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HomeMy WebLinkAboutCity of Tamarac Resolution R-2004-093Temp Reso #10423 —April 19, 2004 Revised: April 22, 2004 Page 1 CITY OF TAMARAC, FLORIDA RESOLUTION NO. R-2004- A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF TAMARAC, FLORIDA, AUTHORIZING THE APPROPRIATE CITY OFFICIALS TO EXECUTE A DEBT SERVICE FORWARD DELIVERY AGREEMENT BETWEEN THE CITY OF TAMARAC AND WACHOVIA BANK, N.A., FOR THE PAYMENT OF DEBT SERVICE ON ALL OUTSTANDING REVENUE BOND ISSUES; AUTHORIZING THE APPROPRIATE OFFICIALS TO APPLY ANY NON -SUBSTANTIVE CHANGES TO SAID AGREEMENT; PROVIDING FOR CONFLICTS; PROVIDING FOR SEVERABILITY; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City of Tamarac, Florida, will be accumulating approximately 1383,000 monthly for debt service related to the City's Water and Sewer Revenue Refunding Bonds Series 1992 and Series 1996, (collectively the Water and Sewer Bonds), the Sales Tax Revenue Bonds Series 1999, and Series 2002, (collectively the Sales Tax Bonds), and the Capital Improvement Revenue Bonds Series 2004 (2004 Bonds); and WHEREAS, a Debt Service Forward Delivery Agreement (DSFDA) will allow the City to invest these monthly debt service amounts with a third party investor in exchange for a lump sum payment; and WHEREAS, the City was able to downsize the principal amount of the Capital Improvement Revenue Bonds by $550,000 by anticipating the utilization of a DSDFA; and WHEREAS, the City's investment policy allows the use of a DSFDA; and Temp Reso #10423 — April 19, 2004 Revised: April 22, 2004 Page 2 WHEREAS, The City's Financial Advisor, Kirkpatrick Pettis, received responses to a request for bids for a DSFDA from seven (7) investment providers (hereto attached as Exhibit 1); and WHEREAS, Wachovia Bank, N.A., (Wachovia) quoted the highest upfront, lump sum payment of all respondents at $747,000; and WHEREAS the Director of Finance and City Manager recommend the City enter into a DSFDA with Wachovia (hereto attached as Exhibit 2) to invest debt service deposits with respect to the Water and Sewer Bonds, the Sales Tax Bonds, and the 2004 Bonds (collectively the Outstanding Bonds); and WHEREAS the City's Financial Advisor and Bond Counsel related to the issuance of the 2004 Bonds are currently working with Wachovia to ensure the DSFDA is acceptable by AMBAC, the insurer of the 2004 Bonds, and in compliance with the Outstanding Bonds Authorizing Resolutions and some further changes of a non -substantive nature may yet need to be applied; and WHEREAS the City Manager, City Attorney, and Director of Finance will review these changes to ensure they are in the best interest of the City; and WHEREAS, the City Commission of the City of Tamarac, Florida, deems it to be in the best interest of the citizens and residents of the City of Tamarac to enter into a DSFDA between the City and Wachovia (with such non -substantive changes as may be needed) to invest the debt service deposits with respect to the Outstanding Bonds. 1 E 1 1 Temp Reso #10423 — April 19, 2004 Revised: April 22, 2004 Page 3 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF TAMARAC, FLORIDA: SECTION 1: The foregoing "WHEREAS" clauses are hereby ratified and confirmed as being true and correct and are hereby made a specific part of this Resolution. SECTION 2: The appropriate City officials are hereby authorized to accept and execute a DSFDA (a form of which is hereto attached as Exhibit 2) between the City and Wachovia to invest the debt service deposits for the City's Outstanding Bonds. The form of the DSFDA attached hereto is hereby approved subject to such changes, insertions, and deletions as the City Manager, City Attorney, and Director of Finance of the City shall approve, execution and delivery to be conclusive evidence of such approval. SECTION 3: All Resolutions or parts of resolutions in conflict herewith are hereby repealed to the extent of such conflict. SECTION 4: If any clause, section, other part or application of this Resolution is held by any court of competent jurisdiction to be unconstitutional or invalid, in part or application, it shall not affect the validity of the remaining portions or applications of this Resolution. SECTION 5: This Resolution shall become effective immediately upon its passage and adoption. Temp Reso #10423 — April 19, 2004 Revised: April 22, 2004 Page 4 PASSED, ADOPTED AND APPROVED this 28th day of April, 2004. E SCHREIBER, MAYOR ATTEST: , Y' C/G"/RECORD OF COMMISSION VOTE: MARION SWENSON, CMd MAYOR SCHREIBER CITY CLERK DIST 1: COMM. PORTNER DIST 2: COMM. FLANSBAUM-TALABISCO DIST 3: VIM SULTANOF DIST 4: COMM. ROBERTS I HEREBY CERTIFY that I have approved this RESOLUTION as to form. MITCHELL S,KRAF CITY ATTORNEY 1 ff�� z ("'"Y- V 3 V� KUTAK RUCK LLP CHICAGO DENVER SUITE 2100 orMOINES PEACHTREE CENTER SOUTH TOWER FAYETTEVILLE 225 PEACHTREE STREET, N.E. IRVINE KANSAS CITY KANS ATLANTA. GEORGIA 30303-1731 LINCOLN LITTLE ROCK 404-222-4600 OKLAHOMA CITY FACSIMILE 404-222-4654 OMAHA PASADENA www.kutakrock.com RICH MOND SCOTTSDALE JUDY M. MAYS WASHINGTON judy.mays@kutakrock.com July 21, 2004 WICHITA (404) 222-4676 VIA FIRST CLASS MAIL Ms. Dona Newman Director of Finance City of Tamarac, Florida 7525 NW 88th Avenue Tamarac, FL 33321 City of Tamarac, Florida Capital Improvement Revenue Bonds Series 2004 Dear Ms. Newman: Enclosed for your records are the following documents all in connection with the above - referenced matter: 1. A copy of the Debt Service Forward Delivery Agreement, with original signature pages; 2. An original executed opinion of Kutak Rock LLP; 3. An original executed opinion of Counsel to City of Tamarac; and 4. An original executed Certificate of Wachovia Bank, National Association. 1f you should have any questions, please feel free to contact me at (404) 222-4676. Sincerely, Is/Judy M. Mays Judy M. Mays Paralegal Enclosures 04-158634.1 Wachovia/Tamarac, FL (2004)/#557/04-04 DEBT SERVICE FORWARD DELIVERY AGREEMENT by and among J.P. MORGAN TRUST COMPANY, N.A. as Custodian CITY OF TAMARAC, FLORIDA, as Issuer and WACHOVIA BANK, NATIONAL ASSOCIATION, as Provider 04-153100.5 City of Tamarac Florida W13#557 - 04/04 TABLE OF CONTENTS Section 1.01. Section 1.02. Section 1.03. Section 1.04. Section 1.05. Section 1.06. Section 2.01. Section 2.02. Section 2.03. Page ARTICLE I DEFINITIONS Definitions........................................................................................................I Incorporation of Certain Definitions by Reference..........................................7 AccountingMatters..........................................................................................7 Interpretation....................................................................................................7 Computation of Time Periods...........................................................................7 New York City Time Presumption...................................................................7 ARTICLE II PURCHASE AGREEMENT Purchase and Sale of Qualified Securities........................................................8 Delivery; Payment............................................................................................8 Substitution; Subsequent Deliveries.................................................................9 ARTICLE III DEFEASANCE OR REFUNDING Section 3.01. Defeasance or Refunding...............................................................................10 ARTICLE IV REPRESENTATIONS AND WARRANTIES Section 4.01. Representations and Warranties of the Provider............................................I I Section 4.02. Representations and Warranties of the Issuer.................................................12 ARTICLE V COVENANTS AND ACKNOWLEDGEMENTS Section5.01. Covenants.......................................................................................................14 Section 5.02. Additional Covenants of the Issuer................................................................14 Section 5.03. Regarding the Financing Documents.............................................................15 Section 5.04. Role of the Provider........................................................................................15 Section 5.05. Termination Amount......................................................................................16 Section 5.06. Broker's Fees..................................................................................................16 ARTICLE VI CLOSING CONDITIONS Section 6.01. Closing Conditions.........................................................................................16 Section 6.02. Post Closing Conditions.................................................................................17 ARTICLE VII DEFAULTS; TERMINATION Section 7.01. Issuer Events of Default.................................................................................17 04-153100.5 City of Tamarac Florida WB#557 - 04/04 Section 7.02. Remedies Upon Occurrence of Issuer Event of Default.................................18 Section 7.03. Loss Amount if Failed or Late Purchase........................................................18 Section 7.04. Application of Excess Funds..........................................................................19 Section 7.05. Limitation on Rights.......................................................................................19 Section 7.06. No Waiver; Remedies Cumulative.................................................................20 ARTICLE VIII THE CUSTODIAN Section 8.01. Appointment of Custodian..............................................................................20 Section 8.02. Liability of the Custodian; Consultation with Legal Counsel ........................20 Section 8.03. Payment of Custodian Fees............................................................................20 ARTICLE IX MISCELLANEOUS Section 9.01. Notices and Delivery Instructions..................................................................21 Section 9.02. Binding Effect; Transfer.................................................................................23 Section9.03. Limitation.......................................................................................................23 Section9.04. Severability.....................................................................................................23 Section 9.05. Amendments, Changes and Modifications.....................................................23 Section9.06. Counterparts....................................................................................................23 Section9.07. Termination....................................................................................................23 Section 9.08. Entire Agreement............................................................................................23 Section 9.09. Delivery of Financial Statements...................................................................23 Section 9.10. Submission to Jurisdiction..............................................................................23 Section 9.11. Governing Law...............................................................................................24 Section 9.12. Use of Qualified Dealer..................................................................................24 ARTICLE X DOWNGRADE Section10.01. Downgrade......................................................................................................24 EXHIBIT A ELIGIBLE SECURITIES EXHIBIT B OPINION OF COUNSEL TO PROVIDER EXHIBIT C OPINION OF COUNSEL TO ISSUER EXHIBIT D DELIVERY DATES 04-153100.5 it City of Tamarac Florida W13#557 - 04/04 DEBT SERVICE FORWARD DELIVERY AGREEMENT THIS DEBT SERVICE FORWARD DELIVERY AGREEMENT (this "Agreement"), dated as of April 30, 2004, by and among J.P. MORGAN TRUST COMPANY, N.A., a national banking association duly organized and existing under the laws of the United States of America, the CITY OF TAMARAC, FLORIDA, a body politic and corporate duly organized and existing under the laws of the State of Florida and WACHOVIA BANK, NATIONAL ASSOCIATION, a national banking association duly organized and existing under and by virtue of the laws of the United States of America. Capitalized terms used herein and not otherwise defined shall have the meaning assigned thereto in Article I hereof. WITNESSETH: WHEREAS, the Issuer have heretofore adopted the Resolutions; WHEREAS, pursuant to the terms of the Resolutions the Issuer has established the Debt Service Funds, one for each series of Bonds; WHEREAS, the Issuer has either elected or is required to make periodic transfers into the Debt Service Funds to provide for the payment of Debt Service on each series of Bonds: WHEREAS, the Issuer is hereby appointing the Custodian as custodian for the Debt Service Funds; WHEREAS, the Issuer has deemed it desirable and advantageous to provide for the investment of the amounts so deposited in the Debt Service Funds pursuant to the terms of this Agreement; and WHEREAS, the Provider has agreed to supply investments in appropriate amounts and for appropriate periods and to pay consideration to the Issuer, in an amount equal to the Fee Amount for the right to supply such investments to the Issuer. NOW, THEREFORE, in consideration of the foregoing, and intending to be legally bound hereby, the parties agree as follows: ARTICLE I I-0-3 W 01 i11II&I Section 1.01. Definitions. For purposes of this Agreement, unless clearly indicated otherwise, the words and terms defined in this Article I have the respective meanings given to them herein: "Amended Agreement" has the meaning specified in Section 3.01(c)(iii). "Amended Cash Flows" has the meaning specified in Section 3.01(c)(iii). 04-153100.5 City of Tamarac Florida W13#557 - 04/04 "Bond Payment Date" means with respect to each Delivery Date, each date identified as the "Bond Payment Date" on Exhibit D unless any such date is not a Business Day, in which case "Bond Payment Date" means the next succeeding Business Day; provided that in determining whether any such date is a Business Day no effect shall be given to clause (c), (d) (e), (f) or (g) of the definition of Business Day. "Bonds" means collectively, the Series 1992 Bonds, the Series 1996 Bonds, the Series 1999 Bonds, the Series 2002 Bonds and the Series 2004 Bonds "Business Day" means any day other than (a) a Saturday or Sunday, (b) a day on which the City's offices are authorized or required by law or executive order to close, (c) a day on which banking institutions in the City of New York or Jacksonville, Florida, are authorized or required by law or executive order to close, (d) a day on which any Qualified Securities which may be delivered hereunder are not subject to delivery in the City of New York, (e) a day on which the Provider is required by law or executive order to close, (f) a day on which the payment system of the Federal Reserve is not operational, or (g) a day on which the New York Stock Exchange is closed. "Closing Date" means April 30, 2004. "Coupon Payment" means, for any Qualified Security, a payment of interest which is due to be paid thereon prior to the scheduled maturity of such Qualified Security. "Custodian" means J.P. Morgan Trust Company, N.A., a national banking association duly organized and existing under the laws of the United States of America and its successors. "Dealer" means a leading dealer in the relevant markets selected by the Provider in good faith (a) from among dealers of the highest credit standing which satisfy all of the criteria that the Provider applies generally at the time in deciding whether to offer or to make an extension of credit and (b) to the extent practicable, from among such dealers having an office in the same city. "Debt Service Funds" means, collectively, the Series 1992 Debt Service Account, the Series 1996 Debt Service Account, the Series 1999 Debt Service Account, the Series 2002 Debt Service Account and the Series 2004 Debt Service Account. "Debt Service Payment" means (a) a scheduled payment of principal of or interest on the Bonds, including any such payment in connection with a scheduled mandatory sinking fund redemption of the Bonds from sinking fund installments but excluding any such payment in connection with any other redemption of the Bonds and excluding any payment required to make a regularly scheduled deposit to the Debt Service Funds or (b) a payment of principal of or interest on the Bonds upon an acceleration of the Bonds following an event of default under the Indenture. "Default Rate" means a per annum rate equal to the lesser of (a) the cost, determined in good faith (without proof or evidence of any actual cost to the party to whom such amount is owed) to the party to whom such amount is owed if it were to fund or of funding the relevant amount plus 1 % per annum, and (b) the maximum rate permitted by law. 04-153100.5 City of Tamarac Florida WB#557 - 04/04 2 "Delivery Date" means each date identified as a "Delivery Date" on Exhibit D, unless any such date is not a Business Day, in which case "Delivery Date" means the next succeeding Business Day. "Delivery Notice" means a notice delivered by the Provider describing the Qualified Securities to be delivered pursuant hereto. "Deposit Amount" means for each Delivery Date, the Deposit Amount specified for such date in Exhibit D. "Differential" means the amount, if any, by which the Purchase Price of any Qualified Security delivered by a Qualified Dealer hereunder exceeds the Market Value thereof. "Eligible Securities" means securities of the type identified in Exhibit A. "Fee Amount" means $747,000. "Financing Documents" means the Resolutions and the Bonds. "Initial Delivery Date" means April 30, 2004. "Insolvent" means (a) the Issuer shall (i) commence a voluntary case under the federal bankruptcy laws, (ii) file a petition seeking to take advantage of any other law relating to bankruptcy, insolvency, reorganization, arrangement, liquidation, winding up or the composition or the adjustment of debts, (iii) consent to any petition filed against it in an involuntary case under such bankruptcy, insolvency or other laws or such petition shall not be dismissed within 30 days of its filing, (iv) apply for or consent to the appointment of, or the taking of possession by, a trustee, receiver, custodian, liquidator or other similar official for itself or for all or a substantial part of its property, (v) admit in writing its insolvency, bankruptcy or inability to pay, or generally its nonpayment of its debts as they come due, (vi) make an assignment, arrangement or composition with or for the benefit of its creditors, (vii) take any official action for the purpose of effecting any of the foregoing; or (b) a case or other proceeding shall be commenced against the Issuer in any court of competent jurisdiction seeking (i) relief under the federal bankruptcy laws or under any other law relating to bankruptcy, insolvency, reorganization, winding up or the composition or the adjustment of debts, or (ii) the appointment of a trustee, receiver, custodian, liquidator, provisional liquidator, administrator or other similar official for the Issuer or for all or a substantial part of its property, and any such case or proceeding shall continue undismissed and unstayed for a period of 30 consecutive days, or an order granting the relief requested in any such case or proceeding against such party shall be entered and shall remain in effect and unstayed for a period of 30 consecutive days; or (c) (i) there shall be appointed or designated with respect to the Issuer 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 (ii) there shall be declared or introduced or proposed for consideration by the Issuer 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, or (iii) the Issuer or any legislative body of the Issuer shall adopt a resolution for its winding up, official management of liquidation (other than pursuant to a consolidation or merger), or (iv) there shall be declared or introduced or 04-153100.5 City of Tamarac Florida W13#557 - 04/04 3 proposed for consideration by the Issuer 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, or (v) the Issuer 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 of its assets and such secured party maintains possession, or any such process is not dismissed, discharged, stayed or restrained, in each case within 30 days thereafter, or (vi) a moratorium shall be declared with regard to the payment of the Issuer's debt, or (vii) the Issuer 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 (vi) (inclusive) or takes any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the foregoing acts. "Issuer" means City of Tamarac, Florida, a body politic and corporate duly organized and existing under the laws of the State of Florida, and its successors. "Issuer Event of Default" means the occurrence of an event specified in Section 7.01. "Loss Amount" means the amount determined pursuant to Section 7.03. "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 in the Delivery Notice with respect to such Qualified Security. "Maturity Amount" means, with respect to any Qualified Security, 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 Investors Service, Inc. "Original Cash Flows" has the meaning specified in Section 3.01(c)(iv). "Permitted Investments" shall have the meaning assigned thereto in the Resolutions. "Previously Purchased Securities" has the meaning specified in Section 2.03(a). "Provider" means Wachovia Bank, National Association, a national banking association organized and existing under and by virtue of the laws of the United States of America, and its successors and assigns. "Purchase Price" means with respect to any Qualified Security, the Maturity Amount. "Purchased Securities" means any Qualified Securities delivered to the Issuer hereunder. "Qualified Dealer" means Wachovia Capital Markets, LLC, a corporation duly organized and validly existing under the laws of the State of North Carolina, its successors or assigns, or any other dealer in Eligible Securities selected by the Provider. 04-153100.5 City of Tamarac Florida W13#557 - 04/04 4 "Qualified Securities" means, in connection with any Delivery Date, one or more Eligible Securities which shall (a) mature not later than the related Bond Payment Date and (b) have in the aggregate a Purchase Price which does not exceed the Deposit Amount for such Delivery Date. "Refunding Bonds" has the meaning specified in Section 3.01(c). "Refunding Date" has the meaning specified in Section 3.01(c)(iii). "Resolutions" means, collectively, the Series 1992 Resolution, the Series 1996 Resolution, the Series 1999 Resolution, the Series 2002 Resolution, and the Series 2004 Resolution. "S&P" means Standard & Poor's Ratings Services, a division of the McGraw-Hill Companies, Inc. "Series 1992 Bonds" means the Issuer's Water and Sewer Utility Revenue Bonds, Series 1992. "Series 1992 Debt Service Account" means the Bond Service Account of the Tamarac. Water and Sewer Revenue and Refunding Bond Interest and Sinking Fund established by Series 1992 Resolution, allocable to the Series 1992 Bonds. "Series 1992 Resolution" means Resolution No. R-85-436, adopted by the Issuer of December 10, 1985, as amended by Resolution No. R-85-439, R-92-74, R-92-114, R-92-115 and R-92-131 adopted by the Issuer on December 23, 1985, April 22, 1992, June 24, 1992, June 24, 1992 and August 12, 1992, respectively_ "Series 1996 Bonds" means the Issuer's Taxable Water and Sewer Utility Revenue Refunding Bonds, Series 1996. "Series 1996 Debt Service Account" means the Bond Service Account of the Tamarac Water and Sewer Revenue and Refunding Bond Interest and Sinking Fund established by Series 1992 Resolution, as supplemented by the Series 1996 Resolution, allocable to the Series 1996 Bonds. "Series 1996 Resolution" means the Series 1992 Resolution as further supplemented by Resolution No. 95-296 adopted by the Issuer on December 13, 1995_ "Series 1999 Bonds" means the Issuer's Sales Tax Revenue Bonds Series 1999. "Series 1999 Debt Service Account" means the Interest Account, the Principal Account and the Bond Redemption Account in the Pledged Revenue Sinking Fund established under the Series 1999 Resolution allocable to the Series 1999 Bonds. "Series 1999 Resolution" means Resolution No. 98-156 adopted by the Issuer on May 27, 1998, as amended and supplemented by Resolution No. 99-178 and No. 99-192 adopted by the Issuer on May 27, 1998, July 14, 1999 and July 14, 1999, respectively. 04-153100.5 City of Tamarac Florida WB#557 - 04/04 5 "Series 2002 Bonds" means the Issuer's Sales Tax Revenue Bonds, Series 2002. "Series 2002 Debt Service Account" means the Interest Account, the Principal Account and the Bond Redemption Account in the Pledged Revenue Sinking Fund established under the Series 1999 Resolution, allocable to the Series 2002 Bonds. "Series 2002 Resolution" means the Series 1999 Resolution as further supplemented by Resolution No. R-2002-125 adopted by the Issuer on May 8, 2002. "Series 2004 Bonds" means the Issuer's Capital Improvement Revenue Bonds, Series 2004. "Series 2004 Debt Service Account" means the Interest Account, the Principal Account and Bond Redemption Account established pursuant to the Series 2004 Resolution.. "Series 2004 Resolution" means Resolution No. R-2004-63 adopted by the Issuer on March 24, 2004 as supplemented by Resolution No. R-2004-64 adopted by the Issuer on March 24, 2004. "Shortfall Amount" has the meaning specified in Section 7.05(a). "Specified Indebtedness" means any bond, note or other evidence of indebtedness, including without limitation the Bonds, or any guarantee. "Termination Amount" means an amount, as determined by the Provider in good faith on the basis of the arithmetic mean of quotations from at least three Dealers of the amount, if any, that each such Dealer would require the Provider to pay to the Dealer in consideration of such Dealer entering into an agreement with the Provider (with such documentation as the Provider and the Dealer may in good faith agree) which would have the effect of preserving for the Provider the economic equivalent of its rights under this Agreement for the period commencing on the termination date of this Agreement and terminating on the last Bond Payment Date (assuming for these purposes that this Agreement had not terminated on the termination date and continued in full force through such last Bond Payment Date); provided, however, that: (a) if more than three quotations are provided, the Termination Amount will be the arithmetic mean of such quotations, without regard to the quotations having the highest and lowest values; (b) if exactly three quotations are provided, the Termination Amount will be the quotation remaining after disregarding the highest and lowest quotations; for purposes of clauses (a) and (b), if more than one quotation has the same highest value or lowest value, then one of such quotations shall be disregarded; and (c) if the Provider is unable to obtain three such quotations, the Termination Amount shall be the amount, as reasonably determined by the Provider, to be its total losses and costs in connection with a termination of this Agreement, including any loss of bargain, cost of funding or, at the election of the Provider but without duplication, any 04-153100.5 City of Tamarac Florida W13#557 - 04/04 6 loss or cost incurred as a result of its terminating, liquidating, obtaining or reestablishing any hedge or related trading position; and provided further, however, that in any event the Termination Amount shall also include (i) any unpaid amounts due the Provider as of the date of termination of this Agreement (including any amounts due under Section 7.05) and (ii) if such Termination Amount is being paid in connection with a termination of this Agreement following an Event of Default or if any Termination Amount otherwise due hereunder is not paid when due, the Termination Amount shall also include any incidental costs and expenses incurred by the Provider in connection with such termination and 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 the employees of the Provider spent in connection with such termination and the enforcement of the Provider's rights under this Agreement). Any determination of the Termination Amount by the Provider shall be conclusive and binding on the parties hereto absent manifest error. Notwithstanding anything herein to the contrary, the calculation of the Termination Amount shall take into account and shall compensate the Provider for the payment by the Provider of the Fee Amount. Section 1.02. Incorporation of Certain Definitions by Reference. Each capitalized term used herein and not otherwise defined herein shall have the meaning provided therefor in the Resolutions and the Bonds, as applicable, unless the context otherwise requires. Section 1.03. Accounting Matters. All accounting terms used herein without definition shall be interpreted in accordance with generally accepted accounting principles, consistently applied, and, except as otherwise expressly provided herein, all accounting determinations required to be made pursuant to this Agreement shall be made in accordance with generally accepted accounting principles, consistently applied. Section 1.04. Interpretation. All words used herein shall be construed to be of such gender or number as the circumstances require. Reference to any document means such document as amended or supplemented from time to time as permitted under its respective terms and the terms hereof. Reference herein to an Article, Exhibit or Section shall constitute a reference to such Article, Exhibit or Section of or to this Agreement unless otherwise specified. Section 1.05. Computation of Time Periods. In this Agreement, in the computation of a period of time from a specified date to a later specified date, unless otherwise specified herein, the word '!from" means "from and including" and the words "to" and "until" each mean "to but excluding." Section 1.06. New York City Time Presumption. All references herein to times of the day shall be presumed to refer to New York City time unless otherwise specified. 04-153100.5 City of Tamarac Florida WB#557 - 04/04 7 ARTICLE II PURCHASE AGREEMENT Section 2.01. Purchase and Sale of Qualified Securities. (a) At its option, the Provider or other Qualified Dealer may deliver to the Custodian for the benefit of the Issuer, on or after any Delivery Date but prior to the related Bond Payment Date, Qualified Securities selected by the Provider; provided that except in connection with any deliveries made pursuant to Section 2.03, the Purchase Price of Qualified Securities delivered on any date shall not exceed the difference between the Deposit Amount and the Purchase Price of Qualified Securities previously delivered by the Provider with respect to the applicable Delivery Date and which have not yet matured. (b) At the time of the delivery by the Provider or other Qualified Dealer of any Qualified Securities in accordance with this Agreement, whether on or after a Delivery Date, the Issuer shall, out of funds available, in the Debt Service Funds or otherwise available to the Issuer, purchase or cause the Custodian to purchase such Qualified Securities in accordance with Section 2.02. (c) If the Provider or other Qualified Dealer fails to deliver Qualified Securities as required hereunder by 4:30 p.m. New York City time on any Delivery Date, the Issuer may invest the Deposit Amount on an overnight basis so long as such funds are available for investment pursuant to the terms of this Agreement on the next Business Day until the earlier of the related Bond Payment Date and the date on which such amounts are applied to the purchase of Qualified Securities hereunder. (d) The Provider is not required to own any Qualified Securities at the time of the Provider's execution of this Agreement or at any time prior to the respective delivery dates thereof. 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. Section 2.02. Delivery; Payment. (a) All Qualified Securities delivered under this Agreement shall be delivered to the Custodian for the Issuer to the account specified in Section 9.01, 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 Custodian for the Issuer on a "delivery versus payment" basis. (i) Except with respect to the initial delivery of Qualified Securities, with respect to which no Delivery Notice is required, the Provider or other Qualified Dealer shall cause a Delivery Notice to be delivered to the Custodian at least one Business Day prior to the delivery of any Qualified Securities that are in book entry form and at least two Business Days prior to the delivery of any Qualified Securities that are in certificated form. 04-153100.5 City of Tamarac Florida WB#557 - 04/04 8 (ii) Concurrently with the delivery of Qualified Securities by the Provider, unless otherwise directed by the Provider in writing, the Issuer shall cause the Custodian to pay the Purchase Price to the Provider. Concurrently with the delivery of Qualified Securities by a Qualified Dealer, unless otherwise directed by the Provider in writing, the Issuer shall cause the Custodian to pay the Qualified Dealer delivering such Qualified Securities, in its individual capacity, the Market Value thereof, and to the Qualified Dealer as agent for the Provider, the Differential, if any. (iii) All payments required to be made by the Issuer under this Agreement shall be made in immediately available funds by means of a bank or federal funds wire to the Provider's account set forth in Section 9.01 hereof. Section 2.03. Substitution; Subsequent Deliveries. (a) Subject to Section 2.02(a)(i), the Provider or a Qualified Dealer may, at the option of the Provider, deliver to the Custodian, from time to time, on any Business Day after a Delivery Date and prior to the related Bond Payment Date, Qualified Securities with an aggregate Maturity Amount which does not exceed the aggregate Maturity Amount of Qualified Securities previously delivered to the Custodian pursuant to this Agreement and which have not yet matured (collectively, the "Previously Purchased Securities"). If the Provider or a Qualified Dealer delivers Qualified Securities to the Custodian as provided in this Section 2.03(a), the Custodian shall purchase such securities and concurrently with and in consideration of such purchase, and in lieu of paying the Purchase Price, deliver to the Provider or a Qualified Dealer, as applicable, all or a portion of the Previously Purchased Securities which have a Maturity Amount equal to the Maturity Amount of the Qualified Securities then being delivered to the Custodian all as may be directed by the Provider. Any Qualified Securities delivered by the Provider or a Qualified Dealer pursuant to this Section 2.03(a) must mature on a date that is not later than the related Bond Payment Date. (b) If any Previously Purchased Securities mature prior to the Bond Payment Date for which such Previously Purchased Securities were delivered, the Provider shall have the right, at any time on or after the maturity date of such Previously Purchased Securities, subject to Section 2.02(a)(i) hereof, to cause the Issuer to purchase at the Purchase Price from the Provider or other Qualified Dealer, with all or part of the proceeds of any such Previously Purchased Securities, Qualified Securities the Purchase Price of which is equal to or less than the Purchase Price of the Qualified Securities which have so matured. (c) If any Previously Purchased Securities have a Coupon Payment, the Provider shall have the right, at any time on or after the date on which interest in respect of such Coupon Payment is received by the Issuer or the Custodian, subject to Section 2.02(a)(i) hereof, to cause the Issuer or the Custodian to purchase at the Purchase Price from the Provider or other Qualified Dealer, with all or part of the amount of such Coupon Payment, Qualified Securities the Purchase Price of which is equal to or less than the amount of such Coupon Payment. 04-153100.5 City of Tamarac Florida W13#557 - 04/04 9 FAC741.COIN o DEFEASANCE OR REFUNDING Section 3.01. Defeasance or Refunding. (a) The Issuer may, by giving the Provider at least 15 Business Days' prior notice, but without the consent of the Provider, partially or completely redeem, purchase, tender for, defease, repurchase or refund the Bonds as provided in the Resolutions, provided that if the Issuer takes any such action, Exhibit E shall be revised to reflect the reduction in Deposit Amounts caused by such action, the Provider shall calculate the Termination Amount that would be payable hereunder if the Agreement were to terminate on the basis of Exhibit D before such amendment and on the basis of Exhibit D after such amendment and to the extent that the former exceeds the latter, the Issuer shall pay an amount equal to such difference to the Provider. If the Issuer is required to make a payment pursuant to the preceding sentence, the Issuer shall pay such amount promptly but by no later than the later of (A) one Business Day after receipt of notice of the Termination Amount from the Provider or (B) the date of such purchase, redemption, defeasance, repurchase, refunding or similar event. Such payment shall be made in immediately available funds; to or at the direction of the Provider. (b) If all of the Bonds are redeemed, purchased, defeased or refunded, immediately upon payment of the Termination Amount in accordance with this Section 3.01 this Agreement shall terminate. The Issuer agrees that it shall not partially or completely redeem, purchase, tender for, defease, repurchase or refund the Bonds unless it shall have sufficient funds to pay any Termination Amount or other amount which may be due as a result thereof as provided herein. (c) If pursuant to Subsection 3.01 (a) this Agreement would be terminated in connection with the issuance of bonds to refund the Bonds in whole or in part (the "Refunding Bonds") and a Termination Amount would be payable to the Provider, the Issuer may, by written notice to the Provider, request that the Provider continue this Agreement and have such Agreement apply to the Refunding Bonds as well as any Bonds the remain outstanding. The Provider agrees that if it receives such a request, the Agreement shall not terminate and the Provider shall so continue this Agreement with respect to the Refunding Bonds and the Bonds remaining outstanding after such refunding, provided that: (i) the Provider receives such request (together with all relevant details relating thereto) at least 15 days in advance of the issuance of the Refunding Bonds; (ii) the Refunding Bonds are to be issued under the existing Resolutions or such other resolutions which is approved by the Provider and the Provider is otherwise satisfied with the bond documentation relating to the Refunding Bonds; 04-153100.5 City of Tamarac Florida WB#557 - 04/04 10 (iii) on or prior to the date the Bonds are to be refunded (the "Refunding Date"), the Issuer and the paying agent of the Refunding Bonds enter into such amendments of this Agreement with the Provider (the "Amended Agreement") as are necessary to have this Agreement pertain to the deposit 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 (the "Amended Cash Flows"); (iv) if as determined on the Refunding Date, the Termination Amount payable to the Provider of its investment rights with respect to the Deposit Amounts, Delivery Dates and Bond Payment Dates which would be remaining hereunder on such date, assuming that the Bonds were not then refunded (the "Original Cash Flows") would be greater than the Termination Amount to the Provider of its investment rights with respect to the Amended Cash Flows, the Issuer shall on or before the Refunding Date pay to the Provider the amount of such difference; (v) the last Delivery Date under the Amended Agreement is no later than the last Delivery Date hereunder; (vi) the Refunding Bonds have a credit rating at least equivalent to the credit rating of the Bonds as of the Closing Date without giving effect to any bond insurance or other credit enhancement; (vii) at the time such request is received and on the Refunding Date no Issuer Event of Default has occurred and is continuing or would, with notice or the passage of time, result in such a default; and (viii) 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. (d) If the conditions described in paragraphs (c)(i) through (c)(viii) are not satisfied, Termination Amount shall be calculated and paid as provided in Section 3.01(a). ARTICLE IV REPRESENTATIONS AND WARRANTIES Section 4.01. Representations and Warranties of the Provider. The Provider represents and warrants to the other parties hereto that: (a) it is duly organized and validly existing under the laws of its jurisdiction, incorporation or establishment; (b) it has the power and the authority to enter into and perform its obligations under this Agreement; 04-153100,5 City of Tamarac Florida WB#557 - 04/04 11 (c) this Agreement has been duly authorized, executed and delivered by it and, assuming the due authorization, execution and delivery hereof by the other parties hereto, constitutes a legal, valid and binding obligation of it enforceable against it in accordance with the terms hereof, 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; (d) 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 on any of its property under, its charter or bylaws (or equivalent organizational documents), or any other agreement, instrument, law, ordinance, regulation, judgment, injunction or order applicable to it or any of its property; (e) all consents, authorizations and approvals requisite for its execution, 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; and (f) 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. Section 4.02. Representations and Warranties of the Issuer. The Issuer represents and warrants to the other parties hereto that: (a) it is duly organized and validly existing under the laws of its jurisdiction, incorporation or establishment; (b) it has the power and the authority to enter into and perform its obligations under this Agreement (including to pay the Termination Amount in accordance herewith and to enter into and perform its obligations under the Financing Documents to which it is a party); (c) this Agreement has been duly authorized, executed and delivered by it and, assuming the due authorization, execution and delivery hereof by the other parties hereto, constitutes a legal, valid and binding obligation of it enforceable against it in accordance with the terms hereof, 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; (d) 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 04-153100.5 City of Tamarac Florida WB#557 - 04/04 12 or violation of, or the creation of any lien or encumbrance on any of its property under, its charter or bylaws (or equivalent organizational documents), or any other agreement (including the other Financing Documents to which it is a party), instrument, law, ordinance, regulation, judgment, injunction or order applicable to it or any of its property; (e) all consents, authorizations and approvals requisite for its execution, 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; (f) 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 or the Financing Documents; (g) the amount specified in Exhibit E hereto for each Delivery Date as the Deposit Amount therefor is the amount the Issuer is required to or has elected deposit into the Debt Service Funds pursuant to the Resolutions on such Delivery Date, assuming that no Bonds will have been defeased or redeemed on or prior to such date; (h) 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, 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); (i) 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; 0) each of the Financing Documents to which it is a party has been duly authorized, executed and delivered by it; (k) assuming the due authorization, execution and delivery thereof by the other parties thereto, the Financing Documents to which it is a party constitute legal, valid and binding obligations 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; 04-153100.5 City of Tamarac Florida W13#557 - 04/04 13 (1) the Financing Documents to which it is a party are in full force and effect on the date hereof and no amendment, waiver or course of dealing has amended or terminated any of the terms thereof since the original execution and delivery of the Financing Documents to which it is a party, except such as may have been delivered to the Provider pursuant to Section 6.01(e); (m) no "event of default" or event which would with the passage of time or the giving of notice constitute an event of default has occurred and is continuing under any of the Financing Documents to which it is a party; (n) it has not entered into any agreements providing for the investment of the Debt Service Funds held under the Resolutions except for this Agreement; (o) each of the documents delivered to the Provider or its counsel pursuant to Section 6.01 are true, accurate and complete copies of such documents including all amendments, modifications and supplements thereto through the Closing Date; and (p) the Eligible Securities are permitted investments for amounts held in the Debt Service Funds under the Resolutions and applicable law. ARTICLE V COVENANTS AND ACKNOWLEDGEMENTS Section 5.01. 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 become necessary in the future; and (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. Section 5.02. Additional Covenants of the Issuer. (a) In addition to its covenants under Section 5.01, the Issuer covenants to the other parties to this Agreement that so long as it shall have any obligations hereunder: (i) it shall not partially or completely redeem, defease, purchase, repurchase, tender or refund the Bonds unless it shall have sufficient funds to pay the Termination Amount to the Provider pursuant to Section 3.01; 04-153100,5 City of Tamarac Florida W3#557 - 04/04 14 (ii) on or before each Delivery Date it shall make payments of the related Deposit Amount or Deposit Amounts in immediately available funds into the Debt Service Fund; and (iii) it shall not enter into, or consent to, any amendment or modification of any of the Financing Documents to which it is a party which could impair the rights of the Provider or the ability of the Issuer to perform its obligations to the Provider hereunder; provided, however, that nothing contained herein shall restrict the Issuer's ability to issue additional bonds under the Indenture. Section 5.03. Regarding the Financing Documents. (a) The Issuer will observe, perform and fulfill each of its covenants and other agreements in the Financing Documents to which it is a party. If any of the Financing Documents cease to be in effect prior to the termination of this Agreement, such covenants and other agreements (other than those provisions requiring payments in respect of bonds, notes, warrants or other similar instruments issued under the Indenture) shall be deemed to 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 such covenants or other agreements which shall have the effect of impairing the ability of the Issuer to perform their respective obligations hereunder without the prior written consent of the Provider shall have no force and effect with respect to this Agreement. (b) The Issuer shall provide the Provider with at least 10 Business Days prior written notice of any proposed amendment, supplement or modification of the Financing Documents to which it is a party 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 covenants and other agreements in the Financing Documents to which it is a party, the Issuer shall provide written notice of such failure to the Provider within one Business Day thereof. Section 5.04. 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 independent contractor and has not acted as a financial or investment advisor, fiduciary or agent of or to the Issuer, any paying agent for the Bonds, any representative of the holders of the Bonds or any other person. (b) Neither the Provider nor any of its directors, officers, employees, agents, affiliates or representatives have made any investigation with respect to or have any liability with respect to: (i) the tax treatment of interest paid on the Bonds; (ii) the payment of any amounts owing on or with respect to the Bonds; (iii) the use or application by the Issuer of any moneys payable to the Issuer hereunder; (iv) any acts or 04-153100.5 City of Tamarac Florida WB#557 - 04/04 15 omissions of the Issuer under, or with respect to, the validity, tax exemption or enforceability of, the Bonds or the Financing Documents; or (v) the Issuer's performance of its obligations under the Bonds or the Financing Documents 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 Issuer is in compliance with any applicable statute, regulation, law or the Financing Documents. (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. While the Issuer understands that by entering into this Agreement it is agreeing upon the rate of return it will receive during the term of this Agreement on amounts held in the Debt Service Funds and is thereby 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 5.05. Termination Amount. The Issuer understands that if under any of the circumstances provided herein (including upon the occurrence of a partial or complete redemption, refunding, tender, purchase, repurchase or defeasance of the Bonds on or prior to the last Delivery Date), a Termination Amount would be due from the Issuer, 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, could be substantial. Section 5.06. Broker's Fees. The Issuer acknowledges that the Provider has paid $45,000 as a broker's or arrangement fee to Kirkpatrick Pettis Capital Management. occur: ARTICLE VI CLOSING CONDITIONS Section 6.01. Closing Conditions. On or prior to the Closing Date the following shall (a) delivery to the Issuer of an executed original opinion of counsel to the Provider, in the form of Exhibit B; (b) delivery to the Provider of an executed original opinion of counsel to the Issuer, in the form of Exhibit C; (c) delivery to the Provider of a copy of each of the Financing Documents; (d) delivery to the Provider of a copy of any consent received by the Issuer to enter into this Agreement; (e) payment of the Fee Amount by the Provider to the Issuer; and 04-153100.5 City of Tamarac Florida W13#557 - 04/04 16 (f) delivery to the Provider of a copy of any statutory or regulatory authority pursuant to which the Issuer is authorized to enter into this Agreement or any resolution or resolutions of the Issuer pursuant to which the Issuer is authorized to enter into this Agreement. Section 6.02. Post Closing Conditions. In the event that the Provider elects to close the transactions described in this Agreement without requiring that all of the conditions set forth in Section 6.01 be satisfied, the Issuer covenants and agrees that it shall cause all such unsatisfied conditions to be satisfied and cause all original executed signature pages to this Agreement to be delivered to the Provider within three Business Days of the Closing Date. In the event that all such documents are not received by the Provider within three Business Days of the Closing Date, the Issuer shall pay, on demand, the fees and expenses of counsel to the Provider incurred in connection with the satisfaction of this Section 6.02. F."Y'R 110161 DIL'/ I I DEFAULTS; TERMINATION Section 7.01. Issuer Events of Default. The occurrence of any of the following events shall constitute an Issuer Event of Default: (a) the Issuer shall fail for any reason to apply any funds in the Debt Service Funds to purchase, at the Purchase Price therefor, any Qualified Securities delivered by the Provider in accordance with this Agreement; (b) the amount on deposit in the Debt Service Funds available for investment hereunder on any Delivery Date is less than the Deposit Amount for such Delivery Date; (c) the Issuer shall default in the performance of any covenant or obligation under this Agreement, other than as described in clause (a) above and such default is not cured within five Business Days of notice thereof from the Provider; (d) 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; (e) the Issuer is dissolved (other than pursuant to a consolidation, amalgamation or merger) or becomes Insolvent; (f) the interest and principal outstanding under the Bonds shall be declared due and payable at any time prior to the scheduled maturity thereof; (g) there shall be an investment of amounts in the Debt Service Funds other than pursuant to or as permitted by this Agreement; (h) the Issuer consolidates or amalgamates with, or merges with or into, or transfers all or substantially all of its assets to, another entity (or, without limiting the foregoing, if an entity such as an organization, board, commission, authority, agency or 04-153100.5 City of Tamarac Florida W134557 - 04/04 17 body succeeds to the principal functions of, or powers and duties granted to, the Issuer) and, at the time of such consolidation, amalgamation, merger or transfer either (i) the resulting, surviving or transferee entity fails to assume all of the obligations of the Issuer under this Agreement or by operation of law or pursuant to an agreement reasonably satisfactory to the other party to this Agreement, or (ii) the creditworthiness of the resulting, surviving or transferee entity is materially weaker than that of the Issuer; or (i) a default, event of default or other similar condition or event (however described), including, without limitation, a default in making all or any portion of one or more payments on the due date thereof (after giving effect to any applicable notice requirement or grace period), occurs in respect of the Issuer under any of the Financing Documents or one or more agreements or instruments relating to the Specified Indebtedness of the Issuer. Section 7.02. Remedies Upon Occurrence of Issuer Event of Default. Upon the occurrence of an Issuer Event of Default, the Provider shall have the right to: (a) redeliver to the Issuer or sell to any other purchaser the Qualified Securities which were to be delivered in connection with any Delivery Date and which have not theretofore been delivered to and purchased by the Issuer and make demand for the payment of its losses (calculated in accordance with Section 7.03) arising out of the Issuer's failure to purchase such Qualified Securities; and/or (b) immediately terminate this Agreement by giving notice thereof to the Issuer with a copy to the Issuer, and make demand upon the Issuer for the payment of the Termination Amount, and the Issuer shall pay such amount to the Provider. If a Termination Amount is payable pursuant to Section 7.02(b), the Issuer shall promptly, but by no later than one Business Day after notice from the Provider that such amount is due, pay such amount, in immediately available funds, to or at the direction of the Provider. If any such amount is not paid when due, the Issuer shall pay interest on such amount for each date such amount is due but not paid at the Default Rate. Any amounts payable pursuant to Section 7.03 shall be payable upon demand as provided therein. Section 7.03. Loss Amount if Failed or Late Purchase. Subject to Section 8.02, if (a) the Issuer fails to apply any funds in the Debt Service Funds to purchase any Qualified Securities delivered by the Provider in accordance with this Agreement, or (b) if on any Delivery Date the amount on deposit in the Debt Service Funds available for investment hereunder is less than the Deposit Amount for such Delivery Date, the Issuer shall pay to the Provider, as liquidated damages for its losses and not as a penalty, on demand by the Provider, the sum of (i) interest at the Default Rate on the Maturity Amount of the Qualified Securities which the Provider tendered for delivery to, but were not purchased by, the Issuer for each day from and including the delivery date thereof to but excluding the date on which such securities are resold to a third party or to the Issuer, (ii) the excess, if any, of the Maturity Amount of such Qualified Securities over the amount received by the Provider upon such resale of the securities (the "Shortfall Amount"), (iii) interest at the Default Rate on the Shortfall Amount from and including the resale date to but excluding the date on which the Issuer compensates the Provider 04-153100.5 City of Tamarac Florida W13#557 - 04/04 18 for its losses as described herein, and (iv) any incidental costs and expenses including reasonable legal fees and expenses ("Incidental Expenses") incurred by the Provider in connection with the Issuer's failure to so purchase such Qualified Securities; provided that if the Provider elects not to redeliver the Qualified Securities to the Issuer or resell such Qualified Securities to a third party, the Provider's damages shall be calculated as the sum of (1) the excess of the Maturity Amount of the Qualified Securities which the Issuer failed to purchase over the Market Value thereof; (2) interest at the Default Rate on such excess from the date of attempted delivery to the Issuer in accordance with this Agreement to but excluding the date on which the Issuer compensates the Provider for its losses and (3) any Incidental Expenses. All calculations of default interest herein shall be calculated on the basis of daily compounding. Notwithstanding the foregoing, if the Provider does not on any date cause the delivery of Qualified Securities because the amount in the Debt Service Funds are less than the Deposit Amount, the Loss Amount shall equal the sum of (I) the amount, if any, by which the aggregate Maturity Amount of the Qualified Securities which the Provider could have caused to be delivered exceeds the market value thereof (as reasonably determined by the Provider as of the date such tender was to be made) and (1I) interest on such amount at the Default Rate for each date from the date such securities could have been delivered to the next succeeding Bond Payment Date plus any amounts specified in clause (ii) above. Section 7.04. Application of Excess Funds. The Issuer hereby agrees that if at any time any amounts are due the Provider from the Issuer in connection with an Issuer Event of Default, the Issuer shall, upon demand from the Provider apply any funds available under the Resolutions which are not subject to the lien of the Resolutions (including any funds which would otherwise be released to the Issuer) to the payment of such amounts. Section 7.05. Limitation on Rights. (a) The Provider shall not have any right to any amounts held in the Debt Service Funds except as expressly provided herein upon the delivery of a Qualified Security in accordance with this Agreement. Once paid to the Provider, neither the Issuer, the Bondholders or any person other than the Provider shall have any rights to the Purchase Price. (b) All Qualified Securities sold to the Issuer pursuant hereto are owned by the Issuer and not by the Provider. No party hereto shall have recourse against the Provider for any failure by the issuer or obligor of any Qualified Securities to perform its obligations with respect to the Qualified Securities. (c) Anything provided herein to the contrary notwithstanding, the obligations of the Issuer hereunder shall be special limited obligations of the Issuer, payable solely from legally available non -ad valorem revenues of the Issuer budgeted and appropriated for such purpose. In no event shall the Provider have a lien or amounts held pursuant to the Resolutions, or the revenues pledged thereunder, or the right to compel the exercise of the taxing power of the Issuer to provide for the payment of any of the obligations hereunder. 04-153100.5 City of Tamarac Florida W13#557 - 04/04 19 Section 7.06. No Waiver; Remedies Cumulative. No failure or delay on the Provider's part 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 Provider's rights and remedies hereunder 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 as provided in Section 9.05. ARTICLE VIII THE CUSTODIAN Section 8.01. Appointment of Custodian. The Issuer hereby appoints the Custodian as custodian for the amounts held in the Debt Service Funds and transferred to the Custodian and for the Qualified Securities transferred to the Custodian hereunder. The Custodian shall invest such amounts transferred to it by the Issuer pursuant to this Agreement. Section 8.02. Liability of the Custodian; Consultation with Legal Counsel. (a) The Custodian 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, in preserving or seeking to preserve the funds it maintains under the Indenture or in purchasing the Qualified Securities tendered pursuant to this Agreement, except for actions arising from its negligence or willful misconduct, from its intentional or knowing nonperformance of its obligations under this Agreement. (b) The Custodian may consult with counsel reasonably satisfactory to the Provider with respect to any question relating to its duties or responsibilities hereunder or otherwise in connection herewith and, except as expressly provided herein, shall not be liable for any action taken, suffered or omitted by the Custodian in good faith upon the advice of such counsel. The Custodian may act through its officers, employees, agents and attorneys. Section 8.03. Payment of Custodian Fees. The Provider has no liability or responsibility for payment of the Custodian's fees or expenses for its services hereunder, including any such fees or expenses arising out of or in connection with the liquidation of the Qualified Securities as provided herein. The Custodian shall be entitled to receive such fees and expenses for its services as Custodian as shall be agreed to by Issuer and the Custodian. The Custodian shall not have and hereby waives any claim to or lien on any funds deposited with it hereunder and hereby acknowledges that such funds are trust funds pursuant to the respective Resolutions and are subject to a pledge and lien thereon in favor of the owners of the respective Bonds. 04-153100.5 City of Tamarac Florida W13#557 - 04/04 20 0'A MAA" MISCELLANEOUS Section 9.01. Notices and Delivery Instructions. All notices, demands or other communications hereunder shall be given or made in writing and shall be delivered personally, or sent by certified or registered mail, postage prepaid, return receipt requested, or overnight delivery service or facsimile to the party to whom they are directed at the following addresses, or facsimile numbers or at such other addresses or facsimile numbers as may be designated by notice from such party to all other parties: To the Provider: Wachovia Bank, N.A. CIB Group 201 South College Street, NC 0601 Charlotte, NC 28288-0601 Attention: Ms. Jamie Kaminski Telephone: (704) 383-1944 Wachovia Bank, N.A. CIB Group One Wachovia Center 301 South College Street, DC 8 Charlotte, NC 28288-0600 Attention: Mr. Bruce M. Young Senior Vice President Telephone: (704) 383-5485 Delivery: BK of NYC/FUNBBT ABA #: 021000018 Payments to Provider: Wachovia Bank, N.A. Fed. ABA No. 053000219 Account #: 04659360006116 Provider Settlements: Municipal Support Telephone: (704) 383-9408 or (704) 374-2146 Facsimile: (704) 383-9026 US Government and Agency Issues: Fed Book Entry ABA 021000018 Bk of NYC/FUNBBT Mortgage Backed Securities: Bk ofNYC/FUNBTMBS ABA 021000018 04-153100.5 City of Tamarac Florida WB#557 - 04/04 21 DTC Book Entry: Participant: 2072 Agent Bank: 52196 Institutional ID: 52196 Physical: The Bank of New York 1 Wall Street 3rd Floor -Window B ASP# 117629 Global Instructions: CEDEL No. 86013 To the Custodian: J.P. Morgan Trust Company, N.A. Institution Trust Services 10151 Deerwood Park Boulevard Building 400, 5th Floor Jacksonville, FL 32256 Attention: Ms. Jane E. Pope Telephone: (904) 620-6080 Facsimile: (904) 620-6444 E-mail: jane.e.pope@jpmorgan.com Delivery Notices To Custodian: Ms. Rhonda Strickland J.P. Morgan Trust Company, N.A. 6525 W. Campus Oval, Floor 2 New Albany, OH 43054 Telephone: (614) 775-4243 Facsimile: (614) 775-5640 Payments to Custodian: JPMorgan Chase Bank (NY, NY) ABA #: 021000021 For: Corporate Trust Services Account #: 507-198-883 FFC: Tamarac, Fl/Acct: 10208212.1 Custodian Settlement: JPMChase/Gust ABA #: 021000021 Ref: C29900 FFFC: Tamarac, Fl/Acct: 10208212.1 04-153100.5 City of Tamarac Florida W13#557 - 04/04 22 To the Issuer: City of Tamarac, Florida 7525 NW 88th Avenue Tamarac, FL 33321 Ms. Dona Newman Telephone: (954) 724-1310 Facsimile: (954) 724-1321 E-mail: donan@tamarac.org Issuer's Tax Payer I.D. #: 59-1039552 Any notice, demand or other communication given in a manner prescribed in this Section shall be deemed to have been delivered on receipt. Section 9.02. Binding Effect; Transfer. This Agreement shall be binding upon the Custodian, 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 (a) without the consent of the Issuer, 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 and the Custodian of such transfer and the name of the transferee and (b) with the Issuer's prior written consent (such consent not to be unreasonably withheld, conditioned or delayed), to any other person; provided however, that if the Issuer has not consented or objected to such transfer in writing within 10 Business Days of the Provider's request therefor, the Issuer's consent 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 Custodian may transfer this Agreement without the prior written consent of the Provider. Section 9.03. 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. Section 9.04. 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 of the remaining provisions or the applicability of the same provisions or any of the remaining provisions to other circumstances. Section 9.05. 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. Section 9.06. 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. 04-153100.5 City of Tamarac Florida W13#557 - 04/04 23 Section 9.07. Termination. Unless earlier terminated pursuant to Sections 3.01, 7.02, or 10.01, this Agreement shall terminate on the last Bond Payment Date set forth in Exhibit E. Section 9.08. 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 9.09. Delivery of Financial Statements. The Issuer agrees that it will deliver to the Provider its annual financial statements, promptly upon their availability. Section 9.10. Submission to Jurisdiction. The Provider, the Custodian and the Issuer each hereby irrevocably submits to the nonexclusive jurisdiction of any court of the State of Florida for the purpose of any suit, action or other proceeding arising out of this Agreement, or any of the agreements or 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 Custodian or the Issuer, and the parties each hereby irrevocably agrees that all claims in respect of any such suit, action or proceeding may be heard and determined by any such court. Section 9.11. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York; provided, however, that the obligations of the Issuer hereunder shall be governed by and construed in accordance with the laws of the State of Florida. Section 9.12. Use of Qualified Dealer. The Provider may use a Qualified Dealer in effecting the sales of Qualified Securities as contemplated herein. F4", -0 IQ_Il aka DOWNGRADE Section 10.01. Downgrade. (a) In the event that the rating assigned to the senior unsecured long-term debt obligations of the Provider is suspended, withdrawn or falls below "A-" by S&P or "AY' by Moody's, the Provider shall provide written notice of such event to the Issuer within 15 Business Days of its occurrence. Following the delivery of such notice, the Issuer shall have the right to terminate this Agreement by delivery of 15 Business Days' prior written notice to the Provider. If within 45 days after receipt of the written notice from the Provider of such downgrade event, the Issuer has not delivered the notice electing to terminate this Agreement, the Issuer's right to terminate by reason of the occurrence of such downgrade event shall lapse and terminate; provided, however, that if such ratings are subsequently suspended, withdrawn or reduced, the right to terminate this Agreement pursuant to this Section 10.01(a) shall be renewed for 45 days. In the event the Issuer delivers the written notice of its election to terminate this Agreement by reason of the occurrence of such downgrade event as provided above, the Provider shall have the right (with the prior written consent of the Bond Insurer) to (i) assign this Agreement on or prior to the termination date set forth in the Issuer's notice to a party the senior unsecured long-term debt obligations or claims -paying ability of which are rated "A-" or higher by 04-153100.5 City of Tamarac Florida W13#557 - 04/04 24 S&P or "AY or higher by Moody's; (ii) obtain a guaranty of its obligations under this Agreement on or prior to the termination date set forth in the Issuer's notice from a party the senior unsecured long-term debt obligations or claims -paying ability of which are rated "A-" or higher by S&P or "AY or higher by Moody's; or (iii) post additional Eligible Securities to secure its obligation to pay Termination Amount hereunder. The Issuer agrees to cooperate with the Provider in order to facilitate any such action. In the event the Issuer elects to terminate this Agreement as provided above action is not taken by the Provider as provided above, this Agreement shall terminate on the date specified in the Issuer's notice of termination, the Provider shall determine the Termination Amount and the Issuer shall pay such amount to the Provider. (b) If the Termination Amount is payable pursuant to this Section 10.01, the party owing such amount shall promptly, but by no later than one Business Day after notice that such amount is due, pay such amount, in immediately available funds, to or at the direction of the party to whom such Termination Amount is due. [Remainder of page intentionally left blank] 04-153100.5 City of Tamarac Florida W13#557 - 04/04 25 IN WITNESS WHEREOF, the Custodian, the Issuer and the Provider have caused this Debt Service Forward Delivery Agreement to be executed by their respective duly authorized officers, all as of the date and year first above written. J.P. MORGAN TRUST COMPANY, N.A., as Custodian By Xal"'l (f' �_.. Name Jade E. Pope Title Vice President WACHOVIA BANK, NATIONAL ASSOCIATION By Name Title 04-153100.4 City of Tamarac Florida W13#557 - 04/04 26 IN WITNESS WHEREOF, the Custodian, the Issuer and the Provider have caused this Debt Service Forward Delivery Agreement to be executed by their respective duly authorized officers, all as of the date and year first above written. J.P. MORGAN TRUST COMPANY, N.A., as Custodian By_ Name Title WACHOVIA BANK, NATIONAL ASSOCIATION Z y Name Adam Hmard Title Vice President 04-1531.00-5 City of Tamarac Florida WB#557 - 04/04 26 CITY OF TAMARAC _ / ? ,Aoe Schreiber Mayor By: Dona J. �wman Director of Finance ATTEST B y. -;�dnon wtnson, CMC -amity JeffreP L. Mill r City Manager I HERE Y C T that I have ap „roved this Agreement as to form By: Mitchell 9-: aft City Attorney 04-153100.4 City of Tamarac Florida WB#557 - 04/04 27 EXHIBIT A ELIGIBLE SECURITIES (a) direct, full faith and credit, non -callable obligations of the United States of America (including obligations issued or held in book entry form on the books of the Department of the Treasury) and obligations on which the timely payment of the principal of and interest are fully and unconditionally guaranteed by the United States of America. (b) Senior debt obligations of the Federal Home Loan Mortgage Corporation, Federal Home Loan Bank System or Federal National Mortgage Association. (c) commercial paper rated at least "A-1+" by S&P and "P-1" by Moody's; provided, however securities described in paragraph (c) shall only constitute Eligible Securities if any of the securities described in paragraph (b) are no longer rated "AAA" by S&P and "Aaa" by Moody's. 04-153100.5 City of Tamarac Florida WB#557 - 04/04 EXHIBIT B OPINION OF COUNSEL TO PROVIDER [LETTERHEAD OF COUNSEL TO PROVIDER] April 30, 2004 City of Tamarac, Florida 7525 NW 88th Avenue Tamarac, FL 33321 J.P. Morgan Trust Company, N.A. Institution Trust Services 10151 Deerwood Park Boulevard Building 400, 5th Floor Jacksonville, FL 32256 City of Tamarac, Florida Capital Improvement Revenue Bonds Series 2004 Ladies and Gentlemen: We have acted as counsel to Wachovia Bank, National Association (the "Provider"), in connection with its execution and delivery of the Debt Service Forward Delivery Agreement, dated as of April 30, 2004 (the "Agreement"), by and among City of Tamarac, Florida, (the "Issuer"), J.P. Morgan Trust Company, N.A. (the "Custodian") 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, we have examined among other things, a copy of the Agreement. Based upon the foregoing examination and review, we are of the opinion that: (a) The Provider has full corporate power and authority to enter into the Agreement. (b) The Agreement has been duly authorized, executed and delivered by the Provider and constitutes a legal, valid and binding obligation of the Provider, 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). 04-153100.5 City of Tamarac Florida W13#557 - 04/04 In connection with the foregoing, we have also examined originals or copies satisfactory to us of all such corporate 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 authentic original documents of all documents submitted to us as copies. In giving the opinions expressed below we do not purport to be expert in or generally familiar with or qualified to express legal opinions based on the laws of any jurisdiction other than the federal laws of the United States and the laws of the State of New York and the opinions expressed herein are limited to the federal laws of the United States and the laws of the State of New York. This opinion is limited to the matters expressly set forth above, and no opinion is implied or may be inferred beyond the matters expressly so stated. This opinion is delivered to you, and any rating agency referenced in the preceding paragraph, in connection with the above -referenced transaction and may not be utilized or quoted by you, or such rating agency, for any other purpose whatsoever or delivered to any other person without our prior written consent. Very truly yours, 04-153100.5 City of Tamarac Florida WB#557 - 04/04 B-2 EXHIBIT C OPINION OF COUNSEL TO ISSUER [LETTERHEAD OF COUNSEL TO ISSUER] April 30, 2004 J.P. Morgan Trust Company, N.A. Institution Trust Services 10151 Deerwood Park Boulevard Building 400, Sth Floor Jacksonville, FL 32256 Wachovia Bank, National Association CIB Group One Wachovia Center 301 South College Street Charlotte, NC 28288-0601 City of Tamarac, Florida Capital Improvement Revenue Bonds Series 2004 Ladies and Gentlemen: I have acted as counsel to City of Tamarac, Florida (the "Issuer") in connection with its execution and delivery of the Debt Service Forward Delivery Agreement, dated as of April 30, 2004 (the "Agreement"), by and among the Issuer, J.P. Morgan Trust Company, N.A. (the "Custodian") and Wachovia Bank, National Association (the "Provider") and its execution and delivery of the Financing Documents. 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, copies of the Agreement and the Financing Documents. In connection with the foregoing, we have also examined originals or copies satisfactory to us of all such corporate 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 (other than those of the Issuer), 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. 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 04-153100.5 City of Tamarac Florida W13#557 - 04/04 than the federal laws of the United States of America and the laws of the State of Florida (the "State"). Based upon the foregoing examination and review, we are of the opinion that: (a) The Issuer has full legal right, power and authority to enter into the Agreement and the Financing Documents and to authorize and direct the Custodian, pursuant to the Agreement, to make purchases of the Qualified Securities in accordance with the terms therein. (b) The Agreement and the Financing Documents to which it is a party have been duly authorized, executed and delivered by the Issuer. (c) Assuming for purposes of the opinion expressed in this paragraph (c) that the Agreement were governed by and construed in accordance with the laws of the State the Agreement 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). (d) 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 lien or encumbrance on any of its property under the Financing Documents or any other agreement, instrument, judgment, injunction or order applicable to it or any of its property. (e) The Financing Documents to which the Issuer is a party are legal, valid and binding obligations 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). (f) The Issuer is not entitled to claim immunity on the grounds of sovereignty or other similar grounds with respect to itself or its revenues or assets (irrespective of their use or intended use) from (i) suit, (ii) jurisdiction of any court, (iii) relief by way of injunction, order for specific performance or for recovery of property, (iv) attachment of its assets (whether before or after judgment) or (v) execution or enforcement of any judgment to which it or its revenues or assets might otherwise be made subject to in any suit, action or proceedings relating to this Agreement brought validly ex contractu in the courts of any jurisdiction and no such immunity (whether or not claimed) may be attributed to the Issuer or its revenues or assets. (g) All consents, authorizations and approvals requisite for the Issuer's execution, 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, regulatory body or any other entity is required for such execution, delivery or performance. 04-153100.5 City of Tamarac Florida W13#557 - 04/04 C-2 (h) The Eligible Securities to be delivered under the Agreement are permitted investments for amounts held in the Debt Service Funds under the Resolutions and applicable law. I am 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. Very truly yours, 04-153100.5 City of Tamarac Florida WB#557 - 04/04 C-3 EXHIBIT D DELIVERY DATES Delivery Date* Bond Payment Date* Deposit Amount 05/03/04 06/01/04 $1,545,794.00 06/01/04 07/01/04 $1,918,691.00 07/01/04 08/01/04 $2,291,588.00 08/01/04 09/01/04 $2,664,485.00 09/01/04 10/01/04 $3,037,382.00 10/01/04 11/01/04 $805,206.00 11 /01 /04 12/01 /04 $1,195,408.00 12/01/04 01/01/05 $1,585,611.00 01/01/05 02/01/05 $1,975,814.00 02/01/05 03/01/05 $2,366,016.00 03/01/05 04/01/05 $2,756,219.00 04/01/05 05/01/05 $1,339,840.00 05/01/05 06/01/05 $1,729,678.00 06/01/05 07/01/05 $2,119,515.00 07/01/05 08/01/05 $2,509,352.00 08/01 /05 09/01/05 $2,899,190.00 09/01/05 10/01/05 $3,289,027.00 10/01/05 11/01/05 $817,504.00 11/01/05 12/01/05 $1,207,504.00 12/01/05 01/01/06 $1,597,505.00 01/01/06 02/01/06 $1,987,505.00 02/01/06 03/01/06 $2,377,506.00 03/01/06 04/01/06 $2,767,506.00 04/01/06 05/01/06 $1,392,806.00 05/01/06 06/01/06 $1,783,109.00 06/01 /06 07/01 /06 $2,173,412.00 07/01/06 08/01/06 $2,563,715.00 08/01 /06 09/01 /06 $2,954,018.00 09/01/06 10/01/06 $3,344,321.00 10/01/06 11/01/06 $835,555.00 11 /01 /06 12/01 /06 $1,226,107.00 12/01/06 01 /01/07 $1,616,660.00 01 /01 /07 02/01 /07 $2,007,212.00 02/01/07 03/01/07 $2,397,764.00 * 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 Day shall be made without giving effect to clauses (c), (d), (e), (f) and (g) of the definition of Business Day. 04-153100.5 City of Tamarac Florida W134557 - 04/04 03/01/07 04/01/07 $2,788,316.00 04/01/07 05/01/07 $1,450,606.00 05/01/07 06/01/07 $1,841,210.00 06/01/07 07/01/07 $2,231,813.00 07/01/07 08/01/07 $2,622,416.00 08/01/07 09/01/07 $3,013,020.00 09/01/07 10/01/07 $3,403,623.00 10/01/07 11/01/07 $853,340.00 11 /01/07 12/01/07 $1,244,178.00 12/01/07 01/01/08 $1,635,015.00 01/01/08 02/01/08 $2,025,852.00 02/01/08 03/01/08 $2,416,690.00 03/01/08 04/01/08 $2,807,527.00 04/01/08 05/01/08 $1,510,895.00 05/01/08 06/01/08 $1,901,788.00 06/01/08 07/01/08 $2,292,680.00 07/01/08 08/01/08 $2,683,572.00 08/01/08 09/01/08 $3,074,465.00 09/01/08 10/01/08 $3,465,357.00 10/01/08 11/01/08 $873,800.00 11/01/08 12/01 /08 $1,265,096.00 12/01/08 01/01/09 $1,656,393.00 01 /01 /09 02/01 /09 $2,047,689.00 02/01/09 03/01/09 $2,438,986.00 03/01/09 04/01/09 $2,830,282.00 04/01/09 05/01 /09 $1,576,061.00 05/01 /09 06/01 /09 $1,967,120.00 06/01/09 07/01 /09 $2,358,178.00 07/01/09 08/01/09 $2,749,236.00 08/01/09 09/01/09 $3,140,295.00 09/01/09 10/01/09 $3,531,353.00 10/01/09 11/01/09 $809,080.00 11/01/09 12/01/09 $1,115,657.00 12/01/09 01/01/10 $1,422,234.00 01 /01 /10 02/01 /10 $1,728,810.00 02/01/10 03/01/10 $2,035,387.00 03/01/10 04/01/10 $2,341,964.00 04/01/10 05/01/10 $1,051,666.00 05/01/10 06/01/10 $1,358,329.00 06/01/10 07/01/10 $1,664,992.00 07/01/10 08/01 /10 $1,971,655.00 08/01/10 09/01/10 $2,278,318.00 09/01/10 10/01/10 $2,584,981.00 10/01/10 11/01/10 $830,829.00 11/01/10 12/01/10 $1,136,655.00 12/01 /10 01 /01 /11 $1,442,481.00 04-153100.5 City of Tamarac Florida W13#557 - 04/04 C-2 01/01/11 02/01/11 $1,748,306.00 02/01/11 03/01/11 $2,054,132.00 03/01/11 04/01/11 $2,359,958.00 04/01/11 05/01/11 $1,086,080.00 05/01/11 06/01/11 $1,392,156.00 06/01/11 07/01/11 $1,698,233.00 07/01/11 08/01/11 $2,004,309.00 08/01/11 09/01/11 $2,310,386.00 09/01/11 10/01/11 $2,616,462.00 10/01/11 11/01/11 $753,443.00 11/01/11 12/01/11 $956,883.00 12/01/11 01/01/12 $1,160,323.00 01/01/12 02/01/12 $1,363,762.00 02/01/12 03/01/12 $1,567,202.00 03/01/12 04/01/12 $1,770,642.00 04/01/12 05/01/12 $408,016.00 05/01/12 06/01/12 $611,029.00 06/01/12 07/01/12 $814,043.00 07/01/12 08/01/12 $1,017,056.00 08/01/12 09/01/12 $1,220,069.00 09/01/12 10/01/12 $1,423,082.00 10/01/12 11/01/12 $775,639.00 11/01/12 12/01/12 $978,774.00 12/01/12 01/01/13 $1,181,910.00 01/01/13 02/01/13 $1,385,046.00 02/01/13 03/01/13 $1,588,181.00 03/01/13 04/01 /13 $1,791,317.00 04/01/13 05/01/13 $415,724.00 05/01/13 06/01/13 $618,945.00 06/01/13 07/01 /13 $822,166.00 07/01/13 08/01/13 $1,025,387.00 08/01/13 09/01/13 $1,228,608.00 09/01/13 10/01/13 $1,431,829.00 10/01/13 11/01/13 $803,235.00 11 /01/13 12/01/13 $1,006,466.00 12/01/13 01/01/14 $1,209,698.00 01/01/14 02/01/14 $1,412,929.00 02/01/14 03/01/14 $1,616,161.00 03/01/14 04/01/14 $1,819,392.00 04/01/14 05/01/14 $423,046.00 05/01/14 06/01/14 $626,089.00 06/01/14 07/01/14 $829,133.00 07/01/14 08/01/14 $1,032,176.00 08/01/14 09/01/14 $1,235,219.00 09/01/14 10/01/14 $1,438,262.00 10/01/14 11/01/14 $830,856.00 04-153100.5 City of Tamarac Florida WB#557 - 04/04 C-3 11/01/14 12/01/14 $1,034,209.00 12/01/14 01/01/15 $1,237,563.00 01/01/15 02/01/15 $1,440,916.00 02/01/15 03/01/15 $1,644,269.00 03/01/15 04/01/15 $1,847,622.00 04/01/15 05/01/15 $433,677.00 05/01/15 06/01/15 $637,352.00 06/01/15 07/01/15 $841,026.00 07/01/15 08/01/15 $1,044,700.00 08/01/15 09/01/15 $1,248,375.00 09/01 /15 10/01 /15 $1,452,049.00 10/01/15 11/01/15 $863,471.00 11/01/15 12/01/15 $1,066,938.00 12/01/15 01/01/16 $1,270,406.00 01/01/16 02/01/16 $1,473,874.00 02/01/16 03/01/16 $1,677,341.00 03/01/16 04/01/16 $1,880,809.00 04/01/16 05/01/16 $440,965.00 05/01/16 06/01/16 $644,427.00 06/01/16 07/01/16 $847,889.00 07/01/16 08/01/16 $1,051,350.00 08/01/16 09/01/16 $1,254,812.00 09/01/16 10/01/16 $1,458,274.00 10/01/16 11/01/16 $896,048.00 11/01/16 12/01/16 $1,099,593.00 12/01/16 01/01/17 $1,303,139.00 01/01/17 02/01/17 $1,506,684.00 02/01/17 03/01/17 $1,710,229.00 03/01/17 04/01/17 $1,913,774.00 04/01/17 05/01/17 $451,048.00 05/01/17 06/01/17 $654,593.00 06/01/17 07/01/17 $858,139.00 07/01/17 08/01/17 $1,061,684.00 08/01/17 09/01/17 $1,265,229.00 09/01 /17 10/01 / 17 $1,468,774.00 10/01/17 11/01/17 $931,065.00 11/01 /17 12/01/17 $1,134,627.00 12/01/17 01/01/18 $1,338,189.00 01/01/18 02/01/18 $1,541,750.00 02/01/18 03/01/18 $1,745,312.00 03/01/18 04/01/18 $1,948,874.00 04/01/18 05/01/18 $460,770.00 05/01/18 06/01/18 $664,037.00 06/01/18 07/01/18 $867,305.00 07/01/18 08/01/18 $1,070,572.00 08/01/18 09/01/18 $1,273,839.00 04-153100.5 City of Tamarac Florida W13#557 - 04/04 C-4 09/01/18 10/01 /18 $1,477,106.00 10/01/18 11/01/18 $965,677.00 11/01/18 12/01/18 $1,168,851.00 12/01/18 01/01/19 $1,372,026.00 01/01/19 02/01/19 $1,575,200.00 02/01/19 03/01/19 $1,778,374.00 03/01/19 04/01/19 $1,981,548.00 04/01/19 05/01/19 $413,004.00 05/01/19 06/01/19 $558,506.00 06/01/19 07/01/19 $704,007.00 07/01/19 08/01/19 $849,508.00 08/01/19 09/01/19 $995,010.00 09/01/19 10/01/19 $1,140,511.00 10/01/19 11/01/19 $600,715.00 11/01/19 12/01/19 $746,427.00 12/01/19 01/01/20 $892,140.00 01/01/20 02/01/20 $1,037,852.00 02/01/20 03/01/20 $1,183,564.00 03/01/20 04/01/20 $1,329,276.00 04/01/20 05/01/20 $425,674.00 05/01/20 06/01/20 $571,344.00 06/01 /20 07/01 /20 $717,015.00 07/01/20 08/01/20 $862,685.00 08/01/20 09/01/20 $1,008,356.00 09/01/20 10/01/20 $1,154,026.00 10/01/20 11/01/20 $622,857.00 11/01/20 12/01/20 $768,211.00 12/01/20 01/01/21 $913,565.00 01/01/21 02/01/21 $1,058,918.00 02/01 /21 03/01 /21 $1,204,272.00 03/01/21 04/01/21 $1,349,626.00 04/01/21 05/01/21 $435,544.00 05/01/21 06/01/21 $581,086.00 06/01 /21 07/01 /21 $726,627.00 07/01 /21 08/01 /21 $872,168.00 08/01/21 09/01/21 $1,017,710.00 09/01 /21 10/01 /21 $1,163,251.00 10/01/21 11/01/21 $648,001.00 11 /01 /21 12/01 /21 $793,499.00 12/01/21 01/01/22 $938,997.00 01 /01 /22 02/01 /22 $1,084,495.00 02/01/22 03/01/22 $1,229,993.00 03/01/22 04/01/22 $1,375,491.00 04/01/22 05/01/22 $360,064.00 05/01/22 06/01/22 $417,624.00 06/01/22 07/01/22 $475,185.00 04-153100.5 City of Tamarac Florida W13#557 - 04/04 C-5 07/01/22 08/01/22 $532,745.00 08/01/22 09/01/22 $590,306.00 09/01/22 10/01/22 $647,866.00 10/01/22 11/01/22 $57,795.00 11/01 /22 12/01/22 $115,586.00 12/01/22 01/01/23 $173,378.00 01/01/23 02/01/23 $231,170.00 02/01/23 03/01/23 $288,961.00 03/01/23 04/01/23 $346,753.00 04/01/23 05/01/23 $375,295.00 05/01/23 06/01/23 $433,086.00 06/01/23 07/01/23 $490,878.00 07/01/23 08/01/23 $548,670.00 08/01/23 09/01/23 $606,461.00 09/01 /23 10/01 /23 $664,253.00 10/01/23 11/01/23 $57,914.00 11/01/23 12/01/23 $115,824.00 12/01/23 01/01/24 $173,735.00 01 /01 /24 02/01 /24 $231,645.00 02/01/24 03/01/24 $289,556.00 03/01/24 04/01/24 $347,466.00 04/01/24 05/01/24 $390,414.00 05/01/24 06/01/24 $448,324.00 06/01/24 07/01/24 $506,235.00 07/01 /24 08/01 /24 $564,145.00 08/01/24 09/01/24 $622,056.00 09/01/24 10/01/24 $679,966.00 04-153100.5 City of Tamarac Florida 'W13#557 - 04/04 C-6 KUTAK ROCK LLP CHICAGO DENVER SUITE 2100 DES MOINES PEACHTREE CENTER SOUTH TOWER FAYETTEVILLE 225 PEACHTREE STREET, N.E. IRVINE KANSAS CITY ATLANTA, GEORGIA 30303-1731 LINCOLN LITTLE ROCK 404-222-4600 OKLAHOMA CITY FACSIMILE 404-222-4654 OMAHA PASADENA www.kutakrock.cOm RICHMON❑ SCOTTSDALE April 30, 2004 WICH, AOTON City of Tarnarac, Florida 7525 NW 88th Avenue Tamarac, FL 33321 J.P. Morgan Trust Company, N.A. Institution Trust Services 10151 Deerwood Park Boulevard Building 400, 5th Floor Jacksonville, FL 32256 City of Tamarac, Florida Capital Improvement Revenue Bonds Series2004 Ladies and Gentlemen: We have acted as counsel to Wachovia Bank, National Association (the "Provider"), in. connection with its execution and delivery of the Debt Service Forward. Delivery Agreement, dated as of April 30, 2004 (the "Agreement"), by and among City of Tamarac, Florida, (the "Issuer"), J.P. Morgan Trust Company, N.A. (the "Custodian") 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, we have examined among other things, a copy of the Agreement. Based upon the foregoing examination and review, we are of the opinion that: (a) The Provider has full corporate power and authority to enter into the Agreement. (b) The Agreement has been duly authorized, executed and delivered by the Provider and constitutes a legal, valid and binding obligation of the Provider, 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). KUTAK ROCK LLP April 30, 2004 Page 2 In connection with the foregoing, we have also examined originals or copies satisfactory to us of all such corporate 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 authentic original documents of all documents submitted to us as copies. In giving the opinions expressed below we do not purport to be expert in or generally familiar with or qualified to express legal opinions based on the laws of any jurisdiction other than the federal laws of the United States and the laws of the State of New York and the opinions expressed herein are limited to the federal laws of the United States and the laws of the State of New York. This opinion is limited to the matters expressly set forth above, and no opinion is implied or may be inferred beyond the matters expressly so stated. This opinion is delivered to you, and any rating agency referenced in the preceding paragraph, in connection with the above -referenced transaction and may not be utilized or quoted by you, or such rating agency, for any other purpose whatsoever or delivered to any other person without our prior written consent. Very truly yours, J� �f c LIB Mitchell S. Kraft City Attorney City of Tamarac 7525 N.W. 88th Avenue, Tamarac, Florida 33321-2401 Telephone: (954) 724-1240 • Facsimile (954) 724-1370 EXHIBIT C OPINION OF COUNSEL TO ISSUER April 30, 2004 J.P. Morgan Trust Company, N.A. Institution Trust Services 10151 Deerwood Park Boulevard Building 400, 5th Floor Jacksonville, FL 32256 Wachovia Bank, National Association CIB Group One Wachovia Center 301 South College Street Charlotte, NC 28288-0601 City of Tamarac, Florida Capital Improvement Revenue Bonds Series 2004 Ladies and. Gentlemen: I have acted as counsel to City of Tamarac, Florida (the "Issuer") in connection with its execution and delivery of the Debt Service Forward Delivery Agreement, dated as of April 30, 2004 (the "Agreement"), by and among the Issuer, J.P. Morgan Trust Company, N.A. (the "Custodian") and Wachovia Bank, National Association (the "Provider") and its execution and delivery of the Financing Documents. Capitalized terms used herein and not defined herein have the respective meanings given to them in the Agreement. 1 Equol Opportunity Employer In rendering this opinion, we have examined, among other things, copies of the Agreement and the Financing Documents. In connection with the foregoing, we have also examined originals or copies satisfactory to us of all such corporate 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 (other than those of the Issuer), 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. 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 federal laws of the United States of America and the laws of the State of Florida (the "State"). Based upon the foregoing examination and review, we are of the opinion that: (a) The Issuer has full legal right, power and authority to enter into the Agreement and the Financing Documents and to authorize and direct the Custodian, pursuant to the Agreement, to make purchases of the Qualified Securities in accordance with the terms therein. (b) The Agreement and the Financing Documents to which it is a party have been duly authorized, executed and delivered by the Issuer. (c) Assuming for purposes of the opinion expressed in this paragraph (c) that the Agreement were governed by and construed in accordance with the laws of the State the Agreement 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). (d) 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 lien or encumbrance on any of its property under the Financing Documents or any other agreement, instrument, judgment, injunction or order applicable to it or any of its property. (e) The Financing Documents to which the Issuer is a party are legal, valid and binding obligations 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). 2 (f) The Issuer is not entitled to claim immunity on the grounds of sovereignty or other similar grounds with respect to itself or its revenues or assets (irrespective of their use or intended use) from (i) suit, (ii) jurisdiction of any court, (iii) relief by way of injunction, order for specific performance or for recovery of property, (iv) attachment of its assets (whether before or after judgment) or (v) execution or enforcement of any judgment to which it or its revenues or assets might otherwise be made subject to in any suit, action or proceedings relating to this Agreement brought validly ex contractu in the courts of any jurisdiction and no such immunity (whether or not claimed) may be attributed to the Issuer or its revenues or assets. (g) All consents, authorizations and approvals requisite for the Issuer's execution, 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, regulatory body or any other entity is required for such execution, delivery or performance. (h) The Eligible Securities to be delivered under the Agreement are permitted investments for amounts held in the Debt Service Funds under the Resolutions and applicable law. I am 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. Sincerel Mitchell S. Kraft Tamarac City Attorney 3 CERTIFICATE OF WACHOVIA BANK, NATIONAL ASSOCIATION I, the undersigned officer of Wachovia Bank, National Association (the "Bank") HEREBY CERTIFY in connection with the Debt Service Forward Delivery Agreement by and among the City of Tamarac, Florida (the "Issuer"), J.P. Morgan Trust Company, N.A. (the "Custodian") and the Bank dated as of April 30, 2004 (the "Agreement") that the yield on the Agreement is at least equal to the yield offered by the Bank on the date the Bank offered to enter into the Agreement on reasonably comparable investment contracts offered to other persons, if any, funded from a source of funds other than gross proceeds of an issue of tax-exempt bonds and that, the amount of administrative costs expected to be paid by the Bank to third parties in connection with the Agreement is $45,000 plus the normal and customary fees of counsel to the Bank and other fees payable to any custodian or other party as described in the Agreement. For purposes of this certification, administrative costs include all brokerage or selling commissions paid by the Bank to third parties in connection with the Agreement, legal or accounting fees, investment advisory fees, recordkeeping, safekeeping, custody and other similar costs or expenses. I further certify that (a) neither the Bank nor any related party has a material interest in the tax-exempt bonds being issued by the Issuer in connection with the purchase of the Agreement, (b) the Bank has not been afforded the opportunity to review offers to the Issuer from other providers before making this offer to the Issuer, (c) the Bank did not consult with any other potential provider about this offer, (d) this offer was determined without regard to any other formal or informal agreement, other than the Bid Specifications, that the Bank has with the Issuer or any other person (whether or not in connection with the bonds being issued by the Issuer), (e) the bid was not submitted solely as a courtesy to the Issuer or to any other person for purposes of satisfying the bidding requirements of Section 1.148-5(d)(6)(iii)(B)(1) or (2) of the U.S. Treasury Regulations relating to the yield and valuation of investments in connection with tax-exempt bonds, and (f) the Bank has established an industry reputation as a reasonably competitive provider of agreements such as the Agreement. Dated this 30th day of April, 2004. By Name _ Adam Howard Title Vice President 04-153097 1 City of Tamarac, FL W13#557 - 04/04