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09-22 RESOLUTION NO. 09-22 A RESOLUTION SUPPLEMENTING RESOLUTION NO. 09-12 OF TIlE CITY OF CLEARWATER ADOPTED APRIL 15, 2009 AUTIlORIZING TIlE ISSUANCE OF THE CITY OF CLEARWATER, FLORIDA WATER AND SEWER REVENUE BONDS, SERIES 2009A AND TIlE CITY OF CLEARWATER, FLORIDA WATER AND SEWER REVENUE REFUNDING BONDS, SERIES 2009B; APPOINTING ASSURED GUARANTY CORP. AS THE INSURER WITII RESPECT TO TIlE SERIES 2009 BONDS; APPROVING TIlE FORM AND AUTIlORIZING TIlE EXECUTION OF AN INSURANCE COMMITMENT; AND PROVIDING AN EFFECTIVE DATE. WHEREAS the City Council of the City of Clearwater, Florida (the "Issuer") has, by Ordinance No. 3674-84 enacted by the City Council of the Issuer on August 2, 1984 (the "Original Ordinance"), as amended and supplemented from time to time, as particularly amended and supplemented by Ordinance 6915-01 enacted by the City Council of the Issuer on November 15, 2001 (collectively the "Bond Ordinance"), as supplemented by Resolution No. 09- 12 adopted by the City council of the Issuer on April 15, 2009 (the "Series 2009 Resolution"), and as further supplemented hereby, authorized the issuance of not to exceed $72,500,000 City of Clearwater, Florida Water and Sewer Revenue Bonds, Series 2009A (the "Series 2009A Bonds") and not to exceed $50,000,000 City of Clearwater, Florida Water and Sewer Revenue Refunding Bonds, Series 2009B (the "Series 2009B Bonds" and collectively with the Series 2009A Bonds, the "Series 2009 Bonds"); and WHEREAS the Issuer has since received a Commitment to issue a Financial Guaranty Insurance Policy, attached hereto as Exhibit A (the "Insurance Commitment") from Assured Guaranty Corp. (the "Insurer"); WHEREAS it is in the best financial interest of the Issuer that the Issuer accept the Insurance Commitment; and WHEREAS capitalized terms used herein and not otherwise defined shall be defined as provided in the Bond Ordinance and the Series 2009 Resolution. NOW, TIlEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF TIlE CITY OF CLEARWATER, FLORIDA: SECTION 1. ACCEPTANCE OF INSURANCE COMMITMENT; BOND INSURANCE POLICY COVENANTS AND AGREEMENTS. The Finance Director in consultation with Bond Counsel, the Financial Advisor and the underwriter for the Series 2009 Bonds is hereby authorized to determine whether it is in the best financial interest of the Issuer to purchase the Bond Insurance Policy, which guarantees the payment of principal and interest on the Series 2009 Bonds. In the event that is so determined, the Bond Insurance Policy is hereby authorized to be purchased from the Insurer in accordance with the Insurance Commitment attached hereto as Exhibit A. subject to the terms hereof, and payment for such insurance is hereby authorized from the proceeds of the Series 2009 Bonds. The Insurance Commitment is hereby approved in substantially the form attached hereto with such changes and additions as shall be approved by the Finance Director in consultation with Bond Counsel, the Financial Advisor and the underwriter for the Series 2009 Bonds, and, the Finance Director is hereby authorized to determine whether to execute such Insurance Commitment in consultation with Bond Counsel, the Financial Advisor and the underwriter for the Series 2009 Bonds. To the extent of any inconsistency between the provisions of the Insurance Commitment and provisions otherwise contained in this Resolution, the Series 2009 Resolution or the Bond Ordinance, the provisions of this Resolution, the Series 2009 Resolution and the Bond Ordinance shall prevaiL A statement of insurance is hereby authorized to be printed on or attached to the Series 2009 Bonds for the benefit and information of the Series 2009 Bondholders, if the Insurance Commitment is executed. The Issuer hereby makes the following covenants and agreements for the benefit of the Insurer but the provisions of this Section 1 shall only apply so long as (i) the Series 2009 Bonds remain Outstanding, (ii) the Financial Guaranty Insurance Policy is a valid and binding obligation and remains in full force, (ill) the Insurer has not repudiated its obligations under the Financial Guaranty Insurance Policy, and (iv) proceedings have not been filed under applicable bankruptcy, insolvency or other similar laws as to the Insurer or the Insurer generally has not failed to pay its claims or debts as they become due to creditors: A. No Purchase in Lieu of Redemption. Without the prior written consent of the Insurer, no Series 2009 Bonds insured by the Insurer shall be purchased by the Issuer, or any of its affiliates, in lieu of redemption, unless such Series 2009 Bonds are redeemed, defeased or cancelled. B. Interest Rate Exchange Agreement. Any interest rate exchange agreement (the "Interest Rate Exchange Agreement") entered into by the Issuer in connection with the Series 2009 Bonds and any Parity Bonds issued subsequent to the date hereof shall meet the following conditions: (i) the Interest Rate Exchange Agreement must be entered into to manage interest costs related to, or a hedge against (a) assets then held, or (b) debt then outstanding, or (c) debt reasonably expected to be issued within the next twelve (12) months; and (ii) the Interest Rate Exchange Agreement shall not contain any leverage element or multiplier component greater than 1.0x unless there is a matching hedge arrangement which effectively off-sets the exposure from any such element or component. Unless otherwise consented to in writing by the Insurer, any uninsured net settlement, breakage or other termination amount then in effect shall be subordinate to debt service on the Series 2009 Bonds and on any debt on parity with the Series 2009 Bonds. The Issuer shall not terminate the Interest Rate Exchange Agreement unless it demonstrates to the satisfaction of the Insurer prior to the payment of any such termination amount that such payment will not cause the Issuer to be in default under the Bond Ordinance, 2 Resolution No. 09-22 including but not limited to, any monetary obligations thereunder. All counterparties or guarantors to any Interest Rate Exchange Agreement must have a rating of at least" A-" and "A3" by Standard & Poor's ("S&P") and Moody's Investors Service ("Moody's"). If the counterparty or guarantor's rating falls below" A-" or "A3" by either S&P or Moody's, the counterparty or guarantor shall execute a credit support annex to the Interest Rate Exchange Agreement, which credit support annex shall be acceptable to the Insurer. If the counterparty or the guarantor's long term unsecured rating falls below "Baa1" or "BBB+" by either Moody's or S&P, a replacement counterparty or guarantor, acceptable to the Insurer, shall be required. C. Notices. Reports and Other Information. (1) Any notice that is required to be given to Bondholders of the Series 2009 Bonds, nationally recognized municipal securities information repositories or state information depositories pursuant to Rule 15c2-12(b )(5) adopted by the Securities and Exchange Commission or to the Paying Agent shall also be provided to the Insurer, simultaneously with the sending of such notices. In addition, all information furnished pursuant to the Continuing Disclosure Agreements shall also be provided to the Insurer, simultaneously with the furnishing of such information. (2) All demands, notices and other information required to be given to the Insurer shall be in writing, contain the policy number for the Series 2009 Bonds and shall be mailed by registered or certified mail or personally delivered or telecopied as follows: Assured Guaranty Corp. 1325 A venue of the Americas New York, New York 10019 Attn: Risk Management Department Telecopy No.: (212) 581-3268 Confirmation: (212) 974-0100 Email: riskmanagementdept@assuredguaranty.com In each case in which notice or other communication refers to an Event of Default, a claim on the Bond Insurance Policy or any event with respect to which failure on the part of the Insurer to respond shall be deemed to constitute consent or acceptance, then such demand, notice or other communication shall be marked to indicate "URGENT MATERIAL ENCLOSED" and shall also be sent to the attention of the General Counsel at the same address and telecopy number above or at generakounsel@assuredguaranty.com. (3) The Insurer shall have the right to receive such additional information as it may reasonably request. (4) The Issuer will permit the Insurer to discuss the affairs, finances and accounts of the Issuer or any information the Insurer may reasonably request regarding the security for the 3 Resolution No. 09-22 Series 2009 Bonds with appropriate officers of the Issuer and will use commercially reasonable efforts to enable the Insurer to have access to the facilities, books and records of the Issuer on any business day upon reasonable prior notice. (5) The Paying Agent shall notify the Insurer of any failure of the Issuer to provide any required notices, certificates and other information. (6) The Issuer shall provide to the Insurer: (a) the printed fiscal year budget of the Issuer within seventy five (75) days after adoption of such budget; (b) annual audits prepared by an independent certified public accountant, within two hundred ten (210) days of the completion of the Issuer's fiscal year together with a certificate of the Issuer stating that no event of default has occurred or is continuing under the Bond Ordinance; (c) Prior to issuing Parity Bonds, any disclosure document or financing agreement pertaining to such additional debt, which disclosure document or financing agreement shall include, without limitation, the applicable maturity schedule, interest rate or rates, redemption and security provisions pertaining to any such additional debt; and (d) Within thirty (30) days following any litigation or investigation that may have a material adverse affect on the financial position of the System notice of such litigation. D. Defeasance of Series 2009 Bonds. (i) In the event that the principal and/or interest due on the Series 2009 Bonds shall be paid by the Insurer pursuant to the Bond Insurance Policy, the Series 2009 Bonds shall remain outstanding for all purposes, not be defeased or otherwise satisfied and not be considered paid by the Issuer, and the assignment and pledge of the trust estate and all covenants, agreements and other obligations of the Issuer to the Bondholders shall continue to exist and shall run to the benefit of the Insurer, and the Insurer shall be subrogated to the rights of such Bondholders including, without limitation, any rights that such Bondholders may have in respect of securities law violations arising from the offer and sale of the Series 2009 Bonds. (ii) Additionally, the following shall be required for a defeasance of the Series 2009 Bonds in addition to the requirements of Section 22 of the Bond Ordinance: 4 Resolution No. 09-22 (a) An oprmon of Bond Counsel to the effect (i) that the defeasance will not adversely impact the exclusion from gross income for federal income tax purposes of interest on the Series 2009 Bonds and (ii) that the Series 2009 Bonds are not longer "Outstanding" under the Bond Ordinance. (b) The escrow agreement shall be in place (the "Escrow Agreement") and an opinion of counsel shall be provided regarding the validity and the enforceability of the Escrow Agreement; and (c) The Escrow Agreement shall provide that: i. Any substitution of securities shall require verification by an independent certified public accountant and the prior written consent of the Insurer. ii. The Issuer will not exercise any optional redemption of the Series 2009 Bonds secured by the Escrow Agreement or any other redemption other than mandatory sinking fund redemptions unless (i) the right to make such redemption has been expressly reserved in the Escrow Agreement and such reservation has been disclosed in detail in the official statement for the refunding bonds and (ii) as a condition of any such redemption there shall be provided to the Insurer a verification of an independent certified public accountant as to the sufficiency of escrow receipts without reinvestment to meet the escrow requirements remaining following such redemption. Ill. The Issuer shall not amend the Escrow Agreement or enter into a forward purchase agreement or other agreement with respect to rights in the escrow without the prior written consent of the Bond Insurer. E. Amendments and Supplements. With respect to amendments to the Bond Ordinance or the Series 2009 Resolution or to this Resolution which do not require the consent of the Series 2009 Bondholders, the Insurer must be given prior written notice of such amendments and supplements. With respect to amendments to Bond Ordinance or the Series 2009 Resolution or to this Resolution which do require the consent of the Series 2009 Bondholders, the Insurer's prior written consent is required. Copies of any amendments or supplements which are consented to by the Insurer shall be sent to the rating agencies which have then assigned ratings to the Series 2009 Bonds. F. The Insurer as Third Party Beneficiary. The Insurer is explicitly recognized as being a third party beneficiary hereunder and may enforce any such right, remedy or claim 5 Resolution No. 09-22 conferred, given or granted hereunder or under the Bond Ordinance and the Insurer is designated a "Bond Insurer" under the Original Ordinance. G. Control Rights. The Insurer shall be deemed to be the holder of all of the Series 2009 Bonds for purposes of (a) exercising all remedies and directing the Paying Agent to take actions or for any other purposes following an Event of Default, and (b) granting any consent, waiver, direction or approval or taking any action permitted hereunder to be granted or taken by the holders of such Series 2009 Bonds. H. Consent Rights of the Insurer. (1) Any provision hereof expressly recognizing or granting rights in or to the Insurer may not be amended in any manner that affects the rights of the Insurer. (2) Any material reorganization or liquidation plan with respect to the Issuer must be acceptable to the Insurer. In the event of any such reorganization or liquidation, the Insurer shall have the right to vote on behalf of all Bondholders who hold Series 2009 Bonds guaranteed by the Insurer absent a payment default by the Insurer. (3) Anything herein to the contrary notwithstanding, upon the occurrence and continuance of an event of default as defined herein, the Insurer shall be entitled to control and direct the enforcement of all rights and remedies granted to the Bondholders or the Paying Agent for the benefit of the Bondholders under the Bond Ordinance or Series 2009 Resolution. (4) The Insurer shall have the right to consent to the provision of any surety bond to be deposited in lieu of cash funding of the Reserve Account for the Additional Bonds or the Series 2009 Bonds. I. Reimbursement Obligations. (1) The Issuer hereby agrees to payor reimburse the Insurer, but only to the extent permitted by law (A) all amounts paid by the Insurer under the Bond Insurance Policy, and (B) any and all charges, fees, costs and expenses which the Insurer may reasonably payor incur, including, but not limited to, fees and expenses of attorneys, accountants, consultants and auditors and reasonable costs of investigations, in connection with (i) any accounts established to facilitate payments under the Bond Insurance Policy, (ii) the administration, enforcement, defense or preservation of any rights in respect hereof or any other financing document, including defending, monitoring or participating in any litigation or proceeding (including any bankruptcy proceeding in respect of the Issuer or any affiliate thereof) relating hereto or any other financing document, any party hereto or any other financing document or the transaction contemplated by the financing documents, (iii) the foreclosure against, sale or other disposition 6 Resolution No. 09-22 of any collateral securing any obligations hereunder or any other financing document, or the pursuit of any remedies hereunder or any other financing document, to the extent such costs and expenses are not recovered from such foreclosure, sale or other disposition, or (iv) any amendment, waiver or other action with respect to, or related hereto or any other financing document whether or not executed or completed; costs and expenses shall include a reasonable allocation of compensation and overhead attributable to time of employees of the Insurer spent in connection with the actions described in clauses (ii) - (iv) above. In addition, the Insurer reserves the right to charge a reasonable fee as a condition to executing any amendment, waiver or consent proposed in respect hereof or any other financing document. The Issuer will pay interest on the amounts owed in this paragraph from the date of any payment due or paid, at the per annum rate of interest publicly announced from time to time by JP Morgan Chase Bank, National Association at its principal office in New York, New York as its prime lending rate (any change in such prime rate of interest to be effective on the date such change is announced by JPMorgan Chase Bank, National Association) plus three percent (3%) per annum (the "Reimbursement Rate"). The Reimbursement Rate shall be calculated on the basis of the actual number of days elapsed over a 360-day year. In the event JPMorgan Chase Bank ceases to announce its prime rate publicly, the prime rate shall be the publicly announced prime rate or base lending rate of such national bank, as the Insurer shall specify. (2) In addition to any and all rights of reimbursement, subrogation and any other rights pursuant hereto or under law or in equity, the Issuer agrees to payor reimburse the Insurer, but only to the extent permitted by law, any and all charges, fees, costs, claims, losses, liabilities (including penalties), judgments, demands, damages, and expenses which the Insurer or its officers, directors, shareholders, employees, agents and each Person, if any, who controls the Insurer within the meaning of either Section 15 of the Securities Act of 1933, as amended, or Section 20 of the Securities Exchange Act of 1934, as amended, may reasonably payor incur, including, but not limited to, fees and expenses of attorneys, accountants, consultants and auditors and reasonable costs of investigations, of any nature in connection with, in respect of or relating to the transactions contemplated hereby or any other financing document by reason of: (a) any omission or action by the Issuer in connection with the offering, issuance, sale, remarketing or delivery of the Series 2009 Bonds; (b) the negligence, bad faith, willful misconduct, misfeasance, malfeasance or theft committed by any director, officer, employee or agent of the Issuer in connection with any transaction arising from or relating hereto or any other financing document; (c) the violation by the Issuer of any law, rule or regulation, or any judgment, order or decree applicable to it; (d) the breach by the Issuer of any representation, warranty or covenant hereunder or any other financing document or the occurrence, in respect of the Issuer, hereunder or any 7 Resolution No. 09-22 other financing document of any "event of default" or any event which, with the giving of notice or lapse of time or both, would constitute any "event of default"; or (e) any untrue statement or alleged untrue statement of a material fact contained in any official statement relating to the Series 2009 Bonds by the Issuer, if any, or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading by the Issuer, except insofar as such claims arise out of or are based upon any untrue statement or omission in information included in an official statement, if any, and furnished by the Insurer in writing expressly for use therein. (3) Any amounts payable hereunder shall only be payable from Net Revenues. J. Payment Procedure Under the Bond Insurance Policy. (1) At least two (2) Business Days prior to each payment date on the Series 2009 Bonds the Issuer shall provide the amounts due on the Series 2009 Bonds to the Paying Agent and the Paying Agent will determine whether there will be sufficient funds to pay all principal of and interest on the Series 2009 Bonds due on the related payment date and shall immediately notify the Insurer or its designee on the same Business Day by telephone or electronic mail, confirmed in writing by registered or certified mail, of the amount of any deficiency. Such notice shall specify the amount of the anticipated deficiency, the Series 2009 Bonds to which such deficiency is applicable and whether such Series 2009 Bonds will be deficient as to principal or interest or both. If the deficiency is made up in whole or in part prior to or on the payment date, the Paying Agent shall so notify the Insurer or its designee. (2) The Paying Agent shall, after giving notice to the Insurer as provided above, make available to the Insurer and, at the Insurer's direction, to any fiscal agent, if any, the registration books of the Issuer maintained by the Paying Agent and all records relating to the funds maintained under the Financing Documents. (3) The Paying Agent shall provide the Insurer and its fiscal agent, if any, with a list of registered owners of Series 2009 Bonds entitled to receive principal or interest payments from the Insurer under the terms of the Bond Insurance Policy, and shall make arrangements with the Insurer, or another designee of the Insurer to (i) mail checks or drafts to the registered owners of Series 2009 Bonds entitled to receive full or partial interest payments from the Insurer and (ii) pay principal upon Series 2009 Bonds surrendered to the Insurer, or another designee of the Insurer by the registered owners of Series 2009 Bonds entitled to receive full or partial principal payments from the Insurer. (4) The Paying Agent shall, at the time it provides notice to the Insurer of any deficiency pursuant to clause (1) above, notify registered owners of Series 2009 Bonds entitled to receive the payment of principal or interest thereon from the Insurer (i) as to such deficiency and its entitlement to receive principal or interest, as applicable, (ii) that the Insurer will remit to 8 Resolution No. 09-22 them all or a part of the interest payments due on the related payment date upon proof of its entitlement thereto and delivery to the Insurer or any fiscal agent, in form satisfactory to the Insurer, of an appropriate assignment of the registered owner's right to payment, (iii) that, if they are entitled to receive partial payment of principal from the Insurer, they must surrender the related Series 2009 Bonds for payment first to the Paying Agent, which will note on such Series 2009 Bonds the portion of the principal paid by the Paying Agent and second to the Insurer or its designee, together with an appropriate assignment, in form satisfactory to the Insurer, to permit ownership of such Series 2009 Bonds to be registered in the name of the Insurer, which will then pay the unpaid portion of principal, and (iv) that, if they are entitled to receive full payment of principal from the Insurer, they must surrender the related Series 2009 Bonds for payment to the Insurer or its designee, rather than the Paying Agent, together with the an appropriate assignment, in form satisfactory to the Insurer, to permit ownership of such Series 2009 Bonds to be registered in the name of the Insurer. (5) In addition, if the Paying Agent has notice that any holder of the Series 2009 Bonds has been required to disgorge payments of principal or interest on the Series 2009 Bonds previously Due for Payment (as defined in the Bond Insurance Policy) pursuant to a final non- appealable order by a court of competent jurisdiction that such payment constitutes an avoidable preference to such holder within the meaning of any applicable bankruptcy laws, then the Paying Agent shall notify the Insurer or its designee of such fact by telephone or electronic notice, confirmed in writing by registered or certified mail. (6) The Paying Agent will be hereby irrevocably designated, appointed, directed and authorized to act as attorney-in-fact for holders of the Series 2009 Bonds as follows: (a) If and to the extent there is a deficiency in amounts required to pay interest on the Series 2009 Bonds, the Paying Agent shall (a) execute and deliver to the Insurer, in form satisfactory to the Insurer, an instrument appointing the Insurer as agent for such holders in any legal proceeding related to the payment of such interest and an assignment to the Insurer of the claims for interest to which such deficiency relates and which are paid by the Insurer, (b) receive as designee of the respective holders (and not as Paying Agent) in accordance with the tenor of the Bond Insurance Policy payment from the Insurer with respect to the claims for interest so assigned, and (c) disburse the same to such respective holders; and (b) If and to the extent of a deficiency in amounts required to pay principal of the Series 2009 Bonds, the Paying Agent shall (a) execute and deliver to the Insurer, in form satisfactory to the Insurer, an instrument appointing the Insurer as agent for such holder in any legal proceeding related to the payment of such principal and an assignment to the Insurer of the Series 2009 Bonds surrendered to the Insurer in an amount equal to the principal amount thereof as has not previously been paid or for which moneys are not held by the Paying Agent and available for such payment (but such assignment shall be delivered only if payment from the Insurer is received), (b) receive as designee of the respective holders (and not as Paying 9 Resolution No. 09-22 Agent) in accordance with the tenor of the Bond Insurance Policy payment therefore from the Insurer, and (c) disburse the same to such holders. (7) Payments with respect to claims for interest on and principal of Series 2009 Bonds disbursed by the Paying Agent from proceeds of the Bond Insurance Policy shall not be considered to discharge the obligation of the Issuer with respect to such Series 2009 Bonds, and the Insurer shall become the owner of such unpaid Series 2009 Bonds and claims for the interest in accordance with the tenor of the assignment made to it under the provisions of this subsection or otherwise. (8) Irrespective of whether any such assignment is executed and delivered, the Issuer and the Paying Agent hereby agree for the benefit of the Insurer that: (a) they recognize that to the extent the Insurer makes payments directly or indirectly (e.g., by paying through the Paying Agent), on account of principal of or interest on the Series 2009 Bonds, the Insurer will be subrogated to the rights of such holders to receive the amount of such principal and interest from the Issuer, with interest thereon as provided and solely from the sources stated in the and the Series 2009 Bonds; and (b) they will accordingly pay to the Insurer the amount of such principal and interest, with interest thereon as provided in the Bond Ordinance and the Series 2009 Bonds, but only from the sources and in the manner provided herein for the payment of principal of and interest on the Series 2009 Bonds to holders, and will otherwise treat the Insurer as the owner of such rights to the amount of such principal and interest. (9) The Insurer shall be entitled to pay principal or interest on the Series 2009 Bonds that shall become Due for Payment but shall be unpaid by reason of Nonpayment (as such terms are defined in the Bond Insurance Policy) and any amounts due on the Series 2009 Bonds as a result of acceleration of the maturity thereof in accordance with this agreement, whether or not the Insurer has received a Notice (as defined in the Bond Insurance Policy) of Nonpayment or a claim upon the Bond Insurance Policy. (10) In addition, the Insurer shall, to the extent it makes any payment of principal or interest on the Series 2009 Bonds become subrogated to the rights of the recipients of such payments in accordance with the terms of the Bond Insurance Policy, and to evidence such subrogation (i) in the case of claims for interest, the Paying Agent shall note the Insurer's rights as subrogee on the registration books of the Issuer maintained by the Paying Agent, upon receipt of proof of payment of interest thereon to the registered holders of the Series 2009 Bonds, and (ii) in the case of claims for principal, the Paying Agent, if any, shall note the Insurer's rights as subrogee on the registration books of the Issuer maintained by the Paying Agent, upon surrender of the Series 2009 Bonds together with receipt of proof of payment of principal thereof. 10 Resolution No. 09-22 K. Insurance. The Issuer shall maintain insurance covering risks (including, without limitation, property and casualty general liability and professional liability), if available and affordable, in amounts as customarily maintained by Florida coastal municipal owed utility systems of similar size and conducting similar operations of the Issuer. The Issuer currently self insures and may continue to self insure, in whole or in part, provided that the Issuer's self insurance plan provides for (i) the maintenance of a self-insurance fund funded in an amount determined (initially and on at least an annual basis) by an independent actuary employing accepted actuarial techniques and (ii) the establishment and maintenance of a claims processing and risk management program. The Issuer shall timely deposit any amount necessary to cause such self insurance fund to be funded in the amount determined by such actuary. SECTION 2. PRIOR RESOLUTIONS. All prior resolutions of the Issuer inconsistent with the provisions of this resolution are hereby modified, supplemented and amended to conform with the provisions herein contained and except as otherwise modified, supplemented and amended hereby shall remain in full force and effect. SECTION 3. ESCROW DEPOSIT AGREEMENT. The Issuer confirms U.S. Bank, National Association as the escrow agent for the refunding of the Series 1998 Bonds and the Issuer is hereby authorized to and will enter into the escrow deposit agreement in substantially the form attached hereto as Exhibit B with the escrow agent and shall comply with all defeasance requirements for the refunding of the Series 1998 Bonds, upon the refunding of the Series 1998 Bonds SECTION 4. EFFECTIVE DATE. This resolution shall become effective immediately upon its adoption. ~ Passed and adopted by the City Council of the City of Clearwater, Florida, this L day of May, 2009. CITY OF CLEARWATER, FLORIDA By: ~/~ '-~ank V. Hibbard Mayor 11 Resolution No. 09-22 Approved as to form: Attest: JJ l- J! Pamela K. Akin City Attorney J: \ wdox\ Docs \ Clients \ 25341 \ 003 \ AGRMNT\ 00348248.DOC 12 ~. Cynthia E. Goudeau City Clerk ~ Resolution No. 09-22 EXHIBIT A INSURANCE COMMITMENT f\s SURE D GUARANTY- lENOURING FINANOAl STRENGTH April 29, 2009 Ms. Margaret L. Simmons City of Clearwater, Florida Municipal Services Building, 3rd FIOOf 100 S. Myrtle Avenue aearwater, FL 33756 Re: Not to Exceed $70,000,000 City of Clearwater, Florida Water and Sewer Revenue Bonds, Serles 2009A and Not to Exceed $46,495,000 City of Clearwater. Florida Water and Sewer Revenue Refunding Bonds, Series 2009B Dear Ms. SimmOO$: Enclosed please find the original of the rsvistJd commitment letter (the .Commitment") of Assured Guaranty Corp. ("Assured Guaranty") pertaining to the prospective issuance of its financial guaranty insurance policy (the'~ with respect to the above captioned obI"lQatlons (the "ObliQations"). The Commitment dUly executed by the addressee $hOuId be delivered to Assl.nd Guaranly CoIp., 1325 Avenue. d the Americas, New York, New York 10019, Attention: Legal Departmenl- PublIc finance and a copy thereof held by or on behalf of the addressee. To the extent that the Commitment is not accepted. as contemplated thereby, the original should be promptly destroyed or retumed to Assured Guaranty.' An executsdcopyoflhls Comm/l1nent shsII be fIJtlInsd ID Asstnd GusnJntyno Isler Ihsn IhB I1IBi/itfI date of IhB pre/ItnI1Isry 0IIiciBI Statement, or (/I) IhB ffnBI pr/c/ng date for the 0bIJgaIJ0ns, as hstrJInsfIsrdsflned. Enclosed with the Commitment you will find the Assured Guaranty Closing Package, which contains the Assured Guaranty Disclosure language to be inserted into the preliminary Official Statement and the final Official Statement, the legend to appear on the Obligations, the specimen Policy, the form of opinion of counsel to Assured Guaranty, the form of Assured Guaranty tax. disclosure and no default certificate. and the form of Instructions for wiring the insurance premium to the account of Assured Guaranty at dosing. The inIi:JnnsiJon in IhB Asstnd GusnJnty C/ostJg PscIcBgs may sIso be downIotJtdBd Ih:Jm Asstnd GUSIIII1Iy's WfJbsile at www.assuredausnJntvcomlcloslnodocu Upon acceptance and satisfaction of the conditions of the Commitment, the following must ocx:ur In order for Assured Guaranty to complete its review of applicable disclosure and legal documents in advance of the closing date. and timely issue its Policy: . The financing schedule and a distribution list should be forwarded to the attention of the Closing Coordinator listed below. - A copy of (I) the preliminary OfficIal Statement and the final Qffldal Statement, each of which shall indude the dlsdosure provided by Assured Guaranty and the spedmen Policy and any other references to Assured Guaranty, and (II) the Obligations, together with the legend to be affixed to such Obligations must be delivered to the Closing Coordinator by fax or e-mail in order that Assured Guaranty may confirm its accuracy. - Once determined, the final debt service schedule for the Obligations Should be delivered to the Closing Coordinator, by fax and/or e-mail in order that we may confirm the premium to be paid for the Policy. - To access the Assured Guaranty logo, please contact the Closing Coordinator. The Assured Guaranty logo may only be used in preparation of the preliminary Official Statement or the final Official Statement All other uses are strictly prohibited. - In addition, as noted in the Commitment, the rating agendes assess separate fees In connection With the issuance of rating letters with respect to the Obligations. Such fees must be paid by or on behalf of the Issuer, and questions with respect thereto should be addressed 10 the applicable agency. Please include the following people on the distribution list for this trallS8c.tlol.: Matthew Sinni, Assistant Vice President Telephone E-mail Fax Telephone E-mail Fax Telephone E-maIl Fax (212)261-5573 msinni@assuredguaranty.com (212) 581-3268 (212) 261-5553 nwoodruff@assuredguaranty.com (212) 445-8705 (212) 261-5593 ndimarco@assuredguaranty.com (212) 445-8705 Natalie Woodruff, Director, Counsel Nicole DiMarco. Closing Coordinator AIeWM...... e.. 1325 Avenue oftlle Americas New York, NY 10019 main 2129740100 fax 212581 3268 info@assuredguaranty,com WWW.assuredguaranty.com If you have any questions, please do not hesitate to contact us at the contact information listed above. We appreciate the opportUnity to insure this transaction and look forward toa successful closing. Very truly yours, cc: Clement Vericker, City of Clearwater Keith Bush, City of Clearwater Pam AkIn, City of Clearwat$r Tracy Mercer, City of Clearwater Robert Reid , Esq., Bryant Miller Olive Usa Morgan, Bryant Miller Olive Alida Ingram, Esq., Bryant Miller Olive Grace Dunlap, Esq., Bryant Miller Olive Matt Sansbury, .Raymond James & Assoclates, Inc. Peter Lamar, Raymond James & Associates, Inc. Alex Bugallo. Raymond James & AssocIates, Inc. David Thornton, Wachovia Securities Molly ClarX, Wachovia Securities MarX Raymond, Esq. Holland & Knight Julie Santamaria, RBC Caplt81 MarXets Richard Montalbano, RBC Capital MarXets Helen Ewin, RBC Capital Markets Patti Garrett, Bankd America f Marrin Lynch Glenn GOUgh, Bank of America f MerrIll Lynch Rawn Williams, Bank of America f Menin Lynch KristI Jacobs, Bank of America I Merrill Lynch John White, Fifth Third Securities, Inc. Sherrie Stumbo, John White, Fifth Third Securities, Inc. Enclosures -2- 605 (Negotlal8d ell l\sSURED GUARANIYe -reNOURING FINANOAlSTRENGTH Commitment to Issue FInancIal Guarantv Insurance PoIIcv tRevIsed'I Issuer: City of Clearwater, Florida City of Clearwater, Florida April 29, 2009 Obligor: Commitment Date: ExpIratIon Date: Obligations: June 22, 2009 1nstM'8l1C8 Premium: Not to Exceed $70,000,000 City of Clearwater, Florida Water and Sewer Revenue Bonds, Series 2009A ("Series A Obligationsj and Not to Exceed $46,495.000 City of Clearwater, Florida Water and Sewer Revenue Refunding Bonds, Series 20098 ("Series 8 Obligationsj On the date of issuance of the Obligations, the Issuer will pay, or ceuse to be paid, to Assured Guaranty a non-refundable premium in an amount equal to (i) 70 basis points times the total principal and interest on the Series A Obligations and (Ii) 55 basis points times the total principal and interest on the Series 8 Obligations. On the terms and subject to the conditions set forth herein and in Exhibit A attached hereto. and upon compliance with the procedures set forth in the letter ctelivered herewith (this commitment, such Exhibit A and such letter hereinafter, collectively, the "Commitmentj, Assured Guaranty Corp., a Maryland insurance corporation ("Assured Guarantvj, hereby commits to issue a financial guaranty Insurance policy (the "~ relating to the Obligations referenced above, which Policy shall be substantially in the form inclucled in the Assured Guaranty Closing Package referred to in the accompanying letter (the "Assured Guaranty CIosinO ~j. Unless accepted by the Obligor, this Commitment shall expire, and be of no further force and effect, at 5:00 p.m., Eastem Time, on the Expiration Date, unless extended in writing by Assured Guaranty in its sole disaetion. Any request by the Obligor for any such extension must be made to Assured Guaranty prior to 5:00 p.m., Eastern Time, on the Expiration Date. "Business. Dav", for all purposes hereof, shall mean any day other than (i) a Saturday or Sunday, (il) any day on which the offices of the Trustee or Paying Agent (as defined in the Policy) or Assured Guaranty are closed, or (Ill) any day on which banking Institutions are authorized or required by law, executive order or governmental decree to be closed in New York City or in the States of Maryland or New York. Upon the acknowledgment and acceptance by the Obligor, this Commitment shall constitute a binding agreement between the parties hereto, with respect to the subject matter hereof, enforceable against each such party in accordance with its terms; provided, however; that this Commitment shall expire, and be of no further force and effect, to the extent that AsstJ"ed Guaranty shall not have issUed the Policy as contemplated hereby on or prior to the Expiration Date. Upon the execution and acceptance of this Commitment by the parties hereto and In consideration of the issuance of this Commitment by Assured Guaranty, the Obligor hereby agrees that it will not enter into any disCUssiOns Or negotiations with, or seek any commitment from, any financial guarantor or Credit enhancer other than Assured Guaranty, for the issuance of a financial guaranty insurance policy or other credit enhancement facility, with respect to the Obligations, provided further, theI. the Obligor may determine prior to the Expiration Date not to issue Obligations that are guaranteed with a financial guaranty insurance policy or Credit enhancement by any financial guarantor or Credit enhancer, in which case the Obligor agrees to notify Assured Guaranty immediately after making such determination. An execuIsd IXJ'Y of this CommilmBnl shBI be ffJIImsd 10 AssunNJ GUBI1JIIIy no ItIIsr Ihsn the mailing dsIe of the ptsllminsty 0HIcIaI Sf8Ism8nt, 8$ I1stWJaftsrdsIfnBd. Capitalized terms not defined herein shall have the meanings asaibed to such terms as set forth in the Assured Guaranty Closing Package. The issuance of the Policy by Assured Guaranty is subject to the satisfaction or waiver by Assured Guaranty of the following conditions, and the OblIgor hereby further agrees as follows: Guaranteed 0bIIgaIi0ns. The Policy will guaranty the timely payment of scheduled principal and interest on the Obligations. Offering Ooc:I.mentsand Other Legat Documentation. Assured Guaranty shall be provided with: a. Executed copies of all finandng documents (including documentation evidencing the Issuer's or Obligor's, as applicable, ability and intent to comply with the Internal Revenue Code of 1986, as amended, and certified copies of the ordinancelresotutionslindenture relating to the approval and issuance of the Obligations), any official statements (or any other disclosure documents) with respect to the Obligations (any.and all such disClosure, collectiVely, the "Official Statementj and all legal opinions delivered in connection with the issuance and sale of the Obligations. Such legal opinions shall include all opinions as are customary for financings of the type contemplated, including without limitation the unqualified approving opinion of bond counsel rendered by a nationally approved bond counsel firm ("Bond Counsel"). Bond Counsel shall opine substantially to the effect that (i). the Obligations are exempt from federal income taxation, if applicable, (Ii) the Obligations have been validly issUed, (ili) the Obligations and the financing documents are enforceable, and (iv) the ordinanceJindenturelresotution creates a valid lien in the trust estate. Such opinions shall be addressed to A...-..I ........ CeI1t- 1325 Avenue ofthe Americas New Yorl<, NY 10019 main 2129740100 fax 212581 3268 info@Bssoredguaranty.com www.assuredguaranty.com Assured Guaranty or, if not so addressed, letters shall be provided to Assured Guaranty expressly providing that Assured Guaranty is entitled to rely on such opinions as if such opinion, were addressed to Assured Guaranty. b. In the event that the Obligations are issued in connection with a refunding, Assured Guaranty shall receive and approve the following: (i) the escrow agreement, if applicable; (Ii) an opinion addressed to Assured Guaranty regarding the validity and enforceability of the escrow agreement, if applicable; (Iii) a verification by a nationally- recognized certified public accounting firm acceptable to Assured Guaranty; and (IV) a defeasance opinion of Bond Counsel addressed to Assured Guaranty. c. A copy of any insurance policy, surety bond, guaranty, indemnification, or any other policy, contract or agreement, which provides for the payment of all or any portion of the Obligations, or in any way secures, insures or enhances the cash flow available to pay the Obligations. d. confirmation that an amount equal to the insurance premium to be paid to Assured Guaranty upon issuance of the Policy has been deposited to the account of Assured Guaranty. Asslnd Guaranty DIsclosure Must be Approved. A "Statement of Insurance", in the form contained in the Assured Guaranty Closing Package, shall be printed on, or attached to, the Obligations. The Obligations, the preliminary Official Statement (as applicable) and the Official Statement shall contain no reference to (i) Assured Guaranty, (ii) the Policy, or (iii) the financial guaranty insurance evidenced thereby, except as expressly approved by Assured Guaranty. BOND PROOFS SHALl BE APPROVED BY ASSURED GUARANTY PRIOR TO PRINTING. No Ma1erIaI Adverse Change. On the date hereof and on the dosing date pertaining to the Issuance of the Obligations (the "Closino Datei, there shall have been no material adverse change In or affecting the Issuer and/or the Obligor, as applicable, or the Obligations (including, without limitation, the security for the Obligations or the proposed clebtservlce schedule of the Obligations), the Official Statement, the financing documents to be executed and delivered With respect to the Obligations (the "Financina Documents"), the legal opinions to be executed and delivered in connection with the issuance and sale of the Obligations, or any other information submitted to Assured Guaranty With respect to the referenced transaction, or the Obligations, from that previously delivered or otherwise communicated to Assured Guaranty. No Event AffectIng Poo:hase of Obligations. No event shall have occurred which would permit any otherwise committed purchaser of the Obligations to elect not to purchase the Obligations on the date scheduled for the issuance and delivery thereof. No Untrue Statement or Omission. The OffIcial Statement, the Financing Documents and all Information submitted to Assured Guaranty with respect to the Obligations, induding Information relating to the Issuer and/or the Obligor, as applicable, shall not contain any untrue or misleading statement of material fact, nor omit to state a material fact necessary in order to make the information contained therein not misleading. Assured Guaranty shall receive a certificate of an authorized officer of the Issuer and/or the Obligor, as applicable, confirming the same. Anal Doa.unenls. Assured Guaranty shall have received the substantially final forms of all Financing Documents (Indudlng, without limitation, legal opinions, schedules and exhibits), Incorporating Assured Guaranty's comments in a manner acceptable to Assured Guaranty, on or prior to the fifth (5th) Business Day prior to the proposed Closing Date and such Financing Documents shall contain for the benefit of Assured Guaranty as bond Insurer, such rights as are customary for financings of the type contemplated. OfferIng Documents; Closing TransafpI. Assured Guaranty shall be provided with at least three (3) copies of each of the preliminary OffIcial Statement and the final Official Statement as soon as they are printed and available (and in any event prior to the Closing Date). As a condition of delivery of the Policy, duplicate originals of the primary Financing Documents and legal opinions shall be Immediately delivered by hand, sent via overnight mall or by e-mail for delivery no later than the Closing Date. WlIhln thirty (30) days after the CIoU1g Date, Assured Guaranty will be provided with three (3) complete sets of execuled documents, preferably on CD-ROM or, if ~OM's are not available, 81"1 unbound copy d the transalpt. Inspection Rights; FinanclaI Statements. The Obligor must allow Assured Guaranty or its agent access to all non- confidential records. The Obligor must provide to Assured Guaranty such records and notices as reasonably may be requested by Assured Guaranty, including without limitation the following: financial reports, operational statistics and strategic plans. if any, a~ any other records or notices to be provided to the Trustee or the Paying Agent pursuant to the terms of the ordinance,. resolution, trust indenture or other financing documentation or relating to the Obligations. RatIng AgercJ Fees. Each rating agency rating the Obligations assesses fees with respect to such rating, which fees are payable by the Issuer directly to each such rating agency. Questions With respect to such fees should be addressed by the Issuer directly to the applicable rating agency. -2- Legal Fees. Assured Guaranty will be responsible for its own attorneys' fees and expenses incurred In connection with the issuance of the PoHcy. execution and Delivery of Commitment. This Commitment may be executed in counterpart by the parties hereto. Very truly yours, ASSURED GUARANTY CORP. ~ The undersigned Obligor hereby accepts the commitment of Assured Guaranty Corp. to issue its Policy with resped to the captioned Obligations, on the terms and subject to the conditions set forth in the Commitment with respect thereto issued by Assured Guaranty Corp. on the Commitment Date set forth above. Acknowledged, accepted and agreed to ssof by: CITY OF ClEARWATER, FLORIDA By: Name: Title: -3- 61S (Neg.-Commitment) EXHIBIT A Assured Guaranty Corp. Additional Terms and Conditions Financial Guarantv Insurance PoIicv The Commitment is subject to the terms and conditions set forth below and in Schedule 1 hereto pertaining to the financing documents and any other documentation for the Obligations (the "Financing Documents"), all of which shall be in form and SUbstanCe satisfaclOfy to Assured Guaranty, in its sole discretion, and shall contain such representations, warranties. covenants, events of default and rights, for the benefit Assured Guaranty, as bond insurer, as are CUStomary for f1nancings of the type contemplated. The following terms and conditions are subject in all respects to modification and supplement baSed on review of the Financing Documents and other materials by Assured Guaranty and Its counsel. 1. Terms. Terms not otherwise defined herein shall have the meanings as set forth in the draft preliminary OffIcial Statement delivered to Assured Guaranty in connection with its review of the transaction. 2. Seady. The Obligations shall be obligations of the Obligor payable from and secured by (I) Net Revenues of the System. and (Ii) the amounts on deposit In the funds and accounts (excluding the rebate account) established under the Ordinance. 3. Rate Covenant. The Obligor shall fix, establish and maintain such rates and collect such fees, rentals and other charges for the services and facilities of the System and revise the same from time to time whenever necessary. as will always provide Gross Revenues In each Ascal Year sufficient to pay the Cost of Operation and Maintenance of the System in such Fiscal Year. one hundred fifteen per centum (115%) of the Bond Service Requirement becoming due in such Fiscal Year on the Outstanding Parity Bonds, on the outstanding BondS and on all outstanding Additional Bonds, plus one hundred per centum (100%) of all reserve and other payments required to be made pursuant. Such rates, fees, rentals and other charges shall not be reduced so as to be insufficient to provide Gross Revenues for such purposes. . 4. Additional Bonds. The Obligor shall be permitted to Issue Additional Bonds. payable on a parity with the Obligations provided: (a) there shall have been obtained and filed with the CIer1t a certificate of the Finance Director stating: (a) that the books and records of the Obligor relative to the System have been audited by a qualified and recognized firm ofindependent certified public accountants; (b) baSed on such audited financial statement, the adjusted Net Revenues derived for the Fiscal Year preceding the date of issuance of the p(OpOsed Additional Bonds or for any twelve (12) consecutive months during the eighteen (18) months immediately preceding the date of issuance of the Additional Bonds with respect to which such certificate is made, are at least equal to 120% of the Maximum Bond Service Requirement becoming due in any Fiscal Year thereafter on all Parity Bonds and the Bonds issued under the Ordinance,if any, then Outstanding, and on the bonds proposed to be issued. Upon recommendation of the Consulting Engineers, the Net Revenues certified pursuant to (b) in the previous paragraph may be adjusted by including: (8) 100% of the additional Net Revenues which In the opinion of the Consulting Engineer would have been derived by the Obligor from rate increases adopted before the Additional Bonds are issued, if such rate increases had been Implemented before the commencement of the period for which such Net Revenues are being certified. and (b) 100% of the additional Net Revenues estimated by the Consulting Engineer to be derived during the first full twelve month period after the facilities of the System are extended, enlarged, improved or added to with the proceeds of the Additional Bonds with respect to which such certificate is made. The adjustments described in (b) of this paragraph may only be made if the Net Revenues as adjusted under (a) of the prior paragraph for the period for which such Net Revenues are being certified equals at least 1.00 times the Maximum Bond Service Requirement becoming due in any Fiscal Year thereafter on (i) all Bonds then outstanding; and (Ii) on the Additional Bonds with respect to which such certificate is made. InBUlII'lC8. The Obligor shall maintain insurance covering risks (including, without Ilmltation, property and casualty general liability and professional liability), if available and affordable, in amounts as customarily maintained by Florida coastal municipal owed utility systems of similar size and conducting similar operations of the Obligor. The Obligor currently self insures and may continue to self insure, in whole orin part. provided that the Obligor's self insurance plan provides for (I) the maintenance of a self-insurance fund funded in an amount determined (initially and on at least an annual basis) by an independent ac:tuary employing accepted actuarial techniques and (ii) the establishment and maintenance of a claims processing ~nd risk management program. The Obligor shall timely deposit any amount necessary to. cause such self <Insurance fund to be funded In the amount determined by such ac:tuary. 5. 6. Debt ServIce Reserve Fund. The debt service reserve flA1d will be requil'ed to be funde4 in an amount equal to maximum annual debt service on all outstanding bonds. Including the Obligations,. unI otherwise agreed to by Assured Guaranty a surety will not be deemed to be an acceptable substitute. No Purchase In Lieu of Redempllon. Without the prior written consent of Assured G ranty, no Obligations insured by Assured Guaranty shall be purchased by the Obligor, or any of its affiliates! in lieu of redemption. unless such Obligations are redeemed, defeased or cancelled. I I I I 7. 8. Interest Rate Exchange Agreement. Any interest rate exchange agreement (an "Interest Rate ExchaOQe Aareementj entered into by the Obligor in connection with the Obligations and any parity obligations subsequent to the date hereof (so long as any Obligations insured by Assured Guaranty remain outstanding) shall meet the following conditions: (i) the Interest Rate Exchange Agreement must be entered into to manage interest costs related to, or a hedge against (a) assets then held, or (b) debt then outstanding, or (c) debt reasonably expected to be issued within the next twelve (12) months, and (Ii) the Interest Rate Exchange Agreement shall not contain any leverage element or multiplier component greater than. 1.0x unless there is a matching hedge arrangement which effectively off-sets the exposure from any such element or componenl Unless otherwise consented to In writing by Assured Guaranty, any uninsured net settlement, breakage or other termination amount then in effect shall be subordinate to debt service on the Obligations and on any debt on parity with the Obligations. The Obligor shall not terminate Interest Rate Exchange Agreement unless it demonstrates to the satisfaction of Assured Guaranty prior to the payment of any such termination amount that such payment will not cause the Obligor to be in default under the Financing Documents, including but not limited to, any monetary obligations thereunder. All counterpartles or guarantors to any Interest Rate Exchange Agreement must have a rating of at least "A." and "/>,3" by Standard & Poors ("~ and Moody's Investors Service r~j. If the counterparty or guarantor's rating falls below "A-" or "/>,3" by either S&P or Moody's, the counterparty or guarantor shall execute a credit support annex to the Interest Rate Exchange Agreement, which credit support annex shall be acceptable to Assured Guaranty. Unless otherwise consented to by Assured Guaranty, if the counterparty or the guarantor's long term unsecured rating falls below "8aa1" or "BB8+" by either Moody's or S&P, a replacement counterparty or guarantor, acceptable to Assured Guaranty, shall be required. 9. Reporting Requirements. In addition to the items required in Schedule 1 hereto, the Obligor will furnish, or cause to be furnished, to Assured Guaranty: (a) the fiscal year budget of the Obligor within thirty (30) days after adoption of such budget; (b) annual audits prepared by an independent certified public accountant, within two hUndred ten (210) days of the completlon of the Obligor's fiscal year together with a certificate of the Obligor stating that no event of default has occurred or Is continuing under the Financing Documents; (c) prior to issuing additional debt secured on parity with the Obligations, any disclosure docI.Irnent or financing agreement pertaining to such additional debt, which disclosure document or financing agreement shall include, without limitation, the applicable maturity schedule, interest rate or rates, redemption and security provisions pertaining to any such additional debt; and (d) within thirty (30) days following any litigation or Investigation that may have a materlal adverse affect on. the financial position of the System notice of such litigation. 10. Opinions. Assured Guaranty shall be addressed or entitled to rely upon the following opinions of counsel, which opinions shall include all opinions as are customary for financings of the type contemplated and otherwise shall be in fonn and content acceptable to Assured Guaranty: a. the approving opinion, supplemental opinion (but only to the extent such supplemental opinion covers matters beyond customary disclosure and securities law opinions) and defeasance opinion (If any) Qf Bond Counsel: and b. the opinion of counsel to any other party, the obligations of which are material to the security for the Obligations. Schedule 1 GENERAL DOCUMENT PROVISIONS A. Notices and Oth~r Information. The Financing Oocumenls must provide that: 1. Any notice that is required to be given to holders of the Obligations (the .Bon~holders"), nationally recognized municipal securities information repositories or state information depositories pursuant to Rule 15c2-12(b)(5) adopted by the Securities and Exchange Commission or to the Trustee pursuant to the FinancingOocumenls shall also be provided to Assured Guaranty, simultaneously with the sending of such notices. In addition, to the extent that the Issuer or the Obligor has entered into a continuing disclosure agreement, covenant or undertaking with respect to the Obligations, all information fumished pursuant to such agreemenls shall also be provided to Assured Guaranty, simultaneously with the furnishing of such information. 2. All demands, notices and other information required to be given to Assured Guaranty under the Financing Documenls shall be in writing and shall be mailed by registered or certified mail or personally delivered or telecopied to the recipient as follows: Assured Guaranty Corp. 1325 Avenue of the Americas New York. New York 10019 Attn:Risk Management Department (Re: Policy No. r )) Telecopy No.: (212) 581-3268 Confirmation: (212) 974-0100 Email: riskmanaoementdept@assuredguaranty.com (In each case in which notice or other communication refers to an Event of Default, a claim on the Policy or any event with respect to which failure on the part of Assured Guaranty to respond shall be deemed to constitute consent or acceptance, then such demand, notice or other communication shall be marked to indicate .URGENT MATERIAL ENCLOSEO. and shall also be sent to the attention of the General Counsel at the same address and telecopy number above or at aeneralcounsel@assuredguarantv.com.) 3. Assured Guaranty shall have the right to receive such additional information as it may reasonably request. 4. The Issuer and the Obligor will permit Assured Guaranty to discuss the affairs, finances and accounls of the Issuer and the Obligor or any information Assured Guaranty may reasonablY request regarding the security for the Obligations with appropriate officers of the Issuer and the Obligor and will use commercially reasonable efforls to enable Assured Guaranty to have access to the facilities, books and records of the Issuer and the Obligor on any business day upon reasonable prior notice. 5. The Trustee shall notify Assured Guaranty of any failure of the Issuer or the Obligor to provide notices, certificates and other information under the Financing Documenls. B. Oefea~nce. In the event that the principal and/or interest due on the Obligations shall be paid by Assured Guaranty pursuant to the Policy, the Obligations shall remain oulstanding for all purposes, not be defeased or otherwise satisfied and not be considered paid by the Issuer, and the assignment and pledge of the trust estate and all covenanls, agreemenls and other obligations of the Issuer to the registered owners shall continue to exist and shall run to the benefit of Assured Guaranty, and Assured Guaranty shall be subrogated to the righls of such registered owners including, without limitation, any righls that such owners may have in respect of securities law violations arising from the offer and sale of the Obligations. In addition, the defeasance section of the Financing Oocumenls shall require the following items: a. An opinion of Bond Counsel to the effect (i) that the defeasance will not adversely impact the exclusion from gross income for federal income tax purposes of interest on the Obligations or refunded bonds and (ii) that the Obligations are no longer .Oulstanding" under the Financing Oocument; 8-1 b. A refunding trust or escrow agreement (the "Escrow .A,Qreemenr) and an opinion of counsel regarding the validity and enforceability of the Escrow Agreement; and c. The Escrow Agreement shall provide that: i. Any substitution of securities shall require verification by an independent certified pUblic accountant and the prior written consent of Assured Guaranty. ii. The Issuer Will not exercise any optional redemption of Obligations secured by the Escrow Agreement or any other redemption other than mandatory sinking fund redemptions unless (i) the right to make any such redemption has been expressly reserved in the Escrow Agreement and such reservation has been disclosed in detail in the official statement for the refunding bonds, and (ii) as a condition of any such redemption there shall be provided to Assured Guaranty a verification of an independent certified public accountant as to the sufficiency of escrow receipts Without reinvestment to meet the escrow requirements remaining folloWing such redemption. iii. The Issuer shall not amend the Escrow Agreement or enter into a forward purchase agreement or other agreement With respect to rights in the escrow without the prior written consent of Assured Guaranty. C. Trustee (or Payino AQent). The Financing Documents must include the folloWing provisions: 1. Assured Guaranty shall receive prior written notice of any name change of the Trustee (or Paying Agent) or the removal or resignation of the Trustee (or Paying Agent). 2. No removal or resignation of the Trustee (or Paying Agent) shall take effect until a successor, acceptable to Assured Guaranty, shall be appointed. 3. The Trustee (or Paying Agent) may be removed at any time, at the request of Assured Guaranty, for any breach of its obligations under the Financing Documents. 4. NotWithstanding any other provision of such Financing Document, in determining whether the rights of Bondholders Will be adversely affected by any action taken pursuant to the terms and provisions thereof, the Trustee (or Paying Agent) shall consider the effect on the Bondholders as if there were no Policy. D. Amendments and Suoolements. With respect to amendments or supplements to the Financing Documents which do not require the consent of the Bondholders, Assured Guaranty must be given prior written notice of any such amendments or supplements. With respect to amendments or supplements to the Financing Documents which do require the consent of the Bondholders, Assured Guaranty's prior written consent is required. All Financing Documents must contain a provision that requires that copies of any amendments or supplements to such documents which are consented to by Assured Guaranty shall be sent to the rating agencies that have assigned a rating to the Obligations. E. Assure~ Gualqntv as Third Plilftv BeneficialY. To the extent that the Financing Documents confer upon or give or grant to Assured Guaranty any right, remedy or claim under or by reason of the Financing Documents, the Financing Documents must contain a provision which states that: "Assured Guaranty is explicitly recognized as being a third party beneficiary hereunder and may enforce any such right. remedy or claim conferred, given or granted hereunder." F. Control RiQf1ts. Assured Guaranty shall be deemed to be the holder of all of the Obligations for purposes of (a) exercising all remedies and directing the Trustee to take actions or for any other purposes following an Event of Default (as defined in the resolution, indenture or ordinance), and (b) granting any consent, waiver, direction or approval or taking any action permitted by or required under the indenture, resolution or ordinance, as the case may be. to be granted or taken by the holders of such Obligations. G. Con~ent Riohtsof Assured Guarantv. The Financing Documents shall include the following consent provisions: 5-2 1. Consent of Assured Guaranty. Any provision of this Financing Document expressly recognizing or granting rights in or to Assured Guaranty may not be amended in any manner that affects the rights of Assured Guaranty hereunder without the prior written consent of Assured Guaranty. 2. Consent of Assured Guaranty in Addition to Bondholder Consent Wherever the Financing Documents require the consent of Bondholders, Assured Guaranty's prior written consent shall also be required. 3. Consent of Assured Guaranty in the Event of Insolvency. Any reorganization or liquidation plan with respect to the Obligor must be acceptable to Assured Guaranty. In the event of any such reorganization or liquidation, Assured Guaranty shall have the right to vote on behalf of all Bondholders who hold Obligations guaranteed by Assured Guaranty absent a payment default by Assured Guaranty under the Policy. fin transactions for which aces/eration is not a remedy for an event of default, the following provision is to be included in the Rnancing Documents.} 4. Consent of Assured Guaranty Upon Defauh. Anything in this Financing Document to the contrary notwithstanding, upon the occurrence and continuance of an event of default as defined herein, Assured Guaranty shall be entitled to control and direct the enforcement of all rights and remedies granted to the Bondholders or the Trustee for the benefit of the Bondholders under this Financing Document. [In transactions for which aces/eration is a remedy for an event of defauh, the following two provisions are to be included in the Financing Documents in lieu of the provision 4 above.] 4. Consent of Assured Guaranty Upon Defauh. Anything in this Financing Document to the contrary notwithstanding, upon the occurrence and continuance of an event of default as defined herein, Assured Guaranty shall be entitled to control and direct the enforcement of all rights and remedies granted to the Bondholders or the Trustee for the benefit of the Bondholders under this Financing Document, including, without limitation, (i) the right to accelerate the principal of the Obligations as described in this Financing Document and (ii) the right to annul any declaration of acceleration. Assured Guaranty also shall be entitled to approve all waivers of events of default. 5. Acceleration Rights. Upon the occurrence of an event of default as defined herein, the Trustee may, with the prior written consent of Assured Guaranty, and shall at the direction of Assured Guaranty or the Bondholders with the prior written consent of Assured Guaranty, by written notice to the Issuer and Assured Guaranty, declare the principal of the Obligations to be immediately due and payable. whereupon that portion of the principal of the Obligations thereby coming due and the interest thereon accrued to the date of payment shall,without further action, become and be immediately due and payable, anything in this Financing Document or the Obligations to the contrary notwithstanding. H. ReimbursetnAnt Qblioatio~. The principal Financing Document governing the Obligor's obligations in respect of the transaction shall include the following provisions: 1. The Obligor hereby agrees to payor reimburse Assured Guaranty (A) all amounts paid by Assured Guaranty under the Policy, and (B) to the extent permitted by law, any and all charges, fees, <XiSts and expenses which Assured Guaranty may reasonably payor incur, including, but not limited to, fees and expenses of attorneys, accountants, consultants and auditors and reasonable costs of investigations, in connection with (i) any accounts established to facilitate payments under the Policy, (ii) the admInistration, enforcement, defense or preservation of any rights in respect of this Financing Document or any other Financing Document, including defending, monitoring or participating in any litigation or proceeding (including any bankruptcy proceeding in respect of the Obligor or any affiliate thereof) relating to this Financing Document or any other Financing Document. any party to this Financing Document or any other Financing Document or the transaction contemplated by the Financing Documents, (iii) the foreclosure against, sale or. other disposition of any collateral securing any obligations under this Financing Document or any other Financing Document, or the pursuit of any remedies under this FinancIng Document or any other Rnancing Document, to the extent such <XiSts and expenses are not recovered from such foreclosure, sale or other disposition, or (iv) any amendment, waiver or other action with respect to, or related to, this Financing Document or any other Financing Document whether or not executed or 5-3 completed; costs and expenses shall include a reasonable allocation of compensation and overhead attributable to time of employees of Assured Guaranty spent in connection with the actions described in clauses (ii) - (iv) above. In addition, Assured Guaranty reserves the right to charge a reasonable fee as a condition to executing any amendment, waiver or consent proposed in respect of this Financing Document or any other Financing Document. The Obligor will pay interest on the amounts owed in this paragraph from the date of any payment due or paid, at the per annum rate of interest publicly announced from time to time by JP Morgan Chase Bank, National Association at its principal office in New York, New York as its prime lending rate (any change in such prime rate of interest to be effective on the date such change is announced by JPMorgan Chase Bank, National Association) plus three percent (3%) per annum (the "ReirtJbursement Ham"). The Reimbursement Rate shall be calculated on the basis of the actual number of days elapsed over a 360-day year. In the event JPMorgan Chase Bank ceases to announce its prime rate publicly, the prime rate shall be the publicly announced prime rate or base lending rate of such national bank. as Assured Guaranty shall specify. 2. In addition to any and all rights of reimbursement, subrogation and any other rights pursuant hereto or under law or in equity, the Obligor agrees to pay or reimburse Assured Guaranty, to the extent permitted by law, any and all charges, fees, costs, claims, losses, liabilities (including penalties), judgments, demands, damages, and expenses which Assured Guaranty or. its officers, directors, shareholders, employees, agents and each Person. if any, who controls Assured Guaranty within the meaning of either Section 15 of the Securities Act of 1933. as amended. or Section 20 of the Securities Exchange Act of 1934, as amended, may reasonably payor incur, including, but not limited to. fees and expenses of attomeys. accountants, consultants and auditors and reasonable costs of investigations, of any nature in connection with, in respect of or relating to the transactions contemplated by this Financing Document or any other Financing Document by reason of: a. any omission or action (other than of or by Assured Guaranty) in connection with the offering, issuance. sale, remarketing or delivery of the Obligations; b. the negligence. bad faith, willful misconduct, misfeasance. malfeasance or theft committed by any director, officer, employee or agent of the Issuer or the Obligor in connection with any transaction arising from or relating to this Financing Document or any other Financing Document; c. the violation by the Issuer or the Obligor of any law, rule or regulation, or any judgment, order or decree applicable to it; d. the breach by the Issuer or the Obligor of any representation, warranty or covenant under this Financing Document or any other Rnancing Document or theoccurrenca, in respect of the Issuer or the Obligor, under this Financing Document or any other Financing Document of any "event of default" or any event which, with the giving of notice or lapse of time or both, would constitute any "event of default"; or e. any untrue statement or alleged untrue statement of a material fact contained in any official statement relating to the Obligations, if any, or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such claims arise out of or are based upon any untrue statement or omission in information included in an official statement, if any, and fumished by Assured Guaranty in writing expressly for use therein. I. PaYment Procedure Under the Po/icv. The F"mncing Documents shaD include the following provisions: 1. At least two (2) Business Days prior to each payment date on the Obligations. the Trustee will determine whether there will be sufficient funds to pay all principal of and interest on the Obligations due on the related payment date and shall immediately notify Assured Guaranty or its designee on the same Business Day by telephone or electronic mail, confirmed in writing by registered or certified mail, of the amount of any deficiency. Such notice shall specify the amount of the anticipated deficiency. the Obligations to which such deficiency is applicable and whether such Obligations will be deficient as to principal or interest or both. If the deficiency is made up in whole or in part prior to or on the payment date, the Trustee shall so notify Assured Guaranty or its designee. 54 2. The Trustee shall, after giving notice to Assured Guaranty as provided above, make available to Assured Guaranty and, at Assured Guaranty's direction, to any Fiscal Agent, the registration books of the Issuer maintained by the Trustee and all records relating to the funds maintained under the Financing Documents. 3. The Trustee shall provide Assured Guaranty and any Fiscal Agent with a list of registered owners of Obligations entitled to receive principal or interest payments from Assured Guaranty under the terms of the Policy, and shall make arrangements with Assured Guaranty, the Fiscal Agent or another designee of Assured Guaranty to (i) mail checks or drafts to the registered owners of Obligations entitled to receive full or partial interest payments from Assured Guaranty and (ii) pay principal upon Obligations surrendered to Assured Guaranty, the Fiscal Agent or another designee of Assured Guaranty by the registered owners of Obligations entitled to receive full or partial principal payments from Assured Guaranty. 4. The Trustee shall, at the time it provides notice to Assured Guaranty of any deficiency pursuant to clause 1. above, notify registered owners of Obligations entitled to receive the payment of principal or interest thereon from Assured Guaranty (i) as to such deficiency and its entitlement to receive principal or interest, as applicable, (ii) that Assured Guaranty will remit to them all or a part of the interest payments due on the related payment date upon proof of its entitlement thereto and delivery to Assured Guaranty or any Fiscal Agent, in form satisfactory to Assured Guaranty, of an appropriate assignment of the registered owner's right to payment, (iii) that, if they are entitled to receive partial payment of principal from Assured Guaranty, they must surrender the related Obligations for payment first to the Trustee, which will note on such Obligations the portion of the principal paid by the Trustee and second to Assured Guaranty or its designee, together with an appropriate assignment, in form satisfactory to Assured Guaranty, to permit ownership of such Obligations to be registered in the name of Assured Guaranty, which will then pay the unpaid portion of principal, and (iv) that, if they are entitled to receive full payment of principal from Assured Guaranty, they must surrender the related Obligations for payment to Assured Guaranty or its designee, rather than the Trustee, together with the an appropriate assignment, in form satisfactory to Assured Guaranty, to permit ownership of such Obligations to be registered in the name of Assured Guaranty. 5. In addition, if the Trustee has notice that any holder of the Obligations has been required to disgorge payments of principal or interest on the Obligations previously Due for Payment pursuant to a final non- appealable order by a court of competent jurisdiction that such payment constitutes an avoidable preference to such holder within the meaning of any applicable bankruptcy laws, then the Trustee shall notify Assured Guaranty or its designee of such fact by telephone or electronic notice, confirmed in writing by registered or certified mail. 6. The Trustee will be hereby irrevocably designated, appointed, directed and authorized to act as attorney-in-fact for holders of the Obligations as follows: a. If and to the extent there is a deficiency in amounts required to pay interest on the Obligations, the Trustee shall (a) execute and deliver to Assured Guaranty, in form satisfactory to Assured Guaranty, an instrument appointing Assured Guaranty as agent for such hoklers in any legal proceeding related to the payment of such interest and an assignment to Assured Guaranty of the daims for interest to which such deficiency relates and which are paid by Assured Guaranty, (b) receive as designee of the respective hoIcIers (and not as Trustee) in accordance with the tenor of the Policy payment from Assured Guaranty with respect to the daims for interest so assigned, and (c) disburse the same to such respective holders; and b. If and to the extent of a deficiency in amounts required to pay principal of the Obfagations, the Trustee shall (a) execute and deliver to Assured Guaranty, in form satisfactory to Assured Guaranty, an instrument appointing Assured Guaranty as agent for such hoIcIer in any legal proceeding related to the payment of such principal and an assignment to Assured Guaranty of the Obligation surrencIered to Assured Guaranty in an amount equal to the principal amount thereof as has not previously been paid or for which moneys are not heIcI by the Trustee and available for such payment (but such assignment shall be delivered only if payment from Assured Guaranty is received), (b) receive as designee of the respective holders (and not as Trustee) in accordance with the tenor of the Policy payment therefore from Assured Guaranty, and (c) disburse the same to such holders. 5-5 7. Payments with respect to claims for interest on and principal of Obligations disbursed by the Trustee from proceeds of the Policy shall not be considered to discharge the obligation of the Issuer with respect to such Obligations, and Assured Guaranty shall become the owner of such unpaid Obligation and claims for the interest in accordance with the tenor of the assignment made to it under the provisions of this subsection or otherwise. 8. Irrespective of whether any such assignment is executed and delivered, the Issuer and the Trustee hereby agree for the benefit of Assured Guaranty that: a. they recognize that to the extent Assured Guaranty makes payments directly or indireclly (e.g" by paying through the Trustee), on aocount of principal of or interest on the Obligations, Assured Guaranty will be subrogated to the rights of such holders to receive the amount of such principal and interest from the Issuer, with interest thereon as provided and solely from the sources stated in the Financing Documents and the Obligations; and b. they will accordingly pay to Assured Guaranty the amount. of such principal and interest, with interest thereon as provided in the Financing Doa.llnents and the Obligations, but only from the sources and in the mam.er provided herein for the payment of principal of and interest on the Obligations to holders, and will otherwise treat Assured Guaranty as the owner of such rights to the amount of such principal and Interest. 9. Assured Guaranty shall be entitled to pay principal or interest on the Obligations that shall become Due for Payment but shall be unpaid by reason of Nonpayment (as such terms are defined in the Policy) and any amounts due on the Obligations as a result of acceleration of the maturity thereof in accordance with this agreement, whether or not Assured Guaranty has received a Notice (as defined in the Policy) of Nonpayment or a claim upon the Policy. 10. In addition, Assured Guaranty shall, to the extent it makes any payment of principal or interest on the Obligations become subrogated to the rights of the recipients of such payments in accordance with the terms of the Policy, and to evidence such subrogation (i) in the case of claims for interest, the Trustee shall note Assured Guaranty's rights as subrogee on the registration books of the Issuer maintained by the Trustee, upon receipt of proof of payment of interest thereon to the registered holders of the Obligations, and (ii) in the case of claims for principal, the Trustee, if any, shall note Assured Guaranty's rights as subrogee on the registration books of the Issuer maintained by the Trustee, upon surrender of the Obligations together with receipt of proof of payment of principal thereof. S-6 Schedule 1 GENERAL DOCUMENT PROVISIONS A. Notices and Other Information. The Financing Documents must provide that: 1. Any notice that is required to be given to holders of the Obligations (the .~onqholders.). nationally recognized municipal securities information repositories or state information depositories pursuant to Rule 15c2-12(b)(5) adopted by the Securities and Exchange Commission or to the Trustee pursuant to the Financing Documents shall also be provided to Assured Guaranty, simultaneously with the sending of such notices. In addition, to the extent that the Issuer or the Obligor has entered into a continuing disclosure agreement, covenant or undertaking with respect to the Obligations, all information fumished pursuant to such agreements shall also be provided to Assured Guaranty, simultaneously with the fumishing of such information. 2. All demands, notices and other information required to be given to Assured Guaranty under the Financing Documents shall be in writing and shall be mailed by registered or certified mail or personally delivered or telecopied to the recipient as follows: Assured Guaranty Corp. 1325 Avenue of the Americas New York, New York 10019 Attn: Risk Management Department (Re: Policy No. r 1) Telecopy No.: (212) 581-3268 Confirmation: (212) 974-0100 Email: riskmanaaementdeot@assuredguaranty.com (In each case in which notice or other communication refers to an Event of Default, a daim on the Policy or any event with respect to which failure on the part of Assured Guaranty to respond shall be deemed to constitute consent or acceptance, then such demand, notice or other communication shall be marked to indicate .URGENT MATERIAL ENCLOSED. and shall also be sent to the attention of the General Counsel at the same address and telecopy number above or at aeneralcounsel{Q)assuredauarantv.com.) 3. Assured Guaranty shall have the right to receive such additional information as it may reasonably request. 4. The Issuer and the Obligor will permit Assured Guaranty to discuss the affairs, finances and accounts of the Issuer and the Obligor or any information Assured Guaranty may reasonably request regarding the security for the Obligations with appropriate officers of the Issuer and the Obligor and will use commercially reasonable efforts to enable Assured Guaranty to have access to the facilities, books and records of the Issuer and the Obligor on any business day upon reasonable prior notice. 5. The Trustee shall notify Assured Guaranty of any failure of the Issuer or the Obligor to provide notices, certifICates and other information under the Financing Documents. B. Defeasance. In the event that the principal and/or interest due on the Obligations shall be paid by Assured Guaranty pursuant to the Policy, the Obligations shall remain outstanding for aU purposes, not be defe8sed or otherwise satisfied and not be considered paid by the Issuer, and the assignment and pledge of the trust estate and all covenants, agreements and other obligations of the Issuer to the registered owners shall continue to exist and shall run to the benefit of Assured Guaranty, and ASSUred Guaranty shall be subrogated to the rights of such registered owners induding, without limitation, any rights that such owners may have in respect of securities law violations arising from the offer and sale of the Obligations. In addition, the defeasance section of the Financing Documents shall require the following items: a. An opinion of Bond Counsel to the effect (i) that the defeasance will not adversely impact the exclusion from gross income for federal income tax purposes of interest on the Obligations or refunded bonds and (iQ that the Obligations are no longer .Outstanding. under the Financing Document; 5-1 b. A refunding trust or escrow agreement (the -Escrow Aareement") and an opinion of counsel regarding the validity and enforceability of the Escrow Agreement; and c. The Escrow Agreement shall provide that: i. Any substitution of securities shall require verification by an independent certified public accountant and the prior written consent of Assured Guaranty. ii. The Issuer will not exercise any optional redemption of Obligations secured by the Escrow Agreement or any other redemption other than mandatory sinking fund redemptions unless (i) the right to make any such redemption has been expressly reserved in the Escrow Agreement and such reservation has been disclosed in detail in the official statement for the refunding bonds. and (ii) as a condition of any such redemption there shall be provided to Assured Guaranty a verification of an independent certified publiC accountant as to the sufficiency of escrow receipts without reinvestment to meet the escrow requirements remaining following such redemption. iii. The Issuer shall not amend the Escrow Agreement or enter into a forward purchase agreement or other agreement with respect to rights in the escrow without the prior written consent of Assured Guaranty. C. Trustee (or Pavin~ AoenQ. The Financing Documents must include the following provisions: 1. Assured Guaranty shall receive prior written notice of any name change of the Trustee (or Paying Agent) or the removal or resignation of the Trustee (or Paying Agent). 2. No removal or resignation of the Trustee (or Paying Agent) shall take effect until a successor, acceptable to Assured Guaranty, shall be appointed. 3. The Trustee (or Paying Agent) may be removed at any time, at the request of Assured Guaranty, for any breach of its obligations under the Financing Documents. 4. Notwithstanding any other provision of such Financing Document, in determining whether the rights of Bondholders will be adversely affected by any action taken pursuant to the terms and provisions thereof. the Trustee (or Paying Agent) shall consider the effect on the Bondholders as if there were no Policy. D. Amendments apd SUDDleroen~. With respect to amendments or supplements to the Financing Documents which do not require the consent of the Bondholders, Assured Guaranty must be given prior written notice of any such amendments or supplements. With respect to amendments or supplements to the Financing Documents which do require the consent of the Bondholders, Assured Guaranty's prior written consent is required. All Financing Documents must contain a provision that requires that copies of any amendments or supplements to such documents which are consented to by Assured Guaranty shall be sent to the rating agencies that have assigned a rating to the Obligations. E. Assured 9ua~ntv as Third p~"" Beneficiarv. To the extent that the Financing Documents confer upon or give or grant to Assured Guaranty any right, remedy or claim under or by reason of the Financing Documents, the Financing Documents must contain a provision which states that: -Assured Guaranty is explicitly recognized as being a third party beneficiary hereunder and may enforce any such right, remedy or claim conferred, given or granted hereunder." F. Control Riahts. Assured Guaranty shall be deemed to be the holder of all of the Obligations for purposes of (a) exercising all remedies and directing the Trustee to take actions or for any other purposes following an Event of Default (as defined in the resolution, indenture or ordinance), and (b) granting any consent, waiver, direction or approval or taking any action permitted by or required under the indenture, resolution or ordinance, as the case may be, to be granted or taken by the holders of such Obligations. G. Consel)1: Rioh!s of Assured Guarantv. The Financing Documents shall include the following consent provisions: 5-2 1. Consent of Assured Guaranty. Any provision of this Financing Document expressly recognizing or granting rights in or to Assured Guaranty may not be amended in any manner that affects the rights of Assured Guaranty hereunder without the prior written consent of Assured Guaranty. 2. Consent of Assured Guaranty in Addition to Bondholder Consent Wherever the Financing Documents require the consent of Bondholders, Assured Guaranty's prior written consent shall also be required. 3. Consent of Assured Guaranty in the Event of Insolvency. Any reorganization or liquidation plan with respect to the Obligor must be acceptable to Assured Guaranty. In the event of any such reorganization or liquidation, Assured Guaranty shall have the right to vote on behalf of all Bondholders who hold Obligations guaranteed by Assured Guaranty absent a payment default by Assured Guaranty under the Policy. [In transactions for which acceleration is not a remedy for an event of default, the following provision is to be induded in the Financing Documents.] 4. Consent of Assured Guaranty Upon DefauR. Anything in this Financing Document to the contrary notwithstanding, upon the occurrence and continuance of an event of default as defined herein, Assured Guaranty shall be entitled to control and direct the enforcement of all rights and remedies granted to the Bondholders or the Trustee for the benefit of the Bondholders under this Financing Document. [In transactions for which acceleration is a remedy for an event of defauR, the following two provisions are to be included in the Financing Documents in lieu of the provision 4 above.] 4. Consent of Assured Guaranty Upon DefauR. Anything in this Financing Document to the contrary notwithstanding, upon the occurrence and continuance of an event of def$Jlt as defined herein, Assured Guaranty shall be entitled to control and direct the enforcement of all rights and remedies granted to the Bondholders or the Trustee for the benefit of the Bondholders under this Financing Document, including, without limitation, (i) the right to accelerate the principal of the Obligations as described in this Financing Document and (ii) the right to annul any declaration of acceleration. Assured Guaranty also shall be entitled to approve all waivers of events of default. 5. Acceleration Rights. Upon the occurrence of an event of default as defined herein, the Trustee Olay, with the prior written consent of Assured Guaranty, and shall at the direction of Assured Guaranty or the Bondholders with the prior written consent of Assured Guaranty, by written notice to the Issuer and Assured Guaranty, declare the principal of the Obligations to be immediately due and payable, whereupon that portion of the principal of the Obligations thereby coming due and the interest thereon accrued to the date of payment shall, without further action, become and be imOlediately due and payable, anything in this Financing Document or the Obligations to the contrary notwithstanding. H. Reimbursement Obliaatio~. The principal Rnancing Document governing the Obligor's obligations in respect d the transaction shall include the following provisions: 1. The Obligor hereby agrees to payor reimburse Assured Guaranty (A) all amounts paid by Assured Guaranty under the Policy, and (B) to the extent permitted by law, any and all charges~ fees, costs and expenses which Assured Guaranty may reasonably pay or incur, including, but not limited to, fees and expenses of attorneys, accountants, consultants and auditors and reasonable costs of investigations, in connection with (i) any accounts established to facilitate payments under the Policy, (ii) the administration, enforcement, defense or preservation of any rights in respect of this Financing Document or any other Financing Document, including defending, monitoring or participating in any litigation or proceeding Oncluding any bankruptcy proceeding in respect of the Obligor or any affiliate thereof) relating to this Financing Document or any other Financing Document, any party to this Financing Document or any other Financing Document or the transaction contemplated by the Financing Documents. (iii) the foreclosure against, sale or other disposition of any collateral securing any obligations under this Financing Document or any other Financing Document, or the pursuit of any remedies under this Financing Document or any other Financing Document, to the extent such costs and expenses are not recovered. from such foreclosure, sale or other disposition, or (iv) any amendment, waiver or other action with respect to, or related to, this Financing Document or any other Financing Document whether or not executed or 5-3 completed; costs and expenses shall include a reasonable allocation of compensation and overhead attributable to time of employees of Assured Guaranty spent in connection with the actions described in clauses (ii) - (iv) above. In addition, Assured Guaranty reserves the right to charge a reasonable fee as a condition to executing any amendment. waiver or consent proposed in respect of this Financing Document or any other Financing Document. The Obligor will pay interest on the amounts owed in this paragraph from the date of any payment due or paid. at the per annum rate of interest publicly announced from time to time by JP Morgan Chase Bank. National Association at its principal office in New York. New York as its prime lending rate (any change in such prime rate of interest to be effective on the date such change is announced by JPMorgan Chase Bank, National Association) plus three percent (3%) per annum (the .R~irnbursement ~"). The Reimbursement Rate shall be calculated on the basis of the actual number of days elapsed over a 360-day year. In the event JPMorgan Chase Bank ceases to announce its prime rate publicly, the prime rate shall be the publicly announced prime rate or base lending rate of such national bank. as Assured Guaranty shall specify. 2. In addition to any and all rights of reimbursement, subrogation and any other rights pursuant hereto or under law or in equity, the Obligor agrees to payor reimburse Assured Guaranty, to the extent permitted by law. any and all charges. fees. costs. claims, losses. liabilities (including penalties). judgments, demands, damages, and expenses which Assured Guaranty or its officers. directors. shareholders, employees. agents and each Person. if any. who controls Assured Guaranty within the meaning of either Section 15 of the Securities Act of 1933, as amended, or Section 20 of the Securities Exchange Act of 1934, as amended, may reasonably payor incur. including. but not limited to, fees and expenses of attomeys, accountants, consultants and auditors and reasonable costs of investigations, of any nature in connection with. in respect of or relating to the transactions contemplated by this Financing Document or any other Financing Document by reason of: a. any omission or action (other than of or by Assured Guaranty) in connection with the offering. issuance, sale, remarketing or delivery of the Obligations; b. the negligence. bad faith, willful misconduct, misfeasance. malfeasance or theft committed by any director, officer. employee or agent of the Issuer or the Obligor in connection with any transaction arising from or relating to this Financing Document or any other Financing Document; c. the violation by the Issuer or the Obligor of any law. rule or regulation, or any judgment, order or decree applicable to it; d. the breach by the Issuer or the Obligor of any representation. warranty or covenant under this Financing Document or any other Financing Document or the occurrence. in respect of the Issuer or the Obligor, under this Financing Document or any other Financing Document of any "event of default" or any event which, with the giving of notice or lapse of time or both. would constitute any "event of default"; or e. any untrue statement or alleged untrue statement of a material fact contained in any official statement relating to the Obligations, if any, or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading. except insofar as such claims arise out of or are based upon any untrue statement or omission in information included in an official statement. if any. and furnished by Assured Guaranty in writing expressly for use therein. I. P~ Procedure Under the pplicv. The Fmancing Documents Shall include the following provisions: 1. At least two (2) Business Days prior to each payment date on the Obligations, the Trustee will determine whether there will be sufficient funds to pay all principal of and interest on the Obligations due on the related payment date and shall immediately notify Assured Guaranty or its designee on the same Business Day by telephone or electronic mail. confirmed in writing by registered or certified mail. of the amount of any deficiency. Such notice shall specify the amount of the anticipated deficiency. the Obligations to which such deficiency is applicable and whether such Ob6gations will be defICient as to principal or interest or both. If the deficiency is made up in whole or in part prior to or on the payment date, the Trustee shall so notify Assured Guaranty or its designee. 54 2. The Trustee shall, after giving notice to Assured Guaranty as provided above, make available to Assured Guaranty and, at Assured Guaranty's direction, to any Fiscal Agent, the registration books of the Issuer maintained by the Trustee and all records relating to the funds maintained under the Financing Documents. 3. The Trustee shall provide Assured Guaranty and any Fiscal Agent with a list of registered owners of Obligations entitled to receive principal or interest payments from Assured Guaranty under the terms of the Policy, and shall make arrangements with Assured Guaranty, the Fiscal Agent or another designee of Assured Guaranty to (i) mail checks or drafts to the registered owners of Obligations entitled to receive full or partial interest payments from Assured Guaranty and (ii) pay principal upon Obligations surrendered to Assured Guaranty, the Fiscal Agent or another designee of Assured Guaranty by the registered owners of Obligations entitled to receive full or partial principal payments from Assured Guaranty. 4. The Trustee shall, at the time it provides notice to Assured Guaranty of any deficiency pursuant to clause 1. above, notify registered owners of Obligations entitled to receive the payment of principal or interest thereon from Assured Guaranty (i) as to such deficiency and its entitlement to receive principal or interest, as applicable, (ii) that Assured Guaranty will remit to them all or a part of the interest payments due on the related payment date upon proof of its entitlement thereto and delivery to Assured Guaranty or any Fiscal Agent, in form satisfactory to Assured Guaranty, of an appropriate assignment of the registered owner's right to payment, (iii) that, if they are entitled to receive partial payment of principal from Assured Guaranty, they must surrender the related Obligations for payment first to the Trustee, which will note on such Obligations the portion of the principal paid by the Trustee and second to Assured Guaranty or its designee, together with an appropriate assignment, in form satisfactory to Assured Guaranty. to permit ownership of such Obligations to be registered in the name of Assured Guaranty, which will then pay the unpaid portion of principal, and (iv) that, if they are entitled to receive full payment of principal from Assured Guaranty, they must surrender the related Obligations for payment to Assured Guaranty or its designee, rather than the Trustee, together with the an appropriate assignment, in form satisfactory to Assured Guaranty, to permit ownership of such Obligations to be registered in the name of Assured Guaranty. 5. In addition, if the Trustee has notice that any holder of the Obligations has been required to disgorge payments of principal or interest on the Obligations previously Due for Payment pursuant to a final no"", appealable order by a court of competent jurisdiction that such payment constitutes an avoidable preference to such holder within the meaning of any applicable bankruptcy laws, then the Trustee shall notify Assured Guaranty or its designee of such fact by telephone or electronic notice. confirmed in Writing by registered or certified mail. 6. The Trustee will be hereby irrevocably designated, appointed, directed and authorized to act as attorney-in-fact for holders of the Obligations as follows: a. If and to the extent there is a deficiency in amounts required to pay interest on the Obligations, the Trustee shall (a) execute and deliver to Assured Guaranty, in form satisfactory to Assured Guaranty, an instrument appointing Assured Guaranty as agent for such holders in any legal proceeding related to the payment of such interest and an assignment to Assured Guaranty of 1he claims for interest to which such c:Iefic:ierKqt relates and which are paid by Assured Guaranty, (b) receive as designee of the respective holders (and not as Trustee) in accordance with the tenor of the Policy payment from Assured Guaranty with respect to the claims for interest so assigned, and (c) disburse the same to such respective holders; and b. If and to the extent of a deficiency in amounts required to pay principal of the Obligations, the Trustee sha. (a) exea.rte and deliver to Assured Guaranty, in form satisfactory to Assured Guaranty, an instrument appointing Assured Guaranty as agent for such holder in any legal proceeding related to the payment of such principal and an assignment to Assured Guaranty of the Obligation surrendered to Assured Guaranty in an amount equal.. to the principal amount thereof as has not previously been paid or for which moneys are not held by the Trustee and available for such payment (but such assignment shall be delivered only if payment from Assured Guaranty is received), (b) receive as designee of the respective holders (and not as Trustee) in accordance with the tenor of the Policy payment therefore from Assured Guaranty, and (c) disburse the same to such holders. 5-5 7. Payments with respect to claims for interest on and principal of Obligations disbursed by the Trustee from proceeds of the POlicy shall not be considered to discharge the obligation of the Issuer with respect to such Obligations, and Assured Guaranty shall become the owner of such unpaid Obligation and claims for the interest in accordance with the tenor of the assignment made to it under the provisions of this subsection or otherwise. 8. Irrespective of whether any such assignment is executed and delivered, the Issuer and the Trustee hereby agree for the benefit of Assured Guaranty that: a. they recognize that to the extent Assured Guaranty makes payments dil9C1ly or indirectly (e.g., by paying through the Trustee), on account of principal of or interest on the Obligations, Assured Guaranty will be subrogated to the rights of such holders to receive the alT1OU1t of such principal and interest from the Issuer, with interest thereon as provided and solely from the sources stated in the Financing Documents and the Obligations; and b. they will accordingly pay to Assured Guaranty the amount of such principal and interest, with interest thereon as provided in the FlI18ncing Documents and the Obligations, but only from the sources and in the manner provided herein for the payment of principal of and interest on the Obligations to holders, and win otherwise treat Assured Guaranty as the owner d such rights to the amount dsuch principal and interest. 9. Assured Guaranty shall be entitled to pay principal or interest on the Obligations that shall become Due for Payment but shall be unpaid by reason of Nonpayment (as such terms are defined in the Policy) and any amounts due on the Obligations as a result of acceleration of the maturity thereof in accordance with this agreement, whether or not Assured Guaranty has received a Notice (as defined in the Policy) of Nonpayment or a claim upon the Policy. 10. In addition, Assured Guaranty shall, to the extent it makes any payment d principal or interest on the Obligations become subrogated to the rights of the recipients of such payments in accordance with the terms of the Policy, and to evidence such subrogation (i) in the case of claims for interest, the Trustee shall note Assured Guaranty's rights as subrogee on the registration books of the Issuer maintained by the Trustee, upon receipt of proof of payment of interest thereon to the registered holders of the Obligations, and (ii) in the case of claims for principal, the Trustee, if any, shall note Assured Guaranty's rights as subrogee on the registration books of the Issuer maintained by the Trustee, upon surrender of the Obligations together with receipt of proof of payment of principal thereof. 8-6 ~' http://clearwater/formsffinance/purchase/Dpt_P-card_Trans_Cover.xls - Windows Internet Explorer r;]@~ ~ http://dearwater /Forms/finance/purchase{Dpty-card3rans _Cover. xis File Edit 'v"lew Insert Format Tools Data Go To Favorites Help 1k~ P T K3 ... = A c ~ 0 l E P-Card Transaction Cover Form -_ r ~uum FiG I H I I J ' ~.~_~~~~_~~_~~__~.-L__~,_,_",~,_l___. 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PCRD-R_OO5_DONN... ill ... i ':I,#' V g "~!i 12:09PM EXHIBIT B ESCROW DEPOSIT AGREEMENT EXHIBIT B ESCROW DEPOSIT AGREEMENT This ESCROW DEPOSIT AGREEMENT, dated as of . 2009, by and between the CITY OF CLEARWATER, FLORIDA, a municipal corporation of the State of Florida (the "Issuer"), and U.S. Bank National Association, a national banking association organized under the laws of the United States of America, as Escrow Holder (the "Escrow Holder"); WIT N E SSE T H: WHEREAS, the Issuer has previously authorized and issued obligations of the Issuer as hereinafter set forth defined as the "Refunded Bonds", as to which the Aggregate Debt Service (as hereinafter defined) is set forth on Schedule A; and WHEREAS, the Issuer has determined to provide for payment of the Aggregate Debt Service of the Refunded Bonds by depositing with the Escrow Holder pursuant to the provisions hereof, cash and Federal Securities (as defined herein), the principal of and interest on which will be at least equal to the Aggregate Debt Service; and WHEREAS, in order to obtain the funds needed for such purpose, the Issuer has authorized and is, concurrently with the delivery of this Agreement, issuing the Series 2009B Bonds more fully described herein; and WHEREAS, the Issuer has determined that the amount to be on deposit from time to time in the Escrow Account, as defined herein, will be sufficient to pay the Aggregate Debt Service; NOW THEREFORE, in consideration of the mutual covenants and agreements herein contained, the Issuer and the Escrow Holder agree as follows (provided however that the Escrow Holder in agreeing to the foregoing shall not be held or deemed responsible in any manner whatsoever for the recitals made herein or in the Ordinance, or the adequacy or sufficiency of the Escrow Requirement): Section 1. Definitions. As used herein, the following terms mean: (a) "Aggregate Debt Service" means, as of any date, the sum of all present and future Annual Debt Service payments then remaining unpaid with respect to the respective Series of the Refunded Bonds. (b) "Agreement" means this Escrow Deposit Agreement. (c) "Annual Debt Service" means, with respect to the redemption date for the Refunded Bonds, the principal of, premium, and interest on the Refunded Bonds coming due on the redemption date as shown on Schedule A attached hereto. (d) "Bonds" or "Series 2009B Bonds" means the Water and Sewer Revenue Refunding Bonds, Series 2009B of the Issuer, authorized by the Ordinance, as herein defined. (e) "Call Date" shall mean (f) "Escrow Account" means the account established and held by the Escrow Holder pursuant to this Agreement, in which cash and investments will be held for payment of the Refunded Bonds. (g) "Escrow Holder" means U.S. Bank National Association, Orlando, Florida a national banking association organized under the laws of the United States of America. (h) "Escrow Requirement" means, as of any date of calculation, the sum of an amount in cash and principal amount of Federal Securities in the Escrow Account which, together with the interest due on the Federal Securities, will be sufficient to pay, as the installments thereof become due, the Annual Debt Service. (i) "Federal Securities" means direct obligations of the United States of America and obligations the principal of or interest on which are fully guaranteed by the United States of America, none of which permit redemption prior to maturity at the option of the obligor. (j) "Irrevocable Instruction and Authorization to Redeem Bonds" means a certificate executed by the Issuer which provides for redemption of the Refunded Bonds on the Call Date, irrevocably instructs the Paying Agent to give notice of such redemption and directs the Paying Agent to pay the Refunded Bonds and the interest thereon upon surrender thereof on their Call Date, whichever is earlier. (k) "Issuer" means the City of Clearwater, Florida. (1) "Ordinance" means Ordinance No. 3674-84 enacted by the Issuer on August 2, 1984, as amended and supplemented by Ordinance 6915-01, enacted November 15, 2001. (m) "Paying Agent" shall mean U.S. Bank National Association, the Paying Agent for the Refunded Bonds, whose address is 225. E. Robinson Street, Suite 250, Orlando, Florida 32801. (n) "Refunded Bonds" shall mean the Series 1998 Bonds maturing on and after (0) "Series 1998 Bonds" shall mean the Issuer's Water and Sewer Refunding Revenue Bonds, Series 1998. Section 2. Deposit of Funds. The Issuer hereby deposits $ with the Escrow Holder in immediately available funds, to be held in irrevocable escrow by the Escrow Holder and applied solely as provided in this Agreement. The Issuer represents that: (a) Such funds are all derived as follows: (1) $ from the net proceeds of the Bonds; (2) $ the Refunded Bonds; and transferred from the Sinking Fund held for the payment of (3) $ Refunded Bonds. transferred from the Reserve Account held for the (b) Such funds, when applied pursuant to Section 3 below, will at least equal the Escrow Requirement as of the date hereof. Section 3. Use and Investment of Funds. The Escrow Holder acknowledges receipt of $ and agrees: (a) to hold the funds in irrevocable escrow during the term of this Agreement, (b) to deposit the sum of $----, representing the $_ of funds from the Sinking Fund for the Refunded Bonds, $_ of funds from the Reserve Account for the Refunded Bonds and $_ from the proceeds of the Bonds, in cash from the amount received by the Issuer in the Escrow Account, and, hold such funds in cash until the -f _ redemption date of the outstanding Series 2009B Bonds, (c) to immediately invest $ of such funds derived from the proceeds of the Bonds by the purchase of the Federal Securities set forth on Schedule B-1 attached hereto, and to immediately invest $ of such funds held for the Refunded Bonds by the purchase of the Federal Securities set forth on Schedule B-2, and 3 (d) to deposit in the Escrow Account, as received, the receipts of maturing principal of and interest on the Federal Securities in the Escrow Account. Section 4. Payment of Refunded Bonds. (a) Refunded Bonds. On the Call Date for each the Refunded Bonds, the Escrow Holder shall pay to the Paying Agent, from the cash and proceeds of the Federal Securities on hand in the Escrow Account, a sum sufficient to pay the Annual Debt Service for the Refunded Bonds corning due on such date, as shown on Schedule A and as demonstrated on Exhibit C hereto. (b) Surplus. On the last redemption date for the Refunded Bonds, after making the payments from the Escrow Account described in Subsection 4(a), the Escrow Holder shall pay to the Issuer any remaining cash in the Escrow Account in excess of the Escrow Requirement, to be used for any lawful purpose of the Issuer. (c) Priority of Payments. The holders of the Refunded Bonds shall have an express first lien on the funds and Federal Securities in the Escrow Account until such funds and Federal Securities are used and applied as provided in this Agreement. If the cash on hand in the Escrow Account is ever insufficient to make the payments required under Subsection 4(a), all of the payments required under Subsection 4(a) shall be made when due before any payments shall be made under Subsections 4(b). (d) Fees and Expenses of Escrow Holder. On the date hereof, the Escrow Holder acknowledges receipt of its fees to serve as Escrow Holder in the amount of $_ (which amount includes reimbursement of any out of pocket expenses incurred by the Escrow Holder in performing its services hereunder), and further acknowledges that the Escrow Holder does not have a lien on or claim against any funds held hereunder for reimbursement of such expenses. Section 5. Reinvestment. (a) Except as provided in Section 3 hereof, and in this Section, the Escrow Holder 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 Holder shall sell, transfer, otherwise dispose of or request the redemption of any of the Federal Securities acquired hereunder and shall either apply the proceeds thereof to the full discharge and satisfaction of the Refunded Bonds or substitute other Federal Securities for such Federal Securities. The Issuer will not request the Escrow Holder to 4 exercise any of the powers described in the preceding sentence in any manner which would cause any Bonds to be "arbitrage bonds" within the meaning of the Internal Revenue Code of 1986, as amended, and the Regulations thereunder. The transactions may be effected only if (i) an independent certified public accountant shall certify to the Escrow Holder that the cash and principal amount of Federal Securities remaining on hand after the transactions are completed, together with the interest due thereon, will be not less than the Escrow Requirement, and (ii) the Escrow Holder shall receive an unqualified opinion from a nationally recognized bond counsel or tax counsel to the effect that the transactions will not cause such Bonds to be "arbitrage bonds" within the meaning of the Internal Revenue Code of 1986, as amended, and the regulations thereunder in effect on the date of the transactions and applicable to transactions undertaken on such date. Section 6. No Redemption or Acceleration of Maturity. Except as provided in the Irrevocable Instruction and Authorization to Redeem Bonds, the Issuer will not accelerate the maturity or due date of the Refunded Bonds. Section 7. Responsibilities of Escrow Holder. The Escrow Holder 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 any payment, transfer or other application of money or securities by the Escrow Holder in any non-negligent act, non-negligent omission or non-negligent error of the Escrow Holder made in good faith in the conduct of its duties. The Escrow Holder shall, however, be liable to the Issuer for its negligent or willful acts, omissions or errors which violate or fail to comply with the terms of this Agreement. The duties and obligations of the Escrow Holder shall be determined by the express provisions of this Agreement. The Escrow Holder may consult with counsel, who mayor may not be counsel to the Issuer, 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 Holder 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. The Escrow Holder has no duty to determine or inquire into the happening or occurrence of any event or contingency where the performance or the failure of performance of the Issuer with respect to arrangements or contracts with others, the Escrow Holder's sole duty and responsibility hereunder being to safeguard the Escrow Account and dispose of and deliver the same strictly in accordance with this Agreement. 5 Section 8. Resignation of Escrow Holder. The Escrow Holder may resign and thereby become discharged from the duties and obligations hereby created, by notice in writing given to the Issuer and published once in a newspaper of general circulation published in the territorial limits of the Issuer, and in a daily newspaper of general circulation or a financial journal published or circulated in the Borough of Manhattan, City and State of New York, not less than sixty (60) days before such resignation shall take effect. Such resignation shall take effect immediately upon the appointment of a successor Escrow Holder hereunder and payments of all amounts due the resigning Escrow Holder. Section 9. Removal of Escrow Holder. (a) The Escrow Holder may be removed at any time by an instrument or concurrent instruments in writing, executed by the holders of not less than fifty-one per centum (51%) in aggregate principal amount of each series of Refunded Bonds then outstanding, such instruments to be filed with the Issuer, and notice in writing given by such holders to all of the registered holders of each series of the Refunded Bonds and published once in a newspaper of general circulation published in the territorial limits of the Issuer, and in a daily newspaper of general circulation or a financial journal published or circulated in the Borough of Manhattan, City and State of New York, not less than sixty (60) days before such removal is to take effect as stated in such 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 Holder. (b) The Escrow Holder 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 Holder, by the Issuer or by the holders of not less than twenty-five per centum (25%) in aggregate principal amount of each series of the Refunded Bonds then outstanding. (c) No such removal shall take effect until a successor Escrow Holder shall be appointed hereunder. Section 10. Successor Escrow Holder. (a) If at any time hereafter the Escrow Holder 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 Holder shall thereupon become vacant. If the position of Escrow Holder shall become vacant for any of the foregoing reasons or for any other reason, the Issuer shall appoint a successor Escrow Holder to fulfill the duties of Escrow Holder hereunder. The Issuer shall publish notice of any such appointment once in each week for four (4) successive weeks in a newspaper of general circulation published in the territorial 6 limits of the Issuer and in a daily newspaper of general circulation or a financial journal published or circulated in the Borough of Manhattan, City and State of New York, and, before the second publication of such notice shall mail a copy thereof to the original purchaser or purchasers of the Refunded Bonds. (b) At any time within one year after such vacancy shall have occurred, the holders of a majority in principal amount of each series of Refunded Bonds then outstanding, by an instrument or concurrent instruments in writing, executed by all such bondholders and filed with the governing body of the Issuer, may appoint a successor Escrow Holder, which shall supersede any Escrow Holder theretofore appointed by the Issuer. Photographic copies of each such instrument shall be delivered promptly by the Issuer, to the predecessor Escrow Holder and to the Escrow Holder so appointed by the bondholders. (c) If no appointment of a successor Escrow Holder shall be made pursuant to the foregoing provisions of this section, the holder of any Refunded Bonds then outstanding, or any retiring Escrow Holder may apply to any court of competent jurisdiction to appoint a successor Escrow Holder. Such court may thereupon, after such notice, if any, as such court may deem proper and prescribe, appoint a successor Escrow Holder. Section 11. Term. This Agreement shall commence upon its execution and delivery and shall terminate when the Refunded Bonds have been paid and discharged in accordance herewith, and all amounts held by the Escrow Holder hereunder have been applied in accordance herewith. Section 12. Severability. If anyone or more of the covenants or agreements provided in this Agreement on the part of the Issuer or the Escrow Holder to be performed should be determined by a court of competent jurisdiction to be contrary to law, such covenant or agreements herein contained shall be null and void and shall be severed from the remaining covenants and agreements and shall in no way affect the validity of the remaining provisions of this Agreement. Section 13. Counterparts. This Agreement may be executed in several counterparts, all or any of which shall be regarded for all purposes as duplicate originals and shall constitute and be but one and the same instrument. Section 14. Governing Law. This Agreement shall be construed under the laws of the State of Florida. Section 15. Security for Accounts and Funds. All accounts and funds maintained or held pursuant to this Agreement shall be continuously secured in the same manner as other deposits of municipal funds are required to be secured by the laws of Florida. 7 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized officers and their official seals to be hereunto affixed as of the date first above written. THE CITY OF CLEARWATER, FLORIDA (SEAL) Mayor-Commissioner ATTEST: City Clerk City Manager Approved as to Form, Sufficiency and Correctness: City Attorney 8 u.s. Bank, National Association, as Escrow Holder (SEAL) By: Its: Escrow Deposit Agreement c: \ documents and settings \ gina.dewitt\ local settings \ temporary internet files \ olke \ escrow deposit agreement (00348462-2).doc 9 Schedule A (Aggregate Debt Service; Semi-Annual Debt Service; Annual Debt Service; Description of Refunded Bonds) Series 1998 Bonds Schedule B-1 (Federal Securities for Investment) Schedule B-2 (Federal Securities for Investment) Schedule C Escrow Cash Flow