HomeMy WebLinkAboutVI (B) Resolution No. 2002-24, Bond Issue - Amendment to Stormwater Utility Revenue Promissory Note, Series 1996 Agenda 11-19-2002
Item VI B
center of Good L,
Mayor •(r tt2R commissioners
S. Scott Vnndergrift Dann Ilonell, Dish it I 1
aw
Scott Anderson, D snici 2
City Manager "�„1 Rush Johnson. District :1
Jim Gleason L\l NHOCI J Parkin. Dist/ ct 4
To: The honorable Mayor and City Commissioners
From: Wanda Horton, Finance Director
Date: November 6, 2002
Re: Restructuring Debt- 1996 StormWater Utility Promissory Note
In 1996 the City executed a loan agreement and promissory note/bank loan with SunTrust Bank to
borrow $2,200,000 to finance the costs of (a) acquisition of land and equipment and (b) the
construction of and improvements to certain StormWater Utility capital improvements of the City
("the Note"). StormWater fees are pledged as security for payment of the Note. The Note matures
annually on October 1st of each year with final maturity on October 1. 2011. Interest on the note is
currently 5.15%. Interest on the note increases annually to 5.45% in 2005. After 2005 the bonds will
bear interest at a variable or floating rate tied to the Eurodollar and adjusted annually in October.
Currently $1,530,000 is outstanding on the Note. 'fhe Note can be prepaid at any time without
penalty.
Low interest rates afford the City the opportunity to lock in lower interest rates not just through 2005
but also throughout the term of the loan. Based on current interest rates as of 11/12/02 on the bank
loan, the City should save approximately $17,000 annually, and $170.000 over the life of the
financing. This is net of all costs. The term of the loan will remain the same-maturity in 2011.
The locking in of this low interest rate will be accomplished as follows: (1) the City, under the terms
of the loan, will pay SunTrust a floating interest rate. (2) The City will then simultaneously enter
into a variable to fixed rate swap through an ISDA agreement with SunTrust/Robinson Humphrey.
Under the Swap Agreement SunTrust will pay the City's floating rate and the City will pay the fixed
rate. While slightly more complicated it enables the City to lock in today's low interest rates without
having to enter into a more costly bond underwriting.
If the City decides to prepay or refinance the new loan prior to final maturity they may he subject to
a prepayment penalty under the swap agreement. If at the time of prepayment interest rates are
lower than the swap rate, the City may be subject to a swap breakage fee or prepayment penalty. If
interest rates are higher then the City may be entitled to a breakage payment from the swap provider.
Resolution 2002-24 authorizes a first amendment to the loan agreement, a change in the interest
rate, and approval to enter into the swap transaction, which will lock in the interest rates on the loan
and to execute any documents or take any actions required in connection with the execution of the
Cnv 0 ()ems: • 150 N Lakeshore Drive•Ocoee. Florida;1761
phone: (407)'105-3 100 • tas: (407)656-8504 • w v W.ci.ococcll uz
financing. Adoption of Resolution 2002-24 approves SunTrust Bank (original loan provider) as the
swap counter party.
Action Requested
Staff recommends the City Commission adopt Resolution 2002-24 and authorize the Mayor, City
Clerk and Staff to execute all documents necessary to effect the transactions.
RESOLUTION NO. 2002-24
A RESOLUTION AMENDING AND SUPPLEMENTING
RESOLUTION NO. 96-12 AUTHORIZING THE EXECUTION
AND DELIVERY OF A FIRST AMENDMENT TO LOAN
AGREEMENT AND AN ALLONGE TO PROMISSORY NOTE
PERTAINING TO A PRIOR BORROWING FOR
STORMWATER UTILITY CAPITAL IMPROVEMENTS;
CONFIRMING THE PLEDGE OF THE STORMWATER
MANAGEMENT UTILITY FEES OF THE CITY TO SECURE
PAYMENT OF THE ALLONGE TO PROMISSORY NOTE;
MAKING CERTAIN COVENANTS AND AGREEMENTS IN
CONNECTION THEREWITH; AUTHORIZING A CHANGE
IN THE INTEREST RATE PURSUANT TO THE ALLONGE
TO SAID PROMISSORY NOTE THROUGH THE
EXECUTION AND DELIVERY OF THE ISDA MASTER
AGREEMENT AND THE SCHEDULE TO THE ISDA
MASTER AGREEMENT; AUTHORIZING THE PAYMENT OF
CERTAIN COSTS RELATED TO THE REFINANCING;
AUTHORIZING THE MAYOR TO ENTER INTO THE SWAP
TRANSACTION AND TO EXECUTE ANY DOCUMENTS OR
TO TAKE ANY ACTIONS REQUIRED IN CONNECTION
WITH THE EXECUTION OF SUCH SWAP TRANSACTION
BASED ON CERTAIN CONDITIONS DESCRIBED HEREIN
AND TO TAKE CERTAIN FURTHER ACTIONS WITH
RESPECT TO THE REFINANCING OF THE LOAN; AND
PROVIDING FOR AN EFFECTIVE DATE.
BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF OCOEE,
FLORIDA:
SECTION 1.1. Definitions. Unless otherwise defined herein, capitalized
terms shall have the meaning as set forth in the First Amendment to Loan Agreement,
defined herein. In addition to the words and terms elsewhere defined in this Resolution,
the Original Resolution and the First Amendment to Loan Agreement, the following words
and terms as used in this Resolution shall have the following meanings unless the context
or use indicates another or different meaning or intent:
"Act" shall mean the Charter and Code of Ordinances of the City of Ocoee, Part II of
Chapter 166, Florida Statutes, as amended, the City's home rule powers, and other
applicable provisions of law.
"Allonge to Note" shall mean the Allonge attached hereto as Exhibit B, amending
the City's Stormwater Utility Revenue Promissory Note, Series 1996 issued pursuant to the
Original Loan Agreement.
"Bank" shall mean SunTrust Bank, a Georgia banking corporation.
"City" shall mean the City of Ocoee, Florida.
"Confirmation" shall be as defined in Section 1.6 hereof
"Costs of Refinancing" shall mean the costs relating to the execution and delivery of
the Allonge to Note and the First Amendment to Loan Agreement, including the financial
advisor fee, bond counsel fee, the Bank's fee, the Bank's counsel fee, the City Attorney's fee,
and the related costs and expenses.
"First Amendment to Loan Agreement" shall mean the First Amendment to Loan
Agreement attached hereto as Exhibit A, amending and supplementing the Original Loan
Agreement.
"Master Agreement" shall be as defined in Section 1.6 hereof
"Original Loan Agreement" shall mean the Loan Agreement by and between the
City and the Bank dated as of May 1, 1996.
"Original Resolution" shall mean Resolution No. 96-12 adopted on May 7, 1996.
"Resolution" shall mean this Resolution as the same may from time to time be
further amended and supplemented in accordance with the terms hereof which authorized
the execution and delivery of the Original Loan Agreement, the Original Resolution and the
Note.
"Schedule" shall be as defined in Section 1.6 hereof
"Swap Documents" shall mean the Master Agreement, the Schedule and the
Confirmation.
Words importing the singular number shall include the plural number in each case
and vice versa, and words of the masculine gender shall be deemed and construed to
include correlative words of the feminine and neuter gender and vice versa.
SECTION 1.2. Authority for Resolution. This Resolution is adopted
pursuant to the provisions of the Act and the Original Resolution. The City has ascertained
and hereby determined that adoption of this Resolution is necessary to carry out the
powers, purposes and duties expressly provided in the Act, that each and every matter and
thing as to which provision is made herein is necessary in order to carry out and effectuate
the purposes of the City in accordance with the Act and that the powers herein exercised
are in each case exercised in accordance with the provisions of the Act and in furtherance of
the purposes of the City. The City desires to approve the Bank as the appropriate swap
counterparty (the "Swap Counterparty") and the Bank has agreed to serve as the Swap
Counterparty.
SECTION 1.3. Authorization of First Amendment to Loan Agreement.
The City hereby authorizes and directs the Mayor and Clerk to execute the First
Amendment to Loan Agreement and to deliver the First Amendment to Loan Agreement to
the Bank. All of the provisions of the First Amendment to Loan Agreement when executed
and delivered by the City as authorized herein, shall be deemed to be a part of this
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resolution as fully and to the same extent as if incorporated verbatim herein, and the First
Amendment to Loan Agreement shall be in substantially the form of the First Amendment
to Loan Agreement attached hereto as Exhibit A with such changes, amendments,
modifications, omissions and additions, including the date of such First Amendment to
Loan Agreement, as may be approved by said Mayor and the Clerk. Execution by the
Mayor and the Clerk of the Loan Agreement shall be deemed to be conclusive evidence of
approval of such changes.
SECTION 1.4. Authorization of Allonge to the Note. The execution and
delivery of the Allonge to the Note to the Bank pursuant to terms and provisions of this
Resolution and the First Amendment to Loan Agreement is hereby approved. Delivery of
the Allonge to the Note shall be made to the Bank or its designee.
SECTION 1.5. Findings Regarding Investment Policy. The City has
previously approved an Investment Policy and Plan on file with the Clerk. The City hereby
finds that the authorization herein of the Swap Documents, the Allonge to Note, and the
First Amendment to Loan Agreement are not "investments" for purposes of such
Investment Policy and Plan and are therefore not subject to any requirements therein.
SECTION 1.6. Authorization of Swap Documents. The City desires to
approve the forms of and authorize the execution and delivery of the documents necessary
to implement an interest rate swap transaction, including forms of the International Swap
Dealers Association Master Swap Agreement (the "Master Agreement") attached hereto as
Exhibit "C," the schedule to the Master Agreement (a "Schedule" for purposes of this
Resolution) attached hereto as Exhibit 'D," and the form of the confirmation to the Master
Agreement (the "Confirmation") attached hereto as Exhibit"E".
SECTION 1.7. Authorization to Pay Costs of Refinancing. The payment
of the Costs of Refinancing is hereby authorized upon approval of the invoices for such costs
by the Finance Director and the Mayor.
SECTION 1.8. Approval of Documents. The City hereby approves the
Master Agreement, the Schedule attached hereto as "Exhibit D," and the Confirmation,
substantially in the forms attached hereto as exhibits, subject to such changes or omissions
therein not inconsistent with this Resolution as shall be approved by the Mayor or his
designee, and the execution and delivery thereof by the Mayor and the Clerk is hereby
authorized and approved.
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SECTION 1.9. Effective Date. This Resolution shall take effect immediately
upon its adoption. This Resolution was approved at an advertised public hearing of the
City Commission of the City of Ocoee pursuant to the provisions of Section of the
Charter of the City.
PASSED AND ADOPTED THIS 19Tn DAY OF NOVEMBER, 2002.
ATTEST: CITY OF OCOEE
By:
Jean Grafton, City Clerk S. Scott Vandergrift, Mayor
FOR USE AND RELIANCE ONLY BY APPROVED BY THE OCOEE CITY
THE CITY OF OCOEE, FLORIDA; COMMISSION AT A MEETING
APPROVED AS TO FORM AND HELD ON ,20
LEGALITY this day of UNDER AGENDA ITEM NO.
, 200_.
FOLEY & LARDNER
By:
City Attorney
j_A bonds A 432301\res2.doc
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EXHIBIT A
FIRST AMENDMENT TO LOAN AGREEMENT
Dated as of November 1, 2002
By and Between
CITY OF OCOEE, FLORIDA
(the "City')
and
SUNTRUST BANK
(the "Bank')
Amending and Supplementing a Loan Agreement
dated as of May 8, 1996
FIRST AMENDMENT TO LOAN AGREEMENT
THIS FIRST AMENDMENT TO LOAN AGREEMENT (this "First Amendment"),
made and entered into as of November 1, 2002, by and between the CITY OF OCOEE (the
"City"), a political subdivision of the State of Florida and its successors and assigns, and
SUNTRUST BANK, a State of Georgia banking association, and its successors (the "Bank").
W IT NE S S ETH:
WHEREAS, capitalized terms used in these recitals and not otherwise defined shall
have the meanings specified in Article I of this First Amendment;
WHEREAS, the City, pursuant to the provisions of the Florida Constitution;
Chapter 166, Part II, of the Florida Statutes, as amended and supplemented; the Charter
and Code of Ordinances of the City; and any other applicable provisions of law (all of the
foregoing, collectively, the "Act") is authorized to enter into arrangements with respect to
its borrowings and to amend the provisions of its notes or other obligations issued to
finance the costs of capital expenditures for the City's public purposes;
WHEREAS, the City previously borrowed certain sums from the Bank in order to
finance certain capital expenditures for the City's stormwater utility management system
(collectively, the "Project");
WHEREAS, the Bank provided financial accommodations to the City in an original
amount equal to Two Million Two Hundred Thousand Dollars ($2,200,000) in the form of a
15-year fully amortizing term loan (the "Loan") but solely upon the terms and conditions set
forth in a Loan Agreement dated May 8, 1996 (the "Original Loan Agreement"); and
WHEREAS, the City and the Bank have now agreed to amend and supplement
certain provisions of the Original Loan Agreement as set forth in this First Amendment;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein set forth and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereby agree as follows:
ARTICLE 1
DEFINITION OF TERMS
SECTION 1.1. Definitions. Capitalized terms used in this First Amendment
are as set forth in the Original Loan Agreement if not otherwise defined herein, in which
case such terms shall have the respective meanings as follows:
"Allonge to Note" shall mean the Allonge to the Series 1996 Promissory Note.
"Bank" shall mean SunTrust Bank, a State of Georgia banking association, and its
successors.
"Note Rate" shall mean the rate of interest to be borne by the Note, which, for the
Note shall be a floating rate of 65% of the three month LIBOR plus 0.50%, subject to the
adjustments set forth in Section 3.3 of the Original Loan Agreement upon the occurrence of
the events referred to therein;
(i) following the occurrence and during the continuance of any Event of Default,
the Default Rate; and
(ii) following a Determination of Taxability, the Taxable Rate.
"Original Loan Agreement" shall mean the Loan Agreement dated May 8, 1996.
ARTICLE 2
AMENDED LOAN TRANSACTION
SECTION 2.1. Confirmation of Covenants. The City hereby confirms all of
its covenants and representations in the Original Loan Agreement as of the date hereof and
upon the execution of the allonge to Note.
SECTION 2.2. Bank Qualification. The City has not issued in excess of
$10,000,000 in tax-exempt debt during the 2002 calendar year nor does it expect to do so.
All other actions required of the City that would allow the Note, as supplemented by the
Allonge, to be a Qualified Tax-exempt Obligation have been completed.
SECTION 2.3. Incorporation by Reference. All of the terms and
obligations of the Original Loan Agreement, the Allonge and the Resolution are hereby
incorporated herein by reference as if all of the foregoing were fully set forth in this First
Amendment. All recitals appearing at the beginning of this First Amendment are hereby
incorporated herein by reference.
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IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to
be duly executed as of the date first set forth herein.
"CITY"
BOARD OF CITY COMMISSIONERS
TIIE CITY OF OCOEE, FLORIDA
(SEAL)
Attest: Mayor
City Clerk
"BANK"
SUNTRUST BANK
Vice President
FOR USE AND RELIANCE ONLY
BY THE CITY OF OCOEE, FLORIDA
APPROVED AS TO FORM AND LEGALITY
THIS DAY OF NOVEMBER, 2002
Foley & Lardner
By:
City Attorney
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EXHIBIT B
ALLONGE TO NOTE
No. R-1A Original Amount: $2,200,000
UNITED STATES OF AMERICA
STATE OF FLORIDA
COUNTY OF ORANGE
CITY OF OCOEE
STORMWATER UTILITY REVENUE PROMISSORY NOTE,
SERIES 1996
MATURITY DATE: October 1, 2011 ORIGINAL DATED DATE: May 8, 1996
ORIGINAL PRINCIPAL AMOUNT: Two Million Two Hundred Thousand Dollars
KNOW ALL MEN BY THESE PRESENTS that the City of Ocoee, Florida
(hereinafter called the "City') executes and delivers this Allonge to the captioned Note and
covenants to continue to pay to the order of the Registered Owner identified above or
registered assigns, as herein provided, the Principal Amount in installments on the
payment dates described in EXHIBIT A attached hereto from the revenues hereinafter
mentioned, in any coin or currency of the United States of America which on the date of
payment thereof is legal tender for the payment of public and private debts, and to pay,
solely from said sources, to the Registered Owner hereof by wire transfer or check
transmitted to the Registered Owner at his address as it appears on the Note registration
books of the City as it appears on the 150' day of the calendar month preceding the
applicable interest payment date, interest on said Principal Amount at the Interest Rate
per annum described herein on each January 1, April 1, July 1 and October 1 commencing
January 1, 2003 from the date hereof at the rate(s) outlined below:
The Interest Rate borne by the Note shall be a floating rate calculated as 65% of the
three-month LIBOR rate (the London Interbank Offered Rate) plus 0.50%.
The other terms and conditions of the Note shall remain and are the same.
This Allonge to Note does not constitute a general indebtedness of the City within
the meaning of any constitutional, statutory or charter provision or limitation, and it is
expressly agreed by the Holder of this Allonge to Note that such Notcholder shall never
have the right to require or compel the exercise of the ad valorem taxing power of the City
or taxation of any real or personal property therein for the payment of the principal of and
interest on this Allonge to Note or the making of any reserve or other payments provided
for in the Agreement.
IN WITNESS WHEREOF, the City of Ocoee, Florida, has issued this Allonge to Note
and has caused the same to be signed by its Mayor and countersigned and attested to by its
clerk (the signatures of the Mayor and the Clerk being authorized to be facsimiles of such
officers' signatures), and its seal or facsimile thereof to be affixed, impressed, imprinted,
lithographed or reproduced hereon, all as of the 200. day of November, 2002.
ATTEST: CITY OF OCOEE
By:
Jean Grafton, City Clerk S. Scott Vandergrift, Mayor
APPROVED BY THE OCOEE CITY
COMMISSION AT A MEETING
HELD ON , 20
UNDER AGENDA ITEM NO.
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EXHIBIT C
MASTER AGREEMENT
EXHIBIT D
SCHEDULE TO MASTER AGREEMENT
EXHIBIT E
CONFIRMATION TO MASTER AGREEMENT
(Local Currency—Single Jurisdiction)
ISDA®
lincnwtional Swap Dealers Association,Inc.
MASTER AGREEMENT
dated as of November I,2002
SunTrust Bank and City of Ocoee,Florida
Party A Party R
have entered and/or anticipate entering into one or more transactions (each a -Transaction") that are or will he
governed by this Master Agreement, which includes the schedule(the "Schedule"), and the documents and other
eonfirning evidence (each a"Confirmation")exchanged between the parties confirming those Transactions.
Accordingly, the parties agree as hillows:
1. Interpretation
(a) Definitions. The terms defined in Section 12 and in the Schedule will have the meanings therein ,specified
for the purpose of this Master Agreement.
(h) Inconsistency. In the event of any inconsistency between the provisions of the Schedule and the other
provisions of this Master Agreement, the Schedule will prevail. In the event of any inconsistency between the
provisions of any Confirmation and this Master Agreement (including the Schedule), such Confirmation will prevail
for the purpose of the relevant Transaction.
(G Single Agreement. All Transactions are entered into in reliance on the fact that this Master Agreement
and all Confirmations form a single agreement between The parties (collectively referred to as this "Agreement").
and the parties would not otherwise enter into any Transactions.
2. Obligations
(a) General Conditions.
(i) Each party will make each payment or delivery specified in each Confirmation to he made by it, subject
to the other provisions of this Agreement.
Payments under this Agreement will he made on the due date for value on that date in the place of the
account specified in the relevant Confirmation or otherwise pursuant to this Agreement. in freely
transferable funds and in the manner customary for payments in the required currency. Where settlement
is by delivery (that is,other than by payment). such delivery will be made for receipt on the due date in the
manner customary for the relevant obligation unless otherwise specified in the relevnm Confirmation or
elsewhere in this Agreement.
(iii) Each obligation of each party under Section 2(a)(il is subject to (I) the condition precedent that no
Event of Default or Potential Event of Default with respect to the other party has occurred mid is
continuing, (2) the condition precedent that no Early Termination Date in respect of the relevant
Transaction has occurred or been effectively designated and (3) each other applicable condition precedent
.specified in this Agreement.
(h) Change of Account. Either party may change its account for receiving a payment or delivery by giving
notice to the other party at least five Local Business Days prior to the scheduled date for the payment or delivery to
which such change applies unless such other party gives timely notice of a reasonable objection to such change.
(c) Netting. If on any date amounts would otherwise be payable.
(i) in the same currency;and
(ii) in respect of the same Transaction,
by each party to the other, then. on such date, each party's obligation to make payment of any such amount will he
automatically satisfied and discharged and, if the aggregate altannI that would otherwise have been payable by one
party exceeds the aggregate amount That would otherwise have been payable by the other party, replaced by an
obligation upon the party by whom the larger aggregate amount would have been payable to pay to the other party
the excess of the larger aggregate amount over the smaller aggregate amount
The parties may elect in respect of two or more Transactions that a net amount will he determined in respect of all
amounts payable on the same dale in the same currency in respect of such Transactions, regardless of whether such
amounts are payable in respect of the same Transaction. The election may he made in the Schedule or a
Confirmation by specifying that subparagraph (ii) above will not apply to the Transactions identified as being
suhject to the election, together with the starting date tin which case subparagraph (ii) above will not, or will cease
to, apply to such Transactions from such date)_ This election may he made separately for different groups of
Transactions and will apply separately to each pairing of branches or offices through which the parties make and
receive payments or deliveries.
(d) Default Interest; Other Amounts. Prior to the occurrence or effective designation ()fan Early Termination
Date in respect of the relevant Transaction, a party that defaults in the performance of any payment
ohligation will, to the extent permitted by law and subject to Section 6(e), be required to pay interest
(before as well as after judgment) on the overdue amount to the other party on demand in the same
currency as such overdue amount. for the period from (and including) the original due date for payment to
(hut excluding) the date of actual payment.at the Default Rate. Such interest will he calculated on the basis
of daily compounding and the actual number of days elapsed_ If, prior to the occurrence or effective
designation of an H'arly Termination Dale in respect of the relevant Transaction, a party defaults in the
performance of any obligation required to he settled by delivery, it will compensate the other party on
demand if and to the extent provided for in the relevant Confirmation or elsewhere in this Agreement.
3. Representations
Each party represents to the other party (which representations will he deemed to be repeated by each party on each
date on which a Transaction is entered into)that:—
(a) Basic Representations.
(i) Status. It is duly organised and validly existing under the laws of the jurisdiction of its
organisation or incorporation and.if relevant under such laws, in good standing;
till Powers. It has the power to execute this Agreement and any other documentation relating to this
Agreement to which it is a party, to deliver this Agreement and any other documentation relating to this
Agreement that it is required by this Agreement to deliver and to perform its obligations under this
Agreement and any obligations it has under any Credit Support Document to which it is a party and has
taken all necessary action to authorise such execution,delivery and performance,
(iii) No Violation of Conflict. Such execution. delivery and performance do nut violate or conflict
with any law applicable to it. any provision of its constitutional documents, any order or judgement of any
court or other agency of government applicable to it or any of its assets or any contractual restriction
binding on or affecting it or any of its assets:
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(iv) Consents. All governmental and other consents that are required to have been obtained by it with
respect to this Agreement or any Credit Support Document to which it is a party have been obtained and
are in full force and effect and all conditions of any such consents have been complied with:and
(v) Obligations Binding. Its obligations under this Agreement and any Credit Support Document to
which it is a party constitute its legal, valid and binding obligations, enforceable in accordance with their
respective terms (subject to applicable bankruptcy, reorganisation.insolvency, moratorium or similar laws
affecting creditors' rights generally and subject, as to enforceability, to equitable principles of general
application (regardless of whether enforcement is sought in a proceeding in equity or at law)).
(b) Absence of Certain Events. No Event of Default or Potential Event of Default or, to its knowledge,
Termination Event with respect to it has occurred and is continuing and no such event or circumstance would occur
Its a result of its entering into or performing its obligations under this Agreement or any Credit Support Document
to which it is a party_
(c) Absence of Litigation. There is not pending or, to its knowledge, threatened against it or any of its
Affiliates any action, suit or proceeding at law or in equity or before any court, tribunal,governmental body,agency
or official or any arbitrator that is likely to affect the legality, validity or enforceability against it of this Agreement
or any Credit Support Document to which it is a party or its ahility to perform its obligations under this Agreement
or such Credit Support Document.
(d) Accuracy of Specified Information. All applicable information that is furnished in writing by or on behalf
of it to the other party and is identified for the purpose of this Section 3(d) in the Schedule is. as of the date of the
information,true, accurate and complete in every material respect.
4. Agreements
Each party agrees with the other that, so long as either party has or may have any obligation under this Agreement
or under any Credit Support Document to which it is a party:—
fa) Furnish Specified Information. It will deliver to the other party any forms, documents or certificates
specified in the Schedule or any Confirmation by the date specified in the Schedule or such Confirmation or, if none
is specified.as soon as reasonably practicable.
(b) Maintain Authorisations. It will use all reasonable efforts to maintain in full flute and effect all consents
of any governme nlal or other authority that are required to he obtained by it with respect to this Agreement or any
Credit Support Document to which it is a party and will use all reasonable efforts to obtain any that may become
necessary in the I inure.
(c) Comply with laws. It will comply in all material respects with all applicable laws and orders to which it
may he subject if failure so to comply would materially impair its ability to perform its obligations under this
Agreement or any Credit Support Document to which it is a party.
$, Events of Default and Termination Events
(a) Events of Default. The occurrence at any time with respect to a party or, if applicable, any Credit Support
Provider of such party or any Specified Entity of such party of any of the following events constitutes an event of
default (an "Event of Default`)with respect to such party'—
(i) Failure to Pay or Deliver. Failure by the party to make.when due, any payment under this Agreement
or delivery under Section 2(a)(i) or 2(d) required to he made by it if such failure is not remedied on or
before the third Local Business Day after notice of such failure is given to the party;
(i0 Breach of Agreement. Failure by the party to comply with or perform any agreement or obligation
(other than an obligation to make any payment under this Agreement or delivery under Section 2(a)(i) or
2(d) or to give notice of a Termination Event)to be complied with or performed by the party in accordance
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with this Agreement if such failure is not remedied on or before the thirtieth day after notice of.such failure
is given to the party;
(iii) Credit Support Default.
(I) Failure by the party or any Credit Support Provider of such party to comply with or perform any
agreement or obligation to be complied with or performed by it in accordance with any Credit Support
Document if such failure is continuing after any applicable grace period has elapsed:
(2) the expiration or termination of such Credit Support Document or the tailing or ceasing of such
Credit Support Document to he in full farce and effect for the purpose of this Agreement (in either
case other than in accordnnce with its terms) prior to the satisfaction of all obligations of such party
under each Transaction to which such Credit Support Document relaes without the written consent of
the other party:or
(3) the party or such Credit Support Provider disaffirms, disclaims, repudiates or rejects, in whole or
in part,or challenges the validity of, such Credit Support Document;
(iv) Misrepresentation. A representation made or repeated or deemed to have been made or repeated by
the party or any Credit Support Provider of such party in this Agreement or any Credit Support Document
proves to have been incorrect or misleading in any material respect when made or repeated or deemed to
have been made or repeated;
(v) Default under Specified Transaction. The party. any Credit Support Provider of such party or any
applicable Specified Entity of such party ( )defaults under a Specified Transaction and, after giving effect
to any applicable notice requirement or grace period, there occurs a liquidation of, an acceleration of
ohligations under, or an early termination of. that Specified Transaction. (2)defaults, after giving effect to
any applicable notice reyuirer rent or grace period, in making any payment or delivery due on the last
payment, delivery or exchange date of. or any payment on early termination of. a Specified Transaction (or
such default continues for at least three Local Business Days if there is no applicable notice requirement or
grace period)or(3)disaffirms, disclaims, repudiates or rejects in whole or in part. a Specified Transaction
(or such action is taken by any person or entity appointed or empowered to operate it or act on its hehalf);
(vii Cross Default. If "Cross Default" is specified in the Schedule as applying to the party. the
occurrence or existence of (I) a default, event of default or other _similar condition or event (however
described) in respect of such party, any Credit Support Provider of such party or any applicable Specified
Itntity of such party under one or more agreements or instruments relating to Specified Indebtedness of any
of them (individually or collectively) in an aggregate amount of not lass than the applicable Threshold
Amount (as specified in the Schedule) which has resulted in such Specified Indebtedness becoming, or
becoming capable at such time of being declared, due and payable under such agreements or 'i nst runtents,
before it would otherwise have been due and payable or(2) a default by such party, such Credit Support
Provider or such Specified Entity(individually or collectively) in making one or more payments on the due
date thereof in an aggregate amount of not less than the applicable Threshold Amount under such
agreements or instruments(after giving effect to any applicable notice requirement or grace period);
(vii) Bankruptcy. The party, any Credit Support Provider of such party or any applicable Specified Entity
of such party—
(I is dissolved (other than pursuant to a consolidation. amalgamation or merger); (2) becomes
insolvent or is unable to pay its debts or fails or admits in writing its inability generally to pay its
debts as they become due: (3) makes a general assignment, arrangement or composition with or for
the benefit of its creditors; (4) institutes or has instituted against it a proceeding seeking a judgment
of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other
similar law a feedng creditors' rights, or a petition is presented for its winding-up or liquidation,and.
in the case of any such proceeding or petition instituted or presented against it, such proceeding or
petition (A) results in a judgment of insolvency or bankruptcy or the entry of an order or rebel or the
making of an order for its winding-up or liquidation or (B) is not dismissed. discharged, staved or
4 19UA: 1992
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restrained in each case within 30 days of the institution or presentation thereof; (5) has a resolution
passed for its winding-up, official management or liquidation(other than pursuant to a consolidation.
amalgamation or merger); (6) seeks or becomes subject to the appointment of an administrator.
provisional liquidator, conservator, receiver_trustee,custodian or other similar official for it or for all
or substantially all its assets; (7) has a secured party take possession of all or substantially all its
assets or has a distress_execution.attachment, sequestration or other legal process levied, enforced or
sued on or against all or substantially all its assets and such secured party maintains possession, or
any such process is not dismissed. discharged, stayed or restrained, in each case within 30 days
thereafter; (8)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 (II to (7)
(inclusive): or (9) takes any action in furtherance of, or indicating its consent in, approval oI'. or
acquiescence in,any of the foregoing acts; or
(sin) Merger Without Assumption. The party or any Credit Support Provider of such party consolidates
or amalgamates with, or merges with or into. or transfers all or substantially all its assets to, another entity
and, at the time of such consolidation, amalgamation, merger or transfer:—
(I) the resulting, surviving or transferee entity fails to assume all the obligations of such party or
such Credit Support Provider under this Agreement or any Credit Support Document to which it or
its predecessor was a party by operation of law or pursuant to an agreement reasonably satisfactory to
the other party to this Agreement or
(2) the benefits of any Credit Support Document fail to extend (without the consent of the other
party) to the performance by such resulting, surviving or transferee entity of its obligatons under this
Agreement.
(h) Termination Events. The occurrence at any time with respect to a party or. if applicable, any Credit
Support Provider oI such party or any Specified Entity of such party of any event specified below constitutes an
Illegality it the event is specified in (i) below, and, if specified to he applicable, a Credit Event Upon Merger if the
event is specified pursuant to(ii) below or an Additional Termination Event if the event is specified pursuant to(iii)
helow:
(i) Illegality. Due to the adoption of, or any change in, any applicable law after the date on which a
Transaction is entered into, or due to the promulgation of or any change in, the interpretation by any court.
tribunal or regulatory authority with competent jurisdiction of any applicable law alter such date, it
becomes unlawful (other than as a result of a breach by the party of Section 4(b)) for such party (which
will he the Affected Partyy—
(I) to perform any absolute or contingent obligation to make a payment or delivery or to receive a
payment or delivery in respect of such Transaction or to comply with any other material provision of
this Agreement relating to such Transaction;or
(2) to perform_ or for any Credit Support Provider of such party to perform, any contingent or other
obligation which the party (or such Credit Support Provider) has under any Credit Support Document
relating to such Transaction;
CO Credit Event Upon Merger. If"Credit Event Upon Merger' is specified in the Schedules applying
to the party, such party ("X")_ any Credit Support Provider of X or any applicable Specified Entity of X
consolidates or:amalgamates with, or merges with or into,or transfers all or substantially all its assets to,
another entity and such action does not constitute an event described in Section 5(a)(vni) but the
creditworthiness of the resulting, surviving or transferee entity is materially weaker than that of X. such
Credit Support Provider or such Specified Entity, as the case 'nay be. immediately prior to such action
(and. In such esent X or its successor or transferee as appropri al e, will he the Affected Party); or
(iii) Additional Termination Event. Il any "Additional Termination Event" is specified in the Schedule
or any Confirmation as applying. the occurrence of such event(and, in such event. the Affected Party or
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Affected Parties shall be as specified for such Additional Termination Event in the Schedule or such
Con li nnuliun).
(c) Event of Default and Illegality. If an event or circumstance which would otherwise constitute or give rise
to an Event of Default also constitutes an Illegality, it will be treated as an Illegality and will not constitute an Event
of Default
6. Early Termination
(a) Right to Terminate Following Event of Default. If at any lime an Event of Default with respect to a party
(the "Defaulting Party") has occurred and is then continuing. the other party (the "Non-defaulting Party") may, by
not more than 20 days notice to the Defaulting Party specifying the relevant Event of Default, designate a day not
earlier than the day such notice is effective as an Early Termination Date in respect of all outstanding Transactions.
II. however, "Automatic Early Termination" is .specified in the Schedule as applying to a party, then an Early
Termination Date in respect of all outstanding 'I'ransactions will occur immediately upon the occurrence with
respect to such party of an Event of Default specified in Section 5(a)(vii)(I), (3), (5), (6) or, to the extent analogous
thereto, (8), and as of the time immediately preceding the institution of the relevant proceeding or the presentation
of the relevant petition upon the occurrence with respect to such party of an Event of Default specified in Section
5(a)(vii)(4)or, to the extent analogous thereto, (8).
(h) Right to Terminate Following Termination Event.
(i) Notice. If a Termination Event occurs, an Affected Party will, promptly upon becoming aware of it,
notify the other party,specifying the nature of that Termination Event and each Affected Transaction and
will also give such other information about that Termination Event as the other party may reasonably
require.
(ii) Two Affected Parties. If an Illegality under Section 5(b)(i)(I) occurs and there are two Affected
Parties, each party will use all reasonable efforts to reach agreement within 30 days after notice thereof is
given under Section 6(b)(i)on action to avoid that Termination Event.
(iii) Right to Terminate. IL—
( ) a transfer under Section 6(h)(ii) has not been effected with respect to all Affected 'Transactions
within 30 days after an Affected Party gives notice under Section 6(h)fig or
(2) an Illegality other than that referred to in Section 6(b)(ii), a Credit I_tvent Upon Merger or an
Additional Termination Event occurs,
either party in the case of an Illegality, any Affected Party in the case of an Additional 'Termination Event
if there 1S more than one Affected Party, or the party which is not the Affected Party in the case of a Credit
Event Upon Merger or an Additional Tern inatitin Event if there is only one Affected Party may, by not
more than 20 days notice to the other party and provided that the relevant Termination Event is then
con!in air g,designate a day not earlier than the day such notice is effective as an Early Termination Date in
respect of all Affected Transactions.
(c) Effect of Designation.
(i) If notice designating an Early Termination Date is given under Section 6(a) or (h), the Early
Termination Date will occur on the dam so designated. whether or not the relevant Event of Default or
Termination Event is then continuing.
(ii) Upon the occurrence or effective designation of an Early Termination Date. no further payments or
deliveries under Section 2(a)(i) or 2(d) in respect of the Terminated Transactions will he required to he
made, but without prejudice to the other provisions of this Agreement. The amount. if any, payable ill
respect of an Early Termination Date shall he determined pursuant to Section 6(c).
6 ISDA P>1992
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((I) Calculations.
(i) Statement. On or as soon as reasonably practicable lollowing the occurrence of an Early Termination
Date, each party will make the calculations on its part, if any, contemplated by Section 6(e) and will
provide to the other party a statement (I) showing, in reasonable detail, such calculations (including all
relevant quotations and specifying any amount payable under Section 6(e)) and (2) giving details of the
relevant account to which tiny amount payable to it is to he paid. In the absence of written confirmation
from the source of a quotation obtained in determining a Market Quotation. the records of the party
obtaining such quotation will be conclusive evidence of the existence and accuracy of such quotation.
(ii) Payment Dale. An amount calculated as being due in respect of any Early Termination Date under
Section 6(e) will he payable on the day that notice of the amount payable is effective (in the case of an
Early Termination Date which is designated or occurs as a result of an Event of Default) and on the day
which is two Local Business Days after the day on which notice of the amount payable is effective(in the
case of an Early Termination Dale which is designated as a result of a Termination Event), Such amount
will he paid together with (to the extent permitted under applicable law) interest thereon (before as well as
after judgment) from (and including) the relevant Early Termination I)ale to(hut excluding) the date such
amount is paid, at the Applicable Rate. Such interest will he calculated on the basis of daily compounding
and the actual number of days elapsed.
(e) Payments on Early Termination. If an Early Termination Date occurs. the following provisions shall apply
based on the parties' election in the Schedule of a payment measure, either"Market Quotation" or "Loss', and a
payment method, either the "First Method" or the "Second Method". If the parties fail to designate a payment
measure or payment method in the Schedule, it will he deemed that"Market Quotation"or the `Second Method",as
the case may be, shall apply. The amount,if any, payahle in respect of an Early Termination Date and determined
pursuant to this Section will he subject to any Set- R.
(i) Events of Default. If the Early'fermi nation Date results from an Event of Default:—
(1) Fint Method and Market Quotation. If the First Method and Market Quotation apply. the
Defaulting Party will pay to the Non-defaulting Party the excess.if a positive number, of(A)the soot of
the Settlement Amount (determined by the Non-defaulting Party) in respect of the Terminated
Transactions and the Unpaid Amounts owing to the Non-defaulting Party over(B) the Unpaid Amounts
owing to the Defaulting Party.
(2) First Method and Lars. If the First Method and Loss apply, the Defaulting Party will pay to the
Non-dclnulting Party, if a positive number, the Nun-defaulting Party's Loss in respect of this
Agreement.
(3) Second Method am! Market Quotation. If the Second Method and Market Quotation apply, an
amount will he payable equal to (A) the sum of the Settlement Amount (determined by the Non-
defaulting Party) in respect of the Terminated Transactions and the Unpaid Amounts owing to the Non-
defaulting Party less (B) the Unpaid Amounts owing to the Defaulting Party. If that amount is a
positive number. the Defaulting Party will pay it to the Non-defaulting Party, if it is a negative number,
the Non-defaulting Party will pay the absolute value of that amount to the Defaulting Party.
(4) Second Method and Lase. If the Second Method and Loss apply-an amount will be payable equal
to the Non-defaulting Party's Loss in respect of this Agreement. If that amount is a positive number.
the Defaulting Party will pay it to the Non-defaulting Party: if it is a negative number, the Non-
defaulting Party will pay the absolute value of amount to the Defaulting Party.
(ii) Termination Events, If the Early Termination Date results from a Termination Event—
( One Affected Pam'. If there is one Affected Party. the amount payable will be determined in
accordance with Section 6(e)(i)(3), if Market Quotation applies, or Section 6(e)(i)(4). if I.as_s applies.
except that. in either case. references to the Defaulting Party and to the Non-defaulting Party will he
deemed to he references to the Affected Party and the party which is not the At Party.
7 tSDA J 1992
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respectively, and, if Loss applies and fewer than all the Transactions arc being terminated, Loss shall
be calculated in respect of all Terminated Transactions.
(2) inc Affected Parries. If there are two Affected Parties—
(A) if Market Quotation applies, each party will determine a Settlement Amount in respect of the
'terminated 'transactions, and an amount will be payable equal to (I) the sum of (a) one-hall of
the difference between the Settlement Amount of the party with the higher Settlement Amount
("X") and the Settlement Amount of the party with the lower Settlement Amount("Y") and (b)
the Unpaid Amounts owing to X less(II)the Unpaid Amounts owing to Y;and
(6) if Loss applies, each party will determine its Loss in respect of this Agreement (or, if(ewer
than all the Transactions are being terminated, in respect of all Terminated Transactions) and an
amount will he payable equal to one-half of the difference between the I.oss of the party with the
higher Loss("X")and the Loss of the party with the lower Loss(-Y").
If the amount payable is a positive number, Y will pay it to X; if it is a negative number, X will pay
the absolute value of that amount to Y.
(iii) Adjustment for Bankruptcy. In dmanrwances where an Early Termination Date occurs because
"Automatic Early Termination' applies in respect of a party, the amount determined under this Section
6(e) will be subject to such adjustments as ale appropriate and permitted by law to reflect any payments or
deliveries made by one party to the other under this Agreement (and retained by such other party) during
the period from the relevant Early Termination Date to the date for payment determined under Section
(iv) Pre-Estimate. The parties agree that if Market Quotation applies an amount recoverable under this
Section 6(e) is a reasonable pre-estimate of loss and not a penalty. Such amount is payable or the loss of
bargain and the loss of protection against future risks and except as otherwise provided in this Agreement
neither party will he entitled to recover any additional damages as a consequence of such losses.
7. Transfer
Neither this Agreement nor any interest or obligation in or under this Agreement nay be transferred (whether by
way of security or otherwise)by either party without the prior written consent of the other party,except that:—
(a) a party may make such a transfer of this Agreement pursuant to a consolidation or amalgamation with. or
merger with or into, or transfer of all or substantially all its assets to, another entity (hut without prejudice to any
other right or remedy under this Agreement);and
(h) a party nay make such a transfer of all or any part of its interest in any amount payable to it from a Defaulting
Party under Section 6(e).
Any purported transfer that is not in compliance with this Section will he void.
R. Miscellaneous
(a) 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.
(h) Amendments. No amendment, modification or waiver to respect of this Agreement will he elleetis
unless in writing (including a writing evidenced by a facsimile transmission) and executed by each of the parties or
confirmed by an exchange of telexes or electronic messages on an electronic messaging_system.
(c) Survival of Obligations. Without prejudice to Sections 2(alliii) and 6(c)(ii), the obligations of the parties
under this Agreement will survive the termination of any Transaction.
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(d) Remedies Cumulative. Except as provided in this Agreement, the rights, powers, remedies and privileges
provided in this Agreement are cumulative and not exclusive of any rights, powers, remedies and privileges
provided by law.
(e) Counterparts and Confirmations.
(i) This Agreement (and each amendment, modification and waiver in respect of it) may be executed and
delivered in counterparts(including by facsimile transmission),each of which will be deemed an original.
(ii) The parties intend that they are legally bound by the terms of each Transaction from the moment they
agree to those terms (whether orally or otherwise). A Confirmation shall he entered into as soon as
practicable and may be executed and delivered in counterparts(including by facsimile transmission) or be
created by an exchange of telexes or by an exchange of electronic messages on an electronic messaging
system, which in each case will be sufficient for all purposes to evidence a binding supplement to this
Agreement. The parties will specify therein or through another effective means that any such counterpart,
telex or electronic message constitutes a Confirmation.
(f) No Waiver of Rights. A failure or delay in exercising any right, power or privilege in respect of this
:Agreement will not be presumed to operate as a waiver, and a single or partial exercise of any right, power or
privilege will not be presumed to preclude any subsequent or further exercise, of that right, power or privilege or
the exercise of any other right, power or privilege.
(g) Headings. The headings used in this Agreement are for convenience of reference only and are not to
attest the construction of or to he taken into consideration in interpreting this Agreement.
9. Expenses
A Defaulting Party will, on demand, indemnify and hold harmless the other party for and against all reasonable out-
of-pocket expenses, including legal fees, incurred by such other party by reason of the enforcement and protection
or its rights under this Agreement or any Credit Support Document to which the Defaulting Party is a party or by
reason of the early termination of any Transaction, including, but not limited to, costs of collection.
10. Notices
(a) Effectiveness. Any notice or other communication in respect of this Agreement may he given in any
manner set forth below (except that a notice or other communication under Section 5 or 6 may not be given by
facsimile transmission or electronic messaging system) to the address or number or in accordance with the
electronic messaging system details provided (see the Schedule)and will be deemed effective as indicated'—
(i) if in writing and delivered in person or by courier, on the date it is delivered;
(ii) if sent by telex, on the date the recipient's answerback is received;
(iii) if sent by facsimile transmission, on the date that transmission is received by a responsible employee
of the recipient in legible form(it being agreed that the burden of proving receipt will he on the sender and
will not be met by a transmission report generated by the sender's facsimile machine);
(iv) if sent by certified or registered mail (airmail, if overseas) or the equivalent(return receipt requested),
on the date that mail is delivered or its delivery is attempted, or
(v) if sent by electronic messaging system, on the date that electronic message is received,
unless the date of that delivery (or attempted delivery) or that receipt, as applicable, is not a Local Business Day or
that communication is delivered (or attempted) or received, as applicable, after the close of business on a Local
Business Day, in which case that communication shall be deemed given and effective on the first following day that
is a Local Business Day.
9 ISDA m 1992
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(h) Change of Addresses. Either party may by at nice to the other change the address, telex or facsimile
nu nher or electronic messaging system details at which notices or other communications arc to he given to it
I I. Governing Law and Jurisdiction
(a) Governing Law. This Agreement will be governed by and construed in accordance with the law specified
in the Schedule.
(h) Jurisdiction. With respect to any suit, action or proceedings relating to this Agreement("Proceedings'),
each party irrevocably:—
) submits to the jurisdiction of the English courts, if this Agreement is expressed to he governed by
English law, or to the nonexclusive jurisdiction of the courts of the State of New York and the United
States District Court located in the Borough of Manhattan in New York City, if this Agreement is
expressed to he governed by the laws of the State of New York; and
(ii) waives any objection which it may have at any time to the laying of venue of any Proceedings brought
in any such court. waives any claim that such Proceedings have been brought in an inconvenient forum and
further waives the right to object, with respect to such Proceedings, that such court does not have any
jurisdiction over such party.
Nothing in this Agreement precludes either party from bringing Proceedings in any other jurisdiction (outside, if
this Agreement is expressed to be governed by English law, the Contracting States,as defined in Section III)of the
Civil Jurisdiction and Judgments Act 1982 or any modification,extension or re-enactment thereof for the time being
in force) nor will the bringing of Proceedings in any one or more jurisdictions preclude the bringing of Proceedings
in any other jurisdiction.
(c) Waiver of Immunities. Each party irrevocably waives. to the fullest extent pe rot ilted by applicable law.
with respect to itself and its revenues and assets (irrespective of their use or intended use), all immunity on the
grounds of sovereignty or other similar grounds 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 he fore
or after judgment) and (v) execution or enforcement of any judgment to which it or its revenues or assets might
otherwise he ent(led in any Proceedings in the courts of any jurisdiction and irrevocably agrees, to the extent
permitted by applicable law, that it will not claim any such immunity in any Proceedings.
12. Definitions
As used in this Agreement:—
"Additional Termination Event"has the meaning specified in Section 5(h).
"Affected Party"has the meaning specified in Section 5(b).
"Affected Transactions" means (a) with respect to any Termination Event consisting of an Illegality, all
Transactions affected by the occurrence of such Termination Event and (b) with respect to any ()then Termination
Event, all Transactions_
"Affiliate"means, subject to the Schedule, in relation to any person. any entity controlled, directly or indirectly, by
the person_ any entity that controls. directly or indirectly, the person or any entity directly or indirectly under
common control with the person. For Ihis purpose.'control.'of any entity or person means ownership of a majority
of the voting power of the entity or person.
"Applicable Rate"means:--
(a) in respect of obligations payable or deliverable (or which would have been hut for Section 2(a)(ii)) by a
Defaulting Party, the Default Rate;
It ISI)A Ail 1992
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(by in respect of an obligation to pay an amount under Section 6(e) of either party from and alter the date
(determined in accordance with Section 6(d)(li))on winch that amount is payable. the Default Rate;
(c) in respect of all other obligations payable or deliverable(or which would have been but for Section 2(a)(iii)) by
a Non-defaulting Party.the Nan-default Rate;and
(d) in all other cases, the Termination Rate.
"consent" includes a consent, approval, action, authorisation. exemption. notice, filing. registration or exchange
control consent.
"Credit Event Upon Merger"has the meaning specified in Section 5(h).
"Credit Support Document"means any agreement or instrument that is specified as such in This Agreement.
"Credit Support Provider"has the meaning specified in the Schedule.
"Default Rate" means a rate per annu n equal to the cost (without proof or evidence of any actual cost) to the
relevant payee(as certified by it) if it were to fund or of funding the relevant amount plus Irk per annum_
"Defaulting Party"has the meaning specified in Section 6(a).
"Early Termination Date"means the date determined in accordance with Section 6(a)or 6(b)(iii).
"Event of Default"has the meaning specified in Section 5(a)and, if applicable,in the Schedule.
"Illegality"has the meaning specified in Section 5(b).
"law"include any treaty, law,rule or regulation and "lawful"and "unlawful'' will he construed accordingly.
"Local Business Day" means, subject to the Schedule, a day on which commercial banks are open for business
(including dealings in foreign exchange and foreign currency deposits) (a) in relation to any ohligaton under
Section 2(a)(I), in the place(s) specified in the relevant Confirmation or, if not so specified, as otherwise agreed by
the parties in writing or determined pursuant to provisions contained, or incorporated by references in this
Agreement(b) in relation to any other payment,in the place where the relevant account is located, (c) hl relation it)
any notice or other communication, including notice contemplated under Section 5(a)(I), in the city specified in the
address for notice provided by the recipient and, in the case of a notice contemplated by Section 2(h), in the place
where the relevant new account is to he located and(d)in relation to Section 5(a)(v)(2). in the relevant locations Ibr
performance with respect to such Specified Transaction.
"Loss"means. with respect to this Agreement or one or more Terminated Transactions, as the case may he, and a
party, an amount that party reasonably determines in good faith to he its total losses and costs (or gain. in which
case expressed as a negative number) in connection with this Agreement or that'terminated Transaction or group of
Terminated Transactions, as the case may be, including any loss of bargain. cost of funding or. at the election of
such party hut without duplication, loss or cost incurred as a result of its terminating, liquidating. obtaining or
reestablishing any hedge or related trading position (or any gain resulting from any of them). I oss includes losses
and costs (or gains) in respect of any payment or delivery required to have been made (assuming satisfaction of
each applicable condition precedent) on or he fore the relevant Early Termination Date and not made, except, so as
to avoid duplication, if Section 6(eXi)(I) or(3) or 6(eaii)(2)(A) applies. Loss does not include a party's legal fees
and out-of-pocket expenses referred to under Section 9. A party will determine its LOSS as of the relevant Early
Termination Date, or, if that is not reasonably practicable as of the earliest date thereafter as is reasonably
practicable. A party may (but need not) determine its Loss by reference to quotations of relevant rates or prices
Gore one or more leading dealers in the relevant markets.
"Markel Quotation" means, with respect to one or more Terminated Transactions :red a party making the
determination. an amount determined on the basis of quotations from Reference Market-makers. Each quotation
will he for an amount, if any, that would be paid to such party (expressed as a negative number} or by such party
I I ISIIA M 1992
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(expressed us a positive number) in consideration of an agreement between such party (taking into account any
existing Credit Support Document with respect to the obligations of such party) and the quoting Reference Market-
maker to enter into a transaction (the "Replacement Transaction') that would have the effect of preserving for.such
party the economic equivalent or any payment or delivery (whether the underlying obligation was absolute or
contingent and assuming the satisfaction of each applicable condition precedent)by the parties under Section 2(al(iI
in respect of such Terminated Transaction or group of Terminated Transactions that would. hut for the occurrence
of the relevant Early Termination Date, have been squired alter that date. For this purpose, Unpaid Amounts in
respect of the Terminated Transaction or group of Terminated Transactions arc to be excluded hut, without
limitation, any payment or delivery that would, but for the relevant Early Termination Date, have been required
(assuming satisfaction of each applicable condition precedent) after that Early Termination Date is to he included.
The Replacement Transaction would he subject to such documentation as such patty and the Reference Market-
maker may, in good faith, agree. The party making the determination (or its agent) will request each Reference
Market-maker to provide its quotation to the extent reasonably practicable as of the same day and time ()without
regard to different time zones) on or as soon as reasonably practicable after the relevant Early Termination Date.
The day and time as of which those quotations arc to he obtained will he selected in good faith by the party obliged
to stake a determination under Section 6(e), and if each party is so obliged, alter consultation with the other. If
more than three quotations are provided, the Market Quotation will he the arithmetic mean of the quotations,
without regard to the quotations having the highest and lowest values. If exactly three such quotations are provided,
the Market Quotation will be the quotation remaining after disregarding the highest and lowest quotations_ For this
purpose, if more Than one quotation has the same highest value or lowest value,then one of such quotations shall he
disregarded_ If fewer than three quotations are provided, it will be deemed that the Market Quotation in respect of
such Terminated Transaction or group of Terminated Transactions cannot he determined.
"Non-default Rafe" means a rate per annum equal to the cost (without proof or evidence of any actual cost) to the
Non-defaulting Party(as certified by it)if it were to fund the relevant amount,
"Non-defaulting Party"has the meaning specified in Section 6(al.
"Potential Event of Default"means any event which, with the giving of notice or the lapse of time or both, would
constitute an Event of Default.
"Reference Market-makers"means four leading dealers in the relevant market selected by the party determining a
Markel Quotation in good faith (a) from among dealers of the highest credit standing which satisfy' all the criteria
that such party 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.
"Scheduled Payment Date"means a date on which a payment or delivery is to he made under Section 2(a](i) with
respect to a Transaction.
"Set-off" means set-off, offset, combination of accounts, right of retention or withholding or similar right or
requirement to which the payer of an amount under Section 6 is entitled or subject (whether arising under this
Agreement,another contract, applicable law or otherwise)that is exerei sell by,or imposed on, such payer.
"Settlement Amount"means, with respect to a party and any Early Termination Date,the sum of:—
(a) the Market Quotations(whether positive or negative) for each Terminated Transaction or group of Terminated
Transactions for which a Market Quotation is determined: and
(h) such party's foss (whether positive or negative and without reference to any Unpaid Amounts) for each
'terminated Transaction or group of Terminated Transactions for which a Market Quotation cannot he determined
or would not (in the reasonable hdiel' of the party making the determination) produce a commercially reasonable
result,
"Specified Entity"has the meaning specified in the Schedule.
"Specified Indebtedness"means, subject to the Schedule, any obligation (whether present or future, contingent or
otherwise, as principal or surety or otherwise)in respect of borrowed money.
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"Specified Transaction" means, subject to the Schedule. (a) any transaction (including an agreement with respect
thereto) now existing Or hereafter entered into between one party to this Agreement (or any Credit Support
Provider of such party or any applicable Specified Entity of such party) and the other party to this Agreement (or
ally Credit Support Provider of such other party or any applicable Specified Entity of such other party) which is a
rate swap transaction. basis swap, forward rate transaction, commodity swap. commodity option, equity or equity
index swap. equity or equity index option. bond option, interest rate option, foreign exchange transaction, cap
transaction, floor transaction. collar transaction, currency swap transaction, cross-currency rate swap transaction.
currency option Or any other similar transaction (including any option with respect to any of these transactions), (b)
any corn hination of these transactions and (c) any other transaction identified as a Specified Transaction in this
Agreement or the relevant confirmation.
''Terminated Transactions" means with respect to any Early Termination Date (a) if resulting from a Tcnnlnatiom
Event, all Affected Transactions and (h) if resulting from an Event of Default, all Transactions (in either case) in
effect Immediately before the effectiveness of the notice designating that Early Termination Date(or, ii'Automatic
Early Termination'applies,immediately before that Early Termination Date).
"Termination Event" means an Illegality or, if specified to be applicable, a Credit Event Upon Merger or an
Additional Termination Event.
"Termination Rate"means a rate per annurn equal to the arithmetic mean of the cost(without proof or evidence of
any actual cost)to each party(as certified by such party) if it were to fund or of funding such amounts.
"Unpaid Amounts"owing to any party means, with respect to an Early Termination Date_ the aggregate of(a) in
respect of all Terminated Transactions, the amounts that became payable (or that would have become payable but
for Section 2(a)(iii)) to such party under Section 2(a)(i) on or prior to such Early Termination Date and which
remain unpaid as at such Early Termination Date and (h) in respect of each Terminated Transaction, for each
obligation under Section 2(a)(i) which was (or would have been but for Section 2(a)(iii)) required to he settled by
delivery to such party on or prior to such Early Tenni nut ion Date and which has not been so settled as at such Early
'termination Date, an amount equal to the fair market value of that which was (or would have been) required to he
delivered as of the originally scheduled date for delivery, in each case together with (to the extent permitted under
applicable law) interest, in the currency of such amounts, from (and including) the date such amounts or obligations
were or would have been required to have been paid or performed to (but excluding)such Early Termination Date,
at the Applicable Rate. Such amounts of interest will he calculated on the basis of daily compounding and the
actual number of days elapsed. The fair market value of any obligation referred to in clause (b) above shall he
reasonably determined by the party obliged to make the determination under Section 6(e) or, if each party is so
obliged, it shall be the average of the fair market values reasonably determined by both parties.
[TIIE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK.]
13 iSDA wva
Second Printing
IN WITNESS WHEREOF the parties have executed this document on the respective dates specified below with
effect from the date specified on the firs page of this document-
SUNTRUST BANK CITY OF OCOEE, FLORIDA
By: By:
Bred D. Woolf Name:
Vice President Title:
Date: Date:
14 ISDA M 1992
Second Printing
SCHEDULE TO THE
ISDA MASTER AGREEMENT
DATED AS OF NOVEMBER 1,2002,BETWEEN
SUN'PRUST BANK
("PARTY A")
AND
CITY OF OCOEE, FLORIDA
("PARTY B")
Part I
Terminal ion
"Specified Entity"does not apply to either party.
2. "Specified Transaction" has its meaning as defined in Section 12 of this Agreement, provided
that Default under Specified Transaction excludes Force Majeure as defined below.
3. "Cross Default" provisions of Section 5(a)(vi) of this Agreement shall apply to each of Party A
and Party B. but shall exclude Force Majeure as defined below.
4. "Force Majeure" means nonpayment resulting solely from a wire transfer or operational problem
or error(so long as sufficient funds are available), but only if payment is made within three(3)
Business Days after the problem has been corrected or the error has been discovered.
5. "Shareholder Equity" means with respect to Party A,at any time, the sum (as shown in the most
recent annual audited financial statements of SunTrusl Banks. Inc.) of(i) its capital stock
(including preferred stock) outstanding, taken at par value, (ii) its capital surplus and fill) its
retained earnings, minus(iv) treasury stock, each to be determined in accordance with generally
accepted accounting principles in its jurisdiction of incorporation or organization, consistently
applied, as at the end of its most recently completed fiscal year.
6. "Specified Indebtedness" shall have the meaning assigned to such term in Section 12 of this
Agreement, but, with respect to Party A, shall not include indebtedness in respect of deposits
received in the ordinary course of its banking business.
7. "Threshold Amount" shall mean, with respect to Party A, an amount equal to three percent(3%)
of its Shareholders' Equity and, with respect to Party B, any amount of Specified Indebtedness.
8. "Bankmptcy" Clause (6) of Section 5(a)(vii) of this Agreement is hereby amended to read in its
entirety as follows:
"(6)(A) seeks or becomes subject to the appointment of an administrator, provisional liquidator.
conservator, receiver, trustee, custodian, or other similar official for it or for all or substantially
all its assets or(B) in the case of the Government Entity.any Credit Support Provider of the
Government Entity or any applicable Specified Entity of the Government Entity, (I) there shall
he appointed or designated with respect to it. an entity such as an organization, board.
commission, authority, agency, or body to monitor, review, oversee, recommend,or declare a
financial emergency or similar state of financial distress with respect to it or(II) there shall he
declared, introduced, or proposed for consideration by it or by any legislative or regulatory body
15
with competent jurisdiction over it, the existence of a state of financial emergency or similar
state of financial distress in respect of it;'.
9. "Merger Without Assumption" Section 5(a)(viii) of this Agreement is herehy amended to read
in its entirety as follows:
"(viii) Merger Without Assumption. The party or any Credit Support Provider of such party
consolidates or amalgamates with, or merges with or into, or transfers all or substantially all its
assets to,another entity (or, without limiting the foregoing, if such party is a Government Entity,
an entity such as an organization, board, commission, authority, agency, or body succeeds to the
principal functions of.or powers and duties granted to, such party or any Credit Support Provider
of such party) and, at the time of such consolidation, amalgamation, merger, transfer or
succession:
(I) the resulting, surviving, transferee, or successor entity fails to assume all the
obligations of such party or such Credit Support Provider under this Agreement or any
Credit Support Document to which it or its predecessor was a party by operation of law
or pursuant to an agreement reasonably satisfactory to the other party to this Agreement;
or
(2) the benefits of any Credit Support Document fail to extend (without the consent
of the other party) to the performance by such resulting, surviving, transferee,or
successor entity of its obligations under this Agreement."
10. `Credit Event Upon Merger" applies to both parties. Section 5(b)(ii) of this Agreement is hereby
amended to read in its entirety as follows:
in) Credit Event Upon Merger. If"Credit Event Upon Merger" is specified in the Schedule as
applying to the party, such party ("X"), any Credit Support Provider of X, or any applicable
Specified Entity of X consolidates or amalgamates with, or merges with or into, or transfers all or
substantially all its assets to, another entity (or. without limiting the foregoing, if X is a
Government Entity, an entity such as an organization, hoard, commission, authority, agency, or
body succeeds to the principal functions of, or powers and duties granted to, X, any Credit
Support Provider of X or any Specified Entity of X) and such action does not constitute an event
described in Section 5(a)(viii) but the creditworthiness of the resulting, surviving, transferee, or
successor entity is materially weaker than that of X, such Credit Support Provider or such
Specified Entity, as the case may be, immediately prior to such action (and, in such event, X or
its successor or transferee, as appropriate, will be the Affected Party); or
I I. "Automatic Early Termination" does not apply to either party.
12. "Payments on Early 'termination." For the purposes of Section 6(c) of this Agreement, Loss and
Second Method apply, subject to the following:
(i) "Loss" for any Terminated Transaction that is, or is subject to. any unexercised option shall
be determined by taking into account the economic equivalent of the option.
(ii) The Non-defaulting Party may. upon the occurrence of any Early Termination Date, offset
payments due by it under this Agreement(or under any Specified Transaction) against and apply
such payments to the satisfaction of, any obligations owing by the Defaulting Party (including
any Office of the Defaulting Party) to the Non-defaulting Party or any of the Non-defaulting
Party's Affiliates (including any Office of the Non-defaulting Party or its Affiliates) whether
matured or unmatured, and it is a condition precedent to the Non-defaulting Party's obligation to
16
make any such payments that such obligations of the Defaulting Party have been paid in full or
satisfied by offset as contemplated hereunder.
13. "Calculation Agent' shall mean Party A.
14. Additional Termination Event will not apply Notwithstanding the foregoing, Party A will have
the right(hut not the obligation) to terminate all or a pro rata portion of any Transaction related
to the Covered Indenture and will he entitled to receive from, or will he required to pay to, Party
B the fair market value for such termination, as determined by Party A in good faith and in
accordance with market practice and its own customary procedures, upon the occurrence of one
or more of the following events:
(a) If the indebtedness under the Covered Indenture is(for whatever reason, in whatever
manner) partially or fully paid or discharged (except with respect to any scheduled
amortization):
(b) If Party A ceases to be a party to the Covered Indenture;
(c) If the lenders party to the Covered Indenture become secured or. if already secured, the
lenders obtain additional security thereunder and Party A. in its capacity as a party to this
Agreement and any Transaction hereunder, is not entitled to the same rights, privileges,
and interest in the collateral and/or guaranty agreements as the lenders are entitled to
under the Covered Indenture;
(d) If there is a default, an event of default, or other similar condition or event (however
described) in relation to Party B under the Covered Indenture (without regard to the
existence of any waiver or forbearance agreement with respect thereto):and
(e) If the Covered Indenture is amended, restated, supplemented, or otherwise modified and
Party A does not consent, in its sole discretion, to such amendment, restatement,
supplement, or other modification.
Party A may exercise such right to terminate, at any time in its sole discretion,following the
occurrence of any one of such events through the Termination Date. A failure or delay in
exercising the foregoing right to terminate will not he presumed to operate as a waiver, and a
single or partial exercise of such right will not he presumed to preclude any subsequent or further
exercise of that right.
15. Set Off. Section 6 of this Agreement is amended by adding the following new subsection 6(f):
"(f) Right of Set-Off, Upon the occurrence of an Event of Default with respect to Party
B, or an Illegality or Credit Event Upon Merger where Party B is the Affected Party,
Party A will have the right (but not the obligation), without prior notice to Party B or any
other person, to set-off any obligation of Party A or any of Party A's present or future
Affiliates, branches, or offices owing to Party B, against any obligation of Party B owing
to Party A or any of Party A's present or future Affiliates, branches, or offices (whether
or not such obligations arise under this Agreement, whether or not matured, whether or
not contingent, and regardless of the place of payment or hooking office of the
obligations). In order to enable Party A to exercise its rights of set-off, if an ohligation is
unascertained, Party A may in good faith estimate that obligation and set-off in respect of
the estimate, subject to Party A accounting to Party B when the obligation is ascertained.
Nothing in this Section 6(f) shall he effective to create a charge or other security interest.
This Section 6(f) shall he without prejudice and in addition to any right of set-off,
combination of accounts, lien, or other right to which any party is at any time otherwise
entitled (whether by operation of law, contract, or otherwise):"
17
Part 2
Documents
Documents to be delivered. For purposes of Section 4(a) of this Agreement, each party agrees to
deliver the fallowing documents as applicable:
(a) Certified copies of all documents evidencing necessary municipal authorizations. as well
as other authorizations and approvals with respect to the execution, delivery and
performance by the party of this Agreement and any supporting document.
Party required to deliver: Party B
Date by which to be delivered: Upon execution of this
Agreement
Covered by Section 3(d) Representation: Yes
(b) An incumbency certificate of an authorized officer of the party certifying the names, true
signatures and authority of the officers of the party signing this Agreement and any
supporting document.
Party required to deliver: Party B
Date by which to be delivered: Upon execution of this
Agreement
Covered by Section 3(d) Representation: Yes
(c) An opinion of counsel to the party covering such matters as reasonably requested by the
receiving party.
Party required to deliver: Party B
Date by which to be delivered: Upon execution of this
Agreement
Covered by Section 3(d) Representation: Yes
(d) Such other document as the other party may reasonably request in connection with each
Transaction.
Party required to deliver: Party B
Date by which to he delivered: Promptly upon request
Covered by Section 3(d) Representation: Yes
(e) Such other written information respecting the condition or operations, financial or
otherwise, of Party B as Party A may reasonably request from time to time.
18
Party required to deliver: Party B
Date by which to be delivered: Promptly upon request
Covered by Section 3(d) Representation: Yes
Part 3
Miscellaneous
I. Notices. For purposes of Section 10 of this Agreement:
(a) The address for notice or communication to Party A is:
SunTrust Capital Markets, Inc.
ATTN: Financial Risk Management, Operations
303 Peachtree Street, N.E.
23rd Floor, Center Code 3913
Atlanta, GA 30308
404-575-2696 (phone)
404-532-0514 (fax)
(b) The address for notice or communication to Party B is:
Ms. Wanda Horton
Finance Director
City of Ocoee, Florida
150 N. Lakeshore Dr.
Ocoee, FL 34761
407-905-3100, x1520(phone)
407-656-7835 (fax)
2. Credit Support Provider.
Credit Support Provider means in relation to Party A: Not applicable.
Credit Support Provider means in relation to Party B: Not applicable.
3. Credit Support Document.
Credit Support Document means in relation to Party A: Not applicable.
Credit Support Document means in relation to Party B: Not applicable.
4. "Affiliate" has its meaning as defined in Section 12 of this Agreement.
5. Governing Law. This Agreement shall he governed by and construed in accordance with the law
(and not the law of conflicts) of the State of New York. provided, however, that Party B shall not
be required to take any action prohibited for municipal governments under the laws of the State
of Florida.
6. Waiver of Jury Trial. To the fullest extent permitted by applicable law, each party irrevocably
waives any and all right to trial by jury in any legal proceeding in connection with this
Agreement, any Credit Support Document to which it is a party, or any Transaction.
19
7. Netting of Payments. If payments are due by each party on the same day under two or more
Transactions, then Section 2(c)(ii) of this Agreement shall not apply to those payments if a party
gives notice to the relevant office(s) of the other party on or before the second New York
Business Day before that payment date stating that those payments shall be netted or, if given by
Party A, gating the net amount due.
8. Recording of Conversations. Each party (i)consents to the monitoring or recording, at any time
and from time to time, by the other party of any and all communications between officers or
employees of the parties. (ii) waives any further notice of such monitoring or recording, and (iii)
agrees to notify (and, if required by law, obtain the consent of) its officers and employees with
respect to such monitoring or recording.
9. Severability. In the event any one or more of the provisions contained in this Agreement should
he held invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of
the remaining provisions contained herein shall not in any way be affected or impaired thereby.
The parties shall endeavor, in good faith negotiations, to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which comes as close as
possible to that of the invalid, illegal or unenforceable provisions.
Part 4
Aereements
The introductory clause of Section 4 of this Agreement is hereby amended to read in its entirety as
follows:
"Each party agrees with the other(or, in the case of Section 4(d) and (e), the Government
Entity agrees with the other party) that, so long as either party has or may have any
obligation under this Agreement or under any Credit Support Document to which it is a
party:—".
2. Section 4 of this Agreement is hereby amended by adding the following subsections "(d)" and
"(c)" thereto:
"(d) Compliance with Covered Indenture. The Government Entity will observe, perform and
fulfill each provision in the Covered Indenture applicable to such Government Entity in effect on
the Covered Indenture Incorporation Date, as any of those provisions may be amended,
supplemented or modified fur purposes of this Agreement with the prior written consent of the
other party hereto (the"Incorporated Provisions'), with the effect that such other party hereto
will have the benefit of each of the Incorporated Provisions (including without limitation,
covenants, right to consent to certain actions subject to consent under the Covered Indenture and
delivery of financial statements and other notices and information). In the event the Covered
Indenture ceases to be in effect prior to the termination of this Agreement, the Incorporated
Provisions (other than those provisions requiring payments in respect of bonds, notes, warrants
or other similar instruments issued under the Covered Indenture) will remain in full force and
effect for purposes of this Agreement as though set forth herein until such date on which all of
the obligations of the Government Entity under this Agreement and any obligations of the
Government Entity or any Credit Support Provider of the Government Entity under a Credit
Support Document have been fully satisfied. The Incorporated Provisions are hereby
incorporated by reference and made a part of this Agreement to the same extent as if such
provisions were set forth herein. For purposes of this Agreement, the Incorporated Provisions
shall he construed as though (i) all references therein to any party making loans,extensions of
credit or financial aceommodations thereunder or commitments therefor (the"Financings") were
to the other party hereto and (ii) to the extent that such Incorporated Provisions are conditioned
'Jp
on or relate to the existence of such Financings or the Government Entity having any obligations
in connection therewith, all references to such Financings or obligations were to the obligations
of the Government Entity under this Agreement. Any amendment, supplement, modification or
waiver of any of the Incorporated Provisions without the prior written consent of the other party
hereto shall have no force and effect with respect to this Agreement. Any amendment,
supplement or modification for which such consent is obtained shall be part of the Incorporated
Provisions for purposes of this Agreement.
(e) Notice of Incipient Illegality. If an Incipient Illegality occurs, the Government Entity
shall, promptly upon becoming aware of it, notify Party A, specifying the nature of that Incipient
Illegality, and shall also give such other information about that Incipient Illegality as Party A
may reasonably require"
Part 5
Obligations
Section 2(a)(iii) of this Agreement is hereby amended to read in its entirety as follows:
Each obligation of each party under Section 2(a)(i) is subject to (1) the condition
precedent that no Event of Default, Potential Event of Default, or Incipient Illegality with respect
to the other party has occurred and is continuing, and (2) the condition precedent that no Early
Termination Date in respect of the relevant Transaction has occurred or been effectively
designated, and(3)each other applicable condition precedent specified in this Agreement."
Part 6
Representations
The introductory clause of Section 3 of this Agreement is hereby amended to read in its entirety
as follows:
"Each party represents to the other party (which representations will be deemed to be repeated by
each party on each date on which a Transaction is entered into and, in the case of the
representations in Section 3(a) and 3(e), at all times until the termination of this Agreement)
that:—".
2. Section 3(a)(ii) of this Agreement is hereby amended to read in its entirety as follows:
"(ii) Powers. It has the power to execute this Agreement and any other documentation relating
to this Agreement to which it is a party, to deliver this Agreement and any other documentation
relating to this Agreement that it is required by this Agreement to deliver, and to perform its
obligations under this Agreement, and any obligations it has under any Credit Support Document
to which it is a party, and it has taken all necessary action and made all necessary determinations
and findings to authorize such execution, delivery,and performance;".
3. Section 3(h) of this Agreement is hereby amended to read in its entirety as follows:
"(h) Absence of Certain Events, No Event of Default, Potential Event of Default, or, to its
knowledge, Incipient Illegality (in the case of the Government Entity), or Termination Event with
respect to it has occurred and is continuing, and no such event or circumstance would occur as a
result of its entering into or performing its obligations under this Agreement or any Credit
Support Document to which it is a party."
21
4. "Relevant Agreement" means this Agreement. each Transaction, each Confirmation, any Credit
Support Document, and any agreement (including any amendment, modification, transfer, or
early termination) between the parties relating thereto or to any Transaction.
5. Section 3 of this Agreement is amended by adding the following Sections 3(e), (f), (g), (h), and
(i), thereto, which subsections shall apply only to the Governing Entity:
"(e) Ann's Length. For any Relevant Agreement, (i) it acts as principal and not as agent, (ii)
it acknowledges that the other party acts only arm's length and is not its agent, broker, advisor, or
fiduciary in any respect, and any agency, brokerage, advisory, or fiduciary services thin the other
party (or any of its affiliates) may otherwise provide to the party (or to any of its afiliates)
excludes the Relevant Agreement, (iii) it is relying solely upon its own evaluation of the
Relevant Agreement (including the present and future results, consequences, risks, and benefits
thereof, whether financial, accounting,tax, legal, or otherwise) and upon advice from its own
professional advisors, (iv) it understands the Relevant Agreement and those risks, has determined
they are appropriate for it, and willingly assumes those risks, and (v) it has not relied and will not
he relying upon any evaluation or advice (including any recommendation, opinion, or
representation)from the other party, its affiliates ,or the representatives or advisors of the other
party or its affiliates(except representations expressly made in the Relevant Agreement or an
opinion of counsel required thereunder).
(f) Eligible Contract Participant. It is an Eligible Contract Participant as defined in Section
101(12) of the Commodity Futures Modernization Act of 2000.
(g) No Immunity. It 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 Proceedings(as defined in Section
1 I(b)) in the courts of any jurisdiction and no such immunity (whether or not claimed) may be
attributed to such party or its revenues or assets.
(h) Non-Speculation. This Agreement has been, and each Transaction hereunder will he
(and, if applicable, has been),entered into for purposes of managing its borrowings or
investments and not for purposes of speculation.
(i) Covered Indenture. It has the power to adopt the Covered Indenture and to perform its
obligations thereunder, and the Covered Indenture has been duly adopted by the governing body
of the Government Entity and consists a valid and binding obligation of the Government Entity."
Part 7
Definitions
Incorporation. This Agreement and each Transaction are subject to the 1992 ISDA C.S.
Municipal Counterparty Definitions as published by the International Swaps and Derivatives
Association. Inc. ("ISDA Definitions"), and shall be governed by the provisions of the ISDA
Definitions, without regard to any amendments to the ISDA Definitions subsequent to the date
hereof. The provisions of the ISDA Definitions are incorporated by reference in, and shall be
deemed to be part of. this document and each Confirmation.
2. Inconsistency. In the event of any inconsistency between the provisions of this document and the
ISDA Definitions, this document will prevail.
12
Pan N
Security and Source of Payment of the Government Entity
Section 4 of this Agreement is hereby amended by adding the following subsections "(f)", '(g)",
"(h)", "(ii,' and "(i)" thereto:
"(0 This Agreement shall constitute an "ISDA Master Agreement" as such term is defined in
the Covered Indenture, and the Government Entity hereby covenants to take any action necessary
to cause this Agreement to be and constitute an "ISDA Master Agreement" as such term is
defined in the Covered Indenture. All amounts payable to party A by the Government Entity
pursuant to this Agreement will be payable from the Debt Service Account created by the
Covered Indenture. Amounts payable by the Government Entity hereunder will be payable solely
from the budgeted and appropriated Non-Ad Valorem Funds (the"Pledged Funds") as provided
in the Covered Indenture.
(g) The payment of amounts payable by the Government Entity hereunder shall be secured
forthwith by a pledge of and lien upon the Pledged Funds, and the Government Entity hereby
irrevocably pledges the Pledged Funds to the payment of amounts payable under this Agreement.
The Government Entity agrees to apply the Pledged Funds in accordance with the provisions of
the Covered Indenture and to make payments of the amounts payable by it hereunder from the
Debt Service Account prior to making any other payments from such account(other than current
debt service on the Bonds). The Government Entity shall not hereafter enter into any ISDA
Master Agreement any portion of which is payable from, or secured by, a pledge of the Pledged
Funds on a parity with the Bonds so as to he superior or prior to the amounts payable hereunder.
(h) Amendment of Covered Indenture. Party B shall not amend, revise, or supplement the
Covered Indenture if such amendment, revision, or supplement would materially or adversely
affect the rights of Party A hereunder without the prior written consent of Party A.
(i) Government Entity hereby covenants that upon the occurrence or continuance of an
Event of Default under the Covered Indenture, the Government Entity will take any remedial
actions available to it pursuant to the Covered Indenture in such a manner as to ensure the ratable
protection of the Bondholders and the Government Entity in the manner contemplated therein.
(j) Notwithstanding anything herein to the contrary, under no circumstances shall the
obligations of Party B hereunder be construed to be or constitute a general indebtedness of Party
B within the meaning of any constitutional or statutory provision or limitation, but shall he
special obligations of Party B payable solely from the revenues hereinbefore mentioned. Neither
the faith and credit nor the ad valorem taxing power nor any other taxing power of Party B. the
State of Florida, or any other political subdivision thereof is pledged to the payment of the
obligations hereunder; and the obligations of Party B hereunder shall not constitute a lien on or
security interest any property of or within Party B, except with respect to the Pledged Funds:'
For purposes of subsections (f), (g), (h) and (i), capitalized terms used but not defined in this
Agreement shall have the meanings ascribed to them in the Covered Indenture."
23
Part 9
Definitions
Section 12 of this Agreement is hereby amended to add the following definitions in their appropriate
alphabetical order:
"Covered Indenture"has the meaning specified in the relevant Confirmation of each
Transaction hereunder.
"Covered Indenture Incorporation Date"means the date of this Schedule.
"Government Entity"means Party B.
"Incipient Illegality"means(a) the enactment by any legislative body with competent
jurisdiction over a Government Entity of legislation which, if adopted as law, would render
unlawful (i) the performance by such Government Entity of any absolute or contingent obligation
to make a payment or delivery or to receive a payment or delivery in respect of a Transaction, or
the compliance by such Government Entity with any other material provision of this Agreement
relating to such Transaction, or(ii) the performance by a Government Entity or a Credit Support
Provider of such Government Entity of any contingent or other obligation which such
Government Entity (or such Credit Support Provider) has under any Credit Support Document
relating to such Transaction, (b) any assertion in any proceeding, forum, or action by a
Government Entity, in respect to such Government Entity or in respect of any entity located or
organized under the laws of the state in which such Government Entity is located to the effect
that performance under this Agreement or similar agreements is unlawful, or(c) the occurrence
with respect to a Government Entity or any Credit Support Provider of such Government Entity
of any event that constitutes an Illegality.
IN WITNESS WHEREOF, the parties have executed this Schedule by their duly authorized
signatories as of the date first noted above.
SUNTRUST BANK CITY OF OCOEE, FLORIDA
By: By:
Fred D. Woolf Name:
Vice President Title:
24