Transcription

1 The enclosed electronic (PDF) document has been created by scanning an original paper document. Optical Character Recognition (OCR) has been used to create searchable text. OCR technology is not perfect, and therefore some words present in the original document image may be missing, altered or may run together with adjacent words in the searchable text. CONTINUING COVENANT AGREEMENT SUBSERIES 2008C

2 CONTINUING COVENANT AGREEMENT dated as of December 1, 2011, between CITY OF CHICAGO and PNC BANK, NATIONAL ASSOCIATION Relating to $116,115,000 SECOND LIEN WASTEWATER TRANSMISSION VARIABLE RATE REVENUE REFUNDING BONDS, SUBSERIES 2008C B.doc

3 TABLE OF CONTENTS SECTION HEADING PAGE ARTICLE I DEFINITIONS...1 Section Certain Defined Terms...1 Section Computation of Time Periods...11 Section Construction...11 Section Incorporation of Certain Definitions by Reference...11 Section Accounting Terms and Determinations...11 Section Relation to Other Documents; Acknowledgment of Different Provisions of Related Documents; Incorporation by Reference...11 ARTICLE II Section PURCHASE OF BONDS...12 Purchase of Bonds...12 ARTICLE III THE CITY S OBLIGATIONS...12 Section Payment Obligations...12 Section Increased Payments...14 Section Obligations Absolute...16 Section Funding Indemnity...16 Section Optional Redemption or Conversion Fee...17 Section Bank Consent to Subsequent Index Interest Rate Period...17 ARTICLE IV CONDITIONS PRECEDENT TO PURCHASE OF BONDS...18 Section Documentary Requirements...18 Section Litigation...19 Section Other Matters...19 Section Payment of Fees and Expenses...19 ARTICLE V REPRESENTATIONS AND WARRANTIES...19 Section Due Authorization...20 Section Enforceability...20 Section Ordinance...20 Section Priority...20 Section Consents...20 Section No Violation...20 Section Litigation...20 Section Security; No Prior Lien...21 Section Trust Estate...21 Section Validity of Lien...21 Section Organization...21 Section Financial Statements i-

4 Section Complete and Correct Information...22 Section Absence of Default...22 Section Liens...22 Section No Existing Revenues Secured Debt Subject to Acceleration...22 Section Environmental Laws...22 Section No Proposed Legal Changes...22 Section Tax-Exempt Status of Bonds...23 Section Usury...23 Section Margin Stock...23 Section Incorporation of Representations and Warranties...23 Section OFAC Sanctions...23 ARTICLE VI COVENANTS...23 Section Affirmative Covenants of the City...23 Section Negative Covenants of the City...27 ARTICLE VII EVENTS OF DEFAULT...28 Section Events of Default...28 Section Consequences of an Event of Default...30 Section Remedies Cumulative; Solely for the Benefit of Bank...31 Section Waivers or Omissions...32 Section Discontinuance of Proceedings...32 Section Injunctive Relief...32 ARTICLE VIII Section Section INDEMNIFICATION...32 Indemnification...32 Survival...33 ARTICLE IX MISCELLANEOUS...33 Section Compliance with OFAC Sanctions Programs...33 Section Further Assurances...33 Section Amendments and Waivers; Enforcement...34 Section No Implied Waiver; Cumulative Remedies...34 Section Notices...34 Section No Third-Party Rights...35 Section Severability...35 Section Governing Law; Consent to Jurisdiction and Venue; Service of Process...35 Section Sovereign Immunity...36 Section Prior Understandings...36 Section Duration...Error! Bookmark not defined. Section Counterparts...37 Section Successors and Assigns ii-

5 Section Headings...38 Section Acknowledge and Appointment as the Calculation Agent...38 Section Source of Payments...39 Section Acknowledgement and Consent to Indenture...39 Section Electronic Signatures...39 EXHIBITS EXHIBIT A FORM OF NO DEFAULT CERTIFICATE -iii-

6 CONTINUING COVENANT AGREEMENT THIS CONTINUING COVENANT AGREEMENT, dated as of December 1, 2011 (as amended, modified or restated, this Agreement ), between the City of Chicago (the City ), a municipal corporation and home rule unit of local government organized and existing under the Constitution and laws of the State of Illinois, and PNC BANK, NATIONAL ASSOCIATION, a national banking association. RECITALS WHEREAS, the City has issued its Second Lien Wastewater Transmission Variable Rate Refunding Bonds, Subseries 2008C-1 (the Bonds ) pursuant to an ordinance adopted by the city Council of the City on May 14, 2008, together with an ordinance adopted by the City Council on May 11, 2011, authorizing the restructuring of outstanding revenue indebtedness, (together the Ordinance ), and a Trust Indenture dated as of October 1, 2008, as previously amended and restated, and as further amended and restated by that certain Amended and Restated Trust Indenture dated as of December 1, 2011 (as the same may be further amended, modified or restated in accordance with the terms thereof and hereof, the Indenture ), by and between the City and Amalgamated Bank of Chicago, as trustee (the Trustee ); and WHEREAS, the Bank has agreed to purchase the Bonds in connection with the conversion of the interest rate on all of the Bonds from the Weekly Rate (as hereinafter defined) to the Index Interest Rate (as hereinafter defined), and as a condition to such purchase, the Bank has required the City to enter into this Agreement. NOW, THEREFORE, to induce the Bank to purchase the Bonds, and for other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the City and the Bank hereby agree as follows: ARTICLE I DEFINITIONS Section Certain Defined Terms. In addition to the terms defined in the recitals and elsewhere in this Agreement and the Indenture, the following terms shall have the following meanings: Accredited Investor means accredited investors as defined in Rule 501 of Regulation D under the 1933 Act. Affiliate means, with respect to any Person, any Person that directly or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, such first Person. A Person shall be deemed to control another Person for the purposes of this definition if such first Person possesses, directly or indirectly, the power to direct, or cause

7 the direction of, the management and policies of the second Person, whether through the ownership of voting securities, common directors, trustees or officers, by contract or otherwise. Agreement has the meaning set forth in the introductory paragraph hereof. Amortization End Date means the earlier to occur of (a) the third (3rd) anniversary of the Mandatory Tender Date, (b) the date on which the interest rate on all of the Bonds have been converted to an interest rate other than the Index Interest Rate and (c) the date on which all Bonds are redeemed, repaid, prepaid or cancelled in accordance with the terms of the Indenture. Amortization Payment has the meaning set forth in Section 3.01(b) hereof. Amortization Payment Date means (a) the Initial Amortization Payment Date and the first Business Day of each January and July to occur thereafter which occurs prior to the related Amortization End Date and (b) the related Amortization End Date. Amortization Period has the meaning set forth in Section 3.01(b) hereof. Applicable Factor means. Applicable Spread means a rate per annum associated with the Level corresponding to the lowest long-term unenhanced debt rating assigned by any of Moody s, Fitch or S&P to any Debt of the City payable from or secured by the Second Lien Bond Revenues (each, a Rating ), as specified below. MOODY S FITCH APPLICABLE LEVEL RATING S&P RATING RATING SPREAD Level 1 A1 or above A+ or above A+ or above Level 2 A2 A A Level 3 A3 A- A Level 4 Baa1 BBB+ BBB+ Level 5 Baa2 BBB BBB Level 6 Baa3 BBB- BBB- In the event of split Ratings (i.e., one of the Rating Agencies ratings is at a different level than the rating of another Rating Agency), the Applicable Spread shall be based upon the Level in which the lowest Rating appears. Any change in the Applicable Spread resulting from a change in a Rating shall be and become effective as of and on the date of the announcement of the change in such Rating. References to Ratings above are references to rating categories as presently determined by the Rating Agencies and in the event of adoption of any new or changed rating system, the ratings from the Rating Agency in question referred to above shall be deemed to refer to the rating category under the new rating system that most closely approximates the applicable rating category as currently in effect. The City acknowledges that as of the Effective Date the Applicable Spread is that specified above for Level

8 Authorized Officer means the Mayor, the Chief Financial Officer, the Comptroller or any other officer of the City authorized to act on their behalf. Bank means, initially, PNC Bank, National Association, a national banking association, and its successors and assigns, and upon the receipt from time to time by the Trustee and the City of a notice described in Section 9.13(a) from time to time means the Person designated in such notice as the Bank, as more fully provided in Section 9.13(a) hereof. Bank Affiliate means the Bank and any Affiliate of the Bank, and includes, without limitation, PNC Bank, National Association and PNC Capital Markets, Inc. Bank Transferee has the meaning set forth in Section 9.13(b) hereof. Base Rate means, for any day, a fluctuating rate of interest per annum equal to the greatest of (i) the Bank s Prime Rate in effect at such time, (ii) the Federal Funds Open Rate in effect at such time plus one percent (1.0%), or (iii) seven percent (7.0%). Bond Counsel means collectively, Schiff Hardin LLP and Gonzalez, Saggio and Harlan, L.L.C., or any other firm of attorneys nationally recognized on the subject of tax-exempt municipal finance selected by the City. Bondholder means the Bank and each Bank Transferee or Non-Bank Transferee pursuant to Section 9.13 hereof so long as such Bank Transferee or Non-Bank Transferee is an owner of Bonds. Bonds has the meaning set forth in the recitals hereof. Business Day means a day which is not (a) a Saturday, Sunday or legal holiday on which banking institutions in City of Chicago, Illinois or the City of New York, New York or the states where the principal corporate officer of the City or the principal corporate trust office of the Trustee is located are authorized by law to close, (b) a day on which the New York Stock Exchange or the Federal Reserve Bank is closed or (c) a day on which the principal offices of the Calculation Agent or the principal office of the Bank is closed. Calculation Agent has the meaning assigned to such term in the Indenture. Capital Lease means any lease of Property which, in accordance with GAAP, is required or permitted to be capitalized on the financial statements of the lessee. City has the meaning set forth in the introductory paragraph hereof. Code means the Internal Revenue Code of 1986, as amended, and, where appropriate any statutory predecessor or any successor thereto. Constitution means the 1970 Constitution of the State of Illinois. -3-

9 Debt of any Person means at any date, without duplication: (a) all obligations of such Person for borrowed money and reimbursement obligations under letters of credit which are not contingent; (b) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments; (c) all net obligations of such Person under any Swap Agreement; (d) 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; (e) all obligations of such Person as lessee under Capital Leases; (f) 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 (g) all Guarantees by such Person. Default means any event or condition which, with notice, the passage of time or any combination of the foregoing, would constitute an Event of Default. Default Rate means, for any day, a rate of interest per annum equal to the sum of the Base Rate in effect on such day plus three percent (3%). Determination of Taxability means and shall be deemed to have occurred on the first to occur of the following: (i) on that date when the City files any statement, supplemental statement or other tax schedule, return or document which discloses that an Event of Taxability shall have in fact occurred; (ii) on the date when the City shall be advised in writing by the Commissioner or any District Director of the Internal Revenue Service (or any other government official or agent exercising the same or a substantially similar function from time to time) that, based upon filings of the City, or upon any review or audit of the City or upon any other ground whatsoever, an Event of Taxability shall have occurred; or (iii) on that date when the City shall receive notice from the Bondholder or any former Bondholder that the Internal Revenue Service (or any other government official or agency exercising the same or a substantially similar function from time to time) has assessed as includable in the gross income of such Bondholder or such former Bondholder the interest on the Bonds due to the occurrence of an Event of Taxability; provided, however, no Determination of Taxability shall occur under subparagraph (ii) or (iii) hereunder unless the City has been afforded the opportunity, at its expense, to contest any such assessment, and, further, no Determination of Taxability shall occur until such contest, if made, has been finally determined. Effective Date means December 14, 2011, subject to the satisfaction or waiver by the Bank of the conditions precedent set forth in Article IV hereof. EMMA means Electronic Municipal Market Access as provided by the Municipal Securities Rulemaking Board. -4-

10 Environmental Laws means any and all Federal, state, local, and foreign statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises, licenses, agreements or governmental restrictions relating to pollution and the protection of the environment or the release of any materials into the environment, including those related to hazardous substances or wastes, air emissions and discharges to waste or public systems. Event of Default with respect to this Agreement has the meaning set forth in Section 7.01 of this Agreement and, with respect to any Related Document, has the meaning assigned therein. Event of Taxability means a (i) change in Law or fact or the interpretation thereof, or the occurrence or existence of any fact, event or circumstance (including, without limitation, the taking of any action by the City, or the failure to take any action by the City, or the making by the City of any misrepresentation herein or in any certificate required to be given in connection with the issuance, sale or delivery of the Bonds) which has the effect of causing interest paid or payable on the Bonds to become includable, in whole or in part, in the gross income of the Bondholder or any former Bondholder for federal income tax purposes or (ii) the entry of any decree or judgment by a court of competent jurisdiction, or the taking of any official action by the Internal Revenue Service or the Department of the Treasury, which decree, judgment or action shall be final under applicable procedural law, in either case, which has the effect of causing interest paid or payable on the Bonds to become includable, in whole or in part, in the gross income of the Bondholder or any former Bondholder for federal income tax purposes with respect to the Bonds. Excess Interest Amount has the meaning set forth in Section 3.02(d) of this Agreement. Federal Funds Open Rate means, for any day, the rate per annum which is the daily federal funds open rate as quoted by ICAP North America, Inc. (or any successor) as set forth on the Bloomberg Screen BTMM for that day opposite the caption OPEN (or on such other substitute Bloomberg Screen that displays such rate), or as set forth on such other recognized electronic source used for the purpose of displaying such rate as selected by the Bank (an Alternate Source ) (or if such rate for such day does not appear on the Bloomberg Screen BTMM (or any substitute screen) or on any Alternate Source, or if there shall at any time, for any reason, no longer exist a Bloomberg Screen BTMM (or any substitute screen) or any Alternate Source, a comparable replacement rate determined by the Bank at such time (which determination shall be conclusive absent manifest error); provided, however, that if such day is not a Business Day, the Federal Funds Open Rate for such day shall be the open rate on the immediately preceding Business Day. The rate of interest charged shall be adjusted as of each Business Day based on changes in the Federal Funds Open Rate without notice to the City. The rate of interest charged will be provided to the City upon request. Fiscal Year means the twelve month period from January 1 through the following December 31. Fitch means Fitch, Inc., and its successors and assigns. -5-

11 FRB means the Board of Governors of the Federal Reserve System of the United States, together with any successors thereof. Generally Accepted Accounting Principles or GAAP means generally accepted accounting principles in effect from time to time in the United States and applicable to entities such as the City. Governmental Authority means any federal, 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 at law. Guarantee means, as to any Person, any (a) any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Debt or other obligation payable or performable by another Person (the primary obligor ) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Debt or other obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Debt or other obligation of the payment or performance of such Debt or other obligation, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such Debt or other obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Debt or other obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of such Person securing any Debt or other obligation of any other Person, whether or not such Debt or other obligation is assumed by such Person (or any right, contingent or otherwise, of any holder of such Debt to obtain any such Lien). The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith. The term Guarantee as a verb has a corresponding meaning. Indemnitee has the meaning set forth in Section 8.01 hereof. Indenture has the meaning set forth in the recitals hereof. Index Interest Rate has the meaning assigned to such term in the Indenture. Index Interest Rate Period has the meaning assigned to such term in the Indenture. Initial Amortization Payment Date means the first January 1 or July 1 to occur at least 270 days after the Mandatory Tender Date. -6-

12 Initial Index Rate Termination Date means December 1, Initial Period has the meaning assigned to such term in the Indenture. Interest Payment Date shall mean with respect to the Bonds, the first Business Day of each month. Initial Swap Agreement has the meaning set forth in the Indenture. Initial Swap Provider has the meaning set forth in the Indenture. Investor Letter has the meaning set forth in Section 9.13(b) hereof. Laws means, collectively, all international, foreign, Federal, state and local statutes, treaties, rules, guidelines, policies, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of any Governmental Authority, in each case whether or not having the force of law. Liabilities has the meaning set forth in Section 8.01 hereof. Lien means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement in the nature of a security interest of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any easement, right of way or other encumbrance on title to real property, and any financing lease having substantially the same economic effect as any of the foregoing). Mandatory Tender Date means (i) the date on which the Bonds are subject to mandatory tender for purchase on the Initial Index Rate Termination Date or (ii) the fifth (5th) Business Day after receipt by the Trustee of notice of an Event of Default from the Bank and directing the Trustee to cause a mandatory tender of the Bonds as provided in Section 3.8 of the Indenture. Mandatory Tender Purchase Price means an amount equal to 100% of the principal amount of the Bonds subject to mandatory tender for purchase on the Mandatory Tender Date. Margin Stock has the meaning ascribed to such term in Regulation U promulgated by the FRB, as now and hereafter from time to time in effect. Material Adverse Effect means, as to the City, any material adverse change in or effect on (i) the operations, assets, liabilities, condition (financial or otherwise) or results of operations of the Sewer System, (ii) the ability of the City to consummate the transactions contemplated by this Agreement or any of the Related Documents, (iii) the ability of the City to perform any of its -7-

13 obligations under this Agreement or any of the Related Documents or (iv) the legality, validity, binding effect or enforceability against the City of any Related Document to which it is a party. Maximum Interest Rate means the lesser of (i) the maximum rate of interest on the relevant obligation permitted by applicable law, and (ii) the maximum rate of interest established by the Indenture. Moody s means Moody s Investors Service, Inc. Net Revenues Available for Bonds has the meaning set forth in the Indenture Act means the Securities Act of 1933, as amended. No Default Certificate means a certificate substantially in form of Exhibit A hereto. Non-Bank Transferee has the meaning set forth in Section 9.13(c) hereof. Obligations means all amounts payable by the City, and all other obligations to be performed by the City, pursuant to this Agreement and the other Related Documents (including any amounts to reimburse the Bank for any advances or expenditures by it under any of such documents). OFAC means the United States Department of Treasury Office of Foreign Assets Control. OFAC Sanctions Programs means all laws, regulations, and Executive Orders administered by OFAC, including without limitation, the Bank Secrecy Act, anti-money laundering laws (including, without limitation, the Patriot Act), and all economic and trade sanction programs administered by OFAC, any and all similar United States federal laws, regulations or Executive Orders, and any similar laws, regulators or orders adopted by any State within the United States. OFAC SDN List means the list of the Specially Designated Nationals and Blocked Persons maintained by OFAC. Ordinance has the meaning set forth in the recitals hereof. Participant has the meaning set forth in Section 9.13(d) hereof. Patriot Act means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Title III of Pub. L (signed into law October 26, 2001). Person means any individual, corporation, not for profit corporation, partnership, limited liability company, joint venture, association, professional association, joint stock -8-

14 company, trust, unincorporated organization, government or any agency or political subdivision thereof or any other form of entity. Prime Rate means for any day the per annum rate of interest published each Business Day from time to time at the Bank s offices in Pittsburgh, Pennsylvania as its prime rate (or equivalent), with any change in such rate to be automatically and immediately effective on the date of any change in such rate, it being understood that such rate may not be the Bank s best or lowest rate. Property means any interest in any kind of property or asset, whether real, personal or mixed, or tangible or intangible, whether now owned or hereafter acquired. Purchaser Rate means a fluctuating interest rate per annum which, for each day, shall equal (i) for the period from and including the Mandatory Tender Date to and including the two hundred seventieth (270th) day immediately succeeding the Mandatory Tender Date, the Base Rate from time to time in effect and (ii) from the period from and after the two hundred seventy-first (271st) day immediately succeeding the Mandatory Tender Date, the Base Rate from time to time in effect plus one percent (1.0%); provided that if an Event of Default has occurred and is continuing, the Purchaser Rate shall equal the Default Rate. Act. QIB means a qualified institutional buyer as defined in Rule 144A under the 1933 Rating Agency means any of S&P, Moody s and Fitch, as applicable. Related Documents means this Agreement, the Indenture, the Bonds, the Ordinance, the Senior Lien Bond Ordinances and the Tax Certificate. Revenues Secured Debt means any Debt secured by a Lien on or pledge of all or any portion of the Net Revenues Available for Bonds on a basis that is senior to or on a parity with the Bonds, including Senior Lien Bonds and Second Lien Bonds. Risk-Based Capital Guidelines means (i) the risk-based capital guidelines in effect in the United States on the date of this Agreement, including transition rules, and (ii) the corresponding capital regulations promulgated by regulatory authorities outside the United States including transition rules, and any amendments to such regulations adopted prior to the Effective Date. S&P means Standard & Poor s Ratings Services, a Division of The McGraw-Hill Companies, Inc., or any successor thereto. Second Lien Bond Revenues has the meaning set forth in the Indenture. Second Lien Bonds has the meaning set forth in the Indenture. Second Lien Bonds Account has the meaning set forth in the Indenture. -9-

15 Second Lien Parity Bonds has the meaning set forth in the Indenture. Senior Lien Bond Ordinances has the meaning set forth in the Indenture. Senior Lien Bonds has the meaning set forth in the Indenture. Senior Lien Ordinance means Parts B and D of the Series 1998 Bond Ordinance. Series 1998 Bond Ordinance has the meaning set forth in the Indenture. Series 2008C Second Lien Bonds Revenue Fund has the meaning set forth in the Indenture. Sewer System has the meaning set forth in the Indenture. State means the State of Illinois. Swap Agreement means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a Master Agreement ), including any such obligations or liabilities under any Master Agreement. Tax Certificate means that certain General Tax Certificate dated as of October 16, 2008, as amended and supplemented by that certain Supplemental Tax Certificate dated as of the Effective Date, each from the City and related to the Bonds. Taxable Date means the date on which interest on the Bonds is first includable in gross income of the Bondholder (including, without limitation, any previous Bondholder) thereof as a result of an Event of Taxability as such a date is established pursuant to a Determination of Taxability. Taxable Period has the meaning set forth in Section 3.02(b) hereof. Taxable Rate means, with respect to a Taxable Period, the product of (i) the average interest rate on the Bonds during such period and (ii)

16 Trustee has the meaning set forth in the recitals hereof. Trust Estate has the meaning set forth in the Indenture. Unremarketed Bonds means Bonds with respect to which the Bank has not received payment of the Mandatory Tender Purchase Price, if any, on the Mandatory Tender Date. Section Computation of Time Periods. 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. Section Construction. Unless the context of this Agreement otherwise clearly requires, references to the plural include the singular, to the singular include the plural and to the part include the whole. The word including shall be deemed to mean including but not limited to, 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. Section, subsection and exhibit references are to this Agreement unless otherwise specified. Section Incorporation of Certain Definitions by Reference. Any capitalized term used herein and not otherwise defined herein shall have the meaning provided therefor in the Indenture. Section Accounting Terms and Determinations. Unless otherwise specified herein, all accounting terms used herein shall be interpreted, all accounting determinations hereunder shall be made, and all financial statements required to be delivered hereunder shall be prepared, in accordance with Generally Accepted Accounting Principles. In the event of changes to Generally Accepted Accounting Principles which become effective after the Effective Date, the City and the Bank agree to negotiate in good faith appropriate revisions of this Agreement so as to perpetuate the meaning and effect of such provisions as originally negotiated and agreed upon. Section Relation to Other Documents; Acknowledgment of Different Provisions of Related Documents; Incorporation by Reference. (a) Nothing in this Agreement shall be deemed to amend, or relieve the City of its obligations under, any Related Document to which it is a party. Conversely, to the extent that the provisions of any Related Document allow the City to take certain actions, or not to take certain actions, with regard for example to permitted liens, transfers of assets, maintenance of financial ratios and similar matters, the City nevertheless shall be fully bound by the provisions of this Agreement. (b) Except as provided in subsection (c) of this Section 1.06, all references to other documents shall be deemed to include all amendments, modifications and supplements thereto to the extent such amendment, modification or supplement is made in accordance with the provisions of such document and this Agreement. -11-

17 (c) 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 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 with specific reference to this Agreement. ARTICLE II PURCHASE OF BONDS Section Purchase of Bonds. (a) Purchase Price. Upon the conditions set forth in Article IV and based on the representations, warranties and covenants of the City set forth in the Indenture and herein, the Bank hereby agrees to purchase from the Trustee, and the City hereby agrees to cause the Trustee to sell to the Bank, all, but not less than all, of the Bonds at the purchase price of $116,115,000 representing the aggregate principal amount of the Bonds (the Purchase Price ). (b) Closing. On the Effective Date, the City shall deliver to the Bank the documents described in Article IV hereof. Upon delivery of such documents, the Bank will pay the full Purchase Price for the Bonds by immediately available federal funds payable to the Trustee on behalf of the City. One fully registered Bond, in the aggregate principal amount equal to the Purchase Price, shall be issued to and registered in the name of the Bank, or as otherwise directed by the Bank. The Bonds shall be so issued and registered to and held by the Bank, or as otherwise directed by the Bank. ARTICLE III THE CITY S OBLIGATIONS Section Payment Obligations. (a) The City hereby unconditionally, irrevocably and absolutely agrees to make prompt and full payment of all Obligations owed to the Bank under the Related Documents, including, without limitation, principal of and interest on the Bonds, and to pay any other Obligations owing to the Bank whether now existing or hereafter arising, irrespective of their nature, whether direct or indirect, absolute or contingent, with interest thereon at the rate or rates provided in such Related Documents and under such Obligations, subject in all respects to the limitations on recourse to the City and its officers and directors, as set forth in Section 9.16 hereof. (b) In the event the Bank has not received the Mandatory Tender Purchase Price on the Mandatory Tender Date, the City shall cause the Unremarketed Bonds to be redeemed on the -12-

18 Mandatory Tender Date; provided that, if the City is required to redeem Unremarketed Bonds as set forth above and (i) no Default or Event of Default shall have occurred and be continuing and (ii) the representations and warranties set forth in Article V shall be true and correct in all material respects on the Mandatory Tender Date, then the City shall cause the principal amount of such Bonds to be redeemed in installments payable on each Amortization Payment Date (each such payment, an Amortization Payment ), with the final installment in an amount equal to the entire then-outstanding principal amount of such Bonds to be redeemed on the Amortization End Date (the period commencing on the Mandatory Tender Date and ending on the Amortization End Date is herein referred to as the Amortization Period ). Each Amortization Payment shall be that amount of principal which will result in equal (as nearly as possible) aggregate Amortization Payments over the Amortization Period. During the Amortization Period, interest on Unremarketed Bonds shall accrue at the Purchaser Rate and be payable monthly in arrears on the first Business Day of each calendar month. (c) The City shall pay within ten (10) days after demand: (i) if an Event of Default shall have occurred, all costs and expenses of the Bank in connection with the enforcement (whether by means of legal proceedings or otherwise) of any of its rights under this Agreement, the other Related Documents and such other documents which may be delivered in connection therewith; (ii) a fee for each amendment of any Related Document, consent by the Bank or waiver by the Bank under any Related Document, in each case in a minimum amount of ; (iii) the reasonable fees and out-of-pocket expenses for counsel or other reasonably required consultants to the Bank in connection with advising the Bank as to its rights and responsibilities under this Agreement and the other Related Documents or in connection with responding to requests from the City for approvals, consents and waivers; and (iv) any amounts advanced by or on behalf of the Bank to the extent required to cure any Default, Event of Default or event of nonperformance hereunder or any Related Document, together with interest at the Default Rate. In addition, if at any time any Governmental Authority shall require revenue or other documentary stamps or any other tax in connection with the execution or delivery of this Agreement or other Related Documents, then, if the City lawfully may pay for such stamps, taxes or fees, the City shall pay, when due and payable, for all such stamps, taxes and fees, including interest and penalties thereon, and the City agrees to save the Bank harmless from and against any and all liabilities with respect to or resulting from any delay of City in paying, or omission of City to pay, such stamps, taxes and fees hereunder. (d) On or before December 31, 2011, the Bank s legal counsel (Chapman and Cutler LLP) shall have received payment from the City of its legal fees and expenses incurred in connection with the execution and delivery of this Agreement and the Related Documents. -13-

19 Section Increased Payments. (a) Increased Costs. The City agrees that if because of any new Law, Risk-Based Capital Guidelines, or directive, or because of any change in any existing Law, Risk-Based Capital Guidelines, or directive or in the interpretation thereof by any Governmental Authority, if having the force of law or in any other respect obligatory upon any Bondholder, including specifically but without limitation all requests, rules, guidelines or directives in connection with the Dodd-Frank Wall Street Reform and Consumer Protection Act and all rules, guidelines or directives promulgated by the Bank of International Settlements, or the Basel Committee on Banking Regulations and Supervisory Practices (or any successor or similar authority), regardless of the date enacted, adopted, issued, promulgated or implemented, which comes into effect after the date of this Agreement: (i) any Bondholder should, with respect to this Agreement, the Bonds or any transaction hereunder, be subject to any tax, charge, fee, deduction or withholding of any kind whatsoever, or (ii) increased insurance premiums, reserve requirements, or changes in levels of reserves, deposits, insurance or capital (including any allocation of capital requirements or conditions), should be imposed on any Bondholder with respect to this Agreement, the Bonds or any transactions hereunder or thereunder, and if any of the above-mentioned measures, should result in (A) any increase in the cost to any Bondholder of owning the Bonds or any transaction under this Agreement, or (B) any reduction in the amount of principal, interest or any fee receivable by any Bondholder in respect of the Bonds or this Agreement or of any transaction under this Agreement or (C) any reduction in the yield or rate of return of any Bondholder on the Bonds, to a level below that which such Bondholder could have achieved but for the adoption or modification of any such requirements, then the City agrees to pay, subject to Section 9.16 hereof, to such Bondholder such increased cost or reduction in yield or rate of return. In determining any such amounts, each Bondholder will act reasonably and in good faith, using averaging and attribution methods which are reasonable, and will notify the City within a reasonable period after it becomes aware of any such change. Such amount shall, to the extent permitted by law, be due and payable by the City to such Bondholder on demand. (b) Determination of Taxability. (i) In the event a Determination of Taxability occurs, to the extent not payable to each Bondholder (or to the Bank for the period that it was the Bondholder of any of the Bonds) under the terms of the Indenture and the Bonds, the City hereby agrees to pay to each Bondholder (or, if applicable, the Bank) subject to Section 9.16 hereof, on demand therefor (1) an amount equal to the difference between (A) the amount of interest that would have been paid to such Bondholder (or, if applicable, the Bank) on the Bonds during the period for which interest on the Bonds is included in the gross income of such Bondholder (or, if applicable, the Bank) if the Bonds had borne interest at the Taxable Rate, beginning on the Taxable Date (the Taxable Period ), and (B) the amount of interest actually paid to the Bondholder (or, if applicable, the Bank) during the Taxable Period, and (2) an amount equal to -14-

20 any interest, penalties or charges owed by such Bondholder (or, if applicable, the Bank) as a result of interest on the Bonds becoming included in the gross income of such Bondholder (or, if applicable, the Bank), together with any and all attorneys fees, court costs, or other out-of-pocket costs incurred by such Bondholder (or, if applicable, the Bank) in connection therewith. (ii) Subject to the provisions of clauses (iii) and (iv) below, such Bondholder (or, if applicable, the Bank) shall afford the City the opportunity, at the City s sole cost and expense, to contest (1) the validity of any amendment to the Code which causes the interest on the Bonds to be included in the gross income of such Bondholder (or, if applicable, the Bank) or (2) any challenge to the validity of the tax exemption with respect to the interest on the Bonds, including the right to direct the necessary litigation contesting such challenge (including administrative audit appeals). (iii) The City shall, on demand, immediately reimburse such Bondholder for any and all expenses (including attorneys fees for services that may be required or desirable, as determined by such Bondholder (or, if applicable, the Bank) in its sole discretion) that may be incurred by the Bank in connection with any such contest, and shall, on demand, immediately reimburse the Bank for any and all penalties or other charges payable by such Bondholder (or, if applicable, the Bank) for failure to include such interest in its gross income; and (iv) The obligations of the City under this Section 3.02(b) shall survive the termination of this Agreement, the termination of any of the other Related Documents, and the redemption or other payment in full of the Bonds. (c) Default Rate. Upon the occurrence of an Event of Default, the Obligations shall bear interest at the Default Rate, which shall be payable by the City to each Bondholder (or, if applicable, the Bank) upon demand therefor. (d) Maximum Interest Rate. (i) If the amount of interest payable for any period in accordance with the terms hereof or the Bonds exceeds the amount of interest that would be payable for such period had interest for such period been calculated at the Maximum Interest Rate, then interest for such period shall be payable in an amount calculated at the Maximum Interest Rate. (ii) Any interest that would have been due and payable for any period but for the operation of the immediately preceding subclause (i) shall accrue and be payable as provided in this subclause (ii) and shall, less interest actually paid to each Bondholder for such period, constitute the Excess Interest Amount. If there is any accrued and unpaid Excess Interest Amount as of any date, then the principal amount with respect to which interest is payable shall bear interest at the Maximum Interest Rate until payment to each Bondholder of the entire Excess Interest Amount. -15-

21 (iii) Notwithstanding the foregoing, and to the extent permitted by law, on the date on which no principal amount with respect to the Bonds remains unpaid, the City shall pay to each Bondholder a fee equal to any accrued and unpaid Excess Interest Amount. (e) Survival. The obligations of the City under this Section 3.02 shall survive the termination of this Agreement and the redemption or other payment in full of the Bonds. Section Obligations Absolute. The payment obligations of the City under this Agreement shall be unconditional and irrevocable and shall be paid strictly in accordance with the terms of this Agreement under all circumstances, including without limitation the following: (a) any lack of validity or enforceability of this Agreement, the Bonds or any of the other Related Documents; (b) any amendment or waiver of or any consent to departure from all or 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 Bank, any other Bondholder or any other person or entity, whether in connection with this Agreement, the other Related Documents, the transactions contemplated herein or therein or any unrelated transaction; or (d) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing. Notwithstanding this Section, the Bank acknowledges the City may have the right to bring a collateral action with respect to one or more of the foregoing circumstances. The City s payment obligations shall remain in full force and effect pending the final disposition of any such action. All fees payable pursuant to this Agreement shall be deemed to be fully earned when due and non-refundable when paid. Section Funding Indemnity. In the event the Bank shall incur any loss, cost, or expense (including, without limitation, any loss, cost, or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired or contracted to be acquired by the Bank to purchase or hold the Bonds or the relending or reinvesting of such deposits or other funds or amounts paid or prepaid to the Bank) as a result of any redemption of the Bonds on a date other than an Interest Payment Date for any reason, whether before or after default, and whether or not such payment is required by any provision of this Agreement or the Indenture, then upon the demand of the Bank, the City shall pay to the Bank a redemption premium in such amount as will reimburse the Bank for such loss, cost, or expense. If the Bank requests such redemption premium, it shall provide to the City a certificate setting forth the computation of the loss, cost, or expense giving rise to the request for such redemption premium in reasonable detail and such certificate shall be conclusive if reasonably determined. The City and the Bank acknowledge that the Indenture only permits redemptions to occur on Interest Payment Dates so no funding indemnity should be payable hereunder if the provisions of the Indenture are complied with. -16-

22 Section Optional Redemption or Conversion Fee. The City shall pay to the Bank an optional redemption or conversion fee in connection with each optional redemption of all or any portion of the Bonds or each conversion of the interest rate on all or any portion of the Bonds from the Index Interest Rate prior to the first anniversary of the Effective Date, in an amount equal to the product of (A) the Applicable Spread in effect on the date of optional redemption or conversion, as applicable, (B) the principal amount of the Bonds to be optionally redeemed or converted to an interest rate other than the Index Interest Rate, and (C) a fraction, the numerator of which is equal to the number of days from and including the date of such optional redemption or conversion, as applicable, to and including the first anniversary of the Effective Date, and the denominator of which is 365, payable on the date that all or any portion of the Bonds are optionally redeemed or the date on which the interest rate on all or any portion of the Bonds are converted to bear interest at a rate other than the Index Interest Rate. Section Bank Consent to Subsequent Index Interest Rate Period. So long as the Bank is the Bondholder, on or before the date ninety (90) days prior to the end of the Initial Period, but no earlier than two hundred ten (210) days prior to the end of such period, the City may provide written notice to the Bank of its desire to change the interest rate mode of the Bonds (including conversion to a new Index Interest Rate Period) and requesting the Bank to purchase such Bonds in such new Index Interest Rate Period or provide the liquidity or credit enhancement necessary to facilitate the conversion of the Bonds to such new interest rate mode. The Bank will make reasonable efforts to respond to such request within thirty (30) days after receipt of all information necessary, in the Bank s reasonable judgment, to permit the Bank to make an informed credit decision. The Bank may, in its sole and absolute discretion, decide to accept or reject any such request and no consent shall become effective unless the Bank shall have consented thereto in writing. In the event the Bank fails to definitively respond to such request within such thirty (30) day period, the Bank shall be deemed to have refused to grant such request. The consent of the Bank, if granted, shall be conditioned upon the preparation, execution and delivery of documentation in form and substance satisfactory to the Bank (which may include, but not be limited to the delivery of a no adverse effect opinion of Bond Counsel to the Bank with respect to the tax-exempt status of the Bonds as a result of such conversion and interest rate setting). In the event the City and the Bank fail to document in writing their agreement of the proposed rate(s) and terms of the succeeding period(s), the City shall continue to be required to repurchase the Bonds on the Mandatory Tender Date for a purchase price of 100% of the par amount plus accrued interest to the Mandatory Tender Date. -17-