AMENDED AND RESTATED DEBT SERVICE RESERVE FORWARD DELIVERY AGREEMENT [EXECUTION COPY]
TRADE REFERENCE NUMBER 3378281
AMENDED AND RESTATED
DEBT SERVICE RESERVE FORWARD DELIVERY AGREEMENT
This Amended and Restated Debt Service Reserve Forward Delivery Agreement(this
"Agreement") is made as of October 20, 2006 and amends and restates that certain Debt Service
Reserve Forward Delivery Agreement dated as of November 7, 2001, by and among CITY OF
CLEARWATER, FLORIDA (the "Issuer"), U.S. BANK NATIONAL ASSOCIATION, a
national banking association(the "Trustee"), and BANK OF AMERICA, N.A., a national
banking association duly organized and existing under and by virtue of the laws of the United
States of America(the "Provider").
ARTICLE I
DEFINITIONS
For purposes of this Agreement, the terms defined in this Article I have the following
meanings:
"Amended Agreement"has the meaning specified in Section 3.2.
"Available Reserve Amount" means, at any time, the amount of money in the Reserve
Fund available to purchase Qualified Securities from the Provider pursuant to the terms hereof.
"Bond Notice" means notice delivered pursuant to Section 3.2.
"Bond Payment Date" means, with respect to the first Delivery Date, and each Delivery
Date occurring in August, the following February 1, and with respect to each Delivery Date
occurring in February, the following August 1 (unless such date is not a Business Day, in which
case "Bond Payment Date"means the immediately succeeding Business Day).
"Bonds"means $11,470,000 Improvement Revenue Refunding Bonds, Series 2001.
"Burdened Party" means, (i) in the case of an Issuer Event of Default, Trustee Event of
Default, or a termination of this Agreement pursuant to Section 3.2 or Section 7.4 or Section 7.5,
the Provider; and (ii) in the case of a Provider Event of Default, the Issuer.
"Business Day" means any day other than (i) a Saturday or Sunday, (ii) a day on which
the principal corporate trust office of the Trustee is authorized or required by law to close, (iii) a 1
day on which banking institutions in the City of New York are authorized or required by law to
close, (iv) a day on which any Qualified Securities which may be delivered hereunder are not
subject to delivery in the City of New York or (v) a day on which the principal office of the j
Provider in Charlotte,North Carolina is authorized or required by law to close.
"Closing Date" means October 20, 2006.
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"Coupon Payment" means, for any Qualified Security, a payment of interest which is due
to be paid thereon prior to its scheduled maturity.
"Dealer"means an active dealer in the relevant markets. f
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"Dealer Certification"means a certificate, executed by a Dealer, representing that(i)the
Dealer is qualified and authorized to enter into an assignment of this Agreement; (ii)the Dealer
has reviewed the terms of this Agreement in full and has provided a bid to the Provider on the
basis of such terms; and (iii) upon the request of the Provider, the Dealer will accept an
assignment of the Terminating Party's rights and obligations under the Agreement in exchange
for or by payment of the amount of its bid.
"Debt Service Payment" means any payment of principal, interest or premium becoming
payable on the Bonds from time to time, by reason of a scheduled payment, acceleration, or
mandatory redemption, including mandatory sinking fund redemption.
"Default Rate"means a per annum rate equal to the lesser of(i)the cost(without proof or
evidence of any actual cost to the party to whom such cost is owed)to the party to whom such
amount is owed if it were to fund or of funding the relevant amount, plus I%per annum, and (ii)
the maximum rate permitted by law.
"Delivery Date"means February 1, 2007 and each February 1 and August 1 thereafter;
provided, however, that the last Delivery Date shall be August 1, 2025 (unless any such date is
not a Business Day, in which case "Delivery Date" means the immediately succeeding Business
Day).
"Delivery Notice"means a notice substantially in the form of Exhibit D.
"Eligible Securities" means the securities set forth in Exhibit E.
"Excess Funds"has the meaning specified in Section 7.8(a).
"Guaranteed Rate"means a rate per annum equal to 5.58%, assuming that the interest on
the applicable security is compounded semi-annually on the basis of a year of 360 days and
twelve thirty day months.
"Incorporated Provisions"has the meaning specified in Section 5.2(a).
"Insolvent" means the applicable party (i) is dissolved (other than pursuant to a
consolidation, amalgamation or merger); (ii) becomes insolvent or is unable to pay its debts or
fails or admits in writing its inability generally to pay its debts as they become due; (iii) makes a E
general assignment, arrangement or composition with or for the benefit of its creditors; (iv)
institutes or has instituted against it a proceeding seeking a judgment of insolvency or
bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law
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affecting creditors rights, or a petition is presented for its winding-up or liquidation, and, in the
case of any such proceeding or petition instituted or presented against it, such proceeding or
petition (a)results in a judgment of insolvency or bankruptcy or the entry of an order for relief or
the making of an order for its winding-up or liquidation or(b) is not dismissed, discharged,
stayed or restrained in each case within sixty(60) days of the institution or presentation thereof,
(v) has a resolution passed for its winding-up, official management or liquidation (other than
pursuant to a consolidation, amalgamation or merger); (vi)(a) seeks or becomes subject to the [
appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian
or other similar official for it or for all or substantially all its assets, or (b)(1) has appointed or
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designated with respect to it, an entity such as an organization, board, commission, authority,
agency or body to monitor, review, oversee, recommend or declare a financial emergency or
similar state of financial distress with respect to it or(2) has declared or introduced or proposed
for consideration by it or by any legislative or regulatory body with competent jurisdiction over
it, the existence of a state of financial emergency or similar state of financial distress in respect
of it; (vii)has a secured party take possession of all or substantially all its assets or has a distress,
execution, attachment, sequestration or other legal process levied, enforced or sued on or against
all or substantially all its assets and such secured party maintains possession, or any such process
is not dismissed, discharged, stayed or restrained, in each case within sixty (60) days thereafter;
(viii) causes or is subject to any event with respect to it which, under the applicable laws of any
jurisdiction,has an analogous effect to any of the events specified in clauses (i) to (vii)
(inclusive); or (ix) takes any action in furtherance of, or indicating its consent to, approval of, or
acquiescence in, any of the foregoing acts.
"Insurer" means Financial Security Assurance Inc.
"Issuer" means City of Clearwater, Florida.
€ "Issuer Event of Default" means the occurrence of an event specified in Section 7.2.
"Issuer Loss Amount" shall equal the amount determined by the following formula:
(GI—Al) x C x n/360
Where: GI = the Guaranteed Rate.
Al = the actual annual rate of interest earned by the Trustee investing the
Available Reserve Amount in accordance with Section 2.1(c) hereof, or, if the Trustee fails to
comply with Section 2.1(c), the actual annual rate of interest that would have been earned on
such Available Reserve Amount had the Trustee complied with Section 2.1(c).
C ' = the Available Reserve Amount to be invested in accordance with Section
2.1(c)
n = the actual number of days for which the Issuer Loss Amount is required to
be calculated.
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"Loss Amounts" means the Provider Loss Amount and the Issuer Loss Amount.
"Market Value" means, with respect to any Qualified Security, the market value thereof
on the date of delivery (including accrued interest thereon) as specified by the Provider.
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"Maturity Amount"means, with respect to any Qualified Security delivered in respect of
a Delivery Date, the amount, payable in cash, representing the principal and interest (including
any Coupon Payment) due thereon on or prior to its maturity date.
"Moody's"means Moody's Investor's Service and any successor or successors thereto.
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"Ordinance"means Ordinance No. 6876-01 by the City of Clearwater, Florida.
"Permitted Investments" means those investments which are permitted for the Reserve
Fund under the Ordinance.
"Previously Purchased Securities" means the Qualified Securities previously delivered to
the Trustee pursuant to this Agreement and which have not yet matured.
"Provider Cure Period" has the meaning specified in Section 7.3(a).
"Provider Event of Default"means the occurrence of an event specified in Section 7.3.
"Provider Loss Amount" means the amount determined by the following formula, if on
any Delivery Date the Available Reserve Amount is less than the Scheduled Reserve Amount:
[DR x PP x n1/360] +the greater of(i) [PP-FMV] x
[(DR x n2/360) + 1] or(ii) 0
Where: DR = the Default Rate
PP = the applicable Purchase Price for the Qualified Securities (or that portion
thereof) that were tendered by the Provider in accordance with Section 2.1, but which were not
purchased by the Trustee.
FMV = the price at which the Provider subsequently sold the Qualified Securities
to either the Trustee or a third party, in an arms length transaction
n = the actual number of days from, and including, the applicable Delivery
Date, to, but excluding, the day on which the Provider sold the Qualified Securities to either the
Trustee or a third party.
n2 - the actual number of days from, and including, the day on which the
Provider sold the Qualified Securities to either the Trustee or a third party, to, but excluding, the
day on which the Issuer actually pays the Provider Loss Amount to the Provider.
"Purchase Price"means, for any Eligible Security delivered hereunder, the price, as set
forth in the Delivery Notice, which will produce a rate of return on such security for the period, t
from (and including) the date of its delivery to (but excluding) its maturity date equal to the i
Guaranteed Rate.
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"Qualified Securities"means, in connection with any Delivery Date, Eligible Securities
which shall (i) mature not later than the related Bond Payment Date and (ii) have an aggregate
Purchase Price which is as close as possible to but does not exceed the Available Reserve
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"Quotation" means a quotation from a Dealer of the amount, if any, that such Dealer
would demand to receive from the Burdened Party (expressed as a positive number if the
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Burdened Party is the Provider, and as a negative number if the Burdened Party is the Issuer) or
would offer to pay to the Burdened Party (expressed as a negative number if the Burdened Party
is the Provider, and as a positive number if the Burdened Party is the Issuer) in consideration of
such Dealer entering into an agreement with the Burdened Party (with such documentation as the
Dealer and Burdened Party may in good faith agree) which would have the effect of preserving
for the Burdened Party the economic equivalent of its rights and obligations under this
Agreement for the period commencing on the termination date of this Agreement and
terminating on the final Bond Payment Date (assuming for these purposes that this Agreement
had not terminated on the termination date and continued in full force through such final Bond
Payment Date); provided that, any such quotation shall not constitute a Quotation hereunder
unless the Dealer shall have submitted, in connection with such quotation, a Dealer Certification.
"Rating Agencies"means Moody's Investors Service ("Moody's") and Standard and
Poor's Ratings Services ("S&P"), and their respective successors and assigns.
Refunding Bonds has the meaning specified in Section 3.2.
"Refunding Date"has the meaning specified in Section 3.2.
"Reserve Fund" means the account created pursuant to Section 16 of the Ordinance and
designated thereunder as the "City of Clearwater Improvement Revenue Bonds Reserve Fund."
"Reserve Securities" means any Qualified Securities delivered to the party designated by
the Issuer hereunder.
"Scheduled Reserve Amount" means, for each Delivery Date, $866,760.
"S&P"means Standard & Poor's Ratings Group, a division of McGraw Hill Corporation.
"Specified Indebtedness" means any obligation (whether present or future, contingent or
otherwise, as principal or surety or otherwise) in respect of borrowed money.
"Termination Amount" means an amount, as reasonably determined in good faith by the
Provider, to be the Burdened Party's total losses and costs in connection with a termination of
this Agreement, including any loss of bargain, cost of funding, or, without duplication, any loss
or cost incurred (expressed as a positive number if the Burdened Party is the Provider, and as a
negative number if the Burdened Party is the Issuer) or gain realized (expressed as a negative
number if the Burdened Party is the Provider, and as a positive number if the Burdened Party is
the Issuer) as a result of its terminating, liquidating, obtaining or reestablishing any hedge or
related trading position;provided, however, that the Issuer may, reasonably and in good faith,
dispute the determination by the Provider as to the Termination Amount by providing written
notice to the Provider within three (3) Business Days of such determination (the date such notice
is provided, the "Notice Date"). If the Issuer exercises its right to dispute the determination of
the Termination Amount, the Provider shall solicit Quotations on the Notice Date from at least
three Dealers reasonably acceptable to the Issuer. If at least three Quotations are provided, the
Burdened Party shall then have the option to either: (i) accept the arithmetic mean of the
Quotations as the Termination Amount; or(ii) require the Terminating Party to assign, at the cost
of the Terminating Party, its rights and obligations under this Agreement to one of the Dealers
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providing Quotations; provided that(a) such assignment must be pursuant to documentation that
is reasonably acceptable to the Burdened Party, and (b)the Burdened Party must receive such
opinions and assurances as it reasonably requests in connection with such assignment. In the
event that-the Provider is unable to obtain three Quotations, the determination of the Termination
Amount as originally calculated by the Provider shall be the Termination Amount.
Notwithstanding anything to the contrary in this Agreement, if the Provider fails to
determine the Termination Amount within seven (7) Business Days of notice from the Issuer of
the occurrence of a Provider Event of Default, then the Issuer (or if so directed by the Issuer, the
Trustee) shall make such determination as if it were the Provider and the amount as so
determined by the Issuer(or the Trustee) shall be deemed the Termination Amount.
"Terminating Party"means, (i) in the case of an Issuer Event of Default, Trustee Event of
Default, or a termination pursuant to Section 3.2, both the Issuer and the Trustee; and (ii) in the
case of a Provider Event of Default, the Provider.
"Trustee Event of Default" means the occurrence of an event specified in Section 7.1.
ARTICLE II
PURCHASE AGREEMENT
Section 2.1 Purchase and Sale of Qualified Securities.
(a) The Provider shall deliver to the Trustee on each Delivery Date Qualified
Securities selected by the Provider to the extent such Qualified Securities are available on the
open market.
(b) At the time of the delivery by the Provider of any Qualified Securities in
accordance with this Agreement, whether on or after a Delivery Date, the Trustee shall use the
Available Reserve Amount or other funds provided by the Issuer to purchase such Qualified
Securities and to pay to the Provider, in accordance with Section 2.2, an amount equal to the
Purchase Price thereof.
(c) If the Provider fails to deliver Qualified Securities as required hereunder
by 4:30 p.m.,New York City time on any Delivery Date or on any day during the Provider Cure
Period, the Trustee shall, on each such date, invest the Available Reserve Amount in Permitted
Investments (including without limitation Reserve Fund Investments provided by the Trustee)
which either: (i)mature no later than the next Business Day or(ii) can be redeemed without
charge or penalty no later than the next Business Day, and if the Provider's failure continues
beyond the Provider Cure Period, the Trustee, invest the Available Reserve Amount in Permitted
Investments with the longest possible maturities permitted under the Ordinance, provided that
such Permitted Investments shall not mature later than the related Bond Payment Date.
(d) The Provider shall not be required to own any Qualified Securities at the
time of its execution of this Agreement or at any time prior to its delivery of Qualified Securities
on a Delivery Date. Subject to Section 7.3(a), the Provider's failure to deliver Qualified
Securities at any time shall not terminate or affect the Provider's right to deliver Qualified
Securities at any other time prior to the termination of this Agreement.
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Section 2.2 Delivery; Payment.
(a) All Qualified Securities delivered under this Agreement shall be delivered
to the Trustee to the account specified in Section 10.1, in such manner as at the time is generally
acceptable for delivery of Qualified Securities. All Qualified Securities delivered under this
Agreement shall be delivered to the Trustee on a "delivery versus payment" basis.
(b) The Provider shall cause a Delivery Notice to be delivered to the Trustee
at least one (1) Business Day prior to the delivery of any Qualified Securities that are in book-
entry form and at least two (2) Business Days prior to the delivery of any Qualified Securities
that are in certificated form.
(c) Concurrently with the delivery of any Qualified Securities, unless
otherwise directed by the Provider in writing, the Trustee shall pay to the Provider the Purchase
Price as specified in the Delivery Notice.
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(d) All payments to be made under this Section 2.2 shall be made in
immediately available funds from the Reserve Fund by means of a bank or federal funds wire.
Section 2.3 Subsequent Deliveries. If any Previously Purchased Securities (i)mature
prior to the Bond Payment Date for which such Previously Purchased Securities were delivered
or (ii)have a Coupon Payment, the Provider shall have the right, at any time on or after the
maturity date of such Previously Purchased Securities or the date on which interest in respect of
such Coupon Payment is received by the Trustee, subject to Section 2.2(b) hereof, to cause the
Trustee to purchase from the Provider, with all or part of the proceeds from the maturity of any
such Previously Purchased Securities or the interest received in respect of such Coupon Payment,
Qualified Securities with a Purchase Price equal to the proceeds realized upon maturity of the
Previously Purchased Securities which have so matured or to the interest received in respect of
such Coupon Payment.
ARTICLE III
LIQUIDATION, DEFEASANCE OR REFUNDING
Section 3.1 Liquidation of Reserve Securities to make a Debt Service Payment.
(a) If at any time the Issuer is required under the Ordinance to liquidate any
Reserve Securities in the Reserve Fund to make a Debt Service Payment, the Issuer shall j
promptly, but by no later than two Business Days prior to such liquidation, give oral and written
notice thereof to the Provider and shall in such notice specify (i) the aggregate Maturity Amount
of the Reserve Securities which will be liquidated to make such Debt Service Payment, (ii)the
Available Reserve Amount after giving effect to such liquidation and(iii) the Bond Payment
Date and Delivery Date to which such liquidation relates.
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(b) If the Reserve Fund is replenished after any Reserve Securities are
liquidated to make a Debt Service Payment, the Issuer shall promptly, but no later than the
Business Day following such replenishment, give the Provider oral and written notice of such
replenishment and the amount thereof(the "Replenishment Amount"). Upon any such
replenishment the Provider may, if it so elects, deliver to the Trustee Qualified Securities with an
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aggregate Purchase Price equal to the Replenishment Amount. Provided that the Provider has
delivered a Delivery Notice to the Trustee, the Trustee shall concurrently with such delivery
purchase such securities in the manner set forth in Section 2.2(c).
Section 3.2 Redemption, Repurchase, Defeasance or Refunding.
(a) The Issuer may, by giving the Provider at least thirty (30) days' prior written
notice (the "Bond Notice"), but without the consent of the Provider, redeem, repurchase, defease
or refund the Bonds, as provided in the Ordinance, and effective upon the date of such
redemption, repurchase, defeasance or refunding, the Issuer shall pay, or cause to be paid, to the
Provider an amount equal to the Termination Amount(if the Termination Amount is positive)
calculated with respect to all of the Bonds outstanding immediately prior to such redemption,
repurchase, defeasance or refunding and on the basis of the Provider being the Burdened Party.
Immediately upon payment of the Termination Amount in accordance with this Section 3.2, this
Agreement shall automatically terminate.
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(b) Notwithstanding paragraph (a), in the event the Bonds are being refunded by a
new issuance of bonds (the "Refunding Bonds"), the Issuer may, by written notice to the
Provider, which notice shall be delivered concurrently with the Bond Notice, request that the
Provider continue this Agreement and have such Agreement apply to any reserve funds relating
to the Refunding Bonds. The Provider agrees that if it receives such a request it shall agree to so
continue this Agreement with respect to the reserve funds relating to the Refunding Bonds and
any Bonds remaining outstanding after such refunding, provided that:
(i) on or prior to the date the Bonds are to be refunded (the
"Refunding Date") the Issuer and any trustee for the Refunding Bonds enter
into such amendments of this Agreement with the Provider (the "Amended
Agreement") as may be mutually agreed upon, and are necessary to
accurately reflect the scheduled reserve amounts, delivery dates and bond
payment dates applicable to the Refunding Bonds and to any Bonds which
remain outstanding after giving effect to such refunding, and any other
applicable terms, and the Provider receives any opinions and other
assurances it may reasonably request to assure that the protections afforded
it hereunder will continue under the Amended Agreement;
the Refunding Bonds are to be issued under the existing
Ordinance or such other Ordinance which is approved by the Provider, and
the Provider is otherwise satisfied with the bond documentation relating to
the Refunding Bonds;
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the last Delivery Date under the Amended Agreement is no later
than the last Delivery Date hereunder;
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(iv) unless otherwise agreed to by the Provider, the Scheduled
Reserve Amount hereunder will not increase in the Amended Agreement;
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(v) at the time such request is received and on the Refunding Date,
no Issuer Event of Default has occurred and is continuing or would occur,
with notice or the passage of time or both; and
(vi) the Issuer shall pay to the Provider, or the Provider shall pay to
the Issuer, as the case may be, on the Refunding Date, the difference, if any,
between the Termination Amount of this Agreement and the Termination
Amount of the Amended Agreement, both calculated as of the Refunding
Date. For purposes of calculating the amount payable, if any, the
Termination Amount of the Amended Agreement shall be subtracted from
the Termination Amount of this Agreement and if the sum thereof is a
positive number, the Issuer shall pay such amount to the Provider, and if the
sum thereof is a negative number, the Provider shall pay the absolute value
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of such amount to the Issuer.
_ ARTICLE IV
REPRESENTATIONS AND WARRANTIES
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Section 4.1 Representations and Warranties. As of the date hereof, each party hereto
represents and warrants to the other parties hereto that:
(a) it is duly organized and validly existing under the laws of its jurisdiction
of incorporation or establishment and it has the power and the authority to enter into and perform
its obligations under this Agreement (including, in the case of the Issuer, to pay any Termination
Amount);
(b) this Agreement, with respect to the Issuer, the Ordinance have been duly
authorized, executed and delivered by the applicable party and, assuming the due authorization,
execution and delivery hereof and thereof by the other parties hereto and thereto, each constitutes
a legal, valid and binding obligation of such applicable party, enforceable against it in
accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws
affecting creditors' rights generally, and subject, as to enforceability, to general principles of
equity regardless of whether enforcement is sought in a proceeding in equity or at law;
(c) its execution and delivery of this Agreement and its performance of its
obligations hereunder do not and will not constitute or result in a default under, a breach or
violation of, or the creation of any lien or encumbrance (other than the lien created in Section
7.8(b)) on any of its property under its charter or by-laws (or equivalent organizational
documents) or any other agreement (including in the case of the Issuer, the Ordinance),
instrument, law, ordinance, regulation,judgment, injunction or order applicable to it or any of its
property;
(d) all consents, authorizations and approvals requisite for its execution, j
delivery and performance of this Agreement have been obtained and remain in full force and
effect and all conditions thereof have been duly complied with, and no other action by, and no
notice to or filing with, any governmental authority or regulatory body is required for such
execution, delivery or performance;
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(e) there is no proceeding pending or threatened against it at law or in equity,
or before any governmental instrumentality or in any arbitration, which would materially impair
its ability to perform its obligations under this Agreement, and there is no such proceeding
pending against it which purports or is likely to affect the legality, validity or enforceability of
this Agreement;
(f) in the case of the Issuer:
(i) the Scheduled Reserve Amount is the amount the Issuer is required to
have on deposit in the Reserve Fund on each Delivery Date pursuant to the
terms of the Ordinance, assuming that no Bonds have been defeased (other
than at maturity), redeemed (otherwise than by scheduled mandatory
sinking fund), repurchased or refunded on or prior to such date;
(ii) it is not entitled to claim, and shall not assert any claim, with respect to
itself or its revenues, assets or property (irrespective of the use or intended
use thereof), of immunity on the grounds of sovereignty or similar grounds
from suit,jurisdiction of any court, relief by way of injunction, order for
specific performance or for recovery of property, attachment of its assets
(whether before or after judgment, in aid of execution, or otherwise) and
execution or enforcement of any judgment to which it or its revenues or
assets or property might otherwise be entitled in any suit, action or
proceeding relating to this Agreement in the courts of any jurisdiction, nor
may there be attributed to the Issuer or its revenues, assets or property any
such immunity (nor shall such attribution be claimed by the Issuer);
(iii) there have been no withdrawals from the Reserve Fund or any other debt
service reserve fund relating to obligations of the Issuer in order to cover a
shortfall in amounts available to make payment of amounts due on such
obligations;
(iv) it has entered into this Agreement for purposes of managing its
borrowings or investments by increasing the predictability of its cash flow
from earnings on its investments and not for purposes of speculation;
(v) this Agreement is the only investment agreement or other similar
agreement that is outstanding with respect to the investment of funds held
in the Reserve Fund;
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(vi) the Eligible Securities to be purchased by the Trustee pursuant to this
Agreement constitute Reserve Fund Investments under the Ordinance; and
(vii) it had the power and authority to enter into and perform its obligations
under the Ordinance, and the Ordinance is in full force and effect on the
date hereof and no amendment or waiver has amended or terminated any j
of the terms thereof since the original execution and delivery of the
Ordinance;
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(viii) to its knowledge, no "event of default," or event which would with the
passage of time or the giving of notice or both constitute an event of
default, has occurred and is continuing under the Ordinance; and
ARTICLE V
COVENANTS AND ACKNOWLEDGEMENTS
Section 5.1 Covenants. Each party hereto covenants to the other parties hereto that so
long as it shall have any obligations under this Agreement it shall:
(a) maintain in full force and effect all authorizations and agreements of and
exemptions, consents, licenses, actions or approvals by, and all filings with or notices to, any
governmental or other authority that are required to be obtained or made by such party with
respect to this Agreement and will use all reasonable efforts to obtain or make any that may
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become necessary in the future;
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(b) comply in all material respects with all applicable laws, rules,regulations
and orders to which it may be subject if failure so to comply could materially impair its ability to
perform its obligations under this Agreement; and
(c) if it is the Issuer, it will not direct the Trustee to withdraw or if it is the
Trustee, it will not withdraw, as applicable, any funds or investments from the Reserve Fund
unless it is required to do so under the Ordinance in order to make a Debt Service Payment.
Section 5.2 Incorporated Provisions
(a) The Issuer agrees that each of its covenants and other agreements in the
Ordinance (the "Incorporated Provisions") are incorporated herein as fully as if set forth herein.
The Issuer will observe, perform and fulfill each of the Incorporated Provisions. If the
Ordinance ceases to be in effect prior to the termination of this Agreement, the Incorporated
Provisions (other than those provisions requiring payments in respect of the Bonds or any
additional bonds issued under the Ordinance) will remain in full force and effect for purposes of
this Agreement as though set forth herein until such date on which all of the obligations of the
Issuer under this Agreement have been fully satisfied. Any amendment, supplement,
modification or waiver of any of the Incorporated Provisions of the Ordinance without the prior
written consent (which consent will not be unreasonably withheld or delayed) of the Provider
shall have no force and effect with respect to this Agreement.
(b) The Issuer shall provide the Provider with at least ten (10) Business Days
prior written notice of any proposed amendment, supplement or modification of the Incorporated }
Provisions whether or not the proposed amendment, supplement or modification will adversely
affect the rights or obligations of the Provider under this Agreement. If the Issuer fails to comply
with any Incorporated Provision, the Issuer shall provide written notice of such failure to the
Provider within five (5) Business Days of becoming aware of such failure.
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Section 5.3 Authorization of Trustee.
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(a) By its execution and delivery of this Agreement, the Issuer and the
Provider are expressly authorizing and directing the Trustee to enter into and perform its duties
under this Agreement which include the purchase of Reserve Fund Investments.
Section 5.4 Amendment of Ordinance. The Issuer shall not amend any provision of
the Ordinance that has a materially adverse effect on the rights, duties or obligations of the
Provider hereunder without the consent of the Provider.
Section 5.5 Role of the Provider.
(a) It is expressly understood and agreed that for all purposes of this
Agreement and the transactions contemplated hereby, the Provider has acted solely as an
independent contractor and has not acted as a financial or investment advisor, fiduciary or agent
of or to the Issuer or the Trustee or any representative of the holders of the Bonds or for any
other person.
(b) Neither the Provider nor any of its directors, officers, employees, agents,
4 affiliates or representatives have made any investigation with respect to or have any liability with
respect to: (i) the tax-exempt status of the Bonds, (ii) the payment of any amounts owing on or
with respect to the Bonds, (iii)the use or application by the Trustee or the Issuer of any moneys
payable to the Trustee hereunder, (iv) any acts or omissions of the Issuer or the Trustee under, or
with respect to, the validity, tax exemption or enforceability of, the Bonds or the Ordinance, or
(v) the Issuer's performance of its obligations under the Bonds, the Ordinance or any other
agreement or instrument with respect to the Bonds. Without limiting the foregoing, the Provider
shall have no duty to ascertain whether the Trustee or the Issuer is in compliance with any
applicable statute, regulation or law or the Ordinance.
(c) The Issuer acknowledges that the economic terms of this Agreement have
been individually negotiated by it and that, to the extent it has deemed necessary, it has consulted
with its own legal, tax and investment advisors regarding its decision to enter into this
Agreement. The Issuer understands that in entering into this Agreement pursuant to which it is
agreeing upon the rate of return it will receive during the term of this Agreement on amounts
held in the Reserve Fund for the purpose of minimizing the risks resulting from fluctuations in
interest rates during the term hereof, it is also foregoing the possibility of receiving greater
returns on such amounts from such fluctuations.
Section 5.6 Termination Amount. Each party hereto understands that if under any of
the circumstances provided herein (including upon the occurrence of a redemption, refunding,
repurchase or defeasance of the Bonds on or prior to the last Delivery Date) a Termination
Amount would be due from the Issuer or the Provider, the size of such Termination Amount will
vary depending, in large part, on prevailing interest rates at the time such Termination Amount is
calculated. Under certain market conditions the amount of the Termination Amount owed to the
Provider by the Issuer, or to the Issuer by the Provider, could be substantial.
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Section 5.7 Fees. The Issuer acknowledges that the Provider has paid a fee of$6,500
to Chambers, Dunhill, Rubin & Co., as bidding agent for this Agreement. The Provider shall
pay, and the Provider hereby agrees to pay an initial upfront fee of$500 and an annual fee of
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CHI-15445730 12
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$1,500 per annum, due in arrears, to the Trustee for its services in connection with this
Agreement. The Provider shall pay legal fees in the amount of$2,500 to Bryant Miller Olive,
counsel to the Issuer.
ARTICLE VI
CLOSING CONDITIONS
Section 6.1 Closing Conditions. On or prior to the Closing Date the following shall
occur:
(a) delivery to the Provider and the Issuer by the Trustee of a certificate of the
Trustee, in the form of Exhibit A;
(b) delivery to the Trustee and the Issuer of an opinion of counsel to the
Provider, in the form of Exhibit B;
(c) delivery to the Provider and the Trustee of an opinion of counsel to the
Issuer, in the form of Exhibit C;
(d) delivery to the Provider of a copy of the Ordinance, certified by a duly
authorized officer of the Issuer as being a true and correct copy of such document in full force
and effect on the date hereof; and
(e) delivery to the Provider of a copy of a certified copy of any Ordinances of
the Issuer and consents of third parties which may be required for the Issuer to enter into, or be
authorized to enter into, this Agreement, if any.
ARTICLE VII
DEFAULTS; TERMINATION
Section 7.1 Trustee Events of Default. The occurrence of any of the following events
shall constitute a Trustee Event of Default:
(a) the Trustee shall fail for any reason to apply any Available Reserve
Amount to purchase, at the Purchase Price therefor, any Qualified Securities delivered by the
Provider in accordance with this Agreement;
(b) the Trustee shall default in the performance of any covenant or obligation
under this Agreement, and such default shall not be cured within five (5) Business Days of notice
thereof from the Provider or the Issuer; or
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(c) any representation or warranty of the Trustee contained in this Agreement
proves to have been incorrect, false or misleading in any material respect as of the date on which E
it was made.
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Section 7.2 Issuer Events of Default. The occurrence of any of the following events
shall constitute an Issuer Event of Default: I
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CHI-15445730 13
(a) the amount in the Reserve Fund available to purchase Qualified Securities
on any Delivery Date is less than the Scheduled Reserve Amount;
(b) the Issuer shall default in the performance of any other covenant or
obligation under this Agreement, or incorporated by reference herein, other than as described in
clause (a)-above and such default shall not be cured within five (5) Business Days of written
notice thereof from the Provider or the Trustee;
(c) any representation or warranty of the Issuer contained in this Agreement
proves to have been incorrect, false or misleading in any material respect as of the date on which
it was made;
(d) the Issuer is at any time Insolvent;
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(e) the interest and principal outstanding under the Bonds shall be declared
due and payable for any reason, at any time prior to the scheduled maturity thereof(other than by
reason of any redemption, repurchase, defeasance or refunding to which Section 3.1 applies);
4 (f) there shall be an investment of amounts in the Reserve Fund other than as
provided by this Agreement; or
(g) a default, event of default or other similar condition or event(however
described) occurs in respect of the Issuer under any Specified Indebtedness;
Section 7.3 Provider Events of Default. The occurrence of any of the following events
shall constitute a Provider Event of Default:
(a) the Provider shall fail on any Delivery Date, to deliver Qualified Securities
and such failure shall not be cured within five (5) Business Days after written notice thereof to
the Provider from the Trustee or the Issuer(the "Provider Cure Period"). Notwithstanding the
foregoing, any such failure to deliver Qualified Securities shall not constitute a Provider Event of
Default if(i) Qualified Securities are not available on the open market or (ii)the Provider
determines and pays to the Issuer the Issuer Loss Amount relating to such failure to deliver on or
prior to the third Business Day after the end of the Provider Cure Period;
(b) any representation or warranty of the Provider contained in this
Agreement proves to have been incorrect, false or misleading in any material respect as of the
date on which it was made; or
(c) the Provider is at any time Insolvent. }
Section 7.4 Remedies Upon Occurrence of a Trustee Event of Default. Upon the
occurrence of a Trustee Event of Default, the Provider shall have the right to immediately
terminate this Agreement by giving notice thereof to the Trustee, with a copy to the Issuer, and
(i) if the Termination Amount is a positive number, make demand upon the Trustee for the
payment Qf the Termination Amount, and (ii) if the Termination Amount is a negative number,
pay the absolute value of such amount to the Issuer. Notwithstanding the foregoing, in the event
of a Trustee Event of Default under Section 7.1(a), the Provider may elect, in lieu of terminating
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CHI-15445730 14
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this Agreement, to redeliver to the Trustee, or to sell to any other purchaser, the Qualified
Securities which were to be delivered in connection with the applicable Delivery Date. Upon
such a redelivery to the Trustee or third party sale, the Issuer shall pay to the Provider the
Provider Loss Amount, if any, arising out of the Trustee's failure to purchase such Qualified
Securities.
Section 7.5 Remedies Upon Occurrence of an Issuer Event of Default. Upon the
occurrence of an Issuer Event of Default, the Provider shall have the right to immediately
terminate this Agreement by giving notice thereof to the Issuer, with a copy to the Trustee, and
(i) if the Termination Amount is a positive number, make demand upon the Issuer for the
payment of the Termination Amount, which the Issuer shall pay in accordance with Section 7.7
and (ii) if the Termination Amount is a negative number, pay the absolute value of such amount
to the Issuer.
Section 7.6 Remedies Upon Occurrence of a Provider Event of Default. Upon the
occurrence of a Provider Event of Default, the Issuer shall have the right to immediately
terminate this Agreement by giving notice thereof to the Provider, with a copy to the Trustee,
and (i) if the Termination Amount is a negative number, make demand upon the Provider for the
payment of the absolute value of such amount, which the Provider shall pay in accordance with
Section 7.7, and (ii) if the Termination Amount is a positive number, the Issuer shall pay such
amount to the Provider.
Section 7.7 Payments. All amounts which are payable under this Article VII
including;but not limited to, Termination Amounts and Loss Amounts, shall be paid promptly,
but by no later than three (3) Business Days after demand or notice that such amount is due from
the party to which such amount is due. All such amounts shall be paid, in immediately available
funds, to the party to which such amount is due. If any such amount is not paid when due, the
party owing such amount shall pay interest on such amount for each day such amount is due and
not paid at the Default Rate. All calculations of default interest herein shall be calculated on the
basis of daily compounding. In addition, if any amount otherwise due hereunder is not paid
when due, the amount shall also include any costs and expenses incurred by the party to which
such amount is due in connection with the enforcement of its rights hereunder (including costs of
collection and reasonable attorneys' fees) and, if applicable, a reasonable allocation of
compensation and overhead attributable to time of employees of the party to which such amount
is due spent in connection with the enforcement of its rights hereunder.
Notwithstanding anything contained herein to the contrary, the Provider shall have no
lien on the securities or assets in the Reserve Fund and all amounts payable hereunder by the
Issuer, including any Termination Amounts and Loss Amounts owed by the Provider, shall
constitute*either a general unsecured claim against the Issuer or shall be secured by trust assets
on a subordinated basis to the Bonds.
Section 7.8 Application of Excess Funds.
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(a) The Issuer hereby directs the Trustee and the Trustee agrees that if at any
time any amounts are due the Provider from the Issuer in connection with an Issuer Event of
Default, the Trustee shall, upon demand from the Provider, and without further direction or
CHI-15445730 15 }
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instruction from the Issuer, apply any funds available under the Ordinance (other than the Rebate
Fund) which are not subject to the pledge of the Ordinance for the benefit of the Bonds or any
additional bonds that may be issued under the Ordinance (including any funds which would
otherwise be released to the Issuer) (the "Excess Funds")to the payment of such amounts.
Section 7.9 Early Termination. The Provider shall have the option to terminate this
Agreement at any time on or after February 2, 2011. In the event the Provider elects an Early
Termination in accordance with this provision, this Agreement will terminate and no
Termination Amount will be due from either party.
ARTICLE VIII
Section 8.1 Downgrade of Provider. If at any time during the term of this Agreement
the Provider's long term unsecured credit rating (i) falls below "A-" category by S&P and"A3"
by Moody's, or (ii) is withdrawn or suspended by either of the Rating Agencies (collectively, a
"Rating Downgrade"), the Provider shall, within ten (10) Business Days after the occurrence of
such Rating Downgrade, notify both the Issuer and the Trustee in writing that a Rating
Downgrade has occurred. Promptly, but in no event later than forty-five (45) days following the
delivery of such notice, the Provider shall either: (i)procure a guarantee of its obligations under
this Agreement from a guarantor that has a rating of at least "A-"by S&P and "A3" by Moody's;
(ii) assign its rights and obligations under this Agreement to another registered broker-dealer,
commercial bank, insurance or financial products company that has at least such ratings; or(iii)
collateralize its obligations under this Agreement.
ARTICLE IX
THE TRUSTEE
Section 9.1 Acceptance by the Trustee. By execution and delivery of this Agreement,
the Trustee accepts its duties and obligations.
Section 9.2 Liability of the Trustee. Except as provided herein, the Trustee shall not
be liable to any person for any action taken or neglected to be taken in performing or attempting
to perform its obligations hereunder or to purchase the Qualified Securities tendered pursuant to
this Agreement, except for actions arising from its negligence or willful misconduct or from its
intentional or knowing non-performance of its obligations under this Agreement or for breach of
its representations or warranties under this Agreement.
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Section 9.3 Payment of Trustee Fees. The Provider shall pay, and the Provider hereby
agrees to pay an initial upfront fee of$500 and an annual fee of$1,500 per annum, due in
arrears, to the Trustee for its services in connection with this Agreement. The Provider has no
further liability or responsibility for payment of the Trustee's fees or expenses for its services t
hereunder, including any such fees or expenses arising out of or in connection with the
liquidation of the Qualified Securities as provided herein. Under no circumstances shall the
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Issuer be liable for any fees or costs of the Trustee.
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Section 9.4 Trustee Cooperation. The Trustee shall not make any payments or
distributions from the Reserve Fund other than payments or distributions (i) required by this
Agreement or (ii) required under the Ordinance.
Section 9.5 Successor Trustee. The Provider agrees that if the Trustee fails for any
reason to perform its duties to the Provider under this Agreement in accordance with the terms
hereof, or is at any time Insolvent or breaches in any material respect its representations and
warranties to the Provider hereunder, the Provider shall promptly appoint a successor Trustee
and such successor Trustee shall be automatically substituted for its predecessor hereunder.
ARTICLE X
MISCELLANEOUS
Section 10.1 Notices and Delivery Instructions.
(a) All notices, demands or other communications hereunder to the Trustee or
the Issuer shall be given or made in writing and shall be delivered personally, or sent by certified
r or registered mail, postage prepaid, return receipt requested, or overnight delivery service, telex
or telecopy to the party to whom they are directed at the following addresses, or at such other
addresses as may be designated by notice from such party to all other parties:
To the Trustee:
U.S. Bank National Association
60 Livingston Avenue
St. Paul, MN 55107-2292
Attention: Theresa Cramer
Telephone: (651) 495-3908
Telecopy: (651) 495-8096
WIRE INSTRUCTIONS
U.S. Bank N.A.
ABA# 091 000 022
FBO: U.S. Bank Trust N.A.
Account 180121167365
FFC: 106657000 j
Ref: B of A/City of Clearwater, Florida E
Attn: Lillis Lindel-Casey X53735
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FED-BOOK ELIGIBLE ISSUES I
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For U.S. Bank N.A.
ABA# 042 000 013 `
Routing Symbol: 1050
For account: 106657000 [
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CHI-15445730 17
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DTC ELIGIBLE SECURITIES
U.S. Bank N.A.
Participant Number: 2803
Agent Number: 52675
Agent Internal Number: 106657000
To the Issuer:
City of Clearwater, Florida
Municipal Services Building
100 S. Myrtle Avenue
Clearwater, Florida 33756-5520
Attention: Margaret Simmons, CPA
F Telephone: (727) 562-4538
Telecopy: (727) 562-4535
(b) All notices, demands or other communications hereunder to the Provider
shall be given or made orally to a bank officer of the Provider's Reinvestment and Risk
Management Group, and confirmed in writing, which writing shall be delivered personally, or
sent by certified or registered mail, postage prepaid, return receipt requested, or overnight
delivery service, telex or telecopy to the Provider at the following address, or at such other
addresses as may be designated by notice from the Provider to all other parties:
Bank of America, N.A.
NC-021-12-01
214 North Tryon Street
14th Floor
Charlotte, NC 28255
Attention: Reinvestment and Risk Management Group
Telephone: (704) 387-0819
Telecopy: (704) 388-6963
With a copy to:
Bank of America, N.A.
U.S. Structured Rates Trading
1633 Broadway
New York, NY 10019-6708
Attn: Mike O'Neill
Telephone: (212) 497-8890
Facsimile: (212) 497-6824
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U.S. Structured Rates Trading Operations
Sears Tower f
233 South Wacker Drive
27th Floor
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Chicago, IL 60606-6306
Attn: Muni Operations
Telephone: (312) 234-3450
Telecopy: (312) 453-2115
Wire Transfer Instructions:
Bank Name: Bank of America
ABA#026009593
Account Name: Interest Rate Derivatives
Account#6550-219386
(c) Any notice, demand or other communication given in a manner prescribed
in this Section 10.1 shall be deemed to have been delivered on receipt.
Section 10.2 Binding Effect; Transfer. This Agreement shall be binding upon the
Trustee, the Issuer and the Provider and upon their respective permitted successors and
transferees. The Provider shall be entitled to transfer this Agreement and its interests and
obligations hereunder (i) without the consent of the Issuer or the Trustee to any subsidiary or
affiliate of the Provider, or to any office, branch or subsidiary of any affiliate of the Provider, by
giving written notice to the Issuer, the Trustee of such transfer and the name of the transferee and
(ii) with the prior written consent of the Issuer (such consent not to be unreasonably withheld or
delayed) and upon notice to the Trustee, to any other person; provided, however, that if the
Issuer has not consented or objected to such transfer in writing within twenty (20) Business Days
of the Provider's request therefor, the consent of the Issuer shall be deemed to have been given
and the Provider may transfer this Agreement. Such transferee shall immediately assume the
rights and obligations of the Provider hereunder and upon such transfer shall for all purposes
become the Provider under this Agreement. Neither the Issuer nor the Trustee may transfer or
assign this Agreement (including any transfers that result by operation of law), without the prior
written consent of the Provider.
Section 10.3 Limitation. Nothing expressed or implied herein is intended or shall be
construed to confer upon any person, firm or corporation other than the parties hereto, any right,
remedy or claim by reason of this Agreement or any term hereof, and all terms contained herein
shall be for the sole and exclusive benefit of the parties hereto, and their successors and
permitted transferees.
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Section 10.4 Severability. If one or more provisions of this Agreement or the
applicability of any such provisions to any set of circumstances shall be determined to be invalid
or ineffective for any reason, such determination shall not affect the validity and enforceability 1
of the remaining provisions or the applicability of the same provisions or any of the remaining
provisions to other circumstances.
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Section 10.5 Amendments, Changes and Modifications. This Agreement may be
amended or any of its terms modified only by a written document authorized, executed and
delivered by each of the parties hereto.
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Section 10.6 Counterparts. This Agreement may be executed in one or more
counterparts and when each party hereto has executed at least one counterpart, this Agreement
shall become binding on all parties and such counterparts shall be deemed to be one and the
same document.
Section 10.7 Termination. Unless earlier terminated pursuant to Sections 3.2, 7.3, 7.4,
7.7 or Article 8, this Agreement shall terminate on the later of the last Bond Payment Date set
forth in_this Agreement and the date on which the Provider, Trustee and the Issuer have satisfied
all of their respective obligations hereunder.
Section 10.8 Entire Agreement. This Agreement constitutes the entire agreement and
understanding of the parties with respect to its subject matter and supersedes all oral
communication and prior writings with respect thereto.
Section 10.9 Delivery of Financial Statements. The Issuer agrees that it will deliver to
the Provider its annual financial statements, promptly upon their availability.
Section 10.10 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without regard to conflict of law principles.
Section 10.11 Use of Qualified Dealer The Provider may use any other dealer to effect
the sales of Qualified Securities as contemplated herein.
Section 10.12 No Waiver; Remedies Cumulative. No failure or delay on the part of any
party hereto in exercising any right or remedy hereunder shall operate as a waiver thereof; nor
shall any single or partial exercise of any such right or remedy preclude any other or further
exercise thereof or the exercise of any other right or remedy. The rights and remedies of the
parties hereto are cumulative and not exclusive of any rights or remedies provided by law, this
Agreement or otherwise. None of the terms or provisions of this Agreement may be waived,
modified or amended except in a writing duly signed by the Trustee, the Issuer and the Provider.
Section 10.13 Submission to Jurisdiction. The Provider, the Trustee and the Issuer each
hereby irrevocably submits to the non-exclusive jurisdiction of any court of the State of New
York located in the Borough of Manhattan or the United States District Court for the Southern
District of the State of New York located in the Borough of Manhattan for the purpose of any
suit, action or other proceeding arising out of this Agreement, or any of the agreements or E
transactions contemplated hereby, at the election of the party initiating any such suit, action or
other proceeding, which is brought by or against the Provider, the Trustee or the Issuer, and the
parties each hereby irrevocably agrees that all claims in respect of any such suit, action or 1
proceeding may be heard and determined by any such court.
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CHI-15445730 20
10/20/2006 15:48 7275624021 CLEARWATER CITY ATTY PAGE 02/02
IN WITNESS WHEREOF,the Trustee,the Issuer and the Provider have caused this
Amended and Restated Debt Service Reserve Forward Delivery Agreement to be executed by
their respective duly authorized officers or agents,all as of the date and year first above written.
CITY OF CLEARWATER,FLORIDA
By:
William Horne]I
City Manager
x Attest:
City er
Approved as to Form and Legal Sufficiency;
City Attorney
U.S.BANK NATIONAL ASSOCIATION,
AS TRUSTEE
By:
Name:
Title:
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BANK OF AMERICA,N.A.
E
By:
Name:
Title j
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CHI-1544573
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OCT-19-2006 17:15 U.S. BANK CORP TRUST 6514958098 P.02iO3
IN WITNESS WHEREOF,the Trustee,the Issuer and the Provider have caused this
Amended and Restated Debt Service Reserve Forward Delivery Agreement to be executed by
their respective duly authorized officers or agents,all as of the date and year first above written.
CITY OF CLEARWATER,,FLORIDA
By:
Name:
Title:
U.S.BANK NATIONAL,ASSOCIATION,
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AS TRUSTEE
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Name: T.l„Cramer
Title: Vice President
BANK OF AMERICA,N.A.
By:
Name:
Title
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C147-1544573
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OCT 19 2006 11:44 FR CAP MARKETS DOCUMENT 704 388 9660 TO 97044091269 P.01i01
IN WITNESS WHEREOF,the Trustee,the Issuer and the Provider have cawed this
Amended and Restated Debt Service Reserve Forward Delivery Agreement to be executed by
their respective duly authorized officers or agents, all as of the date and year first above written.
CITY Of CLEARWATER,FLORIDA
By:
Name:
Title:
z -
U,S.BANK NATIONAL ASSOCIATION,
AS TRUSTEE
By:
Name:
Title:
BANK Of AMERICA.,N.A.
Name:
Title enior Vice President
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EXHIBIT A
CERTIFICATE OF THE TRUSTEE
October 20, 2006
City of Clearwater, Florida
Municipal Services Building
100 S. Myrtle Avenue
Clearwater, Florida 33756-5520
Bank of America,N.A.
Bank of America Interstate Tower
NCI-005-12-03
121 West Trade Street, 12th Floor
Charlotte,North Carolina 28255-0001
Re: $11,470,000 City of Clearwater, Florida Capital Improvement Refunding
Revenue Bonds, Series 2001
The undersigned, a duly authorized officer of U.S. Bank National Association(the
"Trustee"), in connection with the delivery of the Amended and Restated Debt Service Reserve
Forward Delivery Agreement, amending and restating the Debt Service Reserve Forward
Delivery Agreement dated as of November 7, 2001, dated as of October 20, 2006 (the
"Agreement") does hereby certify as follows:
(i) The Trustee has full legal right, power and authority to enter into the
Agreement.
(ii) The Agreement have been duly authorized, executed and delivered by the
Trustee. }
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(iii) Assuming the due authorization, execution and delivery by the Issuer and
the Provider, the Agreement is a legal, valid and binding obligation of the
Trustee, enforceable against it in accordance with the terms thereof,
subject to applicable bankruptcy, insolvency and similar laws affecting
creditors' rights generally, and subject, as to enforceability, to general
principles of equity (regardless of whether enforcement is sought in a f
proceeding in equity or at law).
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CHI-15445730 A-I
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OCT-19-2006 17:15 U.S. BANK CORP TRUST 6514958098 P.03iO3
(iv) The execution and delivery by tie Trustee of the Agreement and the
performance of its obligations thereunder,to be best Of our knowledge,do
not and will not conflict with or constitute or result in a default under,a
breach or violation of,or the creation of any lien or encumbrance on any
Of its property under,its charter or by-laws,or any other agreement,
Instrument,judgment,injunction or order applicable to it or any of its
property.
Capitalized terms used herein and not defined herein have the respective meanings given
to them in the Agreement.
Dated: October 20,2006
U.S.BANK NATIONAL ASSOCIATION
Name: `'-
Title: Vice rest t
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EXHIBIT B
[LETTERHEAD OF COUNSEL TO THE PROVIDER]
October 20, 2006
City of Clearwater, Florida
Municipal Services Building
100 S. Myrtle Avenue
Clearwater, Florida 33756-5520
U.S. Bank National Association
60 Livingston Avenue
St. Paul, MN 55107-2292
Re: $11,470,000 City of Clearwater, Florida Capital Improvement Refunding
Revenue Bonds, Series 2001
Ladies and Gentlemen:
I have acted as counsel to Bank of America, N.A. (the "Provider"), in connection with its
execution and delivery of the Amended and Restated Debt Service Reserve Forward Delivery
Agreement, dated as of October 20, 2006, amending and restating the Debt Service Reserve
Forward Delivery Agreement dated as of November 7, 2001 (the "Agreement"), by and among
U.S. Bank National Association(the "Trustee"), City of Clearwater, Florida (the "Issuer") and
the Provider.
In rendering this opinion, I have examined, or had examined on my behalf, among other
things, a copy of the Agreement and originals or copies satisfactory to me of such corporate
records, agreements, certificates and other documents as I have deemed relevant and necessary
as a basis for the opinions hereinafter expressed. In such examination I have assumed the
genuineness of all signatures, the authenticity of all documents submitted to me as originals and
the conformity with the authentic original documents of all documents submitted to me as
copies.
In giving the opinions expressed below I do not purport to be an expert in or generally
familiar with or qualified to express legal opinions based on the laws of any jurisdiction other
than the laws of the State of New York and applicable laws of the United States and the opinions
expressed herein are so limited to those laws.
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CHI-1544573x3 B-1
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Based upon the foregoing examination and review, I am of the opinion that:
(v) The Provider has full legal right, power and authority to enter into the
Agreement.
(vi) The Agreement has been duly authorized, executed and delivered by the
Provider.
(vii) Assuming due authorization and execution of the Agreement by the Issuer
and the Trustee, the Agreement constitutes a legal, valid and binding
obligation of the Provider, enforceable against it in accordance with the
terms thereof, subject to applicable bankruptcy, insolvency, receivership
and similar laws affecting creditors' rights generally, and subject, as to
enforceability, to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law).
I am furnishing this opinion solely for the benefit of the Trustee and the Issuer and no
other person is entitled to rely hereon. This opinion is not to be used, circulated, quoted or
otherwise referred to for any other purpose.
Very truly yours,
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CHI-1544573x3 B-2
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EXHIBIT C
[LETTERHEAD OF COUNSEL OF ISSUER]
October 20, 2006
U.S. Bank National Association
60 Livingston Avenue
St. Paul, MN 55107-2292
Bank of America, N.A.
Bank of America Interstate Tower
NCI-005-12-03
121 West Trade Street, 12th Floor
Charlotte,North Carolina 28255-0001
Re: $11,470,000 City of Clearwater, Florida Capital Improvement Refunding Revenue
Bonds, Series 2001
Ladies and Gentlemen:
We have acted as counsel to City of Clearwater, Florida(the "Issuer") in connection with
its execution and delivery of the Amended and Restated Debt Service Reserve Forward Delivery
Agreement dated as of October 20, 2006, amending and restating the Debt Service Reserve
Forward Delivery Agreement dated as of November 7, 2001 (the "Agreement"), by and among
U.S. Bank National Association (the "Trustee"), the Issuer and Bank of America, N.A. (the
"Provider"), and its execution and delivery of the Ordinance (as defined in the Agreement).
Capitalized terms used herein and not defined herein have the respective meanings given to them
in the Agreement.
In rendering this opinion, we have examined, among other things, the Ordinance, enacted
by the Issuer, dated as of October 4, 2001.
In connection with the foregoing, we have also examined originals or copies satisfactory
to us of all such records, agreements, certificates and other documents as we have deemed
relevant and necessary as a basis for the opinions hereinafter expressed. In such examination we [
have assumed the genuineness of all signatures, the authenticity of all documents submitted to us
as originals, and the conformity with the original documents of all documents submitted to us as
copies. !
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In giving the opinions expressed below we do not purport to be experts in or generally
familiar with or qualified to express legal opinions based on the laws of any jurisdiction other
than the laws of the Florida(the "State") and the federal laws of the United States of America.
Based upon the foregoing examination and review, we are of the opinion that:
(b) The Issuer has full legal right, power and authority to enter into the
Agreement and the Ordinance and to make purchases of the Qualified Securities in accordance
with the terms therein.
(c) The Agreement and the Ordinance have been duly authorized, executed
and delivered by the Issuer.
(d) The stipulation of New York law as the governing law of the Agreement is
enforceable under the laws of the State.
(e) Each of the Agreement and the Ordinance is a legal, valid and binding
obligation of the Issuer, enforceable against it in accordance with the terms thereof, including,
without limitation, the obligation to pay any Termination Amount or Loss Amounts, subject to
applicable bankruptcy, insolvency and similar laws affecting creditors' rights generally, and
subject, as to enforceability, to general principles of equity (regardless of whether enforcement is
sought in a proceeding in equity or at law).
(f) The Issuer's execution and delivery of the Agreement and the performance
of its obligations thereunder do not and will not conflict with or constitute or result in a default
under, a breach or violation of, or the creation of any pledge on any of its property under the
Ordinance or any other agreement, instrument,judgment, injunction or order known to me and
applicable to it or any of its property.
(g) The Ordinance is a legal, valid and binding obligation of the Issuer,
enforceable against it in accordance with the terms thereof, subject to applicable bankruptcy,
insolvency and similar laws affecting creditors' rights generally, and subject, as to enforceability,
to general principles of equity (regardless of whether enforcement is sought in a proceeding in
equity or at law).
(h) The Issuer is not entitled to claim immunity on the grounds of sovereignty ?
or other similar grounds in any suit, action or proceedings relating to this Agreement brought in F
the courts.of any jurisdiction and no such immunity (whether or not claimed) may be attributed
to such party or its revenues or assets.
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(i) All consents, authorizations and approvals requisite for the Issuer's
execution, delivery and performance of this Agreement have been obtained from any
governmental authority or regulatory body, and remain in full force and effect, and all conditions
thereof have been duly complied with, and no other action by, and no notice to or filing with, any
governmental authority or regulatory body is required for such execution, delivery or
performance.
(j) The Agreement is a Permitted Investment under the Ordinance.
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CHI-15445730
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We are furnishing this opinion to you solely for your benefit and no other person is
entitled to rely hereon. This opinion is not to be used, circulated, quoted or otherwise referred to
for any other purpose.
Respectfully submitted,
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CHI-1544573v3
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EXHIBIT D
AMENDED AND RESTATED
DEBT SERVICE RESERVE FORWARD DELIVERY AGREEMENT
NOTICE OF DELIVERY
[Date of Notice]
[Provider]
Security will be delivered by Provider to:
[account information as provided in Section 10.1 of Amended and Restated Debt Service
Reserve Forward Delivery Agreement]
Date of Delivery:
Security Interest Maturity CUSIP Am't Due at Maturity
(if any) Date ("Maturity Amount")
Purchase Price:
Payment Instructions: to be paid as follows:
[Account Information]
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EXHIBIT E
ELIGIBLE SECURITIES
ELIGIBLE SECURITIES
Eligible Securities shall be limited to the following:
i. Direct obligations of the United States of America for the payment of
which the full faith and credit of the United States of America for the
payment of which the full faith and credit of the United States of America
are pledged, or(b) obligations issued by any agency controlled or
supervised by and acting as an instrumentality of the United States of
America, the payment of the principal of and interest on which is full and
p Y
unconditionally guaranteed as a full faith and credit obligation of the
United States of America.
ii. The following obligations of government-sponsored agencies which
obligations are not backed by the full faith and credit of the United States
of America:
1. Federal Home Loan Mortgage Corp. Participation certificates
(excluded are stripped mortgage securities which are purchased at
prices exceeding their principal amounts) and Senior debt
obligations;
2. Farm Credit Banks Consolidated system-wide bonds and notes;
3. Federal Home Loan Banks (Consolidated debt obligations);
4. Federal National Mortgage Association Senior debt obligations,
and Mortgage-backed securities (excluded are stripped mortgage
securities which are purchased at prices exceeding their principal
amounts);
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5. Student Loan Marketing Association Senior debt obligations
(excluded are securities that do not have a fixed par value and/or
whose terms do not promise a fixed dollar amount at maturity or
call date);
6. Federal Financing Bank debt obligations; and
7. Resolution Funding Corp. debt obligations.
iii. Commercial paper which is rated at the time of purchase in the single
highest classification, "A-1+" by S&P and"P-1"by Moody's.
CH1-15445730 E-1
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EXHIBIT F
City of Clearwater, Florida
Improvement Revenue Refunding Bonds
Series 2001
Debt Service Reserve Fund Forward Delivery Agreement
Debt Service Reserve Fund Schedule
Delivery Bond Payment Reserve
Date Date Days Invested Requirement
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If any Delivery Date or Bond Payment Date specified above is not a Business Day, such
date will be the immediately succeeding Business Day;provided however, that with respect to
any date specified as a Bond Payment Date, the determination of whether such date is a Business I
Day shall be made by reference to the Trust Agreement.
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CHI-I 544573v3 F-1
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Bank ofAmerica
I
Legal Deportment
October 20, 2006
Ladies and Gentlemen:
I have acted as counsel to Bank of America, N.A. (the "Provider") in connection with its execution
and delivery of the Amended and Restated Debt Service Reserve Forward Delivery Agreement,
dated as of October 20, 2006 (the "Agreement"), by and among U.S. Bank National Association (the
"Trustee"), City of Clearwater, Florida (the "Issuer") and the Provider. Capitalized terms used
herein and not defined herein have the respective meanings given to them in the Agreement.
In rendering this opinion, I have examined, or had examined on my behalf, among other things, a
copy of the Agreement and such corporate records, agreements, certificates and other documents as I
have deemed relevant and necessary as a basis for the opinions hereinafter expressed. In such
examination I have assumed the genuineness of all signatures, the authenticity of all documents
submitted to me as originals, and the conformity with the authentic original documents of all
documents submitted to me as copies.
I am not expressing any opinion as to any matter relating to any jurisdiction other than the laws of
the State of New York and the United States and I assume no responsibility as to the applicability of
the laws of any other jurisdiction as to the subject transaction or the effect of such laws thereon.
Based upon the foregoing examination and review, I am of the opinion that:
(i) The Provider has full legal right,power and authority to enter into the Agreement.
(ii) The Agreement has been duly authorized, executed and delivered by the Provider. 1
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(iii) Assuming due authorization and execution by the Trustee and the Issuer, the Agreement {
constitutes the legal, valid and binding obligation of the Provider, enforceable against it in
accordance with the terms thereof, subject to applicable bankruptcy, insolvency, receivership and
similar laws affecting creditors' rights generally, and subject, as to enforceability, to general
principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at
law). I
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Bank of America,NC1-002-29-01
LEGALEAST4 1 182903-v I-City—oCClearwater Florida.DOC 101 S.Tryon Street,Charlotte,NC 28255
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tmyd�a ems«
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I am furnishing this opinion solely for the benefit of the Trustee and the Issuer and no other person is
entitled to rely hereon. This opinion is not to be used, circulated, quoted or otherwise referred to for
any other purpose.
Very truly yours,
7 Inv/-
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Kimberly S. Loepp
Assistant General Counsel
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LEGALEAST41182903-vl-City_of Clearwater Florida.DOC
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OCT.20'2006 17:19 SRYANT MILLER AND OLIVE PA #7553 P.002/004
Bryant • Miller • Olive
ATTORNEYS AT LAW
October 20,2006
U.S.Bank National Association
60 Livingston Avenue
St.Paul,MN $5107-2292
Bank of America,N.A.
Bank of America Interstate Tower
NCI-005-12-03
121 West Trade Street, 12th Floor
Charlotte,North Carolina 28255-0001
Re: $11,470,000 City of Clearwater,Florida Improvement Refunding Revenue
Bonds,Series 2001
Ladies and Gentlemen:
We have acted as Bond Counsel to City of Clearwater, Florida (the "Issuer") in
connection with its execution and delivery of the Amended and Restated Debt Service Reserve
Forward Delivery Agreement dated as of October 20, 2006, amending and restating the Debt
Service Reserve Forward Delivery Agreement dated as of November 7,2001 (the"Agreement"),
by and among U.S. Bank National Association (the "Trustee"), the Issuer and Bank of America,
N.A. (the "Provider"), and its enactment of the Ordinance (as defined in the Agreement).
Capitalized terms used herein and .not defined herein have the respective meanings given to
them in the Agreement.
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In rendering this opinion, we have examined, among other things, the Ordinance,
enacted by the Issuer,dated as of October 4, 2001.
In connection with the foregoing,we have also examined originals or copies satisfactory
I
to us of all such records, agreements, certificates and other documents as we have deemed
relevant and necessary as a basis for the opinions hereinafter expressed. In such examination j
we have assumed the genuineness of all signatures, the authenticity of all documents submitted
to us as originals, and the conformity with the original docu=ents of all documents submitted
to us as copies. j
101 North Monroe Street•Suite 900-Tallahassee,Florida 32301 •77X 850.222.861:1 •rAx 850.222.8969• www bmolawmw{ f
ATLANTA •JACKSONVILLE •MIAMI •ORLANDO •ST.PETERSDURG •TALLAHASSEE -TAMPA 1
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OGT.20'2006 17:20 BRYANT MILLER AND OLIVE PA #7553 P.003/004
In giving the opinions expressed below we do not purport to be experts in or generally
familiar with or qualified to express legal opinions based on the laws of any jurisdiction other
thatt the.laws of the Florida(the"State")and the federal laws of the United States of America.
Based upon the foregoing examination and review,we are of the opinion that
1. The Issuer has full legal right, power and authority to enter into the Agreement and
the Ordinance and to make purchases of the Qualified Securities in accordance with the terms
therein.
2. The Agreement and the Ordinance have been duly authorized, executed and
delivered by the Issuer.
3. The stipulation of New York law as the governing law of the Agreement is
enforceable under the laws of the State.
4. Each of the Agreement and the Ordinance is a legal, valid and binding obligation of
the Issuer, enforceable against it in accordance with the terms thereof, including, without
limitation, the obligation to pay any Termination Amount or Loss Amounts, subject to
applicable bankruptcy, insolvency and similar Laws affecting creditors' rights generally, and
subject, as to enforceability, to general principles of equity (regardless of whether enforcement
is sought in a proceeding in equity or at law).
5. The Issuer's execution and delivery of the Agreement and the performance of its .
obligations thereunder do not and will not conflict with or constitute or result in a default
under, a breach or violation of, or the creation of any pledge on any of its property under the '
Ordinance or any other agreement,instrument,judgment, injunction or order known to me and
applicable to it or any of its property.
6. The Ordinance is a legal, valid and binding obligation of the Issuer, enforceable
against it in accordance with the terms thereof,subject to applicable bankruptcy, insolvency and
similar laws affecting creditors' rights generally, and subject, as to enforceability, to general
principles of equity(regardless of whether enforcement is sought in a proceeding in equity or at
law).
7. The Issuer is not entitled to claim immunity on the grounds of sovereignty or other
shrMar grounds in any suit, action or roceedin s relating p g g to this Agreement brought in the �
courts of any jurisdiction and no such,immunity(whether or not claimed)may be attributed to j
such party or its revenues or assets.
S. All consents, authorizations and approvals requisite for the Issuer's execution,
delivery and performance of this Agreement have been obtained from any governmental j
authority or regulatory body, and remain in full force and effect,and all conditions thereof have I
been duly complied with, and no other action by, and no notice to or filing with, any
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OCT.20'2006 17:20 BRYANT MILLER AND OLIVE PA #7553 P.004/004
governmental authority or regulatory body is required for such execution, delivery or
performance.
9. The Agreement is a Fern-titted Investment under the Ordinance.
We are furnishing this opinion to you solely for your benefit and no other person is
entitled to rely hereon. This opinion is not to be used,circulated, quoted or otherwise referred
to for any other purpose.
Respectfully Submitted,
BU Z OL1VE P.A.
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