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HomeMy WebLinkAboutexhibit2Exhibit B CWT DRAFT 26-AUG-2004 SCHEDULE TO THE MASTER AGREEMENT dated as of - , 2004 between MORGAN STANLEY CAPITAL SERVICES INC. ("Party A") and CITY OF MIAMI, FLORIDA ("Party B") Part 1. Termination Provisions (a) "Specified Entity" means in relation to Party A for the purpose of: - Section 5(a)(v), Affiliates Section 5(a)(vi), None Specified Section 5(a)(vii), None Specified Section 5(b)(ii), None Specified and in relation to Party B for the purpose of: - Section 5(a)(v), Affiliates Section 5(a)(vi), None Specified Section 5(a)(vii), None Specified Section 5(b)(ii), None Specified (b) "Specified Transaction" means, in lieu of the meaning specified in Section 12, any contract or transaction, including an agreement with respect thereto (whether or not documented under or effected pursuant to a master agreement) 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 any Credit Support Provider of such party or any applicable Specified Entity of such party). (c) "Cross Default" applies to Party A and Party B. Section 5(a)(vi) will apply to Party A and will apply to Party B, provided that, with respect to any Specified Indebtedness that is not capable of being declared due and payable as a result of the occurrence or existence of a default, event of default or other similar condition or event (however described) under the agreement or instrument relating to such Specified Indebtedness, the words "which has resulted in such Specified Indebtedness becoming, or becoming capable at such time of being declared, due and payable under such agreements or instruments, before it would otherwise have been due and payable" shall be deleted from clause (1) of such Section 5(a)(vi) and the words "and the bondholders or trustee are permitted to exercise any remedies under the agreements and instruments" shall be added in its place. (d) "Specified Indebtedness" has the meaning specified in Section 12. (e) "Threshold Amount" means: (i) with respect to Party A, U.S. $10,000,000; and (ii) with respect to Party B, $10,000,000. NYLIH5 790734.3 (t} Bankruptcy. 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 a Government Entity, any Credit Support Provider of such Government Entity or any applicable Specified Entity of such Government Entity, (I) there shall be 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 be declared or introduced or proposed for consideration by it or by any legislative or regulatory body with competent jurisdiction over it, the existence of a state of financial emergency or similar state of financial distress in respect of it;". (g) Merger Without Assumption. Section 5(a)(viii) of this Agreement is hereby 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, any Credit Support Provider of such party or any applicable Specified Entity) and, at the time of such consolidation, amalgamation, merger, transfer, or succession:-- (1) the resulting, surviving, transferee or successor entity fails to assume all the obligations of such party, such Credit Support Provider or such Specified Entity 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; (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; or (3) In the case of a Government Entity, the sources of payment for the obligations of such Government Entity as set forth in the Schedule are no longer available for the satisfaction of such resulting, surviving, transferee or successor entity's obligations to the other party hereto." (h) "Credit Event Upon Merger" applies to Party A and Party B. Section 5(b)(ii) is hereby deleted in its entirety and replaced by the following: "(ii) 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, or reorganizes, incorporates, reincorporates, or reconstitutes into or as, another entity, or another entity transfers all or substantially all its assets to, or reorganizes, incorporates, reincorporates, or reconstitutes into or as, X (or, without limiting the foregoing, if X 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, X (or any applicable Specified Entity)), and such action does not constitute an event described in Section 5(a)(viii) but the creditworthiness of X or the resulting, surviving, transferee, or successor NYLIB5 790734.3 -2- entity (which will be the Affected Party) 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; or" (i) The "Automatic Early Termination" provisions of Section 6(a) will not apply to Party A and will not apply to Party B; provided, however, where the Event of Default is specified in Section 5(a)(vii)(1), (3), (4), (5), (6) or to the extent analogous thereto, (8) and is governed by a system of law which does not permit termination to take place upon or after the occurrence of the relevant Event of Default in accordance with the terms of this Agreement, then the Automatic Early Termination provisions of Section 6(a) will apply to Party A and Party B. in addition to, and notwithstanding anything to the contrary in the preceding sentence, if an Early Termination Date occurs under Section 6(a) as a result of Automatic Early Termination, the Defaulting Party hereby agrees to reimburse the Non -defaulting Party on demand against' all loss or damage that the Non -defaulting Party may . sustain or incur (including in relation to terminating, liquidating, obtaining or reestablishing any hedge or related position to the extent not already taken into account in the calculation performed under Section 6(e)) in respect of each Transaction as a result of movements in relevant rates, prices, yields, yield curves, volatilities, spreads or other relevant market data between the Early Termination Date and the Local Business Day upon which the Non -defaulting Party first becomes aware that the Early Termination Date has occurred under Section 6(a) provided however, that if the Non -defaulting Party determines that any such movements have actually resulted in a net ,after tax, gain for the Non -defaulting Party then the Non -defaulting Party agrees to pay to the Defaulting Party the sum of such gain, subject to any rights the Non -defaulting party may have under the Agreement or otherwise. (j) Payments on Early Termination. "Loss" and "Second Method" will apply for the purpose of Section 6(e) of this Agreement. (k) Additional Termination Event will apply. The following shall constitute an Additional Termination Event with respect to Party A and Party B: (i) with respect to Party A, if Party A's Credit Support Provider's senior, unsecured, unenhanced debt rating is withdrawn, suspended or reduced below "BBB-" in the case of S&P or below "Baa3" in the case of Moody's; and (ii) with respect to Party B, if Party B's unenhanced Tong -term general obligations rating is withdrawn, suspended or reduced below "BBB-" in the case of S&P or below "Baa3" in the case of Moody's. For the purpose of Termination Event (i) above, the Affected Party shall be Party A and for the purpose of Termination Event (ii) above, the Affected Party shall be Party B. For the purpose of both Termination Events (i) and (ii) above, all Transactions shall be Affected Transactions. Part 2. Agreement to Deliver Documents For the purpose of Section 4, each party agrees to deliver the following documents, as applicable: - Covered by Party required to Date by which Sec. 3(d) deliver document Form/Document/Certificate to be delivered Representation Party A Either (1) a signature booklet NYLIBS 790734.3 -3- The earlier of the fifth Yes Forty required to deliver document and Party B Party A Party B Party A and Party B Party A and Party B Party B NYL1B5 790734.3 Form/Document/Certificate containing secretary's certificate and resolutions ("authorizing resolutions") authorizing the party to enter into derivatives transactions of the type contemplated by the parties or (2) a secretary's certificate, authorizing resolutions and incumbency certificate, in either case, for such party and any Credit Support Provider of such party reasonably satisfactory in form and substance to the other party. A written opinion of legal counsel to Party A and its Credit Support Provider in the forms attached hereto as Exhibits A-1, A-2 and A-3 A written opinion of legal counsel to Party B (and any Credit Support Provider) reasonably satisfactory in form and substance to Party A A duly executed copy of the Credit Support Documents specified in Part 3 of this Schedule A copy of the annual report of such party (in the case of Party A, in respect of Morgan Stanley) containing audited consolidated financial statements for each such fiscal year, certified by independent certified public accountants and prepared in accordance with generally accepted accounting principles in the country in which such party is organized. Copies or, where available, certified copies of: (1) the charter and enabling statutes (or -4- Date by which to be delivered Business Day after the Trade Date of the first Transaction or upon execution of this Agreement and as deemed necessary for any further documentation. Upon execution of this Agreement and upon the execution of each Confirmation Upon execution of this Agreement and upon the execution of each Confirmation Upon the execution of this Agreement As soon as practicable after the execution of this Agreement and also within 120 days (or as soon as practicable after becoming publicly available) after the end of each of its fiscal years while there are any obligations outstanding under this Agreement. Upon execution of this Agreement and as deemed necessary for Covered by Sec. 3(d) Representation No No No Yes Yes Covered by Party required to Date by which Sec. 3(d) deliver document Form/Document/Certificate to be delivered Representation comparable legislation) creating Party B and any Credit Support Provider of Party B and authorizing Party B and any Credit Support Provider of Party B to enter into this Agreement and any Credit Support Document, the exhibits, supplements, and attachments hereto, the documents incorporated by reference herein, and the Confirmations hereunder; (2) any constituent instruments of Party B and any Credit Support Provider of Party B, rules, regulations, investment policies, guidelines, resolutions, ordinances, or provisions affecting the authority of Party B or such Credit Support Provider of Party B to enter into this Agreement, any Credit Support Document, the exhibits, supplements, and attachments hereto, the documents incorporated by reference herein, and the Confirmations hereunder, and the performance of its obligations hereunder and thereunder; and (3) amendments to any of the foregoing. further documentation Party A and Party B Such other documents as the other Upon request No party may reasonably request Part 3. Miscellaneous (a) Addresses for Notices. For the purpose of Section 10(a):- (i) Address for notices or communications to Party A:- MORGAN STANLEY CAPITAL SERVICES INC. Transaction Management Group 1585 Broadway New York, New York 10036-8293 Attention: CHIEF LEGAL OFFICER Fax No: 001 212 507 4622 NYLIB5 790734.3 -5- (ii) Address for notices or communications to Party B:- Address: Attention: Facsimile No.: Telephone No.: Telex No.: Answer back: Electronic Messaging System Details: (b) Notices. Section 10(a) is amended by adding in the third line thereof after the phrase "messaging system" and before the ")" the words, "; provided, however, any such notice or other communication may be given by facsimile transmission if telex is unavailable, no telex number is supplied to the party providing notice, or if answer back confirmation is not received from the party to whom the telex is sent." (c) Calculation Agent means Party A. (d) Credit Support Document means any credit support annex, any Confirmation and any other document any of which by its terms secures, guarantees or otherwise supports either or both parties' obligations under this Agreement (the provisions of which are incorporated by reference herein), including, but not limited to, the guarantee of Morgan Stanley. (e) Credit Support Provider means in relation to Party A: Morgan Stanley. Credit Support Provider means in relation to Party B: Not Applicable. (f) Governing Law; Jurisdiction. This Agreement, each Credit Support Document and each Confirmation will be governed by and construed in accordance with the laws of the State of New York. Section 11(b) is amended by: (1) deleting "non-" from the second line of clause (i); and (2) deleting the final paragraph. (g) Waiver of Jury Trial. EACH PARTY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY PROCEEDINGS RELATING TO THIS AGREEMENT OR ANY CREDIT SUPPORT DOCUMENT. (h) Netting of Payments. Clause (ii) of Section 2(c) will not apply to any amounts payable with respect to Transactions from the date of this Agreement. (i) "Affiliate" will have the meaning specified in Section 12, but excludes Morgan Stanley Derivative Products Inc. (j) Form of Agreement. The parties hereby agree that the text of the body of the Agreement is intended to be the printed form of 1992 ISDA Master Agreement (Local Currency -Single Jurisdiction) as published and copyrighted by the International Swaps and Derivatives Association, Inc. NYLIB5 790734.3 -6- Part 4. Other Provisions (a) Deferral of Payments and Deliveries in Connection with Illegality and Incipient Illegality; Interest on Deferred Payments. Section 2(a)(iii) is hereby amended to read in its entirety as follows: (iii) Each obligation of each party under Section 2(a)(i) is subject to (1) the condition precedent that no Event of Default, Illegality, Potential Event of Default or Incipient Illegality with respect to the other party has occurred and 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. _ (b) Representations. (i) 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), at all times until the termination of this Agreement) that:- (ii) Section 3(a)(ii) of this Agreement is hereby amended to read in its entirety as follows: Powers. It has the power (in the case of a Government Entity, pursuant to the Authorizing Law) 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 and made all necessary determinations and findings to authorize such execution, delivery and performance;". (iii) Section 3(b) of this Agreement is hereby amended to read in its entirety as follows: "(b) Absence of Certain Events. No Event of Default or Potential Event of Default or, to its knowledge, Incipient Illegality (in the case of a 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." (iv) For purposes of Section 3, the following shall be added, immediately following paragraph (d) thereof: NYL1B5 790734,3 (e) Eligible Contract Participant. Party A is an "eligible contract participant" as defined in Section la(12) of the Commodity Exchange Act (7 U.S.C. la), as amended by the Commodity Futures Modernization Act: of 2000. -7- (c) Party B (i) is a political subdivision of the State of Florida, (ii) is acting for its own account hereunder and (iii) owns and invests on a discretionary basis $25,000,000 or more in investments. (f} This Agreement has been subject to individual negotiation by such party. (g) It has entered into this Agreement (including each Transaction evidenced hereby) in conjunction with its line of business (including financial intermediation services) or the financing of its business. (h) It is entering into this Agreement, any Credit Support Document to which it is a party, each Transaction and any other documentation relating to this Agreement or any Transaction as principal (and not as agent or in any other capacity, fiduciary or otherwise). (i) It acknowledges that, pursuant to the terms of this Agreement (including, without limitation, Section 6(e) hereof), it may owe a payment to the other party upon the designation of an Early Termination Date hereunder, even in the event such Early Termination Date is the result of an Event of Default with respect to such other party. (j) 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 11(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. (k) ERISA Representation. It continuously represents that it is not (i) an employee benefit plan (hereinafter an "ERISA Plan"), as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), subject to Title I of ERISA or Section 4975 of the Internal Revenue Code of 1986, as amended, (ii) a person acting on behalf of an ERISA Plan or (iii) a person the assets of whom constitute assets of an ERISA Plan. It will provide notice to the other party in the event that it is aware that it is in breach of any aspect of this representation or is aware that with the passing of time, giving of notice or expiry of any applicable grace period it will breach this representation. Additional Representations of Party B. Party B hereby further represents to Party A (which representations will be deemed to be repeated by Party B at all times until the termination of this Agreement) that: (i) This Agreement has been, and each Transaction hereunder will be (and, if applicable, has been), entered into for the purposes of managing its borrowings or investments and not for purposes of speculation. (ii) Any Transaction entered into pursuant to this Agreement together with any transactions that Party B has or may enter into with Party A and/or with any or all other parties does not and will not violate or exceed any limits or restrictions contained in any NYLIB5 790734.3 -8- authorizations, approvals or resolutions of the board of directors, shareholders or other authorized body of Party B. (iii) The execution and delivery by Party B of this Agreement, each Confirmation and any other documentation relating hereto, and the performance of Party B of its obligations hereunder and thereunder, are in furtherance, and not in violation, of the municipal purposes for which Party B is organized pursuant to the laws of the relevant Mate. (iv) This Agreement and each Transaction hereunder do not constitute any kind of investment by Party B that is proscribed by any constitution, charter, law, rule, regulation, government code, constituent or governing instrument, resolution, guideline, ordinance, order, writ, judgment, decree, charge, or ruling to which Party B (or any of its officials in their respective capacities as such) or its property is subject. (v) No Affiliate or other person, firm, corporation, entity, or association may liquidate, borrow, encumber or otherwise utilize the assets of Party B. (vi) Party B is a state or political subdivision thereof, or an instrumentality, agency or department of either of the foregoing. (d) Credit Support Default. Subparagraph (3) of Section 5(a)(iii) is hereby amended by adding the phrase "(or such action is taken by any person or entity appointed or empowered to operate or act on its behalf)" after the word "Document" in the second line thereof. (e) Source of Payments. Party B agrees that its obligations hereunder are, and until the termination of this Agreement pursuant to the terms hereof shall remain, payable from its general fund or other legally available sources. Party B covenants that commencing with the budget for the fiscal year for each Transaction and in each fiscal year thereafter so long as any amounts are due hereunder it will appropriate in its annual budget, by budget amendment if necessary, from Non - Ad Valorem Funds lawfully available in each such fiscal year amounts which, together with any funds legally available therefor, will be sufficient to permit Party B to pay when due or required the amounts due hereunder from Party B (including any termination payment). The covenant on the part of Party B to budget and appropriate such amounts of Non -Ad Valorem Funds is cumulative to the extent not paid and will continue until all such Non -Ad Valorem Funds or other legally available funds in amounts sufficient to make all such required payments will have been budgeted, appropriated and actually paid. The covenant to budget and appropriate in its general annual budget for the purposes and in the manner stated above shall have the effect of imposing on Party 13 a positive duty to budget and appropriate, by amendment if necessary, amounts sufficient to meet its obligations hereunder; subject, however, in all respects to the restrictions of Section 166.241(3), Florida Statutes, as amended (or any successor provision), which provides, in part, that the governing body of each municipality shall make appropriations for each fiscal year which, in any one fiscal year, shall not exceed the amount to be received from taxation or other revenue sources; and subject further to the payment of services and programs which are for essential public purposes affecting the health, welfare and safety of the inhabitants of Party B or which are legally mandated by applicable law. Party A shall be entitled to enforce the foregoing covenant by writ of mandamus or other appropriate equitable proceeding. (f) Negative Pledge. Party B shall not pledge or grant a security interest in any of its revenues or other assets to secure its obligations under any interest rate swap or other derivative transaction (with the exception of providing for the collateralization of its obligations under such derivative NYLi65 790734.3 -9- (g) transaction) without Party A's consent unless a parity pledge or security interest is granted to Party A to secure Party B's obligations under this Agreement. Notice of Incipient Illegality. If an Incipient Illegality occurs, the Government Entity will, promptly upon becoming aware of it, notify the other party, specifying the nature of that incipient Illegality and will also give such other information about that Incipient Illegality as the other party may reasonably require. (h) Export of Defaults. The occurrence or designation of an Early Termination Date on account of an Event of Default or Termination Event with respect to a party hereto ("X") (where X is the Defaulting Party or sole Affected Party) shall constitute a material breach and event of default (howsoever described) under all transactions between X and the other party ("Y") or any Affiliate of Y (whether or not arising under this Agreement, whether or not matured, whether or not contingent and regardless of the currency, place of payment or booking office of the obligation) (together, the "Other Transactions"), whereupon Y or any Affiliate of Y shall have the right to terminate, liquidate and otherwise close out any such Other Transactions (and X shall be liable for any damages suffered by Y and any Affiliate of Y as a result thereof). (i) Setoff. (i) In addition to any rights of set-off a party may have as a matter of law or otherwise, upon the occurrence of an Event of Default with respect to Party ("X") hereof (or a provision analogous thereto) or a Termination Event where X is the sole Affected Party, the other party ("Y") shall have the right (but shall not be obliged) without prior notice to X or any other person to set off any obligation of X owing to Y or any Affiliate of Y (whether or not arising under this Agreement, whether or not matured, whether or not contingent and regardless of the currency, place of payment or booking office of the obligation) against any obligations of Y or any Affiliate of Y owing to X (whether or not arising under this Agreement, whether or not matured, whether or not contingent and regardless of the currency, place of payment or booking office of the obligation). (ii) For the purpose of cross -currency set off, Y may convert any obligation to another currency at a market rate determined by Y. (iii) If any obligation is unascertained, Y may in good faith estimate that obligation and set off in respect of the estimate, subject to the relevant party accounting to the other when the obligation is ascertained. (iv) Nothing in this paragraph will have the effect of creating a charge or other security interest. This paragraph shall be 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). (j) Single Relationship. The parties and their Affiliates intend that all Transactions and all other obligations (whether or not arising under this Agreement, whether or not matured, whether or not contingent and regardless of the currency, place of payment or booking office of the obligation) shall be treated as mutual and part of a single, indivisible contractual and business relationship. (k) Confirmations. Party A will deliver to Party B a Confirmation relating to each Transaction. NYLIB5 790734.3 -10- (m) (I) Relationship Between Parties. Each party will be deemed to represent to the other party on the date on which it enters into a Transaction that (absent a written agreement between the parties that expressly imposes affirmative obligations to the contrary for that Transaction):- (i) Non -Reliance. It is acting for its own account, and it has made its own independent decisions to enter into that Transaction and as to whether that Transaction is appropriate or proper for it based upon its own judgment and upon advice from such advisers as it has deemed necessary. It is not relying on any communication (written or oral) of the other party as investment advice or as a recommendation to enter into that Transaction; it being understood that information and explanations related to the terms and conditions of a Transaction shall not be considered investment advice or a recommendation to enter into that Transaction. No communication (written or oral) received from the other party shall be deemed to be an assurance or guarantee as to the expected results of that Transaction. (ii) Assessment and Understanding. It is capable of assessing the merits of and understanding (on its own behalf or through independent professional advice), and understands and accepts, the terms, conditions and risks of that Transaction. It is also capable of assuming, and assumes, the risks of that Transaction. (iii) Status of Parties. The other party is not acting as a fiduciary for or an adviser to it in respect of that Transaction. Additional Definitions. As used in this Schedule, the following terms shall have the following meanings: "Authorizing Law" means Florida Const. Art. VIII § 2(b), and Florida Stat. Title XII, Ch. 166. "Government Entity" means Part 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 Specified Entity of such Government Entity of any contingent or other obligation which the Government Entity (or such Specified Entity) 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 of 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 Specified Entity of such Government Entity of any event that constitutes an Illegality. "Non -Ad Valorem Funds" means all revenues of Party B derived from any source other than ad valorem taxation on real or tangible personal property, which are legally available to make payments required herein, but only'; after provision has been made by Party B for the payment of the cost of services and programs which are for essential public purposes affecting the health, welfare and safety of the inhabitants of Party B or which are legally mandated. NYL1B5 790734,3 -11- IN WITNESS WHEREOF, the parties have executed this Schedule by their duly authorized officers as of the date hereof. MORGAN STANLEY CAPITAL SERVICES INC. By: Name: Title: CITY OF MIAMI, FLORIDA By: Name: Title: NYLIB5 790734.3