter of Credit be assigned by Moody's or S& P (but not both) a long-term unsecured debt rating at least as high as of the issuer of the existing Letter of Credit, and (ii) when the Bonds bear interest at the Adjustable Rate, the short-term unsecured debt rating of the issuer of the Substitute Letter of Credit be assigned by Moody's or S & P (but not both) a short-term unsecured debt rating at least as high as the issuer of the existing Letter of Credit; WHEREAS, Section 12.2 of the Indenture requires one hundred percent (10091o) of the holders of the aggregate principal amount outstanding of the Bonds to consent to an amendment UiLEANNEWIAGENDA ITEMSOETROIT_340536 2 (2) CITY.DOC Temp. Reso #9517 Temp. Reso. 95-7257 September 6, 2001 Exhibit 1 CITY OF TAMARAC, FLORIDA RESOLUTION NO. R-95-mg=�� A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF TAMARAC, FLORIDA, PROVIDING FOR THE 4,1 ISSUANCE BY THE CITY OF TAMARAC OF NOT EXCEEDING $4,300,600 OF ITS INDUSTRIAL DEVELOPMENT REVENUE BONDS, SERIES 1995 (ARCH ALUMINUM & GLASS COMPANY, INC. PROJECT), TO PAY THE COST OF CONSTRUCTING A MANUFACTURING FACILITY; PROVIDING FOR THE RIGHTS OF THE HOLDERS OF SUCH BONDS; PROVIDING FOR THE PAYMENT THEREOF; AUTHORIZING EXECUTION AND DELIVERY OF A TRUST INDENTURE AND LOAN AGREEMENT; APPROVING THE FORM OF A LETTER OF CREDIT SECURING THE BONDS; FIXING THE DATE. MATURITIES AND METHOD OF INTEREST RATE CALCULATION FOR THE BONDS; PROVIDING FOR THE NEGOTIATED SALE OF THE BONDS; APPROVING USE OF A PRIVATE PLACEMENT MEMORANDUM IN CONNECTION WITH THE SALE OF THE BONDS; DESIGNATING THE INITIAL TRUSTEE, TENDER AGENT, PLACEMENT AGENT AND REMARKETING AGENT FOR THE BONDS; MAKING CERTAIN OTHER COVENANTS AND AGREEMENTS IN CONNECTION WITH THE ISSUANCE OF THE BONDS; PROVIDING FOR CONFLICTED; AND PROVIDING AN EFFECTIVE DATE. BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF TAMARAC, FLORIDA AS FOLLOWS: Section I. AUTHORITY FOR THIS RESOLUTION. This resolution is adopted pursuant to the provisions of Chapter 159, Part II Florida Statute as amended and other applicable provisions of law (the "Act"). Section 2. FINDINGS. It is hereby ascertained, determined and declared as follows: A. The City of Tamarac, Florida (the "City") is authorized by the Act to make and execute financing agreements, contracts, deeds and other instruments necessary or convenient for the purpose of facilitating the financing of the acquisition, construction and equipping of projects as defined in the Act, including machinery, equipment, land, rights in land and other appurtenances and facilities related thereto, to the end that the City may be able to promote the economic growth of the City and the State of Florida. increase opportunities for gainful WPO(TDICKSON.T.kNIARAC•II(RESOLUTION. 0cwher 27. 1995 56pm Temp. Reso. 95-7257 employment and otherwise contribute to the welfare of the City and the State of Florida and its inhabitants, and to finance the cost of such projects by the issuance of its revenue bonds. B. The City, by resolution dated October 11. 1995, approved the execution of a Memorandum of Agreement with the Arch Aluminum & Glass, Inc.. a Florida corporation (the "Borrower") whereby the City agreed. subject to certain conditions and approvals. to issue its Industrial Development Revenue Bonds (Arch Aluminum & Glass, Inc. Project), Series 1995. in an amount of up to $4,300,000 (the "Bonds") and to loan the proceeds of such bonds to the Borrower to pay the cost of constructing a manufacturing facility (the "Project) within the juri"sdictional limits of the City. C. As required by the Memorandum of Agreement, the Company has caused Mellon Bank. N.A. (the "Bank") to issue an irrevocable direct -pay letter of credit providing for payment of all principal of and interest on the Bonds (together with any substitute therefore. the "Letter of Credit"). D. The principal of and interest on the Bonds and all payments required under the documents relating thereto shall be payable solely from the proceeds derived by the City from the proceeds of the Letter of Credit and moneys received pursuant to a Loan Agreement between the City and the Borrower (the "Loan Agreement"). The City shall never be required to (i) levy ad valorem taxes on any property within its territorial limits to pay the principal of an premium, if any, and interest on the Bonds or to make any other payments relating to the Bonds of the Project, or (ii) pay the same from any funds of the City other than those derived by the City under the Loan Agreement and the Letter of Credit; and such Bonds shall not constitute a lien upon any property owned by or situated within the territorial limits of the City except the Project. E. The City held public hearings with respect to the Bonds in accordance with the requirements of the Tax Equity and Fiscal Responsibility Act of 1984 on March 13, 1995 and on November 8, 1995 at which it received and considered comments from the citizens of the City. Section 3. FINANCING OF THE PROJECT AUTHORIZED. The financing of the cost of the Project in the manner provided in the Loan Agreement and the Indenture (hereinafter defined) is hereby authorized. Section 4. AUTHORIZATION OF BONDS. Obligations of the City to be known as Industrial Development Revenue Bonds (Arch Aluminum & Glass Company, Inc.), Series 1995" are hereby authorized to be issued in an aggregate principal amount of not exceeding Four Million Three Hundred Thousand Dollars ($4,300.000), in the form and manner described in the Indenture. The Bonds will be dated such date and mature in such years and amounts. will contain such redemption provisions. and will bear interest at such rates (not exceeding the maximum interest rate permitted by the Act or by other applicable provision of law), as provided in the Trust Indenture between the City and Mellon Bank, N.A., as trustee (the "Trustee")(the "Indenture"). %%Pf ITDICKSON.TAMARAC-11]RESOLUTION . Ociooer 27. 1995 4.56pm 2 Temp. Reso. 95-7257 Section 5. AUTHORIZATION OF EXECUTION AND DELIVERY OF INDENTURE. As security for the payment of the principal of and premium, if any, and interest on the Bonds. the Indenture, in substantially the form on file with the City Clerk as Exhibit "A", with such changes, alterations and corrections as may be approved by the Mayor. such approval to be presumed by his execution thereof, is hereby approved by the City, and the City hereby authorizes and directs the Mayor to execute, and the City Clerk to attest under the seal of the City, the Indenture and to deliver to the Trustee the Indenture, all of the provisions of which, when executed and delivered by the City as authorized herein and by the Trustee duly authorized, shall be deemed to be a part of this instrument as fully and to the same extent as if incorporated verbatim herein. The City does hereby provide in the Indenture the terms, conditions, covenants, rights, obligations, duties and agreements of the City, the Borrower and the Trustee to and for the benefit of the holders of the Bonds. Section 6. AUTHORIZATION OF EXECUTION AND DELIVERY OF LOAN AGREEMENT. The Loan Agreement, in substantially the form on file with the City Clerk as Exhibit "B", with such changes, alterations and corrections as may be approved by the Mayor, such approval to be presumed by his execution thereof, is hereby approved by the City, and the City hereby authorizes and directs the Mayor to execute, and the City Clerk to attest under the seal of the City, the Loan Agreement and to deliver to the Borrower the Loan Agreement, all of the provisions of which, when executed and delivered by the City as authorized herein and by the Borrower duly authorized, shall be deemed to be a part of this instrument as fully and to the same extent as if incorporated verbatim herein. Section 7. APPROVAL OF FORM OF LETTER OF CREDIT. The form of the Letter of Credit issued by the Bank providing for payment of the principal of and interest on the Bonds (on file with the City Clerk as Exhibit "C"), is hereby approved. Section 8. APPROVAL OF PRIVATE PLACEMENT MEMORANDUM FOR BONDS. The use of a Private Placement Memorandum relating to the Bonds in substantially the form on file with the City Clerk as Exhibit "D", is hereby approved and ratified. Section 9. NEGOTIATED SALE NECESSARY. It is hereby found, ascertained. determined and declared by the City that a negotiated sale of the Bonds is in the best interest of the City and is found to be necessary on the basis of the following reasons as to which specific findings are hereby made: A. It is in the best interest of the City to have the Bonds placed with a limited number of sophisticated investors and not offered to the general public. B. Industrial development revenue bonds are traditionally placed privately and consequently a competitive sale of the Bonds would in all probability not produce better terms than a negotiated sale. C. The Bonds are payable solely from the proceeds of the Loan Agreement and the Letter of Credit and, therefore, the City does not have a direct financial interest in the terms of sale. The Borrower has expressed its desire not to incur the risks and expenses attendant a public sale of the Bonds. \%'Pf1.(TDICKSON.TAMARAC-II]RE50LUTION. October 27. 1995 4:56pm 3 Temp. Reso. 95-7257 D. The type of Bonds to be issued (variable rate demand obligations) by their nature do not benefit from a public offering. Section 10. AWARD OF BONDS. The negotiated sale of the Bonds at a price equal to the principal amount thereof by the Placement Agent is hereby authorized pursuant to Section 218.385. Florida Statutes, as amended. Section 11. TRUSTEE, TENDER AGENT, PLACEMENT AGENT AND REMARKETING AGENT. Mellon Bank, N.A., a national banking association having trust pothers, is hereby designated Trustee, Tender Agent, Remarketing Agent and Placement Agent for the Bonds. Section 12. EXECUTION OF BONDS AND AUTHORIZATION OF ALL OTHER NECESSARY ACTION. The proper officers of the City are hereby authorized and directed to execute the Bonds when prepared and to deliver the same to the Trustee for authentication and delivery to the purchasers of the Bonds upon payment of the purchase price therefore. The Mayor, City Clerk, City Attorney, and Akerman, Senterfitt & Eidson, P.A., as the City's Bond Counsel, are designated agents of the City in connection with the issuance and delivery of the Bonds, and are authorized and empowered, collectively or individually, to take all action and steps to execute and deliver any and all instruments, opinions, documents or contracts on behalf of the City which are necessary or desirable in connection with the execution and delivery of the Bonds and which are not inconsistent with the terms and provisions of this Resolution and other actions relating to the Bonds heretofore taken by the City. Section 13. NO PERSONAL LIABILITY. No covenant, stipulation, obligation or agreement herein contained or contained in the Loan Agreement, Private Placement Memorandum, Indenture or any other document executed and delivered in connection with the issuance of the Bonds (together, hereinafter referred to as the "Bond Documents") shall be deemed to be a covenant, stipulation, obligation or agreement of any officer, member, agent or employee of the City or its governing body in his individual capacity, and neither the members of the City Commission, the City nor any official executing the Bonds shall be liable personally thereon or be subject to any personal liability or accountability by reason of the issuance thereof. -Section 14. NO THIRD PARTY BENEFICIARIES. Except as herein or in the Bond Documents otherwise expressly provided, nothing in this Resolution or in the Bond Documents. expressed or implied, is intended or shall be construed to confer upon any person, firm or corporation other than the City, the Borrower, the Bank, the holders of the Bonds, the Placement Agreement and the Trustee, any right, remedy or claim, legal or equitable, under and by reason of this instrument or any provision thereof or of the Bond Documents. This Resolution and the Bond Documents intended to be for the sole and exclusive benefit of the City, the Bank, the Placement Agent, the Borrower, the Trustee and the holders from time to time of the Bonds. Section 15. PREREQUISITES PERFORMED. All acts, conditions and things relating to the passage of this resolution, to the issuance of the Bonds, and to the execution of the Loan Agreement and the Indenture, required by the Constitution or laws of the State of WPO(TDICKSON.TAMARAC-111RESOLUTION. Qctolxr 27. 1995 4:56pm 4 1 emp. Keso. y.)- i>> i Florida to happen, exist, and be performed precedent to and in the adoption hereof. and precedent to the issuance of the Bonds, p-id precedent to the execution and delivery of the Loan Agreement and the Indenture, have happened, exist and have been performed as so required. Section 16. GENERAL AUTNORI 'Y. The members of the Commission of the City and its officers, attorneys, engineers or other agents or employees are hereby authorized to do all acts and things required of them by t!us Resolution and the Bond Documents, or desirable or consistent with the requirements thereof, far the full, punctual and complete performance of all the terms. covenants and agreements contained in the Bonds, the Bond Documents and this Resolution. Section 17. SEVERABILITY GF - INVALID PROVISIONS. If any one or more of the covenants. agreements or provisions herein contained shall be held contrary to any express provisions of law or contrary to the policy of express law, though not expressly prohibited, or against public policy, or shall for any reason whatsoever be held invalid, then such covenants. agreements or provisions shall be null and void and shall be deemed separable from the remaining covenants, agreements or provisions and shall in no way affect the validity of any of the other provisions hereof. Section 18. REPEALING CLAUSE. All resolutions of the City or parts thereof in conflict with the provisions herein contained are, to the extent of such conflict, hereby superseded and repealed. . Section 19. EFFECTIVE DATE. This resolution shall become effective uf,on signature by the Mayor or upon becoming effective without the Mayor's signature. PASSED, ADOPTED AND APPROVED, this 8th day of November, 1995. Attest: Carol A. Evans City Clerk I HEREBY CERTIFY that I have approved th+"s�SOLU IO as to form. Mitchell S. Kraft City Attorney WPO(TDICKSON.TAMARAC-IIJRE50LUTION. October 27. 1995 J 56pm 6' orman Abramowitz ayor RECORD OF COUNCIL. VO I MAYOR A Z k +M© W l `rK- DISTRICT 1 L VAC :1J. T' DISTRICT 2: QLAA►w DISTRICT 3:.COAa - L H 09SrTAICT 4: CD AAA u n- s E N T I H E L DAILYPUBLISHED FORT LAUpERDALE, BROYARDCOUNTY, FLORIDA BOCA AATON, PALM BEACH COUNTY, FLORIDA MIARlt DADS COUNTY, FLORIDA STATE OF FLORIDA COUNTY OF BROWARD/PALM BEACHIDARE BEFORE THE UN ERSIGNED AUTHORITY PERSONALLY APPEARED ...rrr..w..� ...wrww'w.w.r• WHO ON OATH SAYS THAT HElSNE IS A DULY AUTHORIZED REPRESENTATIVE OF THE CLASSIFIED DEPARTMENT OF THE SUN —SENTINEL, DAILY NEVSPA PKR PUBLISHED IN BROWARD/PALM BEACHIDADE COUNTY, FLORIDA ,711AT THE ATTACHED COPY OF ADVERTISEMENT, BEING NOTICE OF MEETING IN THE NATTER OF BONDS IN THE CITY 90 TAMAMG ��aaou� N"ca pK Y t �n.- n_ �Y i`ranio•rn N0 JC 1 .I�NO THE CIRCUIT COURT, WAS PUBLISHED IN SAID NEWSPAPER IN Av nr" °; ISSUES OF . C , 10124, 1 X Ad69to� """•• :• AFFIANT FURTHER SAYS THAT THE SAID SUN -SENTINEL IS A. 1rtdi°0 WEWSPAPER PUBLISHED IN SAID BROWARDIPAL14 BEACH/DADS • COUNTY, FLORIDA, AND THAT 111E SAID NEWSPAPER HAS HERETOFORE 011:N CONTINUOUSLY PUBLISHED IN SAID BROWARDIPALN BEACH/DADE COUNTY, FLORIDA, EACH DAY, AND HAS BIEN, ENTERED AS SECOND CLASS MATTER AT THE POST OFFICE IN PORT LAUDERDALE, IN SAID BROWARD COUNTY,, FLORIDA, FOR A PERIOD OF ONE YEAR NEXT "RECEDING THE FIRST PUBLICATION OF THE ATTACHED COPY -OF DVERTISEMENT: AND AFFIANT FURTHER SAYS THAT HEJSHE HAS NEITJ41R PAID NOR PROMISED ANY PERSON, FIRM OR CORPORATION ANY DISCOUNT, REBATE, COPHISSION OR REFUND FOR THE PURPOSE � OF SECURING THIS ADVERTISEMENT FOR PUBLICATION IN SAID NEWSPAPER. . ww...w w..w �. • '.r*........ w. ..•........ (SIGNATURE OF AFFIANT) SWOAN TO AND SUBSCRIggo BEFORE Fie THIS 24 DAY OF OCTOBER A.D.19199$ CSIGNATURE OF NOTARY PUBLIC) «-•a-•* BAANpAVWjj D MOV FAWN .rr..rr..r rw.r.w.....w.���w...w.r..w..r. ;NAND OF NOTARY TYPED, PRINTED OR STAMPED) PERSONALLY KNOIWN ...«...ww.......*�... OR PRODUCED IDENTIFICATION ..............«+« Cn � f Cl7 n' ..r r. R' V`: CITY CLERK'S CERTIFICATE AS TO RESOLUTION NO. R-95-,1�/ I, Carol A. Evans, the City Clerk of the City of Tamarac, Florida (the "City"), DO HEREBY CERTIFY that attached hereto is a copy of Resolution No. R-95-�� adopted at a nl�eting of the City Council duly called and held on November 8, 1995, at which meeting a quorum was present and acting throughout, which resolution is a true, complete and correct copy thereof, and said resolution has been duly adopted and has not been further modified, amended or repealed and is in full force and effect on and as of the date hereof in the form attached hereto. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City as of this 15th day of November, 1995. (SEAL) ti L� Carol A. Evans, City Clerk WPO:ITDICKSON.TAMARAC-II]SEC-CERT-RESOLUTION3. Temp. Reso #9517 September 6, 2001 Exhibit 2 CITY OF TAMARAC, FLORIDA RESOLUTION NO. R-95-� . A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF TAMARAC, FLORIDA, AUTHORIZING THE APPROPRIATE CITY OFFICIALS TO EXECUTE A MEMORANDUM OF AGREEMENT WITH ARCH ALUMINUM & GLASS COMPANY, INC., A FLORIDA CORPORATION, WITH RESPECT TO THE CITY' S ISSUANCE OF ITS INDUSTRIAL DEVELOPMENT REVENUE BONDS IN AN AGGREGATE PRINCIPAL. AMOUNT NOT TO EXCEED $4,300,000 TO FINANCE ON BEHALF OF SAID CORPORATION THE COST OF CONSTRUCTING AND EQUIPPING A MANUFACTURING PLANT AND RELATED OFFICE AND SUPPORT FACILITIES TO BE LOCATED AT N.W. 67TH STREET AT NOB HILL ROAD, TAMARAC, FLORIDA; PROVIDING FOR CONFLICTS; AND PROVIDING AN EFFECTIVE DATE. BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF TAMARAC, FLORIDA AS FOLLOWS: Section 1. AUTHORITY FOR THIS RESOLUTION. This resolution is adopted pursuant to the provisions of Chapter 159, Part II Florida Statutes, as amended and other applicable provisions of law (the "Act"). Section 2. FINDINGS. It is hereby ascertained, determined and declared as follows: A. The City of Tamarac, Florida (the "City") is authorized by Chapter 159, Part II, Florida Statutes (the "Act"), to make and execute financing agreements, contracts, deeds and other instruments necessary or convenient for the purpose of facilitating the financing of the acquisition, construction and equipping of manufacturing plant and other "projects" as defined in the Act, including machinery, equipment, land, rights in land and other appurtenances and facilities related thereto, to the end that the City may be able to promote the economic growth of the State of Florida, increase opportunities for gainful employment and otherwise contribute to the welfare of the State of Florida and its inhabitants, and to finance the cost of such projects by the issuance of its revenue bonds. B. The City previously approved an issue of revenue bonds for the benefit of Tamarac Business Center, Inc. and Samuel and Nathan Butters, to finance the cost of constructing and equipping a manufacturing plant within the meaning of the Act and Article VII Section 10(c) of the Constitution of the State of Florida on property located on N.W. 67th Street at Nob Hill Road, Tamarac Florida (the legal description is attached hereto as Exhibit "A") (the "Project"), which Project was to be leased to Arch Aluminum & Glass Company, Inc. (the "Company"). C. The Company has informed the City that the Project will be owned by rather than leased to the Company and has requested that the City reaffirm to the Company, by and through this resolution, its intent to support issuance of not to exceed $4,300,000 of the City's Industrial Development Revenue Bonds (the "Bonds") to finance the Project. s? D. The location of the Project in the industrial area of the City of Tamarac, Florida is appropriate to the needs and circumstances of, and will make a significant contribution to the economic growth of the City, will allow the Company to preserve, provide and increase gainful employment, and will serve a public purpose by advancing the economic prosperity, the public health and the general welfare of the State of Flo:;da and its people. E. The Project will be a "Project" within the meaning of Section 159.27(5) of the Act in that, without limiting the generality of the foregoing, the Project is a "manufacturing plant". F. The Project will be owned by the Company or its successors or assigns. G. The Bonds will be issued under an Indenture (the "Indenture") between the City and a Trustee to be selected by subsequent resolution of the City. The terms of the Bonds will be established by separate resolution of the City. The proceeds of the Bonds will be loaned to the Company pursuant to a Loan Agreement (the "Loan Agreement") between the City and the Company and will be applied to the cost of the issuance of the Bonds, the cost of the construction and equipping of the Project, and such other "costs" as are permitted by the Act in accordance with the terms of the Indenture. H. The Bonds and the Company's obligations under the Loan Agreement will be secured by a mortgage and the Company's payment obligation with respect to the Bonds shall be guaranteed by a letter of credit issued by a financial institution with its long term debt rated in one of the three highest rating categories by a nationally recognized rating service. Such letter of credit shall be direct -pay and irrevocable and shall provide for the payment of all principal and interest when due on the Bonds. Based upon the delivery of the letter of credit and the Company's representations, the City finds that the Company is fully capable and willing to fulfill its obligation to operate, repair and maintain the Project, and the Company is desirous of serving the purposes of the Act and is willing and capable of fully performing all other obligations and responsibilities which will be imposed upon it by the provisions of the Loan Agreement. 1. The City is able to cope satisfactorily with the impact of the Project, and all the public facilities, utilities and services that will be necessary for the construction, operation, repair, improvement and maintenance of the Project, and on account of any increase in population or other circumstances resulting by reason of the location of the Project within the City, are available now or can be provided when needed. 2 J. Adequate provision will be made under the terms of the Loan Agreement for the operation, repair and maintenance of the Project at the expense of the Company, and for the payment of the principal of and premium, if any, and interest on the Bonds. K. Neither the City, Broward County, the State of Florida, nor any other political subdivision of said State shall be obligated to pay the principal of, premium, if any, or interest on the Bonds or other costs incident thereto, and all payments required on the Bonds shall be payable solely from the proceeds derived by the City from the Company under the Loan Agreement, and the City shall never be required to (i) levy ad valorem taxes on any property within its area of operation to pay the principal of and premium, if any, and interest on the Bonds or to make any other payments provided for under the Loan Agreement or Indenture, or (ii) pay the same from any funds of the City other than those derived by the City from the Company under the Indenture and Loan Agreement; and such Bonds shall not constitute a lien upon any property owned by or situated within the City except the Project and any other property that may be pledged as security therefor by the Company, in the manner provided in the Loan Agreement and the Indenture. Neither the full faith and credit of the City nor the full faith and credit or taxing power of the State of Florida, Broward County, or any other political subdivision of said State is pledged to the payment of the principal of, premium, if any, or interest on the Bonds or other costs incident thereto, but such Bonds are limited special obligations of the City payable solely from the sources identified above. No member or officer of the City will be subject to any personal liability by reason of the issuance of the Bonds. L. The payments required to be made by the Company to the Trustee under the Loan Agreement will be sufficient to pay all principal of and interest on and premium, if any, for the Bonds as the same shall become due, and to make all other payments required by the Loan Agreement and the Indenture. M. The costs to be paid from the proceeds of the Bonds will be "costs of a project" within the meaning of the Act. N. Prior to issuance of the Bonds, the City will receive an opinion of Akerman, Senterftt & Eidson, P.A. to the effect that the Bonds will be validly issued and that the interest on the Bonds will, under existing laws of the United States, be excluded from gross income of the holders for federal income tax purposes. O. The City has previously noticed and held a public hearing with respect to the Project and will hold a second public hearing with respect to the Project prior to its fugal approval of the issuance of the Bonds. Section 3. APPROVAL AND AUTHORIZATION OF EXECUTION AND DELIVERY OF MEMORANDUM OF AGREEMENT. The Memorandum of Agreement between the Company and the City in substantially the form attached to this resolution as Exhibit "B" and incorporated herein by reference. together with such changes therein, whether made prior to the execution thereof or thereafter, as shall be approved from time to time by the officers executing the same on behalf of the City, such approval to be conclusively 3 evidenced by their execution thereof (the "Memorandum of Agreement"), shall be, and hereby is. authorized and approved on behalf of the City. The Mayor of the City shall be and hereby is authorized to execute, and the City Clerk shall be and hereby is authorized to attest, the Memorandum of Agreement. Such officers and all other proper officers, commissioners, directors, agents and employees of the City are hereby authorized, empowered and directed to do all such acts and things and to execute such further agreements and take such further actions as shall be necessary to carry out the intent and purposes expressed in the Memorandum of Agreement, which shall become binding on the City upon the execution and delivery by the officers of the City and by other parties thereto, and are further authorized to take such other steps and actions as may be required and necessary in order to issue such Bonds. Section 4. CONDITIONAL APPROVAL. Although the City has previously held a duly noticed public hearing on March 8, 1995 with respect to the Project at which it received comments from the public, the City intends to hold another public hearing prior to its final approval of the Bonds due to the change in ownership of the Project. The City's approval of the issuance of the Bonds is expressly conditioned upon final approval by the City after such public hearing. Section 5. EFFECT OF RESOLUTION. This resolution is intended to and it shall constitute a declaration of official intent of the City for purposes of Treas. Reg. 1.150-2 and other applicable provisions of the Internal Revenue Code of 1986, as amended, and the related regulations, rulings and interpretive court decisions thereunder. Section 6. REPEALING CLAUSE. All resolutions or parts thereof in conflict herewith are hereby repealed to the extent of such conflict. Section 6. SEVERABILITY. If any clause, section, other part or application of this Resolution is held by any court of competent jurisdiction to be unconstitutional or invalid, in part or application, it shall not affect the validity of the remaining portions or applications of this Resolution. .Section 7. EFFECTIVE DATE. This resolution shall take effect immediately upon its adoption. El PASSED, ADOPTED AND APPROVED, this I Ith day of October, 1995. Ate'est: Carol A. Evans G M c- City Clerk I HEREBY CERTIFY that I have approved this RESOLUTION as to form. S. Kraft City Attorney RECORD OF COMM MAYOR ABRAMOWITZ DIST. 1: V / M KATZ DIST. 2: COMM. MISHKIN DIST. 3: COMM. SCHREIBER DIST. •: COMM. MACHEK 5 lL*71I EXHIBIT "A" LEGAL DESCRIPTION Tract 2, LESS the North 149.00 feet, and LESS that portion lying within the East 53.00 feet of Section 7, Township 49 South, Range 41 East; TOGETHER WITH Tract 3, LESS the South one-half (S. '/z), and LESS that portion lying within the East 53.00 feet of said Section 7; ALSO TOGETHER WITH Tract 6; all being of "FLORIDA FRUIT LANDS COMPANY SUBDIVISION NO. 2," according to the plat thereof, as recorded in Plat Book 1, Page 102, of the public records of Palm Beach County, Florida, lying in the Northeast one -quarter (N.E. '/a) of Section 7, Township 49 South, Range 41 East, Said lands situate, lying and being in the City of Tamarac, Broward County, Florida, and containing 35.7324 acres, more or less. / J ---n ., MEMORANDUM OF AGREEMENT THIS MEMORANDUM OF AGREEMENT (this "Agreement"), dated as of the 1 lth day of October, 1995, between the CITY OF TAMARAC, FLORIDA, a municipal corporation duly created and existing under and by virtue of the laws of the State of Florida (the',, "City") and ARCH ALUMINUM & GLASS COMPANY, INC., a Florida corporation (the "Company"). 1. Preliminary Statements. Among the matters of mutual inducement which have resulted in the execution of this Agreement are the following: (a) The City is a local agency under the provisions of Part II of Chapter 159, Florida Statutes, as amended (the "Act"), and is a political subdivision of a state within the meaning of Section 103(a)(1) of the Internal Revenue Code of 1986, as amended. (b) The Company proposes to utilize the proceeds from the sale by the City of not to exceed $4,300,000 of its Industrial Development Revenue Bonds (the "Bonds") to: (i) pay all or any part of the cost of issuance of the Bonds, (ii) pay all or any part of the cost of constructing and equipping certain improvements on real estate at N.W. 67th Street and Nob Hill Road, Tamarac, Florida, including the construction of a manufacturing facility, (iii) pay all or any part of the cost of the acquisition and installation of certain machinery, equipment and appurtenances and facilities incidental thereto, and other improvements necessary and convenient therefor (the aforementioned parcel of real estate and improvements to be constructed thereon, and such machinery, equipment and appurtenances and facilities incidental thereto, being referred to herein collectively as the "Project"), and (iv) pay any other "cost" (as defined in the Act) of the Project, all within the applicable limits set forth in the Act, the Internal Revenue Code of 1986, as amended, and the related regulations, rulings and interpretive court decisions (together, the "Code"). (c) The Company intends to own and operate the Project for the primary purpose of manufacturing aluminum products, including primarily aluminum structures and store front frames and tempered and laminated glass. (d) The Company expects that the portion of the Project to be financed with the proceeds of the Bonds will cost approximately $4,300,000 inclusive of interest during the period of construction, underwriting or placement agent fees or commissions, and legal, accounting, financing and printing expenses. (e) The Company requests the City to enter into this Agreement for the purpose of declaring the City's intention to provide financing to pay all or a portion of the cost of the Project by loaning the proceeds of the Bonds to the Company pursuant to a loan agreement. t�.l %, -0/' L>� 'D (f) The Company represents that no portion of the Bond proceeds will be used to reimburse the Company for costs of the Project incurred prior to issuance of the Bonds except in accordance with Treasury Regulation 1.150-2 and 1.103-8T and other applicable provisions of the Code. (g) This Agreement is entered into to induce the Company to proceed with the completion of the Project and to assure the Company, prior to the issuance of the Bonds. that the City, in accordance with and subject to the provisions of the Act and this agreement, will issue Bonds to cover costs so incurred by the Company in connection with the Project, including costs incurred prior to the issuance of the Bonds. so long as such costs are permissible expenditures of Bond proceeds under the provisions of the Act and the applicable provisions of the Code. (h) The Company proposes that the City agree to issue its Bonds under the Act in an aggregate principal amount not to exceed $4,300,000, such Bonds to be secured by the obligation of the Company to pay the debt service thereon and an irrevocable direct -pay letter of credit issued by a financial institution with its debt rated in one of the highest three ratings categories by a nationally recognized rating agency. By virtue of the provisions of Section 103(a) and Section 144 of the Code, as now existing or hereafter amended, the interest on such Bonds is to be excluded from the gross income of the holders for federal income tax purposes. (i) The City has preliminarily determined, based upon representations made by the Company and without any independent investigation having been made by the City, that the completion of the Project by the Company and the financing of all or a portion of the cost of the Project by the City will be in furtherance of the purpose of the Act in that it will assist and induce the Company to construct the Project in the City thereby helping to attract new industry to the City which will bring more and higher paying jobs and will foster the economic development of the City. 0) Based upon the representations of the Company and the fact that the Company will deliver the letter of credit described above, the City has preliminarily determined that the Company and its guarantor are fully capable and willing to fulfill their obligations under, -the proposed financing agreement. 2. Undertakings on the Part of the City.. In accordance with and subject to the limitations of the Act, and subject to the satisfaction by the Company of the terms and conditions of this Agreement, the City agrees as follows: (a) That it will authorize the issuance and sale of one or more issues of its revenue bonds, pursuant to the terms of the Act as then in force in an aggregate principal amount not to exceed $4,300,000 for the purpose of paying all or a portion of the cost of the Project. (b) That at the proper time. and subject in all respects to the prior advice. consent and approval of the Company, it will adopt such proceedings and authorize the execution of such documents as may be necessary and advisable for the authorization. sale and 1) issuance of the Bonds and the completion of the Project. all as shall be authorized by the Act and mutually satisfactory to the City and the Company. The Bonds shall not be deemed to constitute a debt, liability or obligation of the City or of Broward County, the State of Florida or of any political subdivision thereof, but such Bonds shall be payable solely from the payments to be provided from the Company under financing agreements with respect thereto. The Bonds issued shall be in such aggregate principal amount not exceeding $4,3,00,000, shall bear interest at such fixed or variable rate or rates, shall have such maturity or rAturities not exceeding thirty (30) years, shall be payable at such times and places, shall be in such forms and denominations, shall be sold in such manner, subject to the provisions of Section 218.385 of the Florida Statutes, as amended, and at such time or times, shall have such provisions for redemption, shall be executed and shall be secured as hereafter may be requested by the Company and agreed to by the City, all on terms mutually satisfactory to the City and the Company. 3. Undertakings on the Part of the Company. Subject to the conditions hereinafter stated, the Company agrees as follows: (a) That the Company will generally arrange for, manage and carry out the construction and equipping of the Project as contemplated by this Agreement (without thereby obligating the Company to go forward with the Project). (b) That the Company will cooperate with the City in making arrangements for the sale and issuance of the Bonds in an aggregate principal amount not to exceed $4,300,000 and that to the extent that the proceeds derived from the sale of the Bonds are not sufficient to complete the Project, the Company will supply all additional funds which are necessary for the completion of the Project. (c) That contemporaneously with the delivery of the Bonds, the Company will enter into a loan agreement and such other financing arrangements, indentures and related agreements as shall, in the opinion of the Company, the Company's counsel, and the City and City's counsel, be necessary or appropriate so that the Company will be obligated to pay for the account of the City sums sufficient in the aggregate to pay the principal of, the redemption premium, if any, and the interest on the Bonds when and as the same shall become due and payable:" (d) That the Company will take such further action and adopt such proceedings as may be required to implement its undertakings hereunder. (e) That between the date of this Agreement and issuance of the Bonds, the Company will provide the City with such financial information as required by the City. 4. General Provisions. (a) The City and the Company agree that the Company shall provide or cause to be provided all services incident to the construction and equipping of the Project, including, without limitation. the preparation of plans. specifications and contract documents. the award of contract. the inspection and supervision of work performed. the employment of engineers. architects. builders and other contractors, and the provision of money to pay the cost thereof, and the City shall have no responsibility for providing any of such services or any liability therefor. (b) All commitments of the City and of the Company pursuant to this Agreement are subject to the condition that the City and the Company shall have agreed to mutually acceptable terms for the Bonds and the sale and delivery thereof and mutually acceptable terms and conditions for the financing arrangements and other agreements referred to in Section 3(c) and, unless extended by subsequent resolution of the City, the Bonds shall have been sold and delivered on or before one year from the date of this Agreement, this Agreement shall terminate. (c) The Company agrees that it will pay when due all costs and expenses of the City including reasonable fe,.s and expenses of the City's Bond counsel, including but not limited to out-of-pocket expenses, which the City or its Bond counsel may have incurred in connection with the execution of this Agreement and the performance by the City of its obligations hereunder. The Company shall deposit with the City within five business days from notification that an allocation has been obtained, the sum of $20,000.00. Such amount shall be applied toward payment of legal fees and expenses when due. Once all such fees and expenses have been paid, any balance of such deposit shall be returned to the Company. The Company shall pay any such fees and expenses in excess of $20,000.00 from its other funds. (d) So long as this Agreement is in effect, all risk of loss to the Project shall, as between the parties hereto. be borne by the Company. (e) The Company hereby agrees that the City shall not be liable for, and agrees to release, indemnify and hold harmless the City from any liabilities, obligations, claims, damages, litigation, costs and expenses (including, without limitation, reasonable attorneys' fees and expenses) imposed on. incurred by or asserted against the City for any cause whatsoever pertaining to the Project, the Bonds or this Agreement or any transaction contemplated by this Agreement. (fl As a matter of general assurance by the Company to the City, the Company hereby covenants and agrees that it will indemnify the City for all reasonable expenses, costs and obligations incurred by the City under the provisions of the Agreement to the end that the City or its counsel or Bond Counsel will not suffer any out-of-pocket losses as a result of the carrying out of any of its undertakings herein contained. It is furthermore expressly agreed that any pecuniary liability or obligation of the City hereunder shall be limited solely to the revenues derived by the City under the Loan Agreement, and nothing contained in this Agreement shall ever be construed to constitute a personal or pecuniary liability or charge against any member. officer or employee of the City, and in the event of a breach of any undertaking on the part of the City contained in this Agreement, no personal or pecuniary liability or charge payable directly or indirectly from the general funds or any other funds of the City shall arise therefrom. (g) The Company shall not discriminate in its hiring practices among persons due to race, religion or national origin. rd 5. Effective Dates. This Agreement shall take effect upon its execution and delivery; provided, however, that prior to the sale of the Bonds by the City, the Company will provide to the City: (a) an irrevocable direct -pay letter of credit providing for the payment of all principal and interest on the Bonds, which shall be issued by a financial institution the long ano short term debt of which is rated in one of the three highest ratings categories by a nationally recognized rating agency; (b) all financing documentation required by the City in connection with the issuance of the Bonds including, but not limited to, a loan agreement and a note, all in form and content satisfactory to the City; (c) the appro- ing opinion of Akerman. Senterfitt & Eidson, P.A., as Bond Counsel, to the effect that the Bonds have been validly issued and that under the existing laws of the United States, interest on the Bonds will be excluded from gross income of the holders for federal income tax purposes; (d) if required by City's counsel or Bond Counsel, a final judgment of validation relative to the Bonds from the Circuit Court in and for Broward County; (e) evidence satisfactory to City's Counsel that the zoning of the land comprising a part of the Project is appropriate for the Company's intended use of the Project; (f) such other representations, warranties, covenants, agreements, certificates, financial statements, and other proofs as may be required by the City, its counsel or Bond Counsel; and (g) final approval by the City after a public hearing, The Project'and the Bonds shall also be subject to a sufficient allocation granted by the" Division of Bond Finance of the State Board of Administration of the State of Florida of the state volume limitation for the full amount of the Bonds as contemplated by Part V of the Act, and no assurances can be given by the City as to the availability of such allocation. Further, no assurances can be given by the City as to the result of any action or inaction by a governmental agency, whether local, state or federal, nor as to the result of any judicial action, which may affect in any way the issuance of the Bonds or the Project; and the City shall not be responsible nor held liable for any costs or damages incurred by any party as a result thereof. 5 IN WITNESS WHEREOF the parties have executed and delivered this Agreement as of the day and year first above written. CITY OF TAMARAC, FLORIDA .ti Y By: Attest: Carol A. Evans City Clerk I hereby certify that I have approved this Agreement as to form. ( � `'/ Mitchell S. Kraft City Attorney Z Robert �i. Noe, Jr., Ltty 5-tanager Accepted: ARCH ALUMINUM & GLASS COMPANY, INC. i Bv- Its: LEDN 5/LVERS�.I�I Attest: &i-aij-z Its: /VATS L.I F REED M7 WESTPORT crAwanrrx un 1: ! �`�" ia+o• rater la. �•v u" " � � p"m "WI �vw +r . r a wsr� 9 eel's ZINLIA IA II" 00 �a � 13 t • / Rl� UMARAG a v 1 MA111Zf FLAB Im .� 4 AOF saM1uT ! 4 AA r AAA» A I 47 PROPOS®N IMR 1 r � ARCH ALUMINUM ;AV • • �D- 8 ED � � >R w a" 4L CIL wrr► pM Nt a w i rim � R PUN M R P{M1 off PEW- as fr ccuR i J pm MAC R No a I` it i�� z was C.� �ru ra►>r wow pim ` ,� Nansy Vwe. rAwt wim"K ID" \ �•`.;`` wwwo Km AKERMAN. SWrERFITT 8 EID50N. P. A. ATTomm AT LAW CIT*VS CCNTCN 25% SOUTH 00AI409 "IENVC POST OFIIcC Sox 271 OpLAN00, iL0RI0A 72502-0271 (40VI 1e*2-7860 TCLSCOPY f407) 042-ee10 October 12, 1995 Larry A. Rothenberg, Esq. 2424 N. Federal Highway, Suite 455 Boca Raton, FL 33431 V'1 1 ( ' /: f CI. •.,�i Re: City of Tamarac, Florida Industrial Development Revenue Bonds (Arch Aluminum Project) Series 1995 Dear Larry: Enclosed please fined t-he original Memorandum of Agreement. Please have this Agreement executed and delivered to the City of Tamarac, c/o Dina McDermott, whose address is on the distribution list. The Agreement will then be signed by the Mayor and a copy returned to you. Also, please include a check from the company in the amount of $20,000. These monies will be deposited into an escrow fund to be held by the City. I will periodically send bills to the City (with a copy to you) which will be paid from this escrow account. ..-_ R -Wecc_ Please call if you have any questions. P 1 Very truly Yours, Ate, SENTERF2 &r EIDSON, P.A. T. Dean Dickson TDD/kmg Enclosure WPO:ITDICX80N.TAK1RJ►C-II1RoTx VM-101295.LT3t 096A1r010 MIAMI TALLAMASSCC . TAMMA CITY CLERK'S CERTIFICATE AS TO RESOLUTION NO. R-95-225 I, Carol A. Evans, the City Clerk of the City of Tamarac, Florida (the "City"), DO HEREBY CERTIFY that attached hereto is a copy of Resolution No. R-95-225 adopted at a melting of the City Council duly called and held on October 11, 1995, at which meeting a quorum was present and acting throughout, which resolution is a true, complete and correct copy thereof, and said resolution has been duly adopted and has not been further modified, amended or repealed and is in full force and effect on and as of the date hereof in the form attached hereto. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City as of this 15th day of November, 1995. (SEAL) Carol A. Evans, City Clerk WPO:[TI)ICKSON.TAMARAC-II]SEC-CERT-RESOLUTiON2. to the Loan Agreement which affects a change in the provisions relating to the payment of the principal of and interest on the Bonds; WHEREAS, the Indenture also requires the issuer of the Letter of Credit and the Trustee to consent to any amendment to the Loan Agreement; NOW THEREFORE, for good and other valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Company and the Issuer agree as follows: Section 1. Definitions. All terms used herein which are defined in the Loan Agreement or the Indenture shall have the meanings assigned to them therein, or if not defined therein, shall have the meanings described herein. "Amendment" shall mean this First Amendment to Loan Agreement. Section 2. Amendment to Section 4.4(b). Section 4.4(b) of the Agreement is amended in its entirety as follows: "(b) If the Bonds are not rated, (i) in the event that the Bonds bear interest at the Fixed Rate, evidence that the long-term unsecured debt rating assigned by Moody's or Standard & Poor's to the issuer of the Substitute Letter of Credit is at least as high as the long-term unsecured debt rating assigned by Moody's or Standard & Poor's to the issuer of the Letter of Credit being replaced; and (ii) in the event that the Bonds bear interest at the Adjustable Rate, evidence that the short-term unsecured debt rating assigned by Moody's or Standard & Poor's to the issuer of the Substitute Letter of Credit is at least as high as the short-term unsecured debt rating assigned by Moody's or Standard & Poor's to the issuer of the Letter of Credit being replaced. Section 3. Effective Date. This Amendment shall become effective upon the agreement of the Issuer and the Company and the consents of the issuer of the Letter of Credit, the Trustee and one hundred percent (100%) of the holders of the aggregate principal amount outstanding of the Bonds. Section 4. Ratification of the Agreement. As amended hereby, the Loan Agreement is in all respects ratified and confirmed. The Loan Agreement as so amended hereby shall be read, taken and construed as one and the same instrument. Section 5. Multiple Counterparts. This Amendment may be executed in multiple counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. U.•ILEANNEK4GENDAITEMSIDETRGIT_340536 2 (2) CITI�oC IN WITNESS WHEREOF, the Company and the Issuer have caused this Amendment to be signed in their names and on their behalf by their duly authorized officers, all as of the date first written above. w4 Attest. Marion Swenson, CMC, City Clerk Consented to by: FIRST UNION NATIONAL BANK as issuer of the Letter of Credit Name: Title: FIRST UNION NATIONAL BANK as Trustee Name: ARCHALUMINUM & GLASS CO. INC. a Florida corporation By: Name: Title: CITY OF C. FLO IDA By: I ge)Schreiber, Mayor Date: jeffr6lt. AAller, City Manager — Date: )1�_, App ved s to form and l l su " aency: AtitchWg Kraft, C y Adorney U.•ILEANNEWIAGENDAITEMSIDETROIT_340536-2 (2) CI7:w- OC NOTICE TO BONDHOLDERS City of Tamarac, Florida Industrial Development Revenue Bonds (Arch Aluminum & Glass Co., Inc. Project) Series 1995 (the "Bonds") 0 Its] September _, 2001 Re: Consent (this "Consent") by the Owners of Bonds under the Indenture of Trust dated as of November 1, 1995 (as amended, the "Indenture") between City of Tamarac, Florida ("Issuer") and First Union National Bank as successor Trustee ("Trustee") to permit amendment to the Loan Agreement dated November 1, 1995 (the "Loan Agreement") between Issuer and Arch Aluminum & Glass Co., Inc. (the "Company") to allow the substitution of Comerica Bank as Substitute Bank and issuance by Comerica Bank of a Substitute Letter of Credit Reference is made to the Indenture. Except as specifically defined to the contrary herein, capitalized terms used in this Consent shall have the meanings given them in the Indenture. The Company has entered into a banking relationship with Comerica Bank, a Michigan banking corporation ("Comerica Bank"). As a result of this relationship, the Company is requesting that the Owners of Bonds consent to an amendment to Section 4.4 of Loan Agreement with respect to the Bonds which would allow for the substitution of Comerica Bank for First Union National Bank, a national banking association, as Substitute Bank and issuance by Comerica Bank of a Substitute Letter of Credit. Presently, Section 4.4(b) of the Agreement requires that both the "long and short term unsecured debt rating assigned by Moody's and Standard & Poor's to the issuer of the Substitute Letter of Credit are at least as high as those assigned to the issuer of the Letter of Credit being replaced." First Union National Bank has a long and short term unsecured debt rating assigned by Moody's of Aa-3 and P-1, respectively, and a long and short-term unsecured debt rating assigned by Standard & Poor's of A + and A-1, respectively. Comerica Bank has long and short term unsecured debt rating assigned by Moody's of A-1 and P-1, respectively, and a long and short- term unsecured debt rating assigned by Standard & Poor's of A and A-1, respectively. Because both Comerica Bank's long term unsecured debt ratings are not "as least as high" as those assigned to First Union National Bank, the consent of the Owners of the Bonds is being sought under Section 12.2 of the Indenture for an amendment to Section 4.4 of the Loan Agreement. Section 4.4(b) of the Loan Agreement would be amended to read as follows: U:V.EANNEWIAGENDA ITEMSDETROIT 740537 7.DOC "(b) If the Bonds are not rated, (i) in the event that the Bonds bear interest at the Fixed Rate, evidence that the long-term unsecured debt rating assigned by Moody's or Standard & Poor's to the issuer of the Substitute Letter of Credit is at least as high as the long-term unsecured debt rating assigned by Moody's or Standard & Poor's to the issuer of the Letter of Credit being replaced; and (ii) in the event that the Bonds bear interest at the Adjustable Rate, evidence that the short-term unsecured debt rating assigned by Moody's or Standard & Poor's to the issuer of the Substitute Letter of Credit is at least as high as the short-term unsecured debt rating assigned by Moody's or Standard & Poor's to the issuer of the Letter of Credit being replaced, The Bonds presently bear interest at the Adjustable Rate and the short-term unsecured debt rating assigned by Moody's and Standard & Poor's are the same as the short-term unsecured debt rating assigned to Comerica Bank. Please indicate your consent to the above amendment to the Loan Agreement, which would permit Comerica Bank to replace the First Union Letter of Credit, by signing the Consent at the bottom of this Notice to Bondholders and returning to us for delivery to First Union National Bank, as successor Trustee so that it will act accordingly. ARCH ALUMINUM & GLASS, CO., INC. Its: CONSENT The undersigned (i) represents that the undersigned is Owner of Outstanding Bonds in the principal amount of $ and (ii) consents to the amendment to Section 4.4(b) of the Loan Agreement as outlined above. [Owner of Outstanding Bonds] By: Its: Date: UALEANNEW\AGENDA ITEMS\DETROIT}40537_3-DOC 2