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HomeMy WebLinkAboutExhibit 6Exhibit "C" Form of Bond Credit Facility Agreement AY DRAFT #2 LETTER OF CREDIT AGREEMENT between THE CITY OF MIAMI, FLORIDA and SUNTRUST BANK, a Georgia banking corporation Dated as of July 1, 2008 relating to THE CITY OF NIIAMI, FLORIDA $ $ Tax -Exempt Variable Rate Parking System Revenue Refunding Bonds Series 2008 Taxable Variable Rate Parking System Revenue Refunding Bonds Series 2008 {M1706888 6} Table of Contents ARTICLE I. DEFINITIONS 2 Section 1.1 Specific Terms. 2 Section 1.2 Accounting Matters. 11 Section 1.3 Interpretation. 11 Section 1.4 Computation of Time Periods; Time 12 Section 1.5 Construction. 12 ARTICLE II. ISSUANCE OF LETTER OF CREDIT; FEES; REIMBURSEMENT 12 Section 2.1 Amount and Terms of Letter of Credit 12 Section 2.2 Letter of Credit Fee. 12 Section 2.3 Drawing Fees. 13 Section 2.4 Transfer Fees. 13 Section 2.5 Reimbursement. 13 Section 2.6 Reinstatement of Letter of Credit. 13 Section 2.7 Credit for Amount Paid on Bonds 14 Section 2.8 Pledge of Bonds. 14 Section 2.9 Interest on Bank Bonds; Excess Bank Bond Interest; Overdue Amounts. 15 Section 2.10 Sale of Bank Bonds. 16 Section 2.11 Rights of Bank Bondowners 18 Section 2.12 Net of Taxes, Etc. 18 Section 2.13 Increased Costs. 19 Section 2.14 Computations; Payments. 21 Section 2.15 Early Termination. 21 Section 2.16 Limited Obligations. 21 ARTICLE III. REPAYMENT OF BANK BONDS; TERM -OUT FUNDING 22 Section 3.1 Bank Bonds 22 Section 3.2 Term -Out Funding 22 ARTICLE IV. CONDITIONS PRECEDENT TO EFFECTIVENESS 23 Section 4.1 Representations. 23 Section 4.2 Other Documents. 24 Section 4.3 Legal Opinions. 24 Section 4.4 Supporting Documents of the City. 24 {M1706888_6} i Table of Contents (continued) Section 4.5 Incumbency. 25 Section 4.6 Other Supporting Documents. 25 Section 4.7 Payment of Fees and Expenses. 25 Section 4.8 Rating. 25 Section 4.9 City Certificate. 25 Section 4.10 Reserve Account 26 Section 4.11 Financial Documentation. 26 Section 4.12 Investment Obligations 26 Section 4.13 Other Closing Documents. 26 Section 4.14 Reserved 26 Section 4.15 Other Documents. 26 ARTICLE V. REPRESENTATIONS AND WARRANTIES 27 Section 5.1 Existence and Power. 27 -Section 5.2 -Regulatory Authority 27 Section 5.3 Noncontravention. 27 Section 5.4 Due Authorization 27 Section 5.5 Valid and Binding Obligations. 27 Section 5.6 Official Statement. 28 Section 5.7 Pending Litigation and Other Proceedings. 28 Section 5.8 Financial Statements 28 Section 5.9 Complete and Correct Information. 28 Section 5.10 Senior Lien 29 Section 5.11 Legislation 29 Section 5.12 No Defaults. 29 Section 5.13 Consents 29 Section 5.14 No Sovereign Immunity 30 Section 5.15 Regulation U. 30 Section 5.16 Incorporation of Representations and Warranties 30 Section 5.17 Bond Ordinance. 30 Section 5.18 Tax Exempt Status. 30 Section 5.19 No ERISA Plans. 31 ARTICLE VI. AFFIRMATIVE COVENANTS 31 (M1706888_6} 11 Section 6.1 Section 6.2 Section 6.3 Section 6.4 Section 6.5 Section 6.6 Section 6.7 Section 6.8 Section 6.9 Section 6.10 Section 6.11 Section 6.12 Section 6.13 Section 6.14 Section 6.15 Section 6.16 Section 6.17 Section 6.18 Section 6.19 Section 6.20 Section 6.21 Section 6.22 Table of Contents (continued) Compliance With Laws and Regulations 31 Reporting Requirements. 31 Notices. 32 Further Assurances 33 Right of Entry 33 Taxes 33 Performance of and Compliance With Covenants. 33 Selection of 2008 Bonds for Redemption. 34 Alternate Bond Credit Facility. 34 Reserved 34 Preservation of Lien 34 Conversions; Defeasance. 34 Proceeds of the 2008 Bonds 35 Reserved. 35 Maintenance of Franchises 35 Compliance with Rules and Regulations. 35 Maintenance and Operation of the Parking System. 35 Insurance. 35 Incorporation of Covenants by Reference. 36 Trustee and Tender Agent; Remarketing Agent. 36 Federal Reserve Regulations 36 Agreement Regarding Optional Redemption of 2008 Bonds ARTICLE VII. NEGATIVE COVENANTS Section 7.1 Security Interests and Encumbrances. Section 7.2 Amendments. Section 7.3 Permitted Investments. Section 7.4 Section 7.5 Section 7.6 Section 7.7 Section 7.8 {M1706888 6} Additional Bonds; Rate Covenant Successor Remarketing Agent and Remarketing Agreement. 38 Sale or Encumbrance of Parking System. 38 Accounting Methods and Fiscal Year. 39 Official Statement. 39 36 37 37 38 38 38 Table of Contents (continued) Section 7.9 Maintenance of Tax -Exempt Status of the 2008 Tax Exempt Bonds 39 ARTICLE VIII. EVENTS OF DEFAULT 39 Section 8.1 Events of Default. 39 Section 8.2 Reserved 41 Section 8.3 Remedies. 41 ARTICLE IX. OBLIGATIONS ABSOLUTE 41 Section 9.1 Obligations Absolute 41 ARTICLE X. MISCELLANEOUS 42 Section 10.1 Liability of the Bank. 42 Section 10.2 Expenses; Indemnification. 43 Section 10.3 Notices. 44 Section 10.4 Successors and Assigns. 45 Section 10.5 Governing Law; Waiver of Trial by Jury 46 Section 10.6 No Waivers; Amendments, Etc 46 Section 10.7 Counterparts. 47 Section 10.8 Source of Funds 47 Section 10.9 Term of the Agreement. 47 Section 10.10 Right of Set -Off. 47 Section 10.11 Headings 48 Section 10.12 Complete and Controlling Agreement; Severability. 48 Section 10.13 City's Obligation. 48 Section 10.14 No Personal Liability or Accountability. 48 Section 10.15 Patriot Act 48 EXHIBIT A FORM OF REQUEST FOR EXTENSION OF EXPIRATION DATE A-1 EXHIBIT B FORM OF COMPLIANCE CERTIFICATE B-1 ANNEX I FORM OF LETTER OF CREDIT ANNEX II FORM OF LETTER OF CREDIT {M1706888_6} 11, LETTER OF CREDIT AGREEMENT THIS LEI "IER OF CREDIT AGREEMENT, dated as of July 1, 2008 (the "Agreement"), by and between THE CITY OF MIAMI, FLORIDA, a municipal corporation in the County of Miami -Dade, State of Florida (including any successor or assign permitted pursuant to this Agreement, the "City"), and SUNTRUST BANK, a Georgia Banking corporation (the "Bank"). WITNESSETH: WHEREAS, the City is authorized pursuant to the Constitution and laws of the State of Florida and its Charter, to issue revenue bonds to pay the costs of acquiring and constructing parking facilities and to refund such bonds and to pledge to the payment thereof certain revenues derived from the operation of such facilities; and WHEREAS, pursuant to Ordinance No. 11693, enacted by the City on August 14, 1998 (as supplemented and amended, and in particular, as amended by Ordinance No. 11719, enacted by the City on October 27, 1998, collectively, the "1998 Bond Ordinance"), the City issued its $13,490,000 Parking System Revenue Refunding Bonds, Series 1998; and WHEREAS, on December 18, 2003, the City adopted Ordinance No. 12457 (the "2003 Ordinance"), pursuant to which the City determined to issue Additional Bonds under the terms of the 1998 Bond Ordinance to finance the cost of certain public parking improvements more particularly described in the 2003 Ordinance (the "Project"); and WHEREAS, on March 9, 2006, the City adopted Ordinance No. (the "2006 Ordinance") supplementing and amending the 1998 Bond Ordinance and the 2003 Ordinance to, among other things: (a) ratify the 2003 Ordinance and the delegated actions taken to date by officials of the City and the Department thereunder, and (b) redesignate the Additional Bonds authorized under the 2003 Ordinance as "Tax -Exempt Variable Rate Parking System Revenue Bonds of the City of Miami, Florida, Series 2006" (the "Tax -Exempt Series 2006 Bonds") and "Taxable Variable Rate Parking System Revenue Bonds of the City of Miami, Florida, Series 2006" -(the "Taxable Series 2006-Bonds," together with the Tax -Exempt Series 2006 Bonds, collectively, the "Refunded Additional Bonds"); and WHEREAS, on , 2008, the City adopted Ordinance No. (the "Series Ordinance, together with the 2006 Ordinance and the 1998 Ordinance, the "Bond Ordinance") supplementing the 1998 Bond Ordinance and providing for the issuance, in one or more subseries, of its [$ 1 Tax Exempt Variable Rate Parking System Revenue Refunding Bonds, Series 2008 (the "2008 Tax Exempt Bonds") and its [$ 1 Taxable Variable Rate Parking System Revenue Refunding Bonds (the "2008 Taxable Bonds;" the 2008 Tax Exempt Bonds and the 2008 Taxable Bonds are sometimes collectively referred to herein as the "2008 Bonds") as a Series of Additional Bonds under the 1998 Bond Ordinance, as supplemented hereby, the proceeds of which will be used to currently refund and redeem all of the Refunded Additional Bonds; and WHEREAS, as security for the payment of the Tax Exempt Bonds, the City has requested the Bank to issue its irrevocable, direct pay letter of credit in the form of Annex I attached hereto (the "Tax Exempt Bonds Letter of Credit"); and (M1706888 6} WHEREAS, as security for the payment of the Taxable Bonds, the City has requested the Bank to issue its irrevocable, direct pay letter of credit in the form of Annex II attached hereto (the "Taxable Bonds Letter of Credit," and collectively with the Tax Exempt Bonds Letter of Credit, the "Letter of Credit"); and WHEREAS, it is a condition of the obligation of the Bank to execute and deliver the Letter of Credit that this Agreement shall have been executed and delivered by the City; and WHEREAS, in reliance upon the provisions hereof and the Bond Ordinance, the Bank is willing to enter into this Agreement with the City; NOW, THEREFORE, the parties hereto agree as follows: ARTICLE I. DEFINITIONS Section 1.1 Specific Terms. Each capitalized term used herein and not defined herein shall have the meaning provided therefor in the Bond Ordinance, unless the context otherwise requires. As used herein, the following terms have the meanings indicated below or in the referenced Section of this Agreement, unless the context clearly indicates otherwise: "2008 Bondholders" has the meaning assigned to such term in the Bond Ordinance. "2008 Bonds" has the meaning assigned to such term in the recitals to this Agreement. "Act" means, collectively, the Constitution and laws of the State of Florida including, without limitation, Florida Statutes, Chapter 166, as amended, and the Charter, and all laws amendatory thereof or supplemental thereto. "Additional Bonds" has the meaning assigned to such term in the 1998 Bond Ordinance. "Affiliate" means with respect to a Person, any Person (whether for -profit or not - for -profit), which "controls," or is "controlled" by, or is under common "control" with such Person. For purposes of this definition, a Person "controls" another Person when the first Person possesses or exercises directly, or indirectly through one or more other affiliates or related entities, the power to direct the management and policies of the other Person, whether through the ownership of voting rights, membership, the power to appoint members, trustees or directors, by contract, or otherwise. "Agreement" has the meaning assigned to such term in the introductory paragraph to this Agreement, and includes any amendments and supplements hereto. {M1706888_6} 2 "Alternate Bond Credit Facility" means a Bond Credit Facility issued pursuant to Section 7.01.G. of the Series Ordinance in substitution of an existing Bond Credit Facility for the purpose of providing credit and/or liquidity support for the 2008 Bonds (or a series therof). "Available Commitment" as of any day means the sum of the Available Principal Commitment and the Available Interest Commitment, in each case, as of such day. "Available Interest Commitment" means, collectively, the Tax Exempt Bonds Interest Component and the Taxable Bonds Interest Component. "Available Principal Commitment" means, collectively, the Tax Exempt Bonds Principal Component and the Taxable Bonds Principal Component. "Bank" has the meaning set forth in the introductory paragraph of this Agreement. "Bank Bondowner" means the Bank (but only in its capacity as owner (which as used herein shall mean beneficial owner if at the relevant time Bank Bonds are Book Entry Bonds) of Bank Bonds pursuant to this Agreement) and any other Person to whom the Bank has sold Bank Bonds pursuant to Section 2.10(a) hereof.— "Bank Bonds" means each 2008 Bond purchased with funds provided hereunder by the Bank, until remarketed or deemed to be remarketed in accordance with Section 2.8(c) hereof. For purposes of the Bond Ordinance and this Agreement, Bank Bonds shall be deemed "Purchased Bonds," as such term is defined in the Series Ordinance. "Bank Rate" means the following fluctuating interest rates per annum, each computed on the basis of the actual number of days elapsed and a 365-day year for the following periods, from and including the first day of the period set forth below to and including the last day of the period set forth below on which Bank Bonds are due to be repaid in -full hereunder: -- (MI706888 6) 3 Period Bank Rate Day 1 through the first to occur of the Base Rate 30th day after the Purchase Date and the final day of the Commitment Period Day 31 through the first to occur of the 60th day after the Purchase Date and the final day of the Commitment Period Interim Term Out Rate Day 61 (or the last day of the Term Out Rate Commitment Period, if applicable) through the day the amount is due and payable provided, however, that commencing on the Expiration Date, the Bank Rate shall be the Term Out Rate; and provided further, that the Bank Rate shall not be higher than the Maximum Rate and shall include such adjustments thereto as are specified in Section 2.9. "Base Rate" means a rate of interest per annum equal to the Prime Rate; provided, however, that in no event shall the Base Rate be higher than the Maximum Rate. "Bond Counsel" means Broad and Cassell (or another nationally recognized Bond Counsel selected by the City and approved in writing by the Bank). "Bond Credit Facility" has the meaning assigned to such term in the Series Ordinance. "Bond Ordinance" has the meaning assigned to such term in the recitals to this Agreement, and includes any amendments and supplements thereto. "Bond Ordinance Event of Default" means an Event of Default as defined in Section 802 of the Bond Ordinance. "Bond Registrar" has the meaning assigned to such term in the Bond Ordinance. "Book Entry Bonds" means the 2008 Bonds so long as the book entry system with DTC is used for determining beneficial ownership of the 2008 Bonds. "Business Day" means a day on which commercial banks located in Atlanta, Georgia are required or permitted by law to be open for the purpose of conducting a commercial banking business. "Change of Law" means the adoption, after the Effective Date, of or change in any law, rule, regulation, statute, treaty, guideline or directive of any Governmental Authority or the occurrence of the effective date of any of the foregoing if adopted prior {M1706888_6 } 4 to the Effective Date or any change after the Effective Date in the application, interpretation or enforcement, of any of the foregoing. "Charter" means the Charter and Code of the City, adopted March 20, 1997 and effective April 18, 1997, as amended and supplemented from time to time. "City" has the meaning set forth in the introductory paragraph of this Agreement. "City Commission" means the Miami City Commission, the governing body of the City, that adopted the Bond Ordinance. "Code" means the Internal Revenue Code of 1986, as amended. "Commercial Paper Mode" has the meaning assigned to such term in the Series Ordinance. "Commitment Period" means the period from the Effective Date hereof to and including the earliest of (a) the Expiration Date, (b) the date on which no 2008 Bonds are Outstanding, (c) the close of business on the Business Day immediately following the Conversion Date, (d) the close of business on the thirtieth (30th) day following the date on which a Notice of Termination Date is received by the City and the Tender Agent or, if such thirtieth (30th) day is not a Business Day, the next succeeding Business Day, and (e) the date on which the Available Commitment has been reduced to zero or terminated in its entirety pursuant to Section 9.3 hereof. "Conversion Date" means the first date on which all of the 2008 Bonds bear interest at a Commercial Paper Mode, Fixed Rate Mode or Term Rate Mode. "Current Expenses" has the meaning assigned to such term in the Bond Ordinance. "Daily Mode" has the meaning assigned to such term in the Series Ordinance. "Debt" of any person means at any date, without duplication, (a) all obligations of such Person for borrowed money, (b) all obligations of such Person evidenced by 2008 Bonds, debentures, notes or other similar instruments, except endorsements of checks payable to such Person in the ordinary course of business, (c) all obligations of such Person to pay the deferred purchase price of property or services, except trade accounts payable arising in the ordinary course of business, (d) all obligations of such Person as lessee under capital leases, (e) all Debt of others secured by a lien on any asset of such Person, whether or not such Debt is assumed by such Person, and (f) all Guarantees by such Person of Debt of other Persons. "Default" means any occurrence, circumstance or event, or any combination thereof, which, with the lapse of time and/or giving of notice, would constitute an Event of Default. (MI706888_6} 5 "Default Rate" means the Base Rate from time to time in effect plus two percent (2.00%) per annum. "Default Tender" means a mandatory tender of the 2008 Bonds as a result of the Bank's delivery of a Notice of Termination Date to the Tender Agent. "Department" means the Department of Off -Street Parking of the City d/b/a the Miami Parking Authority, an agency and instrumentality of the City, and any successor thereto. "Differential Interest Amount" means the excess of (a) the interest which has accrued and could actually be paid on Bank Bonds at the Bank Rate (or the Interim Term Out Rate, Term Out Rate or Default Rate, as applicable), as determined in accordance with Section 2.9 hereof, up to but excluding the Business Day on which such Bank Bonds are purchased from the Bank (or the Bank elects to retain same) pursuant to Section 2.10(c), less (b) the interest accrued on such 2008 Bonds received by the Bank in connection with such purchase. "Dollars", "US$," and "U.S. Dollars" means the lawful currency of the United States of America. "DTC" means The Depository Trust Company, and any successor thereto. "Effective Date" means the date of the initial delivery of the 2008 Bonds by the City and the Letter of Credit by the Bank. "ERISA" means the Employee Retirement Income Security Act of 1974, as amended from time to lime, and, unless the content otherwise requires, the rules and regulations promulgated thereunder from time to time. "Event of Default" has the meaning set forth in Article IX. "Excess Bank Bond Interest" has the meaning set forth in Section 2.9(a) hereof. "Expiration Date" means the later of (a) 5:00 p.m., New York City, New York time, on , 2011 or, if such day is not a Business Day, the Business Day next preceding such day and (b) 5:00 p.m., New York City, New York time, on the last day of any extension of such date pursuant to Section 10.9(b) hereof or, if such last day is not a Business Day, the Business Day next preceding such day. "Federal Funds Rate" means, for any day, the rate of interest per annum as determined by the Bank at which overnight Federal funds are offered to the Bank at its Atlanta, Georgia office for such day by major banks in the interbank market, with any change in such rate to become effective on the date of any change in such rate. Each determination of the Federal Funds Rate by the Bank shall be conclusive and binding on the City absent manifest error. {M1706888 6} "Fitch" means Fitch, Inc., or any successor rating agency. 6 "Fiscal Year" means the fiscal year of the City and the Department ending on September 30 of each calendar year. "Fixed Rate Mode" has the meaning assigned to such term in the Series Ordinance. "Governmental Authority" means any national, state or local government (whether domestic or foreign), any political subdivision thereof or any other governmental, quasi -governmental, judicial, public or statutory instrumentality, authority, body, agency, bureau or entity (including any zoning authority, the Federal Deposit Insurance Corporation or the Federal Reserve Board, any central bank or any comparable authority), or any arbitrator with authority to bind a party hereto at law. "Guarantee" by any Person means any obligation, contingent or otherwise, of such Person directly or indirectly guaranteeing any Debt or other obligation of any other Person except endorsements of checks payable to such Person in the ordinary course of business and, without limiting the generality of the foregoing, any obligation, direct or indirect, contingent or otherwise, of such Person (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Debt or other obligation (whether arising by virtue of partnership arrangements, by agreement to keep -well, to purchase assets, goods, securities or services, to take -or -pay, or to maintain financial statement condition or otherwise) or (b) entered into for the purpose of assuring in any other manner the obligee of such Debt or other obligation of the payment thereof or to protect such obligee against loss in respect thereof (in whole or in part). "Interest Payment Date" with respect to 2008 Bonds which are not Bank Bonds has the meaning assigned to such term in the Series Ordinance and, with respect to Bank Bonds, means each of the days described in Section 3.1(a)(iv). "Interim Term -Out Rate" means the Base Rate plus one percent (1 %) per annum, which shall, in no event, be higher than the Maximum Rate. "Investment Grade" means the long-term ratings of 'Baa3" or higher, in the case of Moody's, "BBB-" or higher, in the case of S&P, or "BBB-" or higher, in the case of Fitch, or any long-term ratings that are the equivalent thereof. "Lien" on any asset means any mortgage, deed of trust, lien, pledge, charge, security interest, hypothecation, assignment, deposit arrangement or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise perfected or effective under applicable law, as well as the interest of a vendor or lessor under any conditional sale agreement, capital or finance lease or other title retention agreement relating to such asset. "Mandatory Purchase" means the mandatory purchase of all of the 2008 Bonds on any date on which the 2008 Bonds are subject to mandatory tender for purchase in accordance with Sections 6.01, 6.02, 6.03, 6.04 or 6.05 of the Series Ordinance, in each case, at a price equal to the principal amount thereof plus accrued interest if the date of Mandatory Purchase, is other than an Interest Payment Date for the 2008 Bonds. {M1706888_6} 7 "Material Adverse Effect" means (a) (i) with respect to any Person, a materially adverse effect upon such Person's business, assets, liabilities, financial condition, results of operations or business prospects, and (ii) with respect to a group of Persons as a whole, a materially adverse effect upon such Persons' business, assets, liabilities, financial condition, results of operations or business prospects taken as a whole, and (b) with respect to any agreement or obligation, a materially adverse effect upon the binding nature, validity or enforceability of such agreement or obligation. "Maturity Date" means, with respect to each series of 2008 Bonds, the date on which such series of 2008 Bonds are paid in full (whether by redemption, defeasance, at maturity or otherwise). "Maximum Rate" means with respect to Bank Bonds the lesser of (a) the maximum non -usurious lawful rate of interest permitted by applicable law and (b) 25% per annum. "Moody's" means Moody's Investors Service, Inc., or any successor rating agency. "1998 Bond Ordinance" has the meaning assigned to such term in the recitals to this Agreement, and includes any amendments and supplements thereto. "Net Revenues" means the excess of Revenues over Current Expenses. "Notice of Termination Date" has the meaning set forth in Section 8.3(a). "Official Statement" means the final Official Statement relating to the 2008 Bonds, as the same may be amended and supplemented from time to time. "Other Taxes" has the meaning set forth in Section 2.12(a). "Outstanding" has the meaning assigned to such term in the 1998 Bond Ordinance. "Parity Obligations" means the City's Parking System Revenue Refunding Bonds, Series 1998, the 2008 Bonds, any Additional Bonds and any other obligations that are authorized by the City Commission pursuant to the 1998 Bond Ordinance and the related series ordinance and secured by the Trust Estate on a parity with the 2008 Bonds. "Parking System" means certain parking facilities that are owned, operated and managed by the Department. "Person" means an individual, a corporation, a partnership, a limited liability company, an association, a trust or any other entity or organization, including a governmental or political subdivision or an agency, department or instrumentality thereof. (M1706888_6} 8 "Prime Rate" means mean the interest rate (not necessarily the best or lowest rate) announced by SunTrust Bank from time to time as its prime rate (which rate is only a benchmark, is purely discretionary, and is not necessarily the best or lowest rate charged borrowing customers of any subsidiary of SunTrust Bank), with any change in the Prime Rate to be effective on the day any such change in the Prime Rate is announced by the Bank. "Purchase Fund" has the meaning assigned to such term in Section 6.07 of the Series Ordinance. "Purchase Notice" has the meaning set forth in Section 2.10(b) hereof. "Purchase Price" means with respect to any 2008 Bond the unpaid principal amount thereof plus accrued interest thereon from and including the Interest Payment Date next preceding the Purchase Date thereof to but excluding the Purchase Date thereof, in each case, without premium; provided, that accrued interest will not be included in the Purchase Price if the applicable Purchase Date is an Interest Payment Date. "Purchaser" has the meaning set forth in Section 2.10(b) hereof. "Rating Agency" means any one of Moody's, S&P or Fitch. "Related Documents" means the 2008 Bonds, the Bond Ordinance, the Bond Purchase Agreement, the Remarketing Agreement and any other document or instrument related thereto or issued thereunder. "Remarketing Agent" has the meaning assigned to such term in the Series Ordinance. "Remarketing Agreement" has the meaning assigned to such term in the Series Ordinance. "Reserve Account" has the meaning assigned to such term in the 1998 Ordinance. "Reserve Product" has the meaning assigned to such term in the 1998 Ordinance. "Reserve Requirement" has the meaning assigned to such term in the 1998 Ordinance. "Revenues" has the meaning assigned to such term in the Bond Ordinance. "S&P" means Standard & Poor's Ratings Services, a division of The McGraw- Hill Companies, Inc., or any successor rating agency. "Sale Date" has the meaning set forth in Section 2.10(b) hereof. "Sale Price" has the meaning set forth in Section 2.10(b) hereof. {M1706888_6} 9 "Series Ordinance" has the meaning assigned to such term in the recitals to this Agreement, and includes any amendments and supplements thereto. "State" means the State of Florida. "Substitution Date" has the meaning assigned to such term in the Series Ordinance. "Supplemental Ordinance" has the meaning assigned to such term in the recitals to this Agreement. "Taxable 2008 Bonds" means the City of Miami, Florida Taxable Variable Rate Parking System Revenue Refunding Bonds, Series 2008. "Taxable Bonds Interest Component" has the meaning specified in Section 2.1(b) hereof. "Taxable Bonds Principal Component" has the meaning specified in Section 2.1(b) hereof. "Tax Exempt 2008 Bonds" means the City of Miami, Florida Tax Exempt Variable Rate Parking System Revenue Refunding Bonds, Series 2008. "Tax Exempt Bonds Interest Component" has the meaning specified in Section 2.1(a) hereof. "Tax Exempt Bonds Principal Component" has the meaning specified in Section 2.1(a) hereof. "Taxes" has the meaning set forth in Section 2.12 hereof. "Tender Agent" means the Trustee, in its capacity as Tender Agent under the Series Ordinance, and any successor tender agent appointed for the 2008 Bonds. "Term -Out Commencement Date" means, (a) with respect to each Bank Bond, the first to occur of (i) the sixty-first (61st) day following the related Purchase Date or (ii) the final day of the Commitment Period (but only as specified in clause (a), (b) or (d) of such defined term) and (b) with respect to all 2008 Bonds, the end of the Commitment Period due to the occurrence of either the Notice of Termination Date or the Expiration Date of this Agreement; provided, however, that a Term -Out Commencement Date shall not occur if the Bank has been replaced by the provider of an Alternate Bond Credit Facility. "Term -Out End Date" means the first to occur of (a) the seventh anniversary of the Term -Out Commencement Date, (b) the Conversion Date, (c) the Substitution Date, or (d) the Maturity Date. (M1706888 6} "Term -Out Funding" has the meaning set forth in Section 3.2(a) hereof. 10 "Term -Out Payment Date" means (a) the first Business Day of the sixth (6th) month immediately following the related Term -Out Commencement Date and the first Business Day of each sixth (6th) month thereafter occurring prior to the Term -Out End Date and (b) the Term -Out End Date. "Term -Out Rate" means the Base Rate plus two percent (2%) per annum, which shall, in no event, be higher than the Maximum Rate. "Term Rate Mode" has the meaning assigned to such term in the Series Ordinance. "Trustee" means TD Bank, National Association, as trustee under the Bond Ordinance, and any successor trustee thereto. "Trust Estate" means (a) the Net Revenues of the Parking System, (b) the right of the Department and the City to receive Net Revenues, and (c) the money and investment obligations in the funds and accounts established under the Bond Ordinance (with the exception of the money and investment obligations in the Rebate Account until such are transferred to the Revenue Fund as provided in the Bond Ordinance), including any Reserve Product, cash, investment obligations or any combination of the foregoing on deposit in the Reserve Account and the income derived from such money and investment obligations on deposit in said funds and accounts (except as noted with respect to the Rebate Account. "Written" or "in writing" means any form of written communication or a communication by means of telex, telecopier device or telegraph. Section 1.2 Accounting Matters. All accounting terms used herein without definition shall be interpreted in accordance with generally accepted accounting principles, and except as otherwise expressly provided herein, all accounting determinations required to be made pursuant to this Agreement shall be made in accordance with generally accepted accounting principles. Section 1.3 Interpretation. All words used herein shall be construed to be of such gender or number as the circumstances require. Reference to any document means such document as amended or supplemented from time to time as permitted pursuant to its terms and the terms hereof. All provisions of this Agreement making reference to specific sections of any Related Document shall be deemed to incorporate such sections into this Agreement by reference as though specifically set forth herein (with such changes and modifications as may be herein provided) and shall continue in full force and effect with respect to this Agreement notwithstanding payment of all amounts due under or secured by the Related Documents, the termination or defeasance thereof or any amendment thereto or any waiver given in connection therewith, so long as this Agreement is in effect and until all obligations hereunder are paid in full. No amendment, modification, consent, waiver or termination with respect to any of such sections shall be effective as to this Agreement until specifically agreed to in writing by the parties hereto {M1706888_6} 11 with specific reference to this Agreement. Reference herein to any Article or Section shall be deemed to be a reference to the corresponding Article or Section of this Agreement unless otherwise specified. Section 1.4 Computation of Time Periods; Time. In this Agreement, in the computation of a period of time from a specified date to a later specified date, the word "from" means "from and including" and the words "to" and "until" each mean "to but excluding." All times are the time then in effect in Atlanta, Georgia. Section 1.5 Construction. Unless the context of this Agreement otherwise clearly requires, references to the plural include the singular, references to the singular include the plural and references to the part include the whole and "or" has the inclusive meaning represented by the phrase "and/or." The words "hereof," "herein," "hereunder" and similar terms in this Agreement refer to this Agreement as a whole and not to any particular provision of this Agreement. The section headings contained in this Agreement and the table of contents preceding this Agreement are for reference purposes only and shall not control or affect the construction of this Agreement or the interpretation thereof in any respect. ARTICLE II. ISSUANCE OF LETTER OF CREDIT; FEES; REIMBURSEMENT Section 2.1 Amount and Terms of Letter of Credit. (a) The Bank agrees, on the terms and subject to the conditions hereinafter set forth, to issue the Tax Exempt Letter of Credit to the Trustee (a) in an amount, not to exceed $ (the "Tax Exempt Bonds Principal Component"), plus an amount equal to the sum of 40 days' interest on the 2008 Tax Exempt Bonds, computed at a rate of 12% per annum notwithstanding the actual rate borne from time to time by the 2008 Tax Exempt Bonds (the "Tax Exempt_Bonds Interest_ Component"), and (b) expiring on the Expiration Date unless otherwise terminated or extended. (b) The Bank agrees, on the terms and subject to the conditions hereinafter set forth, to issue the Taxable Letter of Credit to the Trustee (a) in an amount, not to exceed $ (the "Taxable Bonds Principal Component"), plus an amount equal to the sum of 40 days' interest on the 2008 Taxable Bonds, computed at a rate of 12% per annum notwithstanding the actual rate bome from time to time by the 2008 Taxable Bonds (the "Taxable Bonds Interest Component"), and (b) expiring on the Expiration Date unless otherwise terminated or extended. Section 2.2 Letter of Credit Fee. The City hereby agrees to pay to the Bank a non-refundable letter of credit fee for the period from and including the Effective Date until the Expiration Date, computed at the rate of fifty-three basis points (0.53%) per annum, calculated as a percentage of the Available Commitment (as the same may be reduced from time to time but including, in any event, the (MI706888 6} 12 principal amount of any Bank Bonds) on the date of payment of such letter of credit fee. Amounts payable under this Section 2.2 shall be payable in advance, based on a 360-day year, actual number of days elapsed, in immediately available funds, on the Effective Date and quarterly thereafter on the first day of each October, January, April and July. Section 2.3 Drawing Fees. The City hereby agrees to pay to the Bank, upon each drawing by the Trustee under either Letter of Credit, the sum of $100.00. Section 2.4 Transfer Fees. The City hereby agrees to pay to the Bank, upon each transfer, supplement or amendment of either Letter of Credit in accordance with its terms, unless such transfer, supplement or amendment is made solely as a result of a request or other action by the Bank or the Trustee, the sum of $1,500, plus reasonable fees of any legal counsel retained by the Bank in connection therewith; provided, that no such transfer fee shall be required if said transfer, supplement or amendment requires no consent, waiver or other action on the part of the Bank. Section 2.5 Reimbursement. The City hereby agrees as follows: (a) to reimburse the Bank for any payment under the Letter of Credit pursuant to an "A Drawing", in the amounts and at the times specified in Section 2.9 hereof; (b) to reimburse the Bank immediately for any payment made under the Letter of Credit pursuant to any `B Drawing" or "C Drawing" to pay principal of or interest on (or the portion of the Purchase Price of 2008 Bonds corresponding to principal of or interest on) the 2008 Bonds, in an amount equal to such amount so paid under the Letter of Credit; and (c) to pay to the Bank interest on any and all amounts required to be paid as provided in this Section 2.5 from and after the due date thereof until payment in full, payable on demand, at the Base Rate plus 2% per annum. If any payment under the Letter of Credit with respect to an "A Drawing," a "B Drawing" or a "C Drawing" shall be reimbursed to the Bank on the same date such payment is made by the Bank, no interest shall be payable on the reimbursed amount. Section 2.6 Reinstatement of Letter of Credit. After any "C Drawing," the obligation of the Bank to honor demands for payment under the Letter of Credit with respect to payment of interest on the 2008 Bonds, or the portion of Purchase Price of 2008 Bonds corresponding to interest, will automatically and immediately be reinstated up to the total amount specified therein, upon the terms and conditions set forth in the Letter of Credit. Upon release by or on behalf of the Bank pursuant to Section 2.8 hereof of any Bank Bonds, the obligation of the Bank to honor demands for payment under the Letter of Credit with respect to payment of the principal, or the portion of Purchase Price of 2008 Bonds {M1706888_6} 13 corresponding to principal, of the 2008 Bonds will be automatically and immediately reinstated up to the total amount specified therein upon the terms and conditions set forth in the Letter of Credit. Section 2.7 Credit for Amount Paid on Bonds. The City shall (a) receive a credit against the obligation to pay interest pursuant to Section 2.5(a) above to the extent of any amounts actually paid by the City to the Bank in respect of the interest due on any Bank Bonds and (b) receive a credit against its reimbursement obligation pursuant to Section 2.5(a) above to the extent of any amounts actually paid by the City to the Bank in respect of the principal due on any Bank Bonds. Section 2.8 PIedge of Bonds. (a) As security for the payment of the obligations of the City pursuant to Section 2.5(a) above and as more fully described below, the City has pledged to the Bank, and granted to the Bank a security interest in, its right, title and interest in and to 2008 Bonds delivered to the Bank in connection with "A Drawings" (herein called "Bank Bonds"). Any amounts from time to time owing to the Bank pursuant to Section 2.5 above may be prepaid (i) at any time by the City on one Business Day's notice stating the amount to be prepaid (which shall be $5,000 or an integral multiple thereof) and (ii) at any time on behalf of the City on one Business Day's notice from the City directing the Bank to deliver (or to cause the Trustee to deliver) a specified principal amount of Bank Bonds held by or on behalf of the Bank for sale. Upon payment to the Bank of the amount to be prepaid pursuant to Section 2.5(a) or (b) above, the outstanding obligations of the City under Section 2.5(a) above shall be reduced by the amount of such prepayment, interest shall cease to accrue on the amount prepaid and the Bank shall release (or shall be deemed to have released) from the pledge and security interest created hereunder a principal amount of Bank Bonds equal to the amount of such prepayment, provided that prior to such release from the pledge and security interest created hereunder of 2008 Bonds delivered to or for the benefit of the Bank in connection with an "A Drawing," the City shall have paid to the Bank the amount owing in respect of the "C Drawing," if any, made in conjunction with such "A Drawing." Such 2008 Bonds shall be delivered to the City on payment to the Bank as aforesaid or to the Trustee for sale pursuant to the Bond Ordinance, as appropriate. Notwithstanding the foregoing, no prepayment of amounts owing to the Bank pursuant to Section 2.5(a) may be made, and no Bank Bonds shall be released, during the period commencing on the Record Date with respect to an Interest Payment Date and ending at the close of business on such Interest Payment Date. (b) The City hereby pledges, assigns, hypothecates, transfers, and delivers to the Bank all its right, title and interest to, and hereby grants to the Bank a first lien on, and security interest in, all right, title and interest of the City in and to (i) all Bank Bonds; (ii) all income, earnings, profits, interest, premium or other payments in whatever form in respect of the Bank Bonds; and (iii) all proceeds (cash and non -cash) arising out of the sale, exchange, collection, enforcement or other disposition of all or any portion of the Bank Bonds (collectively, the "Pledged Bond Collateral"). The Pledged Bond {M1706888_6} 14 Collateral shall serve as security for the payment and performance when due of the obligations of the City hereunder. The City shall deliver, or cause to be delivered, the Bank Bonds to the Bank or to an agent designated by the Bank immediately upon receipt thereof or, in the case of Bank Bonds held under a book -entry system administered by The Depository Trust City ("DTC"), New York, New York (or any other clearing corporation), the City shall cause the Bank Bonds to be reflected on the records of DTC (or such other clearing corporation) as a position held by the Bank (or an agent acceptable to the Bank) as a DTC participant (or a participant in such other clearing corporation) and the Bank (or its agent) shall reflect on its records that the Bank Bonds are owned beneficially by the City subject to the pledge in favor of the Bank. Section 2.9 Interest on Bank Bonds; Excess Bank Bond Interest; Overdue Amounts. All Bank Bonds shall bear interest as described below: (a) Bank Bonds shall bear interest at the applicable Bank Rate as from time to time in effect; provided, that at no time shall Bank Bonds bear interest at a rate in excess of the Maximum Rate. In the event that Bank Bonds bear interest at the Maximum Rate for any period, the Bank shall receive interest on account of Bank Bonds only at the Maximum Rate for such period (the difference between (x) the interest payable to the Bank if the Bank Bonds had continuously bome interest at the Bank Rate and (y) the interest actually paid to the Bank at the Maximum Rate is hereinafter referred to as the "Excess Bank Bond Interest"). Notwithstanding any subsequent reduction in the Bank Rate, Bank Bonds shall bear interest from and after the date on which any Excess Bank Bond Interest is accrued at the Maximum Rate until the date on which the interest paid to the Bank on Bank Bonds in excess of the Bank Rate equals such Excess Bank Bond Interest; provided, that upon termination of this Agreement, in consideration for the limitation of the rate of interest otherwise payable hereunder, the City shall pay, to the extent permitted by law, the Bank a fee equal to the amount of all unpaid Excess Bank Bond Interest. To the extent permitted by law, interest shall accrue on, and be payable by the City with respect to, all unpaid Excess Bank Bond Interest at a rate per annum equal to the Base Rate plus two percent (2.00%) per annum. The City shall pay to the Bank Bondowners accrued interest, including any accrued but unpaid Excess Bank Bond Interest, on Bank Bonds as provided in Section 3.1. (b) On any date on which Excess Bank Bond Interest is due and payable, the Bank shall notify the City and the Trustee as to the amount of such Excess Bank Bond Interest due on such date; provided, that the failure of the Bank to so notify the City or the Trustee shall not affect the accrual of or obligation of the City to pay such Excess Bank Bond Interest. In the event any Bank Bond is remarketed or otherwise transferred by the Bank before payment in full of the amounts payable by the City with respect thereto, including Excess Bank Bond interest, the provisions of this Section 2.9 and Section 3.1 shall continue to apply to such indebtedness until all sums for all periods during which the same was a Bank Bond are paid in full. {MI706888_6) 15 (c) If the principal amount of any Bank Bond, or any other obligation of the City under this Agreement or the Bank Bonds (including, to the extent permitted by law, any interest payment required thereunder) is not paid when due (whether by acceleration, redemption or otherwise), the City agrees to pay interest on such overdue principal payment or other obligation from the date such principal amount or other obligation, as the case may be, was due until paid in full (after as well as before judgment) at a rate per annum equal to the Default Rate from time to time in effect, such interest to be payable on demand. (d) Interest on Bank Bonds shall be calculated on the same basis applicable to all 2008 Bonds, such calculation to be determined pursuant to Article IV of the Series Ordinance. Section 2.10 Sale of Bank Bonds. (a) Right to Sell Bank Bonds. The Bank expressly reserves the right to sell, at any time, Bank Bonds subject, however, to the express terms of this Agreement. The Bank agrees that such sales (other than sales made pursuant to Section 2.10(c)) will be made only to institutional investors or other entities or individuals which customarily purchase commercial paper or tax-exempt securities in large denominations. The Bank agrees to notify the City, the Tender Agent and the Remarketing Agent promptly of any such sale (other than a sale made pursuant to Section 2.10(c)) and, if such Bank Bond is a Book Entry Bond, specifying the account at DTC to which such Bank Bond is credited; and to notify the transferee in writing that there may not be a short-term investment rating assigned to such 2008 Bond so long as it remains a Bank Bond. Any Bank Bondowner purchasing a Bank Bond from the Bank shall be deemed to have agreed (i) not to sell such Bank Bond to any Person except the Bank or a Purchaser identified by the Remarketing Agent pursuant to Section 2.10(b) and (ii) if such Bank Bond is a Book Entry Bond, to give all notices in the manner and by the time required by DTC to exclude such Bank Bond from Mandatory Purchases of 2008 Bonds while it remains a Bank Bond. Prior to selling a Bank Bond to a Bank Bondowner, the Bank shall obtain a written acknowledgment from such Bank Bondowner stating that such Bank Bondowner has no right to tender the Bank Bond except as provided herein. (b) Purchase Notices. Prior to 12:00 noon on any Business Day on which a Bank Bondowner holds Bank Bonds, unless the Bank has delivered a Notice of Termination Date, the Remarketing Agent may deliver a notice (a "Purchase Notice") to a Bank Bondowner as set forth in the records maintained by the Bond Registrar and to the Bank stating that it has located a purchaser (the "Purchaser") for some or all of such Bank Bonds and that such Purchaser desires to purchase, on the Business Day following the Business Day on which a Bank Bondowner receives, prior to 12:00 noon, a Purchase Notice (a "Sale Date"), an authorized denomination of such 2008 Bonds at a price equal to the principal amount thereof, plus accrued interest thereon (calculated as if such 2008 Bonds were not Bank Bonds) (the "Sale Price"); provided, that neither the Bank nor any Bank Bondowner shall have any obligation to deliver Bank Bonds to the Remarketing Agent or sell such Bank Bonds unless the Bank or said Bank Bondowner has received the Differential Interest Amount and Excess Bank Bond Interest due thereon. {M1706888 6} 16 (c) Sale of Bank Bonds. A Bank Bondowner shall decide whether to sell any Bank Bonds to any Purchaser and shall give notice of such decision to the City, the Tender Agent and the Remarketing Agent by 3:00 p.m. on the Business Day preceding the Sale Date. In the event such notice is not timely delivered by a Bank Bondowner, such Bank Bondowner shall be deemed to have determined to sell such Bank Bonds to a Purchaser on the Sale Date (subject to receipt by it of the funds called for by the next following sentence). If a Bank Bondowner determines or is deemed to have determined to sell such Bank Bonds to a Purchaser, such Bank Bondowner shall deliver such Bank Bonds to the Tender Agent (or, in the case of Bank Bonds which are Book Entry Bonds, shall cause the beneficial ownership thereof to be credited to the account of the Remarketing Agent at DTC) by 10:00 a.m. on the Sale Date against receipt of the Sale Price (including any Differential Interest Amount and any Excess Bank Bond Interest due thereon) therefor in immediately available funds in the Purchase Fund or at the Bank Bondowner's address listed in the records maintained by the Bond Registrar, and such 2008 Bonds shall thereupon no longer be considered Bank Bonds; provided, that in the event that the Bank Bondowner has not delivered Bank Bonds as provided above and the Sale Price (including any Differential Interest Amount and any Excess Bank Bond Interest due thereon) therefor has been deposited in the Purchase Fund as provided above, such Bank Bonds shall be deemed to have been delivered and such 2008 Bonds shall no longer be considered Bank Bonds. When Bank Bonds are purchased in accordance with this Section 2.10(c), the Tender Agent shall, upon receipt of such Bank Bonds and upon receipt by such Bank Bondowner of the Sale Price (including any Differential Interest Amount and any Excess Bank Bond Interest due thereon), notify the City that such 2008 Bonds are no longer Bank Bonds. Any interest accrued on the Bank Bonds shall be paid to the Bank as provided in Section 3.1 and any Differential Interest Amount shall be paid by the City to the Bank on the applicable Sale Date; provided, however, that, to the extent permitted by law, any amount representing Differential Interest Amount shall, until paid in full, accrue interest thereon at the Bank Rate and said interest may be paid on the next succeeding Interest Payment Date for Bank Bonds; provided, further, however, that said interest on any Differential Interest Amount shall, until paid in full, continue to accrue interest thereon at the Bank Rate (notwithstanding repayment of the Differential Interest Amount). The Bank agrees to give notice to the City and the Trustee on each Sale Date of any amount then due and payable as Differential Interest Amount and the amount representing interest thereon on or prior to any Interest Payment Date for Bank Bonds; provided, however, that the Bank's failure to notify the City or the Trustee shall not relieve the City of its obligation under this Section 2.10 or Article III to pay Differential Interest Amount and any interest due thereon. Any sale of a Bank Bond pursuant to this Section 2.10 shall be without recourse to the seller and without representation or warranty of any kind. If a Bank Bondowner notifies the City, the Tender Agent and the Remarketing Agent, as provided in the first sentence of this Section 2.10(c), that it will not sell its Bank Bonds, the Tender Agent shall notify the City, the Remarketing Agent, the Bank and such Bank Bondowner that, as of the Sale Date, such 2008 Bond or 2008 Bonds shall no longer constitute Bank Bonds and such 2008 Bonds shall be deemed to have been remarketed and the Available Commitment shall be appropriately increased; provided, that (y) any Differential Interest Amount that has accrued with respect to the Bank Bonds prior to the date that the Bank or said Bank Bondowner has elected to retain said 2008 Bonds in lieu of remarketing same shall continue to be payable as interest hereunder, and (z) any Excess Bank Bond Interest due thereon shall continue to be payable as a fee hereunder and not as interest on the 2008 Bonds. The Bank shall, upon request of the Remarketing Agent, promptly confirm in {M1706888_6} 17 writing the amount by which the Available Commitment shall be increased following any event described in the immediately preceding sentence. (d) Continuing Obligation. Following any sale of Bank Bonds pursuant to Section 2.10(c) or otherwise or any election to retain 2008 Bonds pursuant to Section 2.10(c), the Bank and each Bank Bondowner shall retain the right to receive payment from the City of any accrued Differential Interest Amount as provided in Article III hereof and in the Bond Ordinance. Section 2.11 Rights of Bank Bondowners. Upon purchasing Bank Bonds, Bank Bondowners shall be entitled to and, where necessary, shall be deemed assigned all rights and privileges accorded 2008 Bondholders, except to the extent such rights and privileges conflict with this Agreement, in which case the terms of this Agreement shall prevail and govern. Upon purchasing Bank Bonds, Bank Bondowners shall be recognized by the City, the Tender Agent, the Remarketing Agent and the Trustee as the true and lawful owners (or, in the case of Book Entry Bonds, beneficial owners) of the Bank Bonds, free from any claims, liens, security interests, equitable interests and other interests of the City, except as such interests might exist under the terms of the Bank Bonds with respect to all owners (or, in the case of Book Entry Bonds, beneficial owners) of the 2008 Bonds. Section 2.12 Net of Taxes, Etc. (a) Any and all payments to the Bank by the City hereunder shall be made free and clear of and without deduction for any and all taxes, levies, imposts, deductions, charges, withholdings or liabilities imposed as a result of a Change of Law, excluding, however, taxes imposed on or measured by the net income or capital of the Bank by any jurisdiction or any political subdivision or taxing authority thereof or therein solely as a result of a connection between the Bank and such jurisdiction or political subdivision (all such non -excluded taxes, levies, imposts, deductions, charges, withholdings and liabilities being hereinafter referred to as "Taxes"). If as a result of a Change of Law, the City shall be required by law to withhold or deduct any Taxes imposed by the United States or any political subdivision thereof from or in respect of any sum payable hereunder to the Bank, (i) the sum payable shall be increased as may be necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section 2.12), the Bank receives an amount equal to the sure it would have received had no such deductions been made, (ii) the City shall make such deductions and (iii) the City shall pay the full amount deducted to the relevant taxation authority or other authority in accordance with applicable law. If the City shall make any payment under this Section 2.12 to or for the benefit of the Bank with respect to Taxes and if the Bank shall claim any credit or deduction for such Taxes against any other taxes payable by the Bank to any taxing jurisdiction in the United States then the Bank shall pay to the City an amount equal to the amount by which such other taxes are actually reduced; provided that the aggregate amount payable by the Bank pursuant to this sentence shall not exceed the aggregate amount previously paid by the City with respect to such Taxes. In addition, the City agrees to pay any present or future stamp, recording or documentary taxes and, if as a result of a Change of Law, any other excise or property taxes, charges or similar levies that arise under the laws of the United States of America, the State of Florida or the State of Georgia from any payment made hereunder or from (M170688826) 18 the execution or delivery or otherwise with respect to this Agreement, excluding, however, taxes imposed on or measured by the net income or capital of the Bank by any jurisdiction or any political subdivision or taxing authority thereof or therein solely as a result of a connection between the Bank and such jurisdiction or political subdivision (hereinafter referred to as "Other Taxes"). The Bank shall provide to the City within a reasonable time a copy of any written notification it receives with respect to Other Taxes owing by the City to the Bank hereunder; provided, that the Bank's failure to send such notice shall not relieve the City of its obligation to pay such amounts hereunder. (b) The City shall, to the fullest extent permitted by law and subject to the provisions of Section 2.16 hereof, indemnify the Bank for the full amount of Taxes and Other Taxes including any Taxes or Other Taxes imposed by any jurisdiction on amounts payable under this Section 2.12 paid by the Bank or any liability (including penalties, interest and expenses) arising therefrom or with respect thereto, whether or not such Taxes or Other Taxes were correctly or legally asserted; provided, that the City shall not be obligated to indemnify the Bank for any penalties, interest or expenses relating to Taxes or Other Taxes arising from the Bank's negligence or willful misconduct. The Bank agrees to give notice to the City of the assertion of any claim against the Bank relating to such Taxes or Other Taxes as promptly as is practicable after being notified of such assertion; provided that the Bank's failure to notify the City promptly of such assertion shall not relieve the City of its obligation under this Section 2.12. Payments by the City pursuant to this indemnification shall be made within thirty (30) days from the date the Bank makes written demand therefor, which demand shall be accompanied by a certificate describing in reasonable detail the basis thereof The Bank agrees to repay to the City any refund (including that portion of any interest that was included as part of such refund) with respect to Taxes or Other Taxes paid by the City pursuant to this Section 2.12 received by the Bank for Taxes or Other Taxes that were paid by the City pursuant to this Section 2.12 and to contest, with the cooperation and at the expense of the City, any such Taxes or Other Taxes which the Bank or the City reasonably believes not to have been properly assessed. (c) Within thirty (30) days after the date of any payment of Taxes or Other Taxes by the City, the City shall furnish to the Bank the original or a certified copy of a receipt evidencing payment thereof. (d) The obligations of the City under this Section 2.12 shall survive the termination of this Agreement. Section 2.13 Increased Costs. (a) If the Bank shall have determined that the adoption or implementation of, or any change in, any law, rule, treaty or regulation, or any policy, guideline or directive of, or any change in the interpretation or administration thereof by any court, central bank or other administrative or governmental authority (in each case, whether or not having the force of law), or compliance by the Bank with any request or directive of any such court, central bank or other administrative or governmental authority (whether or not having the force of law), shall (A) change the basis of taxation of payments to the Bank of any amounts payable hereunder (except for taxes on the overall net income of the Bank), (B) impose, modify or deem applicable any reserve, special deposit or similar requirement against making or maintaining its obligations (M1706888_6) 19 under this Agreement or assets held by, or deposit with or for the account of, the Bank or (C) impose on the Bank any other condition regarding this Agreement, and the result of any event referred to in clause (A), (B) or (C) above shall be to increase the cost to the Bank of making or maintaining its obligations hereunder, or to reduce the amount of any sum received or receivable by the Bank hereunder, then, the City shall pay to the Bank, at such time and in such amount as is set forth in paragraph (c) of this Section, such additional amount or amounts as will compensate the Bank for such increased costs or reductions in amount. (b) If the Bank shall have determined that the adoption or implementation of, or any change in, any law, rule or regulation, or any policy, guideline or directive of, or any change in the interpretation or administration thereof, by, any court, central bank or other administrative or governmental authority, or compliance by the Bank with any directive of or compliance by the Bank with any directive of or guidance from any central bank or other authority (in each case, whether or not having the force of law), shall impose, modify or deem applicable any capital adequacy or similar requirement (including, without limitation, a request or requirement that affects the manner in which the Bank allocates capital resources to its commitments, including its obligations under lines of credit) that either (A) affects or would affect the amount of capital to be maintained by the Bank or (B) reduces or would reduce the rate of return on the Bank's capital to a level below that which the Bank could have achieved but for such circumstances (taking into consideration the Bank's policies with respect to capital adequacy) then, the City shall pay to the Bank, at such time and in such amount as is set forth in paragraph (c) of this Section, such additional amount or amounts as will compensate the Bank for such cost of maintaining such increased capital or such reduction in the rate of return on the Bank's capital. (c) All payments of amounts referred to in paragraphs (a) and (b) of this Section shall be due thirty (30) days following the City's receipt of notice thereof and shall be payable, in full, on the next succeeding quarterly payment date that the fee described in Section 2.2 is due and payable. Interest on the sums due as described in paragraphs (a) and (b) of this Section, and in the preceding sentence, shall begin to accrue from the date when the payments were first due and shall otherwise be payable in accordance with Section 3.1 hereof; provided, that from and after the required date of payment, interest shall begin to accrue on such obligations at a rate per annum equal to the Default Rate until such delinquent payments have been paid in full. A certificate as to such increased cost, increased capital or reduction in return incurred by the Bank as a result of any event mentioned in paragraphs (a) or (b) of this Section setting forth, in reasonable detail, the basis for calculation and the amount of such calculation shall be submitted by the Bank to the City and shall be conclusive (absent manifest error) as to the amount thereof. In making the determinations contemplated by the above referenced certificate, the Bank may make such reasonable estimates, assumptions, allocations and the like that the Bank in good faith determines to be appropriate. Notwithstanding anything contained in paragraphs (a) or (b) of this Section above, the City shall have no liability to the Bank for any increased costs, increased capital or reduction in return to the extent incurred by the Bank prior to the Effective Date. (d) The obligations of the City under this Section 2.13 shall survive the termination of this Agreement. {M1706888_6} 20 Section 2.14 Computations; Payments. (a) Except as otherwise provided herein, (i) interest (including interest on Bank Bonds) shall be calculated on the basis set forth in Article IV of the Series Ordinance and (ii) fees and other amounts payable to the Bank hereunder shall be computed on the basis of a 360-day year and actual days elapsed. Any payments received by the Bank later than 3:30 p.m. on any day shall be deemed to have been paid on the next succeeding Business Day. All payments by the City to the Bank hereunder shall be made in lawful currency of the United States and in immediately available funds at the Bank's office at 8699 Northwest 36th Street, Miami, FL 33166, Attention: Letter of Credit Department, or such other place as the Bank may specify in writing from time to time. (b) The City agrees to pay to the Bank on each Purchase Date or Sale Date, as applicable, an amount equal to any charge imposed on the Bank pursuant to the Bond Ordinance in connection with the transfer or exchange of 2008 Bonds. The City agrees to cause the Trustee to give the Bank timely notice of each such charge, including the amount thereof. (c) Payments made to the Bank under this Agreement shall first be applied to any fees, costs, charges or expenses payable to the Bank hereunder, next to any past due interest, next to any current interest due, and then to outstanding principal. Section 2.15 Early Termination. Upon the payment to the Bank of all fees, expenses, and other amounts payable hereunder and the payment to the Bank of all principal and accrued interest owing on any Bank Bonds, the City may terminate this Agreement, without penalty, at any time upon thirty (30) days' prior written notice to the Bank, the Trustee, the Tender Agent and the Remarketing Agent. Section 2.16 Limited Obligations. (a) The City shall he obligated to pay the amounts due hereunder solely out of, and said amounts are secured solely by a senior Lien on, the Net Revenues of the Parking System, the right of the Department and the City to receive such Net Revenues and the money and investment obligations comprising the Trust Estate. The right of the Bank to receive such payments shall constitute a valid claim against the Trust Estate, which is pledged on a senior Lien basis to secure such payment and no portion of which shall be utilized for any purpose except as expressly authorized in the Bond Ordinance. (b) None of the City's obligations under this Agreement, the 2008 Bonds nor the Bank Bonds shall be deemed to constitute a general obligation or indebtedness of the City for which the full faith and credit of the City are pledged, and the City is not obligated to pay its obligations with respect to the foregoing except from the Trust Estate. The foregoing obligations of the City shall not directly or indirectly or contingently obligate the City to levy or to pledge any form of taxation whatever therefor, and neither the Bank nor any other Bank Bondowner shall have any recourse to, or right to compel, the power of taxation. The foregoing obligations of the City do not constitute a charge, lien or encumbrance, legal or equitable, upon any property of the City other than upon the Trust Estate and other items expressly pledged under the terms of the Bond Ordinance. (M1706888_6} 21 ARTICLE III. REPAYMENT OF BANK BONDS; TERM -OUT FUNDING Section 3.1 Bank Bonds. (a) The City agrees that, with respect to each Bank Bond, (i) such Bank Bond shall be paid in full no later than the first to occur of the Term -Out End Date, the date all Bank Bonds are remarketed and, if the provisions of Section 3.2(c) are not satisfied, the Expiration Date, if not earlier required to be paid under this Agreement; (ii) the Interest Component, if any, included in the Purchase Price for such 2008 Bond shall be due and payable on the Purchase Date on which such 2008 Bond became a Bank Bond; (iii) the interest on the unpaid amount of each such Bank Bond from and including the applicable Purchase Date shall be computed at a rate per annum equal to the Bank Rate, as determined pursuant to Section 2.9 hereof and (iv) interest payable pursuant to clause (iii) shall be payable (A) monthly on the first Business Day of each calendar month, (B) on the Term -Out End Date, (C) if the provisions of Section 3.2(c) are not satisfied, the Expiration Date, (D) after the Term -Out End Date, on demand, and (E) on the Sale Date (including, without limitation, any Differential Interest Amount with respect to such Bank Bond, but with any interest on any Differential Interest Amount being payable as and to the extent provided in Section 2.10(c) hereof). (b) Notwithstanding anything to the contrary contained in the 2008 Bonds, the Bond Ordinance or herein (except as set forth below), the City agrees to cause the mandatory redemption of Bank Bonds that are purchased or remain Outstanding, as the case may be, on a Term -Out Commencement Date in fourteen (14) equal installments on each Term -Out Payment Date occurring prior to the related Term -Out End Date; provided, however, that in any event all of the then unpaid principal amount of Bank Bonds, and interest accrued thereon, shall be redeemed on the Term -Out End Date. The Bank shall, and is hereby authorized by the City to, apply the proceeds of each amount so paid to the payment of the outstanding principal of and interest on the Bank Bonds. Notwithstanding any of the foregoing provisions of this subsection (b), all amounts owed to the Bank with respect to Bank Bonds shall become immediately due and payable on the Term -Out End Date if not repaid or otherwise due and payable prior to such date in accordance with the terms of this Agreement, the Bond Ordinance and the 2008 Bonds. Section 3.2 Term -Out Funding. (a) Subject to the terms and conditions hereof, the Bank shall, on each Term - Out Commencement Date, retain Bank Bonds, provided that the aggregate principal amount of such 2008 Bonds shall not, in the aggregate (together with the aggregate principal amount of all other 2008 Bonds that were, as of such date, already subject to amortization pursuant to Section 3.1), exceed the Available Principal Commitment, as the Available Principal Commitment may have been reduced prior to such date. All 2008 Bonds that are eligible for, and become subject to, amortization as described in Section 3.1(b) (and as provided in the Series Ordinance), shall be deemed Bank Bonds and shall be subject to the amortization provisions provided herein and therein ("Term -Out Funding"). If the conditions precedent to a Term -Out Funding set forth in subsection (c) hereof are satisfied on a Term -Out Commencement Date, and notwithstanding anything to the contrary contained in the 2008 Bonds, the City agrees that (i) each 2008 Bond that is the subject of Term -Out Funding, if not earlier required to be paid under this Agreement, {M1706888_6} 22 shall be subject to mandatory redemption as described in Section 3.1(b) hereof on each Term - Out Payment Date; provided, however, that notwithstanding the foregoing, the City shall redeem or purchase (or cause to be purchased) all Bank Bonds no later than the Term -Out End Date, as provided in the Series Ordinance; and (ii) in addition to repayment of interest as set forth in Section 3.1(a) above, (A) all Bank Bonds that are the subject to a Term -Out Funding shall, from and including the related Term -Out Commencement Date, bear interest at the Term -Out Rate payable on each Interest Payment Date for Bank Bonds and (B) any amount representing unpaid Differential Interest Amount accruing with respect to Bank Bonds that were the subject to Term - Out Funding may be paid on each Interest Payment Date for Bank Bonds and, in any event, shall be paid no later than the Term -Out End Date, and such Differential Interest Amount shall, subject to State usury laws relevant thereto, bear interest at the Term -Out Rate, payable on each Interest Payment Date for Bank Bonds and, in any event, shall be paid no later than the Term - Out End Date. In the event any Bank Bond is remarketed or otherwise transferred by the Bank before payment in full of the funds provided by the Bank hereunder with respect thereto, together with interest thereon at the Bank Rate, the provision of this Section 3.2 shall continue to apply to such indebtedness until all sums for all periods during which the same was a Bank Bond are paid. Any amounts owing to the Bank in respect of Bank Bonds following the related Term -Out Commencement Date may be prepaid at any time by the City, upon five (5) days' notice to the Bank, in whole or in part, in minimum denominations of $100,000 and integral multiples of $5,000 in excess of $100,000, without penalty or premium. (b) If the conditions precedent to a Term -Out Funding set forth in subsection (c) below are not satisfied on a Term -Out Commencement Date, any Bank Bonds that are then held by or on behalf of the Bank on such Date shall, from and after such Date, bear interest at the Default Rate and a Term -Out End Date shall be deemed to have occurred with respect to said Bank Bonds. (c) Unless it otherwise notifies the Bank in writing, the City shall be deemed to have requested that each Bank Bond held for more than sixty (60) days (or held on the fmal day of the Commitment Period) by the Bank become subject to Term -Out Funding by the Bank on the sixty-first (61 st) day following the related Purchase Date (or such fmal day of the Commitment Period). ARTICLE IV. CONDITIONS PRECEDENT TO EFFECTIVENESS This Agreement shall become effective , 2008 (the "Effective Date"); provided that each of the following conditions have been fulfilled to the satisfaction of the Bank The execution and delivery of this Agreement by the Bank shall constitute the Bank's acknowledgment that such conditions have been satisfied or waived. Section 4.1 Representations. On the Effective Date (and after giving effect to the terms hereof), (a) there shall exist no Event of Default or Default, and (b) alI representations and warranties made by the City herein or in any of the Related Documents to which it is a party shall be true and correct as of such date. {M1706888_6} 23 Section 4.2 Other Documents. (a) On the Effective Date, the Bank shall have received an original counterpart of this Agreement and executed originals or certified copies of each of the following documents (including all amendments and supplements thereto), which documents shall be in full force and effect on the Effective Date and in form and substance satisfactory to the Bank: (i) the 1998 Bond Ordinance; (ii) the Series Ordinance; (iii) the 2006 Supplemental Ordinance; (iv) the Official Statement; (v) the Remarketing Agreement; and (vi) a specimen of the 2008 Bonds. (b) All filings, recordings, re -filings and re -recordings shall have been made, notices given, all filing fees, taxes and expenses in connection therewith shall have been paid and all such action shall have been taken, which are necessary or advisable on the Effective Date to perfect the senior Lien in the Trust Estate in favor of 2008 Bondholders. Section 4.3 Legal Opinions. The Bank shall have received legal opinions, in form and substance satisfactory to the Bank, addressed to the Bank (or upon which the Bank may rely pursuant to a reliance letter) and dated the Effective Date, of: (a) Bond Counsel, as required by the Bond Ordinance and any agreement between the City and the initial purchaser of the 2008 Bonds; (b) Julie O. Bru, Esq., City Attorney, as to the matters described in Sections 5.1 through 5.5, inclusive, and Section 6.7 of this Agreement; (c) counsel for the Trustee and the Tender Agent, as and to the extent an opinion is being required by the City and/or the initial purchaser of the 2008 Bonds; and, (d) Adomo & Yoss LLP, counsel to the Bank. Section 4.4 Supporting Documents of the City. There shall have been delivered to the Bank such information and copies of documents, approvals (if any) and records certified, where appropriate, of corporate and legal proceedings as the Bank may have requested relating to the City's entering into and performing this Agreement and the other Related Documents to which it is a party, and the transactions contemplated hereby and thereby. Such documents shall, in any event, include: {M1706888_6} 24 (a) A certificate of the City, in form and substance satisfactory to the Bank, executed by an authorized officer of the City, dated the Effective Date, to the effect that all actions required to be taken by, and all resolutions, ordinances and other authority required to be adopted by (copies of which shall be attached to such certificate), the City and the City Commission under applicable law have been done and adopted; and (b) An incumbency certificate with respect to the officers or agents of the City who are authorized to execute any documents or instruments on behalf of the City under this Agreement and the other Related Documents to which the City is a party including, without limitation, this Agreement. Section 4.5 Incumbency. There shall have been delivered to the Bank incumbency certificates with respect to the officers or agents of the Trustee and Tender Agent who are authorized to execute the respective Related Documents to which the Trustee and the Tender Agent are parties. Section 4.6 Other Supporting Documents. There shall have been delivered to the Bank such information and copies of documents, approvals (if -any)_and-records -(certified,-where-appropriate)-of corporate and legal proceedings as the Bank may have requested relating to the entering into and performance by each of the parties (other than the City and the Bank) thereto, of each of the Related Documents or the transactions contemplated thereby. Section 4.7 Payment of Fees and Expenses. The fees and expenses and all other amounts (including attorneys' fees and expenses) payable on the Effective Date pursuant to Section 10.2 hereof shall have been received. Section 4.8 Rating. The Bank shall have received satisfactory evidence that the 2008 Bonds shall have been assigned long and short-term ratings of "Aa2/VMIG-1" by Moody's. Section 4.9 City Certificate. A certificate signed by duly authorized officers of the City, dated the Effective Date, stating that: (a) the representations and warranties contained in Article VI of this Agreement are true and correct on and as of the Effective Date as though made on such date; (b) no petition by or against the City has at any time been filed under the United States Bankruptcy Code or under any similar act; {MI706888_6} 25 (c) all conditions precedent to the execution and delivery of this Agreement and the Related Documents have been satisfied and the City has duly executed and delivered this Agreement and the Related Documents to which it is a party; (d) no event that could reasonably be expected to have a Material Adverse Effect with respect to the City's, the Department's or the Parking System's business, assets, liabilities, financial condition, results of operation or business prospects shall have occurred subsequent to the date of the most recent audited financial statements of the City (except as may otherwise have been disclosed in writing to the Bank prior to the Effective Date); and (e) no Event of Default or Default has occurred and is continuing, or would result from, the execution and delivery of this Agreement or any Related Document. Section 4.10 Reserve Account. Evidence satisfactory to the Bank that the Reserve Account established under the Bond Ordinance has been funded in an amount equal to the Reserve Requirement. Section 4.11 Financial Documentation. Receipt of (a) five Fiscal Years of historical and five Fiscal Years of projections of Net Revenues deposited, or to be deposited, in the Revenue Fund, (b) debt service coverage levels with respect to (a) above, (c) audited financial statements of the City for the Fiscal Years ended September 30, 2005, 2006 and 2007, and (d) the current budget for the City. Section 4.12 Investment Obligations. The Bank shall have received a list of Investments Obligations (as defined in the 1998 Bond Ordinance) in which the funds and accounts under the Bond Ordinance are currently invested. Section 4.13 Other Closing Documents. A copy of each document, instrument, certificate and opinion delivered on the Effective Date in connection with the issuance and delivery of the 2008 Bonds. Section 4.14 Reserved. Section 4.15 Other Documents. The Bank shall have received such other documents, instruments, approvals (and, if requested by the Bank, certified duplicates or executed copies thereof) or opinions as the Bank may reasonably request. In addition, the Bank shall have determined, as of the Effective Date, that no law, regulation, ruling or other action of the United States, the State of Georgia or the State of Florida or any political subdivision or authority therein or thereof shall be in effect or shall have {M1706888_6) 26 occurred, the effect of which would be to prevent the City or the Bank from fulfilling its obligations under this Agreement. ARTICLE V. REPRESENTATIONS AND WARRANTIES The City represents and warrants to the Bank as follows: Section 5.1 Existence and Power. The City was, at all relevant times, and is a municipal corporation in the County of Miami -Dade, State of Florida duly created, organized and existing under the Constitution and the laws of the State. The City had, at all relevant times, and has all power and authority to conduct its business as currently conducted, to own its assets and to enter into and satisfy its obligations under this Agreement and the Related Documents and as described in the Official Statement. The Department is an agency and instrumentality of the City. Section 5.2 Regulatory Authority. The City had (when necessary) and/or has obtained all requisite approvals of all governmental Authorities required to be obtained prior to the date of delivery of the 2008 Bonds and the other Related Documents and prior to the Effective Date with respect to this Agreement. Section 5.3 Noncontravention. The execution and delivery by the City of this Agreement and the Related Documents, and the performance of its obligations hereunder and thereunder, has not, at any relevant time, and will not violate the Charter, the Act, any other existing law or regulation or will not result in a breach of any of the terms of, or constitute a default under, any ordinance, mortgage, deed of trust, lease or other agreement or instrument to which the City is a party or by which it or any of its property (including the Parking System) was, at any relevant time, and is now bound or any of the laws, rules or regulations applicable to the City or its property (including the Parking System) or any decree or order of any Governmental Authority. Section 5.4 Due Authorization. The execution, delivery and performance by the City of this Agreement and the Related Documents to which it is a party were, at all relevant times, and are within the power and authority of the City, and have been duly authorized by all necessary action and do not contravene any provisions of any law, rule or regulation currently (or at the relevant time) applicable to the City. Section 5.5 Valid and Binding Obligations. This Agreement and the Related Documents to which the City is a party were, at all relevant times, and are (assuming the due authorization, execution and delivery by the other parties, if any, thereto) valid and binding obligations of the City, enforceable against the City in accordance with their respective terms, except as such enforceability may be limited by the (MI706888_6) 27 City's bankruptcy, insolvency, reorganization, moratorium or other laws or equitable principles relating to or limiting creditors' rights generally or by equitable principles (whether arising in an action at law or in equity). Section 5.6 Official Statement. The information contained in the Official Statement was, on the date thereof, and is now, as of the Effective Date, correct in all material respects and did not, on the date thereof and does not, as of the Effective Date, contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements made therein, in light of the circumstances under which they were made, not misleading. The City makes no representation as to information in the Official Statement relating to the Bank or DTC and provided by the Bank or DTC for inclusion therein. Section 5.7 Pending Litigation and Other Proceedings. Except as described in the Official Statement, there is no pending action or proceeding before any court, governmental agency or arbitrator against or directly involving the City and, to the best of the City's knowledge, there is no threatened action or proceeding affecting the City, the Department or the Parking System before any court, governmental agency or arbitrator which, in any case, may result in a Material Adverse Effect or materially and adversely affect the validity or enforceability of this Agreement or any of the Related Documents. Section 5.8 Financial Statements. The City's annual financial statements for the period ended September 30, 2007 (which includes information regarding the financial status of the Parking System for such period), together with the auditors' reports with respect thereto for such Fiscal Year, copies of which have been furnished to the Bank, are complete and correct and fairly present such financial information of the City (and the Parking System) at such dates and for such period and were prepared in accordance with generally accepted accounting principles. As of the date hereof, the Parking System has no contingent liabilities which are material to it other than as indicated in such financial statements or as otherwise disclosed to the Bank in writing. Since the date of the annual financial statements described hereinabove, there have been no material adverse changes in the condition (financial or otherwise) of the City, the Department or the Parking System. Section 5.9 Complete and Correct Information. All information, reports and other papers and data with respect to the City, the Department, the Parking System and the Net Revenues furnished by or on behalf of the City to the Bank were, at the time the same were so furnished, complete and correct in all material respects. No fact is known to the City which materially and adversely affects or in the future may (so far as it can foresee) materially and adversely affect the business, assets or liabilities, financial condition, results of operations, or business prospects related to the City, the Department or the Parking System which has not been set forth in the financial statements referred to in Section 5.8 above or in such information, reports, papers and data or otherwise disclosed in writing to the Bank. No document furnished or statement made by the City in {M1706888_6} 28 connection with the negotiation, preparation or execution of this Agreement, the Official Statement or any Related Document contains any untrue statement of a material fact. Section 5.10 Senior Lien. The Lien against the Trust Estate granted to secure the 2008 Bonds (including Bank Bonds) and other amounts payable to the Bank pursuant to the Bond Ordinance and this Agreement is a valid first priority senior Lien against the Trust Estate, on a parity with any bonds currently outstanding under the Bond Ordinance and any Additional Bonds which may be issued from time to time under the Bond Ordinance. Section 5.11 Legislation. There is no amendment or, to the knowledge of the City, proposed amendment certified for placement on a statewide ballot to the Constitution of the State or any published administrative interpretation of the Constitution of the State or any law of the State, or any legislation that has passed either house of the legislature of the State or the United States Congress, or any published judicial decision interpreting any of the foregoing, the effect of which could reasonably be expected to have a Material Adverse Effect with respect to the City's ability to repay when due, from the sources described in Sections 2.16 and 5.10 hereof, its obligations under this Agreement, the Bank Bonds, any of the 2008 Bonds and the other Related Documents. Section 5.12 No Defaults. (a) The City is not in material default under (a) any order, writ, injunction or decree of any court or governmental body, agency or other instrumentality having jurisdiction over the City, the Department or the Parking System, or (b) any law or regulation having jurisdiction over the City, the Department or the Parking System regarding the collection and pledge of the Revenues pursuant to Act and the Bond Ordinance, or (c) any Parity Obligations, or (d) any contract, agreement or instrument to which the City is a party or by which it or its property (including the Parking System) is bound, default under which would have a Material Adverse Effect or a material and adverse effect on the transactions contemplated by this Agreement, the Official Statement, or any Related Document, or which would have a material and adverse effect on the validity or enforceability of, or the authority or ability of the City to perform its obligations under, this Agreement and any Related Document to which it is a party. (b) No Event of Default and no Default has occurred and is continuing, or exists, hereunder. No "event of default" as specified in the Bond Ordinance or any other Related Document, and no event which, with the giving of notice or lapse of time or both would become such an event of default, has occurred and is continuing. Section 5.13 Consents. No authorization, consent, order or other approval of, or registration or filing with, or taking of any other action in respect of or by, any court or governmental body, agency or other instrumentality (excluding adoption of the Bond Ordinance by the City Commission) was, at the relevant time, or is now required for the valid execution, delivery or performance by the City of {M1706888_6} 29 this Agreement or the Related Documents, and the preparation and delivery of the Official Statement, except such as shall have been duly obtained, given or accomplished prior to the execution and delivery hereof or thereof. Section 5.14 No Sovereign Immunity. The defense of sovereign immunity is not available to the City in any proceeding by the Bank to enforce the obligations or the performance of any obligations of the City under this Agreement, the 2008 Bonds or the other Related Documents. To the extent that the City has or hereafter may acquire under any applicable law any right to immunity from set-off or legal proceedings on the grounds of sovereignty, the City hereby irrevocably waives, to the extent permitted by law, such rights to immunity for itself in respect of its obligations arising under or related to this Agreement, the 2008 Bonds or the other Related Documents to which it is a party. Section 5.15 Regulation U. The City is not engaged in the business of extending credit for the purpose of purchasing or carrying any margin stock (within the meaning of Regulation U of the Board of Governors of the Federal Reserve System), and no part of the proceeds of any 2008 Bonds will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock. Section 5.16 Incorporation of Representations and Warranties. The City hereby makes to the Bank the same representations and warranties as were made by it in each Related Document to which it is a party, which representations and warranties, together with the related definitions of terms contained therein, are hereby incorporated by reference with the same effect as if each and every such representation and warranty and definition were set forth herein in its entirety. No amendment to such representations and warranties or definitions made pursuant to the relevant Related Documents that materially adversely affects the ability of the City to meet its obligations hereunder or under the Bond Ordinance or the rights or security of the Bank hereunder and under the Bond Ordinance shall be effective to amend such representations and warranties and definitions as incorporated by reference herein without the prior written consent of the Bank. Section 5.17 Bond Ordinance. The 1998 Bond Ordinance, the 2006 Ordinance and Series Ordinance are in full force and effect, duly authorize the issuance of the 2008 Bonds and constitute valid, binding and enforceable obligations of the City. Section 5.18 Tax Exempt Status. The City has not taken any action or omitted to take any action, and knows of no action taken or omitted to be taken by any other person or entity, which action, if taken or omitted, would cause interest on the 2008 Tax Exempt Bonds to be subject to Federal income taxes or such 2008 Tax Exempt Bonds to he subject to local personal property taxes levied by any political subdivision of the State. (M1706888 6) 30 Section 5.19 No ERISA Plans. The City has never established, is not a party to and has never contributed to any "employee benefit plan" within the meaning of Section 3(3) of ERISA or any other form of deferred compensation or other similar plan or arrangement, other than a "governmental plan" within the meaning of Section 414(d) of the Code or Section 3(32) of ERISA. ARTICLE VI. AFFIRMATIVE COVENANTS For so long as the Letter of Credit is in effect or any amount is due or owing to the Bank under this Agreement or any Related Document, the City will comply with each of the covenants contained in this Article VII unless the Bank shall otherwise consent in writing. Section 6.1 Compliance With Laws and Regulations. The City shall comply with all laws, ordinances, orders, rules and regulations of duly constituted public authorities which may be applicable to it, the Department or any of its property, including the Parking System. Section 6.2 Reporting Requirements. The City shall keep proper books of record and account in which full, true and correct entries will be made of all dealings or transactions of or in relation to the business and affairs of the City, the Department and the Parking System on a consolidated basis in accordance with generally accepted accounting principles consistently applied, and will furnish to the Bank two (2) copies of each of the following: (a) Annual Financial Statements. As soon as available, and in any event within one hundred eighty (180) days after the close of each Fiscal Year of the City, (i) the complete audited financial statements of the Department including the combined balance sheet as of the end of such Fiscal Year and the related combined statements of revenues, expenses and changes in retained earnings for such Fiscal Year, all in reasonable detail, certified and prepared by an accountant in accordance with generally accepted auditing standards and government auditing standards, consistently applied, and fairly presenting the financial condition of the Parking System as of the end of such Fiscal Year; and (ii) a separate written report and certificate signed by such accountant stating that in making the examination necessary to their audit they have obtained no knowledge, except as specifically stated, of any Event of Default or Default hereunder. (b) Certificate of Compliance. Simultaneously with the delivery of each set of financial statements referred to in (a) above, a certificate (substantially in the form attached hereto as Exhibit B) signed by an authorized representative of the City (which may include the Director or the Chief Financial Officer of the Department) stating that (i) under his/her supervision, the City has made a review of its activities during the preceding annual or semiannual period, as the case may be, for the purpose of determining whether or not the City has complied with all of the terms, provisions and conditions of this Agreement and the Related Documents to which it is a party and (ii) to the best of his/her knowledge, no Default or Event of {M1706888_6} 31 Default in the performance or observance of any of the terms, covenants, provisions or conditions of this Agreement or any of the Related Documents has occurred and is continuing or, if a Default or Event of Default shall have occurred and be continuing, such certificate shall specify each such Default or Event of Default, the nature and status thereof and any remedial steps taken or proposed to be taken by the City to correct each such Default or Event of Default. (c) Report of Debt. A written report as to any Additional Bonds issued by the City promptly after said issuance, setting forth the principal amount of the Additional Bonds, the date or dates on which said Additional Bonds are to mature, the rate or rates of interest applicable thereto, the purpose for which such Additional Bonds were issued, whether said Additional Bonds are Parity Obligations and whether said Additional Bonds are supported by a liquidity facility (comparable to the Letter of Credit) or credit facility and such other details as to the Additional Bonds as the Bank may reasonably request. (d) Other Reports. Promptly after the furnishing thereof, copies of any financial statement or report of the Department furnished to any person in connection with the Trust Estate or the Revenues derived from the Parking System. (e) Budget. As soon as available after adoption, a copy of the Department's annual budget for each Fiscal Year, together with any supplements and amendments thereto. (f) Continuing Disclosure Documents. Simultaneously with the filing thereof, all continuing disclosure documents filed by the Department in compliance with Securities and Exchange Commission rules codified at 17 C.F.R. Section 240.15c2-12, which documents shall include, without limitation, general information regarding the status of the Trust Estate and the Parking System. (g) Insurance Consultant's and Parking Consultant 's Reports. When available but in any event within ten (10) days of submission of any final report to the Department, any Insurance Consultant's and Parking Consultant's reports regarding the status of the Parking System. (h) Other Information. Such other information respecting the business, properties or the condition or operations, financial or otherwise, of the Department as the Bank may from time to time reasonably request. Section 6.3 Notices. The City will promptly furnish, or cause to be furnished, to the Bank (i) notice of the occurrence of any Event of Default or Default as defined herein or in the Bond Ordinance, the nature of such Default or Event of Default and the action which the City proposes to take with respect thereto, (ii) notice of the failure by the Remarketing Agent, the Tender Agent or the Trustee to perform any of its obligations under the Remarketing Agreement or the Bond Ordinance, (iii) notice of any proposed substitution of this Agreement, (iv) each notice required to be given to the Bank pursuant to the Bond Ordinance, (v) notice of any litigation, administrative proceeding or business development which may materially and adversely affect the Net Revenues (including the collection thereof) or the Trust Estate or the ability of the City to perform its obligations as set forth hereunder or under any of the Related Documents to which (M1706888_6) 32 it is a party, and (vi) such further financial and other information with respect to the City, the Department or the Parking System as the Bank may reasonably request from time to time. Section 6.4 Further Assurances. The City shall, upon the request of the Bank, from time to time, execute and deliver and, if necessary, file, register and record such further financing statements, amendments, confirmation statements and other documents and instruments and take such further action as may be reasonably necessary to effectuate the provisions of this Agreement and the Related Documents or to protect the interest of the Bank in the Trust Estate. Except to the extent it is exempt therefrom, the City will pay or cause to be paid all filing, registration and recording fees incident to such filing, registration and recording, and all expenses incident to the preparation, execution and acknowledgment of such instruments of further assurance, and all federal or state fees and other similar fees, duties, imposts, assessments and charges arising out of or in connection with the execution and delivery of this Agreement, the Related Documents and such instruments of further assurance. Section 6.5 Right of Entry. The City shall permit the duly authorized representatives of the Bank, upon reasonable prior notice, to enter the premises of the City, or any parts thereof (including any location comprising a portion of the Parking System), during normal business hours to examine and copy the City's financial and corporate books, records and accounts, and to discuss the affairs, finances, business and accounts of the City with the City's officers, directors and employees in order to monitor compliance with the provisions of this Agreement and the Related Documents. Section 6.6 Taxes. The City will pay, or cause to be paid, all Parity Obligations of the City promptly and in accordance with the terms thereof and to pay and discharge, or cause to be paid and discharged, promptly all taxes, assessments, and governmental charges or levies imposed upon it or the Parking System or upon the Parking System's income and profits, or upon any of the City's property, real, personal, or mixed, or upon any part thereof which comprises all or a portion of the Parking System, before the same shall become in default, except for those matters which are reasonably being contested in good faith by appropriate action or proceedings or for which the City has established adequate reserves in accordance with generally accepted accounting principles. Section 6.7 Performance of and Compliance With Covenants. The City shall fully and faithfully perform each of the covenants required of it, and use its best efforts to cause the Trustee, the Tender Agent and the Remarketing Agent to fully and faithfully perform each of the covenants required of each such party, pursuant to the provisions of the Related Documents• to which each is a party. {M1706888_6} 33 Section 6.8 Selection of 2008 Bonds for Redemption. The City shall select, or cause to be selected, for redemption any and all Bank Bonds prior to selecting, or causing to be selected, for redemption any 2008 Bonds that are not Bank Bonds. Section 6.9 Alternate Bond Credit Facility. (a) The City agrees to use its best efforts to obtain an Alternate Bond Credit Facility to replace the Letter of Credit, effect a conversion of the 2008 Bonds to a Commercial Paper Mode, Fixed Rate Mode or Term Rate Mode, or redeem or otherwise refinance the 2008 Bonds, as appropriate, in the event (i) the City shall fail to request an extension of the Expiration Date pursuant to Section 10.9(b) or the Bank shall decide not to extend the Expiration Date pursuant to Section 10.9(b), (ii) the City terminates this Agreement pursuant to Section 2.15, (iii) the Bank shall furnish a Notice of Termination Date to the Tender Agent or (iv) a Default Tender shall have been effected with any funds made available under the Letter of Credit. (b) The City agrees that any Alternate Bond Credit Facility will require, as a condition to the effectiveness of the Alternate Bond Credit Facility, that the issuer of the Alternate Bond Credit Facility will purchase from the Bank, on the date the Alternate Bond Credit Facility becomes effective, all Bank Bonds at par plus all accrued interest thereon (at the Bank Rate) through the date such Alternate Bond Credit Facility becomes effective. On such date, any and all amounts due hereunder and under the Bond Ordinance or the 2008 Bonds due to the Bank (including, without limitation, any Differential Interest Amount, any Excess Bank Bond Interest and any unpaid interest thereon) shall be payable in full to the Bank. (c) The City shall not permit an Alternate Bond Credit Facility to become effective with respect to less than all of the 2008 Bonds without the prior written consent of the Bank. Section 6.10 Reserved. Section 6.11 Preservation of Lien. The City shall take all necessary action to maintain and preserve the senior Lien and security interest of the Bank and the holders of the 2008 Bonds in the Trust Estate as a valid first priority senior Lien thereon, on a parity with any bonds currently outstanding under the Bond Ordinance and any Additional Bonds which may be issued from time to time under the Bond Ordinance. Section 6.12 Conversions; Defeasance. The City (a) will promptly furnish, or cause to be furnished, to the Bank, not later than its furnishing the same to the Remarketing Agent, a copy of any written notice furnished by the City to the Remarketing Agent pursuant to the Bond Ordinance indicating a proposed conversion of the interest rate on the 2008 Bonds to a Commercial Paper Mode, Fixed Rate Mode or Term Rate Mode; and (b) shall not permit a conversion of the interest rate on the 2008 Bonds to a Commercial Paper Mode, Fixed Rate Mode or Term Rate Mode without the prior written (M1706888_6) 34 consent of the Bank if, after giving effect to such conversion, any 2008 Bonds remain as Bank Bonds. If said conversion occurs, with the consent of the Bank, the City shall, on such Conversion Date, be obligated to pay to the Bank all obligations due hereunder (including any unpaid Differential Interest Amount and any other amounts payable to the Bank hereunder that are outstanding on said Conversion Date). In addition, the City will not defease, nor allow the defeasance of, the 2008 Bonds without having first satisfied all of its obligations hereunder and in connection with any Bank Bonds. Section 6.13 Proceeds of the 2008 Bonds. The proceeds of the 2008 Bonds will be used by the City solely for the purposes described herein, in the Official Statement and in the Related Documents. Section 6.14 Reserved. Section 6.15 Maintenance of Franchises. The City will use its best efforts to maintain, or cause to be maintained, all licenses and franchises, required by the State or any other Governmental Authority, for the operation of the Parking System, the loss of which would have a Material Adverse Effect. Section 6.16 Compliance with Rules and Regulations. The City shall use its best efforts to comply, and cause the Department to comply, with all laws applicable to the Parking System which, if not complied with, could reasonably be expected to result in a Material Adverse Effect. Section 6.17 Maintenance and Operation of the Parking System. The City covenants that it will use its best efforts to require the Department to at all times maintain the Parking System, or within the limits of its authority cause the same to be maintained, in good condition and working order and will operate the same, or cause the same to be operated, in an efficient and economical manner at a Teasonable cost and in accordance with sound business principles. In operating and maintaining the Parking System, the City will use its best efforts to require the Department to comply with all contractual provisions and agreements entered into by the City and with all rules, regulations, directions or orders of any governmental, administrative or judicial body promulgating same, noncompliance with which could reasonably be expected to result in a Material Adverse Affect. Section 6.18 Insurance. The City will use its best efforts to require the Department to keep, or cause to be kept, the Parking System insured either through self-insurance or with insurers of good standing against risks, accidents or casualties against which and to the extent customarily insured against by entities operating similar properties, to the extent that such insurance is available. All net proceeds of such insurance shall be applied in accordance with the Series Ordinance and the other Related Documents. (M1706888_6} 35 Section 6.19 Incorporation of Covenants by Reference. The City agrees that it will perform and comply with each and every covenant and agreement required to be performed or observed by it in the Related Documents, which provisions, as well as related defined terms contained therein, are hereby incorporated by reference herein with the same effect as if each and every such provision were set forth herein in its entirety all of which shall be deemed to be made for the benefit of the Bank and shall be enforceable by the Bank against the City, which covenants, agreements, definitions and provisions shall continue in effect with regard to the Bank without regard or giving effect to any amendment or modification of such provisions or any waiver of compliance therewith unless consented to in writing by the Bank. Section 6.20 Trustee and Tender Agent; Remarketing Agent. TD Bank, National Association, is the duly appointed and acting Trustee and Tender Agent. Thirty (30) days prior written notice shall be provided to the Bank by the City if a successor or assignee Trustee or Tender Agent is appointed. SunTrust Robinson Humphrey, Inc. (or a successor or assignee approved in writing by the Bank, such approval not to be unreasonably withheld) is the duly appointed and acting Remarketing Agent. The City shall use its best efforts to replace the Trustee, the Tender Agent or the Remarketing Agent upon the request of the Bank if such request is made for cause. Section 6.21 Federal Reserve Regulations. No proceeds from moneys received hereunder shall be used by the City in violation of Regulation U, as amended, promulgated by the Board of Governors of the Federal Reserve System. Section 6.22 Agreement Regarding Optional Redemption of 2008 Bonds. Commencing on July 1, 2016, the City shall cause the Trustee to redeem the principal amounts of the 2008 Bonds at the times and in the amounts set forth below, pursuant to and in accordance with the optional redemption provisions of the Indenture. {M1706888_6} 36 July 1st of the Year 2016 2017 2018 2019 2020 2021 2022 2023 2024 2025 2026 2027 2028 2029 2030 2031 2032 2033 2034 2035 2036 Principal Amount The City shall make four approximately equal quarterly payments into the Sinking Fund Account established under the Bond Ordinance on each January 1, April 1, July 1 and October 1, commencing July 1, 2015, in amounts sufficient to enable the Trustee to accomplish the optional redemptions in each year shown on the table above. The City hereby agrees to satisfy the reimbursement obligations of the City set forth in Section 2.5(b) hereof relating to any "B Drawing" to pay principal of the 2008 Bonds in connection with any optional redemption thereof required pursuant to this Section 6.22. ARTICLE VII. NEGATIVE COVENANTS For so long as the Letter of Credit is in effect or any amount is due or owing to the Bank under this Agreement or any Related Document, the City shall comply with each of the negative covenants contained in this Article VII unless the Bank shall have otherwise given its prior written consent: Section 7.1 Security Interests and Encumbrances. Except as otherwise provided in, or permitted by, the Bond Ordinance, the City shall not pledge, grant a security interest in, make an assignment of or permit the creation of any encumbrance on any of the Trust Estate or any part thereof, on a parity with any bonds currently outstanding under the Bond Ordinance and any Additional Bonds which may be issued from time to time under the Bond Ordinance. {MI706888_6) 37 Section 7.2 Amendments. Except as otherwise provided in Section 7.4 hereof with respect to Additional Bonds, the City shall not amend, modify or supplement, nor agree to any amendment or modification of, or supplement to, any material term of any Related Document without the express written consent of the Bank. Section 7.3 Permitted Investments. The City shall not invest or reinvest any funds held under the Bond Ordinance or permit any investment or reinvestment of funds held under the Bond Ordinance to remain invested, in any investment other than such Investment Obligations as are permissible under the Bond Ordinance. Section 7.4 Additional Bonds; Rate Covenant. Notwithstanding any provision in the Bond Ordinance to the contrary, the City shall not issue any Additional Bonds under the Bond Ordinance, except as provided below. Other than the (a) the 1998 Bonds previously issued and outstanding under the Bond Ordinance on or prior to the Effective Date, (b) the 2008 Bonds, and (c) Additional Bonds or other obligations that are to be Parity Obligations under the Bond Ordinance, the City shall not issue any Debt which is secured by or payable from the Trust Estate prior to or on parity with the 2008 Bonds. The City may issue Additional Bonds under the Bond Ordinance only if such Additional Bonds are authorized by law and the provisions of Section 209, 210 or 211, as the case may be, of the 1998 Bond Ordinance have been satisfied in full. Notwithstanding any provision in the Bond Ordinance to the contrary, the City shall comply with the provisions of Section 704 of the 1998 Bond Ordinance relating to rates, fees, rentals and charges for so long as the Bond Credit Facility is outstanding. Section 7.5 Successor Remarketing Agent and Remarketing Agreement. The City shall not appoint or permit or suffer to be appointed any successor Remarketing Agent without the prior written approval of the Bank (which approval shall not be unreasonably withheld); or enter into any successor Remarketing Agreement without the prior written approval of the Bank (which approval shall not be unreasonably withheld). Any approvals required from the Bank under this paragraph shall be given or denied within ten (10) Business Days of the request therefor (which request must be accompanied, in the case of a successor Remarketing Agreement, by a draft of such proposed successor Remarketing Agreement in fmal form), and the failure of the Bank to respond to such request by the close of business on the tenth day shall be deemed, on the eleventh day, to constitute consent by the Bank under this section. Section 7.6 Sale or Encumbrance of Parking System. The City will not sell, dispose of or further encumber or grant a lien on or other security interest in the Parking System, nor permit any other person or entity to do so, except as permitted under the Bond Ordinance. {M1706888 6} 38 Section 7.7 Accounting Methods and Fiscal Year. The City will not adopt, permit or consent to any change in its established Fiscal Year without giving the Bank prior written notice thereof. Section 7.8 Official Statement. Except with respect to the information provided by the Bank in writing to the City or the Department for inclusion in the Official Statement, neither the City nor the Department will refer to the Bank in any offering document or make changes in reference to the Bank in the Official Statement without the Bank's prior written consent thereto. Section 7.9 Maintenance of Tax -Exempt Status of the 2008 Tax Exempt Bonds. The City shall not take any action or omit to take any action which, if taken or omitted, would adversely affect the exclusion of interest on the 2008 Tax Exempt Bonds from gross income for purposes of the exemption of such interest from Federal income taxes. ARTICLE VIII. EVENTS OF DEFAULT Each of the following events shall constitute an "Event of Default": Section 8.1 Events of Default. (a) The City shall fail to pay (i) the Letter of Credit Fee specified in Section 2.2 hereof, and such amount shall remain unpaid for ten (10) Business Days after written notice of such failure has been given by the Bank to the City and the Department, or (ii) other amounts owing hereunder (other than those described in 8.1(a)(i) above or Section 8.1(h) below) and such amount shall remain unpaid for twenty (20) Business Days after written notice of such failure has been given by the Bank to the City and the Department. _ (b) Failure of the City to observe or perform any of the covenants or conditions contained in any one of Section 6.9, 6.11, 6.12(b), 7.1, 7.2, 7.4 or 7.6. (c) Failure of the City to observe or perform any of the covenants, conditions or provisions of this Agreement (other than as specified in subparagraph (a) or (b) above) or any Related Document and to remedy such default within thirty (30) days after such failure; provided, however, that any failure to comply with the reporting requirements of Section 6.2 hereof shall constitute an Event of Default hereunder only upon notice from the Bank thereof and a failure by the City to remedy such failure within fifteen (15) days of the receipt of such notice. (d) Any representation or warranty made by the City herein or in any certificate, financial or other statement furnished by the City to the Bank pursuant to this Agreement or any Related Document shall prove to have been untrue or incomplete in any material respect when made. {M1706888_6} 39 (e) (i) A final, nonappealable judgment or order for the payment of money in excess of $10,000,000 in the aggregate or (ii) two or more final, nonappealable judgments or orders for the payment of money in excess of $10,000,000 in the aggregate, in either case, shall be rendered against the City and attach to the Trust Estate with respect to which, in the opinion of the Bank, adequate cash reserves have not been established or adequate insurance does not exist, and such judgment(s) or order(s) shall continue unsatisfied and unstayed for a period of sixty (60) days. (f) The City shall apply for or consent to the appointment of, or the taking of possession by, a receiver, trustee, liquidator or custodian or the like of itself, of all or a substantial part of its assets or of all or a substantial part of the Parking System, admit in writing its inability, or be generally unable, to pay its debts as they become due, make a general assignment for the benefit of creditors, or commence a voluntary case as a debtor under the federal bankruptcy laws of the United States of America or file a voluntary petition or answer seeking reorganization, an arrangement with creditors or an order for relief as a debtor or seeking to take advantage of any insolvency law or file an answer admitting the material allegations of a petition filed against it in any bankruptcy, reorganization or insolvency proceeding, or action shall be taken by it for the purpose of effecting any of the fore going. (g) If a proceeding shall be instituted, without the application or consent of the City, in any court of competent jurisdiction under any law relating to bankruptcy, insolvency, reorganization, dissolution, winding up, liquidation, seeking a composition or arrangement with creditors, a readjustment of debts, the appointment of a trustee, receiver, liquidator or custodian or the like of the City, of all or a substantial part of its assets or of all or a substantial part of the Parking System, or other like relief in respect thereof under any bankruptcy or insolvency law, and the same shall result in the entry of an order for relief or any such adjudication or appointment, or continue undismissed, or pending and unstayed for any period of sixty (60) consecutive days. (h) The City shall (i) fail to make any payment or payments of any amount when due on any 2008 Bond (including any Bank Bond) or any Parity Obligation (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), or (ii) fail to perform or observe any term, covenant or condition on its part to be performed or observed under any such agreement or instrument (other than any failure to perform any term contemplated by sub -clause (i) hereof) if, in either case, the effect of such failure to perform or observe is to accelerate, or to permit the acceleration of the maturity of or mandatory redemption of, any 2008 Bond (including any Bank Bond) or any Parity Obligation. (i) The Series Ordinance, the 2008 Bonds (including any Bank Bonds), any Parity Obligation, the 1998 Bond Ordinance or this Agreement shall be declared, pursuant to a final and nonappealable order of a court of competent jurisdiction, to be not binding in any material respect which has an adverse affect on the City's obligations to the Bank under this Agreement, or any obligations or duties of the City under any Related Document. (j) The City shall, in writing to the Trustee, the Bank or, in a public statement, claim that the Series Ordinance, the 2008 Bonds (including any Bank Bonds), any Parity Obligation, the 1998 Bond Ordinance or this Agreement is/are not valid or binding on the (M1706888_6) 40 City, or repudiate its obligations under the Series Ordinance, the 2008 Bonds (including any Bank Bonds), any Parity Obligation, the 1998 Bond Ordinance or this Agreement or (ii) the City shall file any legal proceedings to seek an adjudication that the Series Ordinance, the 2008 Bonds (including any Bank Bonds), any Parity Obligation, the 1998 Bond Ordinance or this Agreement is/are not valid or binding on the City. (k) Any Governmental Authority with jurisdiction to rule on the validity of the Series Ordinance, the 2008 Bonds (including any Bank Bonds), any Parity Obligation, the 1998 Bond Ordinance or this Agreement shall publicly find or rule that the Series Ordinance, the 2008 Bonds (including any Bank Bonds), any Parity Obligation, the 1998 Bond Ordinance or this Agreement, as the case may be, is not valid or not binding on the City, or (ii) any Governmental Authority with jurisdiction over the City and the affairs of the City shall have declared or imposed a debt moratorium, debt adjustment or comparable restriction on repayment of the 2008 Bonds (including any Bank Bonds) or any Parity Obligation. (1) The occurrence of a Bond Ordinance Event of Default. Section 8.2 Reserved. Section 8.3 Remedies. (a) In the case of any Event of Default described in Section 8.1(a), the Bank may give written notice of such Event of Default and termination of the Agreement (a "Notice of Termination Date") to the Trustee, the Tender Agent, the City and the Remarketing Agent requesting a Default Tender. If the Bank elects to deliver such Notice of Termination Date, it shall include therein a direction to the Tender Agent to cause a mandatory tender and purchase of 2008 Bonds in accordance with Section 6.05 of the Series Ordinance. The obligation of the Bank to purchase 2008 Bonds shall terminate on the thirtieth (30th) day (or if such day is not a Business Day, the next following Business Day) after such Notice of Termination Date is received by the Tender Agent and on such date the Available Commitment shall terminate and the Bank shall be under no obligation hereunder to purchase 2008 Bonds. (b) Upon the occurrence of any Event of Default, the Bank shall have all remedies provided at law or equity, including, without limitation, specific performance. (c) The remedies provided in Section 8.3(a) hereof shall only be exclusive with respect to such Events of Default to the extent they are obtained by the Bank. If, for any reason whatsoever the Bank is not able to obtain all such remedies, then the Bank hereby reserves the right and shall have the right to pursue any other available remedies, whether provided by law, equity or this Agreement. ARTICLE IX. OBLIGATIONS ABSOLUTE Section 9.1 Obligations Absolute. The obligations of the City under this Agreement shall be absolute, unconditional and irrevocable and shall be paid or performed strictly in accordance with the terms of this {MI706888_6} 41 Agreement, under all circumstances whatsoever, including, without limitation, the following circumstances: (a) any lack of validity or enforceability of this Agreement, any Related Document or any other agreement or instrument delivered in connection herewith or therewith; (b) any amendment or waiver of, or any consent to or departure from, the terms of any of the Related Documents; (c) the existence of any claim, set-off, defense or other right which the City may have at any time against the Tender Agent, the Trustee, the Remarketing Agent, the Bank or any other Person, whether in connection with this Agreement, the Related Documents or any unrelated transaction; provided, that nothing herein contained shall prevent the assertion of such claim by separate suit; (d) any statement or any other document presented (other than by the Bank) under this Agreement or any of the Related Documents proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect whatsoever; or (e) any other circumstances or happening whatsoever, whether or not similar to any of the foregoing. ARTICLE X. MISCELLANEOUS Section 10.1 Liability of the Bank. (a) With respect to the Bank, the City assumes all risks of the acts or omissions of the Trustee or the Tender Agent and its agents in respect of its use of the Letter of Credit. Neither the Bank nor any of its officers or directors shall be liable or responsible for: (i) the use which may be made of the Letter of Credit or any amounts made available by the Bank thereunder or for any acts or omissions of the Trustee, the Tender Agent or Remarketing .Agent or their agents in connection therewith; (ii) the validity, sufficiency or genuineness of documents, or of any endorsement(s) thereon, even if such documents should in fact prove to be in any or all respects invalid, insufficient, fraudulent or forged; or (iii) any other circumstances whatsoever in making or failing to make payment under the Letter of Credit, except only that the City shall have a claim against the Bank and the Bank shall be liable to the City to the extent, but only to the extent, of any direct, as opposed to consequential, damages suffered by the City which the City proves were caused by the Bank's violation of law, gross negligence or willful failure to make payment under the Letter of Credit in accordance with the terms thereof. In furtherance and not in limitation of the foregoing, the Bank may accept documents that the Bank in good faith determines appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary. (b) The City assumes all risks associated with the acceptance by the Bank of documents received by telecommunication, it being agreed that the use of telecommunication (M1706888 6} 42 devices is for the benefit of the City and that the Bank assumes no liabilities or risks with respect thereto. Section 10.2 Expenses; Indemnification. (a) The City shall pay to the Bank all costs and expenses incurred by the Bank, including reasonable fees and out-of-pocket expenses of counsel for the Bank, arising in connection with the preparation, execution, delivery, administration and enforcement of, and preservation of rights in connection with a workout, restructuring or default under, this Agreement, the 2008 Bonds and the other Related Documents and any and all stamp and other taxes and fees payable or determined to be payable in connection with the execution and delivery of this Agreement and any other documents or instruments that may be delivered in connection herewith; provided, however, that in connection with the preparation, execution and delivery of this Agreement on and prior to the Effective Date, the fees and disbursements of the Bank's counsel shall equal $ , plus reasonable expenses. (b) To the extent permitted by law and solely from the Trust Estate or any other sources available therefor, the City agrees to indemnify and hold harmless the Bank, its officers, directors, employees and agents (each an "Indemnified Party") from and against any and all claims, damages, losses, liabilities, costs or expenses whatsoever which an Indemnified Party may incur (or which may be claimed against an Indemnified Party by any Person) by reason of or in connection with the execution and delivery of and consummation of the transactions contemplated under this Agreement, the Official Statement and the Related Documents, including, without limitation, (i) the offering, sale, remarketing or resale of 2008 Bonds (including, without limitation, by reason of any untrue statement or alleged untrue statement contained or incorporated by reference in any preliminary official statement or the Official Statement, or in any supplement or amendment thereof, prepared with respect to the 2008 Bonds, or the omission or alleged omission to state therein a material fact necessary to make such statements, in light of the circumstances under which they are or were made, not misleading or the failure to deliver a preliminary official statement or the Official Statement to any offeree or purchaser of 2008 Bonds) and (ii) the execution and delivery of, or payment or failure to pay by any Person under, this Agreement; provided, that in the case of any action or proceeding alleging an inaccuracy in a material respect, or an untrue statement, with respect to information supplied in writing by the Bank contained the Official Statement or any amendment or supplement thereto or any other offering materials (the "Bank Information"), then the City shall not be required to indemnify the Bank pursuant to this Section for any claims, damages, losses, liabilities, costs or expenses to the extent caused by such inaccuracy or untrue statement. Nothing in this Section 10.2 is intended to limit the obligations of the City under the 2008 Bonds or of the City to pay its obligations hereunder and under the Related Documents. (c) Any Indemnified Party shall give the City timely notice of and shall forward to the City any and every demand, notice, summons or other process, any other writing received with respect to any claim or legal proceedings within the purview of this Section 10.2, or, if such claim is oral, a written summary thereof. In the event that any action or proceeding is brought against any Indemnified Party with respect to which indemnity may be sought under this Section 10.2, the City, upon written notice from such indemnified Party, shall assume the investigation and defense of the action or proceeding, including the employment of counsel {M1706888_6} 43 selected by the City, subject to the approval of the Indemnified Party, which approval shall not be unreasonably withheld, and shall assume the payment of all expenses related to the action or proceeding, with full power to litigate, compromise or settle the same in its sole discretion; provided, however, that such Indemnified Party shall have the right to review and approve or disapprove any such compromise or settlement (which approval shall not be unreasonably withheld or delayed). Any indemnified Party that has made a claim for indemnification under this Section shall cooperate with the City in the defense of such claim. Notwithstanding the foregoing, the City shall have no obligations under this Section 10.2 to indemnify or hold any Indemnified Party harmless from any violation of law, gross negligence or willful act of such Indemnified Party or its officers, directors, employees or agents. Notwithstanding the foregoing provisions of this subsection (c), the City's obligation to indemnify and hold an Indemnified Party harmless shall be reduced to the extent the failure or delay of such Indemnified Party in providing the City with the timely notice of the matters described hereinabove impairs the City's rights or ability to defend or make such claims regarding any such proceeding. (d) The provisions of this Section 10.2 and Sections 2.10 and 2.11 shall survive the termination of this Agreement and the payment in full of the 2008 Bonds and the obligations of the City hereunder. Each Indemnified Party shall notify the City of any amounts which are owed to such Indemnified Party pursuant to this Section 10.2. Section 10.3 Notices. Unless otherwise specified herein, all notices, requests, demands or other communications to or upon the respective parties hereto or referred to herein shall be deemed to have been given (a) in the case of notice by letter, when delivered by hand or four (4) days after the same is deposited in the malls, first class postage prepaid, (b) in the case of notice by telex, when sent, answerback received, and (c) in the case of notice by telecopier, when sent, receipt confirmed, addressed to them as follows or at such other address as any of the parties hereto may designate by written notice to the other parties hereto and the Remarketing Agent: City: (M1706888_6} The City of Miami, Florida c/o Department of Off -Street Parking 190 N.E. Third Street Miami, FL 33132 Attention: Chief Financial Officer Telephone : (305) 579-7552 ext. 232 Telecopy: (305) 371-9451 with copies to: City of Miami City Attorney 444 S.W. 2nd Avenue, Suite 945 Miami, FL 33130 Fax: 305-416-1801 44 Bank: Tender Agent/Trustee: Remarketing Agent: SunTrust Bank 777 Brickel Avenue, 4th Floor Miami, FL 33131 Attention: Letter of Credit Department with copies to: SunTrust Bank 25 Park Place, 16th Floor Atlanta, Georgia 30303 Attention: Standby Letters of Credit Department - and - Adomo & Yoss, LLP 2525 Ponce de Leon Boulevard Suite 400 Miami, FL Attention: Jeffrey DeCarlo TD Bank, National Association Corporate Trust Department 7545 Centurion Parkway, #402 Jacksonville, Florida 32256 Telephone: 904-645-8339 Fax: 904-645-8447 Attention: Jane Pope SunTrust Robinson Humphrey, Inc. 3333 Peachtree Street l lth Floor Atlanta, Georgia 30326 Attention: Municipal Desk Section 10.4 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the City, the Tender Agent and the Bank and their respective successors, endorsees and assigns, except that the City may not assign or transfer its rights or obligations hereunder without the prior written consent of the Bank and the Bank may not assign or transfer its rights or obligations hereunder, except as hereinafter provided in this Section 10.4, without the City having previously obtained from each Rating Agency then maintaining a rating on the 2008 Bonds a written confirmation of its rating on the 2008 Bonds and whether said rating shall be reduced, withdrawn or suspended as a result, as and to the extent said rating is derived from the Bank and this Agreement. The Bank may grant a participation to any financial institution in all or any part of, or any interest (undivided or divided) in, the Bank's rights and benefits under this Agreement, any 2008 Bonds owned by it {MI706888_6} 45 and the other Related Documents and, to the extent of that participation such participant shall, except as set forth in the following clause (b), have the same rights and benefits against the City hereunder as it would have had if such participant were the Bank hereunder; provided, that (a) no such participation shall affect the obligations of the Bank to purchase 2008 Bonds as herein provided; (b) the City shall be required to deal only with the Bank with respect to any matters under this Agreement and no such participant shall be entitled to enforce directly against the City any provision hereunder; (c) the City shall not be required to pay any fee or charge to such participant that it would not be required to pay to the Bank pursuant to this Agreement; and (d) such participant shall not be any Person registered as an investment company under the Investment Company Act of 1940, as amended, substantially all of the assets of which are invested in obligations exempt from federal income taxation under Section 103 or 103A of the Code or any similar or successor provision. Except as set forth hereinabove with respect to the grant of participations, the obligations of the Bank under this Agreement or any part hereof may be assigned by the Bank to any financial institution; provided, however, that the Bank may assign and pledge all or any portion of the amounts owing to it with respect to Bank Bonds to any Federal Reserve Bank or the United States Treasury as collateral security pursuant to Regulation A of the Board of Govemors of the Federal Reserve System and any Operating Circular issued by such Federal Reserve Bank. No such assignment shall release the Bank from its obligations hereunder. Section 10.5 Governing Law; Waiver of Trial by Jury. (a) (a) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF FLORIDA. (b) EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT TO TRIAL BY JURY FOR ANY TRIAL RESULTING EITHER DIRECTLY OR INDIRECTLY OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE RELATED DOCUMENTS. EACH PARTY HERETO FURTHER AGREES THAT, IN THE EVENT OF LITIGATION, IT WILL NOT PERSONALLY OR THROUGH ITS AGENTS OR ATTORNEYS SEEK TO REPUDIATE THE VALIDITY OF THIS SECTION 11.5, AND IT ACKNOWLEDGES THAT IT FREELY AND VOLUNTARILY ENTERED INTO THIS AGREEMENT TO WANE TRIAL BY JURY IN ORDER TO INDUCE THE BANK TO ENTER INTO THIS AGREEMENT. Section 10.6 No Waivers; Amendments, Etc. No provision of this Agreement shall be waived, amended or supplemented except by a written instrument executed by the parties hereto. Each party hereto agrees to use its best efforts to deliver to the Trustee, the Tender Agent and the Remarketing Agent a copy of any amendment to this Agreement. {M1706888 6} 46 Section 10.7 Counterparts. This Agreement may be executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. Section 10.8 Source of Funds. The Bank agrees that all funds provided by the Bank under the Letter of Credit will be paid from funds of the Bank and not directly or indirectly from funds or collateral on deposit with or for the account of, or pledged with or for the account of, the Bank by the City. Section 10.9 Term of the Agreement. (a) The term of this Agreement shall be until the later of (x) the last day of the Commitment Period and (y) the payment in full of the principal of and interest on all Bank Bonds and all other amounts due hereunder. (b) In connection with each extension of the Expiration Date, no earlier than ninety (90) days prior to each anniversary of the Effective Date, and no later than sixty (60) days prior to each anniversary of the Effective Date (which periods may be waived by the Bank), the City may request in writing (substantially in the form of Exhibit A hereto) to the Bank (such request being irrevocable) to extend the Expiration Date of this Agreement by no less than one (1) year or to a date designated by the City in such request. If the City makes any such request, the Bank will, not less than thirty (30) days after such request, notify the City in writing whether or not the Bank consents to such request and, if the Bank consents to such request, the terms under which the Bank will consent to such request. If the Bank does not so notify the City within such period of time, the Bank shall be deemed not to have consented to such request. The Bank's determination to extend the Expiration Date shall be in its sole and absolute discretion and any request for an extension from the City shall entitle both parties hereto to re -negotiate any terms hereof. Section 10.10 Right of Set -Off. (a) Upon the occurrence of an Event of Default, the Bank may, at any time and from time to time, without notice to the City or any other person (any such notice being expressly waived), set off and appropriate and apply, against and on account of, any obligations of the City to the Bank, without regard to whether or not the Bank shall have made any demand therefor, and although such obligations may be contingent or unmatured, any and all deposits (general or special, including but not limited to indebtedness evidenced by certificates of deposit, whether matured or unmatured, but not including trust accounts) and any other indebtedness at any time held or owing by the Bank to or for the credit or the account of the City; provided, however, that any of said deposits that are held or owing to the Bank in connection with any agreement or other arrangement pursuant to which the Bank offers credit and/or liquidity support for other debt of the City shall not be available for set off or appropriation and application as set forth in this Section 10.10. (b) The Bank agrees promptly to notify the City after any such set-off and application referred to in subsection (a) above; provided, that the failure to give such notice shall {M1706888_6} 47 not affect the validity of such set-off and application. The rights of the Bank under this Section 10.10 are in addition to other rights and remedies (including, without limitation, other rights of set-off) which the Bank may have hereunder. Section 10.11 Headings. Section headings in this Agreement are included herein for convenience of reference only and shall not have any effect for purposes of interpretation or construction of the terms of Agreement. Section 10.12 Complete and Controlling Agreement; Severability. This Agreement and the other Related Documents completely set forth the agreements between the Bank and the City and supersede all prior agreements, both written and oral, between the Bank and the City relating to the matters set forth herein and in the Related Documents. In case any one or more of the provisions of this Agreement, for any reason, is held to be illegal or invalid, such illegality or invalidity shall not affect any other provisions of this Agreement and this Agreement shall be construed and enforced to the end that the transactions contemplated hereby be effected and the obligations contemplated hereby be enforced as if such illegal or invalid provisions had not been contained therein. Section 10.13 City's Obligation. Notwithstanding anything herein to the contrary, the City's payment obligations hereunder are payable solely from sources available under the Bond Ordinance in accordance with its terms. Section 10.14 No Personal Liability or Accountability. No covenant or agreement contained in this Agreement shall be deemed to be the covenant or agreement of any official, officer, employee or agent of the City or the Department in his or her individual capacity, and neither any member of the City Commission nor any official executing this Agreement shall be liable personally hereunder. Section 10.15 Patriot Act. The Bank hereby notifies the City that pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the "Patriot Act"), it is required to obtain, verify and record information that includes the name and address of the City and other information that will allow the Bank to identify the City in accordance with the Patriot Act. (M1706888 6} 48 In Witness Whereof, the parties hereto have caused this Agreement to be duly executed and delivered by their respective officers thereunto duly authorized as of the dates set forth below. THE CITY OF MIAMI By: Pedro G. Hernandez, City Manager [SEAL] Attest: By: Priscilla Thompson, City Clerk DEPARTMENT OF OFF-STREET PARKING OF THE CITY OF MIAMI By: Arthur Noriega, V., Executive Director [SEAL] Attest: By: Secretary (MI706888_6} (Signature Page - Letter of Credit Agreement) 49 {M1706888_6} SUNTRUST BANK By: Delle Joseph, Vice President (Signature Page - Letter of Credit Agreement) 50