HomeMy WebLinkAboutOrdinances - ORD-05-1259 - 07/11/2005 - AUTHORIZE AND PROVIDE FOR ISSUE SERIES 2005 GO BONORDINANCE NO, nR�259
AN ORDINANCE authorizing and providing for the issue of
$2,560,000 General Obligation Refunding Bonds (Sales Tax
Alternate Revenue Source), Series 2005, of the City of McHenry,
McHenry County, Illinois, for the purpose of refunding the
outstanding General Obligation Bonds (Sales Tax Alternate
Revenue Source), Series 1997A and a portion of the outstanding
General Obligation Bonds (Alternate Revenue Source),
Series 2002, of said City, prescribing the details of said bonds and
providing for the imposition of taxes to pay the same, and for the
collection, segregation and application of sales taxes to pay said
bonds.
WHEREAS the City of McHenry, McHenry County, Illinois (the "City"), is a duly
organized and existing municipality and unit of local government created under the provisions of
the laws of the State of Illinois, and is now operating under the provisions of the Illinois
Municipal Code, as supplemented and amended; and
WHEREAS the City by its City Council (the "Corporate Authorities") has heretofore
issued the following outstanding and validly subsisting and unpaid alternate bonds (the
"Refunded Bonds "):
GENERAL OBLIGATION BONDS (SALES TAX ALTERNATE REVENUE SOURCE), SERIES 1997A
(THE "SERIES 1997A BONDS")
Original Principal Amount: $3,600,000.
Dated: May 1, 1997.
Originally Due Serially 1998 through 2009.
Amount refunded: $2,100,000.
Refunded Bonds Due May 1 as follows:
YEAR
ANIOUNT ($)
RATE (%)
2006
250,000
5.00
2007
600,000
5.00
2008
600,000
5.10
2009
650,000
5.10
GENERAL OBLIGATION BONDS (ALTERNATE REVENUE SOURCE), SERIES 2002 (THE
".SERIES 2002 BONDS")
Original Principal Amount: $3,900,000.
Dated: May 1, 2002.
Originally Due Serially 2003 through 2016.
Amount refunded: $225,000.
Refunded Bonds Due May 1 as follows:
YEAR AMOUNT ($) RATE (%)
2006 225,000 3.875
the Series 1997A Bonds maturing on or after May 1, 2007 can be called for redemption on their
May 1, 2006, call date at the redemption price of par plus accrued interest; and
WHEREAS the Corporate Authorities have determined that it is advisable, necessary and in
the best interests of the City to refund the Refunded Bonds; and
WHEREAS the Corporate Authorities on the 23rd day of May, 2005, adopted an ordinance
(the "Authorizing Ordinance") authorizing the issuance of Alternate Bonds (hereinafter defined
as the "Alternate Bonds "). as provided in the Local Government Debt Reform Act of the State of
Illinois (the "LGDR Act"). in an amount not to exceed $2,800,000; and
WHEREAS oil the 27th day of May, 2005, the Authorizing Ordinance, together with a
notice of intent to issue the Alternate Bonds, was published in The Northwest Herald, the same
being a newspaper of general circulation in the City, and an affidavit evidencing the publication
of the Auth0r1zi1l,0 Ordinance and the notice of intent have heretofore been presented to the
Corporate Authorities and made a part of the permanent records of the City; and
WHEREAS more than thirty (30) days have expired since the date of publication of the
Authorizing Ordinance and said notice, and no petitions with the requisite number of valid
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Along %� ith the interest pad ments due on the Series 2002 Bonds on November 1, 2005 and Mai 1, 2006.
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signatures thereon have been filed with the City Clerk requesting that the question of the
issuance of the Alternate Bonds be submitted to referendum; and
WHEREAS the estimated cost of refunding the Refunded Bonds (the "Refunding"),
including legal, financial, bond discount, printing and publication costs and other expenses is not
less than $2,560,000 and there are insufficient costs on hand and lawfully available to pay such
costs; and
WHEREAS the refunding of the Refunded Bonds constitute lawful corporate purposes
within the meaning of the Debt Reform Act; and
WHEREAS the Corporate Authorities are now authorized to issue the Alternate Bonds (the
"Bonds") to the amount of not to exceed $2,800,000 in accordance with the provisions of the
LGDR Act, and the Corporate Authorities hereby determine that it is necessary and advisable
that there be issued at this time $2,560,000 of the Bonds so authorized; and
WHEREAS the proposed bonds to be issued will be payable from the Pledged Revenues
and the Pledged Taxes, as hereinafter defined; and
WHEREAS the Corporate Authorities hereby determine that the Pledged Revenues will
provide in each year, an amount not less than 1.25 times debt service of the Bonds and the
currently outstanding General Obligation Bonds (Alternate Revenue Source), Series 2002, not
being refunded by the Bonds, and the General Obligation Refunding Bonds (Sales Tax Alternate
Revenue Source), Series 2000B (collectively, the "Outstanding Alternate Bonds"), said series of
bonds being the only series of alternate bonds payable from the Pledged Revenues; and
WHEREAS such determination of the sufficiency of the Pledged Revenues is supported by
reference to the most recent audit of the City, namely for the fiscal year ended April 30, 2004,
which is a fiscal year ending not earlier than 18 months previous to the time of issuance of the
Bonds; and
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WHEREAS the bond ordinances authorizing the Outstanding Alternate Bonds authorize the
City to issue from time to time additional obligations payable from the Pledged Revenues as
permitted by law and to determine the lien priority of any such obligations; and
WHEREAS the Property Tax Extension Limitation Law, as amended (the "Tax Cap
Law"), imposes certain limitations on the "aggregate extension" of certain property taxes levied
by the City, but provides that the definition of "aggregate extension" contained in the Tax Cap
Law does not include "extensions... payments of principal and interest on bonds issued under
Section 15 of the Local Government Debt Reform Act;" and
WHEREAS the County Clerk of The County of McHenry, Illinois, is therefore authorized
to extend and collect said tax so levied for the payment of the Bonds without limitation as to rate
or amount;
Now, THEREFORE, Be It Ordained by the City Council of the City of McHenry, McHenry
County, Illinois, as follows:
Section 1. Definitions. The following words and terms used in this Ordinance shall
have the following meanings unless the context or use clearly indicates another or different
meaning is intended:
"Act" or "LGDR Act" means the Local Government Debt Reform Act of the State of
Illinois, as amended.
"Additional Bonds" means any alternate bonds issued in the future in accordance with
the provisions of the Act on a parity with and sharing ratably and equally in the Pledged
Revenues with the Bonds and the Outstanding Alternate Bonds.
"Bond" or "Bonds" means one or more, as applicable, of the $2,560,000 General
Obligation Refunding Bonds (Sales Tax Alternate Revenue Source), Series 2005, authorized to
be issued by this Ordinance.
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"Bond Fund" means the 2005 Alternate Bond Fund established hereunder and further
described by Section 13 of this Ordinance.
"Bond Register" means the books of the City kept by the Bond Registrar to evidence the
registration and transfer of the Bonds.
"City" means the City of McHenry, McHenry County, Illinois.
"Code" means the Internal Revenue Code of 1996, as amended.
"Corporate Authorities" means the City Council of the City.
"County Clerk" means the County Clerk of The County of McHenry, Illinois.
"Depository" means The Depository Trust Company, a New York limited trust
company, its successors, or a successor depository qualified to clear securities under applicable
state and federal laws.
"Fiscal Year" means that twelve -calendar month period beginning on the first day of
May of any calendar year and ending on the last day of April of such calendar year.
"Ordinance" means this Ordinance as originally adopted and as the same may from time
to time be amended or supplemented in accordance with terms hereof.
"Outstanding" when used with reference to the Bonds, the Outstanding Alternate Bonds
and Additional Bonds means such of those bonds which are outstanding and unpaid; provided,
however, such term shall not include any of the Bonds, the Outstanding Alternate Bonds or
Additional Bonds (a) which have matured and for which moneys are on deposit with proper
paying agents or are otherwise sufficiently available to pay all principal thereof and interest
thereon or (b) the provision for payment of which has been made by the City by the deposit in an
irrevocable trust or escrow of funds or direct, full faith and credit obligations of the United States
of America, the principal of and interest on which will be sufficient to pay at maturity or as
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called for redemption all the principal of and interest on such Bonds, the Outstanding Alternate
Bonds or Additional Bonds.
"Pledged Moneys" means the Pledged Revenues and the Pledged Taxes, as all of' such
terms are defined herein.
"Pledged Revenues" means collections of those taxes imposed by the State of Illinois
pursuant to the Use Tax Act, the Service Use Tax Act, the Service Occupation Tax Act, and the
Retailer's Occupation Tax Act, each as supplemented and amended from time to time, or
substitute taxes therefor as provided by the State of Illinois in the future, which Pledged
Revenues are pledged hereunder by the City as security for the Bonds.
"Pledged Taxes" means the ad valorem taxes levied against all of the taxable property in
the City without limitation as to rate or amount, pledged hereunder by the City as security for the
Bonds.
"Refunded Bonds" means the previously issued and outstanding bonds of the; City
described and defined as such in the preambles to this Ordinance.
"Refunding" means the refunding of the Refunded Bonds as described and defined in the
preambles to this Ordinance.
"Tax-exempt" means, with respect to the Bonds, the status of interest paid and received
thereon as not includible in the gross income of the owners thereof under the Code for federal
income tax purposes except to the extent that such interest will be taken into account in
computing an adjustment used in determining the alternative minimum tax for certain
corporations.
Section 2. Incorporation of Preambles. The Corporate Authorities hereby find that the
recitals contained in the preambles to this Ordinance are true and correct and do hereby
incorporate them into this Ordinance by this reference.
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Section 3. Determination to Issue Bonds. It is necessary and in the best interests of the
City to provide for the Refunding, to pay all related costs and expenses incidental thereto, and to
borrow money and issue the Bonds for such purpose. It is hereby found and determined that
such borrowing of money is authorized pursuant to the Act.
Section 4. Bond Details. For the purpose of providing for the payment of the costs of
the Refunding and to pay all related costs and expenses incidental thereto, there shall be issued
and sold the Bonds in the principal amount of $2,560,000. The Bonds shall each be designated
"General Obligation Refunding Bonds (Sales Tax Alternate Revenue Source), Series 2005"; be
dated July 1, 2005 (the "Dated Date"); and shall also bear the date of authentication thereof.
The Bonds shall be in fully registered form, shall be in denominations of $5,000 each or
authorized integral multiples thereof (but no single Bond shall represent installments of principal
maturing on more than one date), and shall be numbered 1 and upward and shall become due and
payable (subject to prior redemption as hereinafter set forth) on May 1 of each of the years and in
the amounts and bearing interest at the rates per annum as follows:
YEAR
PRINCIPAL
RATE OF
AMOUNT
INTEREST
2006
$105,000
3.000%
2007
60,000
3.000%
2008
75,000
3.250%
2009
65,000
3.250%
2010
85,000
3.625%
2011
75,000
3.750%
2013
170,000
3.750%
2016
295,000
3.700%
2017
515,000
3.800%
2018
545,000
3.850%
2019
570,000
3.900%
The Bonds shall bear interest from their date or from the most recent interest payment date to
which interest has been paid or duly provided for, until the principal amount of the Bonds is
paid, such interest (computed upon the basis of a 360-day year of twelve 30-day months) being
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payable on May 1 and November 1 of each year, commencing on November 1, 2005. Interest on
each Bond shall be paid by check or draft of the bond registrar and paying agent, J.P. Morgan
Trust Company, National Association, Chicago, Illinois (the "Bond Registrar"), payable upon
presentation in lawful money of the United States of America, to the person in whose name such
Bond is registered at the close of business on the 15th day of the month next preceding the
interest payment date (the "Record Date"). The principal of and premium, if any, on the Bonds
shall be payable in lawful money of the United States of America at the principal corporate trust
office of the Bond Registrar.
Section 5. Book -Entry Provisions. The Bonds shall be initially issued in the form of a
separate single fully registered Bond for each of the maturities of the Bonds. Upon initial
issuance, the ownership of each such Bond shall be registered in the Bond Register in the name
of "Cede & Co.", or any successor thereto, as nominee of the Depository. All of the outstanding
Bonds from time to time shall be registered in the Bond Register in the name of Cede & Co., as
nominee of the Depository. The Mayor, Treasurer and City Clerk are authorized to execute and
deliver on behalf of the City such letters to or agreements with the Depository as shall be
necessary to effectuate such book -entry system (any such letter or agreement being referred to
herein as the "Representation Letter"). Without limiting the generality of the authority given
with respect to entering into such Representation Letter, it may contain provisions relating to
(a) payment procedures, (b) transfers of the Bonds or of beneficial interests therein,
(c) redemption notices and procedures unique to the Depository, (d) additional notices or
communications, and (e) amendment from time to time to conform with changing customs and
practices with respect to securities industry transfer and payment practices.
With respect to Bonds registered in the Bond Register in the name of Cede & Co., as
nominee of the Depository, the City and the Bond Registrar shall have no responsibility or
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obligation to any broker -dealer, bank or other financial institution for which the Depository holds
Bonds from time to time as securities depository (each such broker -dealer, bank or other
financial institution being referred to herein as a "Depository Participant") or to any person on
behalf of whom such a Depository Participant holds an interest in the Bonds. Without limiting
the meaning of the immediately preceding sentence, the City and the Bond Registrar shall have
no responsibility or obligation with respect to (a) the accuracy of the records of the Depository,
Cede & Co., or any Depository Participant with respect to any ownership interest in the .Bonds,
(b) the delivery to any Depository Participant or any other person, other than a registered owner
of a Bond as shown in the Bond Register, of any notice with respect to the Bonds, including any
notice of redemption, or (c) the payment to any Depository Participant or any other person, other
than a registered owner of a Bond as shown in the Bond Register, of any amount with respect to
principal of or interest on the Bonds. No person other than a registered owner of a Bond as
shown in the Bond Register shall receive a Bond certificate with respect to any Bond. Upon
delivery by the Depository to the Bond Registrar of written notice to the effect that the
Depository has determined to substitute a new nominee in place of Cede & Co., and subject to
the provisions hereof with respect to the payment of interest to the registered owners of Bonds at
the close of business on the applicable record date, the name "Cede & Co." in this Ordinance
shall refer to such new nominee of the Depository.
In the event that (a) the City determines that the Depository is incapable of discharging
its responsibilities, (b) the agreement among the City, the Bond Registrar and the Depository
evidenced by the Representation Letter shall be terminated or invalidated for any reason or
(c) the City determines that it is in the best interests of the City or of the beneficial owners of the
Bonds that they be able to obtain certificated Bonds, the City shall notify the Depository and the
Depository Participants of the availability of Bond certificates, and the Bonds shall no longer be
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restricted to being registered in the Bond Register in the name of Cede & Co., as nominee of the
Depository. Alternatively, the City may determine that the Bonds shall be registered in the name
of and deposited with a successor depository operating a book -entry system, as may be
acceptable to the City, or such depository's agent or designee, but if the City does not select such
alternate book -entry system, then the Bonds shall be registered in whatever name or names
registered owners of Bonds transferring or exchanging Bonds shall designate, in accordance with
the provisions hereof. Notwithstanding any other provision of this Ordinance to the contrary, so
long as any Bond is registered in the name of Cede & Co., as nominee of the Depository, all
payments with respect to principal of and interest on such Bond and all notices with respect to
such Bond shall be made and given, respectively, in the manner provided in the Representation
Letter.
Section 6. Execution; Authentication. The Bonds shall be executed on behalf of the
City by the manual or facsimile signature of its Mayor and attested by the manual or facsimile
signature of its City Clerk, as they may determine, and shall have impressed or imprinted thereon
the corporate seal or facsimile thereof of the City. In case any such officer whose signature shall
appear on any Bond shall cease to be such officer before the delivery of such Bond, such
signature shall nevertheless be valid and sufficient for all purposes, the same as if such officer
had remained in office until delivery. All Bonds shall have thereon a certificate of
authentication, substantially in the form hereinafter set forth, duly executed by the Bond
Registrar as authenticating agent of the City and showing the date of authentication. No Bond
shall be valid or obligatory for any purpose or be entitled to any security or benefit under this
Ordinance unless and until such certificate of authentication shall have been duly executed by the
Bond Registrar by manual signature, and such certificate of authentication upon any such Bond
shall be conclusive evidence that such Bond has been authenticated and delivered under this
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Ordinance. The certificate of authentication on any Bond shall be deemed to have been executed
by it if signed by an authorized officer of the Bond Registrar, but it shall not be necessary that
the same officer sign the certificate of authentication on all of the Bonds issued hereunder.
Section 7. Registration and Exchange or Transfer of Bonds; Persons Treated as
Owners. The City shall cause books (the "Bond Register") for the registration and for the
transfer of the Bonds as provided in this Ordinance to be kept at the principal corporate trust
office of the Bond Registrar, or successor registrar and location. The City is authorized to
prepare, and the Bond Registrar or such other agent as the City may designate shall keep custody
of, multiple Bond blanks executed by the City for use in the transfer and exchange of Bonds.
Subject to the provisions of this Ordinance relating to the Bonds in book -entry -only form,
any Bond may be transferred or exchanged, but only in the manner, subject to the limitations,
and upon payment of the charges as set forth in this Ordinance. Upon surrender for transfer or
exchange of any Bond at the principal corporate trust office of the Bond Registrar, duly endorsed
by or accompanied by a written instrument or instruments of transfer or exchange in form
satisfactory to the Bond Registrar and duly executed by the registered owner or an attorney for
such owner duly authorized in writing, the City shall execute and the Bond Registrar shall
authenticate, date and deliver in the name of the transferee or transferees or, in the cast; of an
exchange, the registered owner, a new fully registered Bond or Bonds of like tenor, of the same
maturity, bearing the same interest rate, of authorized denominations, for a like aggregate
principal amount.
The Bond Registrar shall not be required to transfer or exchange any Bond during the
period from the close of business on the Record Date for an interest payment to the opening of
business on such interest payment date nor to transfer or exchange any Bond after notice calling
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such Bond for redemption has been mailed, nor during a period of fifteen (15) days next
preceding mailing of a notice of redemption of any Bonds.
The execution by the City of any fully registered Bond shall constitute full and due
authorization of such Bond, and the Bond Registrar shall thereby be authorized to authenticate,
date and deliver such Bond; provided, however, the principal amount of Bonds of each maturity
authenticated by the Bond Registrar shall not at any one time exceed the authorized principal
amount of Bonds for such maturity less the amount of such Bonds which have been paid.
The person in whose name any Bond shall be registered shall be deemed and regarded as
the absolute owner thereof for all purposes, and payment of the principal of or interest on any
Bond shall be made only to or upon the order of the registered owner thereof or his legal
representative. All such payments shall be valid and effectual to satisfy and discharge the
liability upon such Bond to the extent of the sum or sums so paid.
No service charge shall be made for any transfer or exchange of Bonds, but the City or
the Bond Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or exchange of Bonds
except in the case of the issuance of a Bond or Bonds for the unredeemed portion of a Bond
surrendered for redemption.
Section 8. Redemption. (a) Mandatory Redemption. The Bonds due on May 1 of the
years 2013 and 2016, are subject to mandatory redemption, in integral multiples of $5,000
selected by lot by the Bond Registrar, at a redemption price of par plus accrued interest to the
redemption date, on May 1 of the years and in the principal amounts as follows:
FOR THE TERM BONDS DUE ON MAY 1, 2013
YEAR PRINCIPAL AMOUNT
2012 $90,000
2013 (maturity) 80,000
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FOR THE TERM BONDS DUE ON MAY 1, 2016
YEAR PRINCIPAL AMOUNT
2014 $ 80,000
2015 105,000
2016 (maturity) 110,000
The principal amounts of Bonds to be mandatorily redeemed in each year may be reduced
through the earlier optional redemption thereof, with any partial optional redemptions of such
Bonds credited against future mandatory redemption requirements in such order of the
mandatory redemption dates as the City may determine. In addition, on or prior to the 60th day
preceding any mandatory redemption date, the Bond Registrar may, and if directed by the
Corporate Authorities shall, purchase Bonds required to be retired on such mandatory
redemption date. Any such Bonds so purchased shall be cancelled and the principal amount
thereof shall be credited against the mandatory redemption required on such next mandatory
redemption date.
(b) Optional Redemption. The Bonds due on and after May 1, 2016 shall be subject to
redemption prior to maturity at the option of the City from any available funds, as a whole or in
part, and if in part in integral multiples of $5,000 in any order of their maturity as determined by
the City (less than all of the Bonds of a single series and maturity to be selected by the, Bond
Registrar), on or after May 1, 2013, and on any date thereafter, at the redemption price of par
plus accrued interest to the date fixed for redemption.
Section 9. Redemption Procedure. The City shall, at least 45 days prior to the
redemption date (unless a shorter time period shall be satisfactory to the Bond Registrar)., notify
the Bond Registrar of such redemption date and of the maturities and principal amounts of Bonds
to be redeemed. For purposes of any redemption of less than all of the Bonds of a single
maturity, the particular Bonds or portions of Bonds to be redeemed shall be selected by lot not
more than 60 da\ s prior to the redemption date by the Bond Registrar for the Bonds of such
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maturity by such method of lottery as the Bond Registrar shall deem fair and appropriate;
provided, however, that such lottery shall provide for the selection for redemption of Bonds or
portions thereof so that any $5,000 Bond or $5,000 portion of a Bond shall be as likely to be
called for redemption as any other such $5,000 Bond or $5,000 portion.
The Bond Registrar shall promptly notify the City in writing of the Bonds or portions of
Bonds selected for redemption and, in the case of any Bond selected for partial redemption, the
principal amount thereof to be redeemed.
Unless waived by the registered owner of Bonds to be redeemed, official notice of any
such redemption shall be given by the Bond Registrar on behalf of the City by mailing the
redemption notice by first-class mail not less than 30 days and not more than 60 days prior to the
date fixed for redemption to each registered owner of the Bond or Bonds to be redeemed at the
address shown on the Bond Register or at such other address as is furnished in writing by such
registered owner to the Bond Registrar.
All official notices of redemption shall include the full name of the Bonds to be redeemed
and at least the information as follows:
(a) the redemption date;
(b) the redemption price;
(c) if less than all of the outstanding Bonds of a particular maturity are to be
redeemed, the identification (and, in the case of partial redemption of Bonds within such
maturity, the respective principal amounts) of the Bonds to be redeemed;
(d) a statement that on the redemption date the redemption price will become
due and payable upon each such Bond or portion thereof called for redemption and that
interest thereon shall cease to accrue from and after said date; and
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(e) the place where such Bonds are to be surrendered for payment of the
redemption price, which place of payment shall be the principal corporate trust office of
the Bond Registrar.
Prior to any redemption date, the City shall deposit with the Bond Registrar an amount of
money sufficient to pay the redemption price of all the Bonds or portions, of Bonds which are to
be redeemed on that date.
Official notice of redemption having been given as aforesaid, the Bonds or portions of
Bonds so to be redeemed shall, on the redemption date, become due and payable at the
redemption price therein specified, and from and after such date (unless the City shall default in
the payment of the redemption price), such Bonds or portions of Bonds shall cease to bear
interest. Neither the failure to mail such redemption notice, nor any defect in any notice so
mailed, to any particular registered owner of a Bond, shall affect the sufficiency of such notice
with respect to other registered owners. Notice having been properly given, failure of a
registered owner of a Bond to receive such notice shall not be deemed to invalidate, limit or
delay the effect of the notice or redemption action described in the notice. Such notice may be
waived in writing by a registered owner of a Bond entitled to receive such notice, either before or
after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by
registered owners shall be filed with the Bond Registrar, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.
Upon surrender of such Bonds for redemption in accordance with said notice, such Bonds
shall be paid by the Bond Registrar at the redemption price. The procedure for the payment of
interest due as part of the redemption price shall be as herein provided for payment of interest
otherwise due. Upon surrender for any partial redemption of any Bond, there shall be prepared
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for the registered owner a new Bond or Bonds of like tenor, of authorized denominations, of the
same maturity, and bearing the same rate of interest in the amount of the unpaid principal.
If any Bond or portion of a Bond called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until paid or duly provided for, bear interest
from the redemption date at the rate borne by the Bond or portion of Bond so called for
redemption. All Bonds which have been redeemed shall be cancelled and destroyed by the Bond
Registrar and shall not be reissued.
As part of their respective duties hereunder, the Bond Registrar shall prepare and forward
to the City a statement as to notice given with respect to each redemption together with copies of
the notices as mailed and published.
Section 10. Form of Bonds. The Bonds shall be in substantially the form hereinafter set
forth; provided, however, that if the text of the Bond is to be printed in its entirety on the front
side of the Bond, then the second paragraph on the front side and the legend "See Reverse Side
for Additional Provisions" shall be omitted and the text of paragraphs set forth for the reverse
side shall be inserted immediately after the first paragraph.
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[Form of Series 2005 Bond - Front Side]
REGISTERED
No.
UNITED STATES OF AMERICA
STATE OF ILLINOIS
COUNTY OF WHENRY
CITY OF WHENRY
GENERAL OBLIGATION REFUNDING BOND
(SALES TAX ALTERNATE REVENUE SOURCE)
SERIES 2005
See Reverse Side for
Additional Provisions
Interest Maturity
Rate: % Date: May 1,
Registered Owner: CEDE & CO.
Principal Amount:
Dated
Date: July 1, 2005
REGISTERED
CUSIP: 581170
DOLLARS
KNOW ALL PERSONS BY THESE PRESENTS that the City of McHenry, McHenry County,
Illinois, a municipality and political subdivision of the State of Illinois (the "City"), hereby
acknowledges itself to owe and for value received promises to pay to the Registered Owner
identified above, or registered assigns as hereinafter provided, on the Maturity Date identified
above, the Principal Amount identified above and to pay interest (computed on the basis of a
360-day year of twelve 30-day months) on such Principal Amount from the Dated Date of this
Bond identified above or from the most recent interest payment date to which interest has been
paid or duly provided for at the Interest Rate per annum identified above, such interest to be
payable on November 1, 2005, and semiannually thereafter on May 1 and November 1 of each
year until the Principal Amount is paid or duly provided for. The principal of this Bond is
payable in lawful money of the United States of America upon presentation hereof at the
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principal corporate trust office of J.P. Morgan Trust Company, National Association, in the City
of Chicago, Illinois, as paying agent and bond registrar (the "Bond Registrar"). Payment of
interest shall be made to the Registered Owner hereof as shown on the registration books of the
City maintained by the Bond Registrar at the close of business on the applicable Record Date
(the "Record Date"). The Record Date shall be the 15th day of the month next preceding any
interest payment date. Interest shall be paid by check or draft of the Bond Registrar, payable
upon presentation in lawful money of the United States of America, mailed to the address of
such Registered Owner as it appears on such registration books or at such other address
furnished in writing by such Registered Owner to the Bond Registrar, or as otherwise agreed by
the City and Cede & Co., as nominee, or successor, for so long as this Bond is held by The
Depository Trust Company, New York, New York, the Depository, or nominee, in book -entry
only form as provided for same.
Reference is hereby made to the further provisions of this Bond set forth on the reverse
hereof, and such further provisions shall for all purposes have the same effect as if set forth at
this place.
It is hereby certified and recited that all acts, conditions and things required to be done
precedent to and in the issuance of this Bond have been done and have happened and have been
performed in regular and due form of law; that the indebtedness of the City, including the: issue
of Bonds of which this is one, does not exceed any limitation imposed by law; that provision has
been made for the collection of the Pledged Revenues, the levy and collection of the Pledged
Taxes, and the segregation of all Pledged Moneys to pay the interest hereon as it falls due and
also to pay and discharge the principal hereof at maturity; and that the City hereby covenants and
agrees that it will properly account for said Pledged Moneys and will comply with all the
covenants of and maintain the funds and accounts as provided by the Ordinance.
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FOR THE PROMPT PAYMENT OF THIS BOND, BOTH PRINCIPAL AND INTEREST AT MATURITY,
THE FULL FAITH, CREDIT AND RESOURCES OF THE CITY ARE HEREBY IRREVOCABLY PLEDGED.
THE CITY HAS DESIGNATED THIS BOND AS A "QUALIFIED TAX-EXEMPT OBLIGATION"
PURSUANT TO SECTION 265(B)(3) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
This Bond shall not be valid or become obligatory for any purpose until the certificate of
authentication hereon shall have been signed by the Bond Registrar.
IN WITNESS WHEREOF the City of McHenry, McHenry County, Illinois, by its City
Council, has caused this Bond to be executed with the manual or duly authorized facsimile
signature of its Mayor and attested by the manual or duly authorized facsimile signature of its
City Clerk and its corporate seal or a facsimile thereof to be impressed or reproduced hereon, all
as appearing hereon and as of the Dated Date identified above.
ATTEST:
City Clerk
City of McHenry
McHenry County, Illinois
[SEAL]
Mayor
City of McHenry
McHenry County, Illinois
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Date of Authentication: ,
CERTIFICATE
OF
AUTHENTICATION
This Bond is one of the Bonds described
in the within -mentioned Ordinance and is
one of the General Obligation Refunding
Bonds (Sales Tax Alternate Revenue
Source), Series 2005 of the City of
McHenry, McHenry County, Illinois.
J.P. MORGAN TRUST COMPANY, NATIONAL
ASSOCIATION, as Bond Registrar
Authorized Officer
Bond Registrar:
J.P. Morgan Trust Company,
National Association,
Chicago, Illinois
[Form of Series 2005 Bond - Reverse Side]
This bond and the bonds of the series of which it forms a part ("Bond" and "Bonds"
respectively) are of an authorized issue of Two Million Five Hundred Sixty Thousand Dollars
($2,560,000) Series 2005 Bonds of like dated date and tenor except as to maturity, rate of interest
and privilege of redemption and are issued pursuant to the Local Government Debt Reform Act
of the State of Illinois, as amended (the "Act"). The Bonds are issued pursuant to the Act I -or the
purpose of refunding certain alternate bonds previously issued by the City.
The Bonds are payable from the Pledged Revenues of the City and from the Pledged
Taxes of the City.
The Bonds are issued pursuant to a bond ordinance passed by the City Council of the City
(the "Corporate Authorities") on the 1 Ith day of July, 2005 (the "Ordinance"), to 'which
reference is hereby expressly made for further definitions and terms and to all the provisions of
which the Registered Owner by the acceptance of this Bond assents. This Bond does not and
will not constitute an indebtedness of the City within the meaning of any constitutional or
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statutory provision or limitation, unless the Pledged Taxes shall be extended pursuant to the
general obligation, full faith and credit promise supporting the Bonds, in which case the amount
of the Bonds then Outstanding shall be included in the computation of indebtedness of the City
for purposes of all statutory provisions or limitations until such time as an audit of the City shall
show that the Bonds shall have been paid from the Pledged Revenues for a complete Fiscal Year.
The City reserves the right to issue Additional Bonds without limit from time to time
payable from the Pledged Revenues, and any such Additional Bonds shall share ratably and
equally in the Pledged Revenues with the Bonds; provided, however, that no Additional Bonds
shall be issued except in accordance with the provisions of the Act. The Bonds are on a parity
with and share ratably and equally in the Pledged Revenues with the General Obligation Bonds
(Alternate Revenue Source), Series 2002, and the General Obligation Refunding Bonds (Sales
Tax Alternate Revenue Source), Series 2000B, of the City.
This Bond may be transferred or exchanged, but only in the manner, subject to the
limitations, and upon payment of the charges as set forth in the Ordinance. Upon surrender for
transfer or exchange of this Bond at the principal corporate trust office of the Bond Registrar in
the City of Chicago, Illinois, duly endorsed by or accompanied by a written instrument or
instruments of transfer or exchange in form satisfactory to the Bond Registrar and duly executed
by the Registered Owner or an attorney for such owner duly authorized in writing, the City shall
execute and the Bond Registrar shall authenticate, date and deliver in the name of the transferee
or transferees or, in the case of an exchange, the Registered Owner, a new fully registered Bond
or Bonds of like tenor, of the same maturity, bearing the same interest rate, of authorized
denominations, for a like aggregate principal amount.
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The Bonds may be subject to optional and mandatory redemption, and the holder of this
Bond shall refer to the provisions of the Ordinance for the terms and provision for notice of
redemption.
The Bond Registrar shall not be required to transfer or exchange any Bond during the
period from the close of business on the Record Date for an interest payment to the opening of
business on such interest payment date or during the period of 15 days preceding the giving of
notice of redemption of Bonds or to transfer or exchange any Bond all or a portion of which has
been called for redemption.
The City and the Bond Registrar may deem and treat the Registered Owner hereof as the
absolute owner hereof for the purpose of receiving payment of or on account of principal hereof
and interest due hereon and for all other purposes, and neither the City nor the Bond Registrar
shall be affected by any notice to the contrary.
ASSIGNMENT
FOR VALUE RECEIVED the undersigned sells, assigns and transfers unto
(Name and Address of Assignee)
the within Bond and does hereby irrevocably constitute and appoint
as attorney to transfer the said Bond on the books kept for registration thereof with full power of
substitution in the premises.
Dated:
Signature Guaranteed:
NOTICE: The signature to this assignment must correspond with the name of the registered
owner as it appears upon the face of the within Bond in every particular, without
alteration or enlargement or any change whatever.
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Section 11. Sale of Bonds. The Bonds hereby authorized shall be executed as in this
Ordinance provided as soon after the passage hereof as may be, and thereupon be deposited with
the City Treasurer, and be by said Treasurer delivered to Harris N.A., Chicago, Illinois, the
purchaser thereof (the "Purchaser"), upon receipt of the purchase price therefor, the same: being
$2,547,168.00, plus accrued interest to date of delivery; the contract for the sale of the Bonds
heretofore entered into (the "Purchase Contract") is in all respects ratified, approved and
confirmed, it being hereby found and determined that the Bonds have been sold at such price and
bear interest at such rates that neither the true interest cost (yield) nor the net interest rate
received upon such sale exceed the maximum rate otherwise authorized by Illinois law and that
the Purchase Contract is in the best interests of the City and that no person holding any office of
the City, either by election or appointment, is in any manner financially interested directly in his
own name or indirectly in the name of any other person, association, trust or corporation, in the
Purchase Contract.
The use by the Purchaser of any Preliminary Official Statement and any final Official
Statement relating to the Bonds is hereby ratified, approved and authorized; the execution and
delivery of said final Official Statement is hereby authorized; and the officers of the City are
hereby authorized to take any action as may be required on the part of the City to consummate
the transactions contemplated by the Purchase Contract, this Ordinance, said Preliminary Official
Statement, said final Official Statement and the Bonds.
Section 12. Treatment of Bonds as Debt. The Bonds shall be payable from the Pledged
Moneys and do not and shall not constitute an indebtedness of the City within the meaning of
any constitutional or statutory limitation, unless the Pledged Taxes shall be extended pursuant to
the general obligation, full faith and credit promise supporting the Bonds, as set forth in
Section 15 hereof, in which case the amount of the Bonds then Outstanding shall be included in
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the computation of indebtedness of the City for purposes of all statutory provisions or limitations
until such time as an audit of the City shall show that the Bonds have been paid from the Pledged
Revenues for a complete Fiscal Year, in accordance with the Act.
Section 13. 2005 Alternate Bond Fund. There is hereby created a special fund of the
City, which fund shall be held separate and apart from all other funds and accounts of the City
and shall be known as the "2005 Alternate Bond Fund" (the "Bond Fund"). The purpose of the
Bond Fund is to provide a fund to receive and disburse the Pledged Revenues for the Bonds and
to receive and disburse Pledged Taxes for any (or all) of the Bonds. There are hereby created
two accounts of the Bond Fund, designated the Pledged Revenues Account and the General
Account. All Pledged Revenues as required for the Bonds shall be deposited to the credit of the
Pledged Revenues Account, and all Pledged Taxes shall be deposited to the credit of the General
Account. The Bond Fund and its respective accounts constitute a trust fund established for the
purpose of carrying out the covenants, terms and conditions imposed upon the City by this
Ordinance.
Any Pledged Taxes received by the City shall promptly be deposited into the Pledged
Taxes Account of the Bond Fund. Pledged Taxes on deposit to the credit of the Pledged Taxes
Account shall be fully spent to pay the principal of and interest on the Bonds for which such
taxes were levied and collected prior to use of any moneys on deposit in the Pledged Revenues
Account of the Bond Fund.
There shall be credited to the Pledged Revenues Account of the Bond Fund and held, in
cash and investments, on or before the first day of each month by the financial officer of the
City, without any further official action or direction, the Pledged Revenues. Each monthly
deposit shall be a fractional amount of the interest becoming due on the next succeeding interest
payment date on all Bonds and also a fractional amount of the principal becoming due on the
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next succeeding maturity date of all of the Bonds until there shall have been accumulated and
held, in cash and investments, in the Pledged Revenues Account on or before the month
preceding such maturity date of interest or maturity date of principal, an amount sufficient to pay
such principal or interest, or both.
In computing the fractional amount to be set aside each month in the Pledged Revenues
Account, the fraction shall be so computed that a sufficient amount will be set aside in said
Account and will be available for the prompt payment of such principal of and interest on all
Bonds and shall be not less than one -sixth of the interest becoming due on the succeeding
interest payment date and not less than one -twelfth of the principal becoming due on the next
succeeding principal payment date on all Bonds outstanding until there is sufficient money in
said Account to pay such principal or interest, or both.
Credits to the Pledged Revenues Account need not be made at such time as there shall be
a sufficient sum, held in cash and investments, in said Account to meet principal and interest
requirements in said Account on the next two (2) succeeding debt service payment dates on the
Bonds outstanding.
Section 14. Use of Bond Proceeds. The proceeds derived from the sale of the Bonds
shall be used as follows:
A. Accrued interest received by the City upon the sale of the Bonds shall be
remitted by the Treasurer for deposit into the Pledged Revenues Account of the Bond
Fund, and be used to pay first interest coming due on the Bonds.
B. The City shall then allocate from the Bond proceeds the sum necessary for
expenses incurred in the issuance of the Bonds which shall be either paid directly upon
the delivery of the Bonds or held by the Treasurer and disbursed for such issuance
expenses from time to time in accordance with usual City procedures for the
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disbursement of funds, which disbursements are hereby expressly authorized. Moneys
not disbursed for such purposes within six months shall be transferred by the City for
deposit into the Pledged Revenues Account of the Bond Fund, as previously described.
C. The sum of principal proceeds of the Bonds as is necessary, together with
such money in the debt service fund for the Refunded Bonds as may be advisable for the
purpose, shall be used to provide for the Refunding, and the payment of such expenses as
may be designated, pursuant to the provisions of an Escrow Agreement with J.P. Morgan
Trust Company, National Association, Chicago, Illinois (the "Escrow Agent")., as is
designated, all in accordance with the provisions of an Escrow Agreement, substantially
in the form attached hereto as Exhibit A to this Ordinance, made a part hereof by this
reference, and hereby approved; the officers appearing signatory to such Escrow
Agreement are hereby authorized and directed to execute same, their execution to
constitute conclusive proof of action in accordance with this Ordinance, and approval of
all completions or revisions necessary or appropriate to effect the Refunding. The City
expressly authorizes the use of the Government Securities as set forth in the Escrow
Account as set forth in the Escrow Agreement.
Section 15. Pledged Taxes; Tax Levy. For the purpose of providing funds required to
pay the interest on the Bonds promptly when and as the same falls due, and to pay and discharge
the principal thereof at maturity, and as provided in Section 15 of the LGDR Act, there is hereby
levied upon all of the taxable property within the City, in the years for which any of the Bonds
are outstanding, a direct annual tax sufficient for that purpose; and there is hereby levied on all of
the taxable property in the City, in addition to all other taxes, the following direct annual taxes
(the Pledged Taxes as hereinabove defined):
WO
FOR THE
YEAR A TAX SUFFICIENT TO PRODUCE THE DOLLAR SUM OF
2005
$152,316.26
for principal and interest up to and
including May 1, 2007 (net of funds
on hand)
2006
$165,516.26
for principal and interest
2007
$153,078.76
for principal and interest
2008
$170,966.26
for principal and interest
2009
$157,885.00
for principal and interest
2010
$170,072.50
for principal and interest
2011
$156,697.50
for principal and interest
2012
$153,697.50
for principal and interest
2013
$175,737.50
for principal and interest
2014
$176,852.50
for principal and interest
2015
$577,782.50
for principal and interest
2016
$588,212.50
for principal and interest
2017
$592,230.00
for principal and interest
The Pledged Taxes and other moneys on deposit (collectively, the "Bond Moneys") in the Bond
Fund and allocable to the Bonds shall be applied to pay principal of and interest on the Bonds.
Interest or principal coming due at any time when there are insufficient funds on hand
from the Pledged Taxes to pay the same shall be paid promptly when due from current funds on
hand in advance of the collection of the Pledged Taxes herein levied; and when the Pledged
Taxes shall have been collected, reimbursement shall be made to said funds in the amount so
advanced. The City covenants and agrees with the Purchaser and registered owners of the Bonds
that so long as any of the Bonds remain outstanding, the City will take no action or fail to take
any action which in any way would adversely affect the ability of the City to levy and collect the
foregoing tax levy. The City and its officers will comply with all present and future applicable
laws in order to assure that the Pledged Taxes may be levied, extended and collected as provided
herein and deposited into the Bond Fund.
Whenever other funds from any lawful source are made available for the purpose of
paying any principal of or interest on the Bonds so as to enable the abatement of the taxes levied
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herein for the payment of same, the Corporate Authorities shall, by proper proceedings, direct
the deposit of such funds into the Bond Fund and further shall direct the abatement of the taxes
by the amount so deposited. A certified copy or other notification of any such proceedings
abating taxes may then be filed with the County Clerk in a timely manner to effect such
abatement. In the alternative, the Corporate Authorities may, by proper proceedings, authorize a
procedure for the deposit of such funds into the Bond Fund by duly authorized officers of the
City, which procedure may be self-executing, and may further, accordingly, authorize such
officers to abate the taxes by the amount so deposited from time to time by certificate to the
County Clerk, which certificate upon filing shall be full authority for the County Clerk to effect
such abatement.
Section 16. Filing with County Clerk. Forthwith upon the passage of this Ordinance,
the City Clerk of the City is hereby directed to file a certified copy of this Ordinance with the
County Clerk, and it shall be the duty of the County Clerk to annually in and for each of the
years 2005 to 2017, inclusive, ascertain the rate necessary to produce the tax herein levied, and
extend the same for collection on the tax books against all of the taxable property within the City
in connection with other taxes levied in each of said years for general municipal purposes, in
order to raise the respective amounts aforesaid and in each of said years such annual tax shall be
computed, extended and collected in the same manner as now or hereafter provided by law for
the computation, extension and collection of taxes for general municipal purposes of the City.
Section 17. Abatement of Pledged Taxes. As provided in the Act, whenever the
Pledged Revenues shall have been determined by the City Treasurer to provide in any calendar
year an amount not less than 1.25 times debt service of all outstanding Bonds in the next
succeeding Bond Year (November 1 and May 1) and whenever the Pledged Revenues shall have
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been deposited into the Bond Fund in an amount sufficient to pay debt service on all outstanding
Bonds in the next succeeding Bond Year, the City Treasurer shall, prior to the time the Pledged
Taxes levied in such calendar year are extended, direct the abatement of the Pledged Taxes, and
proper notification of such abatement shall be filed with the County Clerk in a timely manner to
effect such abatement.
At the time of delivery of the Bonds, there shall be credited to the Bond Fund, the sum of
$184,555.21 derived from funds of the City on hand and lawfully available therefor. Such
amount shall represent the amount sufficient to pay debt service on the Bonds for the Bond Year
up to and including May 1, 2006.
Section 18. Pledged Revenues; General Covenants. The City covenants and agrees
with the holders of the Bonds that, so long as any Bonds remain Outstanding:
A. The Pledged Revenues are hereby also pledged to the payment of the Bonds;
and the Corporate Authorities covenant and agree to provide for, collect and apply the
Pledged Revenues to the payment of all of such bonds as are from time to time
Outstanding Bonds and the provision of not less than an additional 0.25 times debt
service thereon, all in accordance with Section 15 of the Act.
B. The City will punctually pay or cause to be paid from the Pledged Revenues
Account of the Bond Fund the principal of, interest on and premium, if any, to become
due in respect to the Bonds in strict conformity with the terms of the Bonds and this
Ordinance, and it will faithfully observe and perform all of the conditions, covenants and
requirements thereof.
C. The City will pay and discharge, or cause to be paid and discharged, from
the Pledged Revenues Account of the Bond Fund any and all lawful claims which, if
unpaid, might become a lien or charge upon the Pledged Revenues, or any part thereof, or
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upon any such funds in the hands of the Bond Registrar, or which might impair the
security of the Bonds. Nothing herein contained shall require the City to make any such
payment so long as the City in good faith shall contest the validity of said claims.
D. The City will keep, or cause to be kept, proper books of record and
accounts, separate from all other records and accounts of the City, in which complete and
correct entries shall be made of all transactions relating to the Pledged Revenues and to
the Pledged Revenues Account of the Bond Fund and the Bond Fund. Such books of
record and accounts shall at all times during business hours be subject to the inspection of
the holders of not less than ten per cent (10%) of the principal amount of the Outstanding
Bonds or their representatives authorized in writing.
E. The City will preserve and protect the security of the Bonds and the rights of
the registered owners of the Bonds, and will warrant and defend their rights against all
claims and demands of all persons. From and after the sale and delivery of any of the
Bonds by the City, the Bonds shall be incontestable by the City.
F. The City will adopt, make, execute and deliver any and all such further
ordinances, resolutions, instruments and assurances as may be reasonably necessary or
proper to carry out the intention of, or to facilitate the performance of, this Ordinance,
and for the better assuring and confirming unto the holders of the Bonds of the rights and
benefits provided in this Ordinance.
G. As long as any Bonds are Outstanding, the City will continue to deposit the
Pledged Revenues and, if necessary, the Pledged Taxes to the appropriate accounts of the
Bond Fund. The City covenants and agrees with the purchasers of the Bonds and with
the registered owners thereof that so long as any Bonds remain Outstanding, the City will
take no action or fail to take any action which in any way would adversely affect the
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ability of the City to collect the Pledged Revenues. The City and its officers will comply
with all present and future applicable laws in order to assure that the Pledged Revenues
and the Pledged Taxes may be collected as provided herein and deposited into the: Bond
Fund.
H. Once issued, the Bonds shall be and forever remain until paid or defeased
the general obligation of the City, for the payment of which its full faith and credit are
pledged, and shall be payable, in addition to the Pledged Revenues, from the levy of the
Pledged Taxes as provided in the Act.
Section 19. Additional Bonds. The City reserves the right to issue Additional Bonds
without limit from time to time payable from Pledged Revenues, and any such Additional Bonds
shall share ratably and equally in the Pledge Revenues with the Bonds, as applicable; provided,
however, that no Additional Bonds shall be issued except in accordance with the provisions of
the Act.
Any such Additional Bonds which may be issued in compliance herewith shall be
payable as to principal on May 1 and as to interest on November 1 and/or May 1 in each ,year in
which principal and interest come due.
Section 20. Refunding Bonds. Refunding bonds issued to refund, whether at or in
advance of maturity, Bonds issued under this Ordinance, may be issued by the Corporate
Authorities hereunder, and, upon such issuance, shall be "Bonds" as defined hereunder, subject
to the limitations hereof and in accordance with the provisions of the Act.
Section 21. Defeasance. Bonds which are no longer Outstanding Bonds as defined in
this Ordinance shall cease to have any lien on or right to receive or be paid from the Pledged
Revenues or the Pledged Taxes, and shall no longer have the benefits of any covenant for the
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registered owners of Outstanding Bonds as set forth herein as such relates to lien and security for
the Bonds in the Pledged Revenues or the Pledged Taxes.
Section 22. Taxes Previously Levied. The taxes previously levied to pay principal of
and interest on the Refunded Bonds, to the extent such principal and interest is provided for shall
be abated. The filing of a certificate of abatement with the County Clerk shall constitute
authority and direction for the County Clerk to make such abatement.
Section 23. This Ordinance a Contract. The provisions of this Ordinance shall
constitute a contract between the City and the registered owners of the Bonds, and no changes,
additions or alterations of any kind shall be made hereto, except as herein provided.
Section 24. Call of the Series 1997A Bonds. In accordance with the redemption
provisions of the ordinance authorizing the issuance of the Series 1997A Bonds, the City by the
Corporate Authorities does hereby make provision for the payment of and does hereby call
(subject only to the delivery of the Bonds) the Series 1997A Bonds maturing on or after May 1,
2007 for redemption and payment prior to maturity on May 1, 2006, as set forth in the Escrow
Agreement.
Section 25. Non -Arbitrage and Tax -Exemption. One purpose of this Section is to set
forth various facts regarding the Bonds and to establish the expectations of the Corporate
Authorities and the City as to future events regarding the Bonds and the use of Bond proceeds.
The certifications, covenants and representations contained herein and at the time of the Closing
are made on behalf of the City for the benefit of the owners from time to time of the Bonds. In
addition to providing the certifications, covenants and representations contained herein, the City
hereby covenants that it will not take any action, omit to take any action or permit the taking or
omission of any action within its control (including, without limitation, making or permitting any
use of the proceeds of the Bonds) if taking, permitting or omitting to take such action would
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cause any of the Bonds to be an arbitrage bond or a private activity bond within the meaning of
the Code or would otherwise cause the interest on the Bonds to be included in the gross income
of the recipients thereof for federal income tax purposes. The City acknowledges that, in the
event of an examination by the Internal Revenue Service of the exemption from federal income
taxation for interest paid on the Bonds, under present rules, the City is treated as the "taxpayer"
in such examination and agrees that it will respond in a commercially reasonable manner to any
inquiries from the Internal Revenue Service in connection with such an examination. The
Corporate Authorities and the City certify, covenant and represent as follows:
1.1. Definitions. In addition to such other words and terms used and defined in
this Ordinance, the following words and terms used in this Section shall have the
following meanings unless, in either case, the context or use clearly indicates another or
different meaning is intended:
"Affiliated Person" means any Person that (a) at any time during the six months
prior to the execution and delivery of the Bonds, (i) has more than five percent of the
voting power of the governing body of the City in the aggregate vested in its directors,
officers, owners, and employees or, (ii) has more than five percent of the voting power of
its governing body in the aggregate vested in directors, officers, board members or
employees of the City or (b) during the one-year period beginning six months prior to the
execution and delivery of the Bonds, (i) the composition of the governing body of which
is modified or established to reflect (directly or indirectly) representation of the interests
of the City (or for which an agreement, understanding, or arrangement relating to such a
modification or establishment during that one-year period) or (ii) the composition of the
governing body of the City is modified or established to reflect (directly or indirectly)
representation of the interests of such Person (or for which an agreement, understanding,
or arrangement relatinb to such a modification or establishment during that one-year
period).
"Bond Counsel" means Chapman and Cutler LLP or any other nationally
recognized firm of attorneys experienced in the field of municipal bonds whose opinions
are generally accepted by purchasers of municipal bonds.
"Capital Expenditures" means costs of a type that would be properly chargeable
to a capital account under the Code (or would be so chargeable with a proper election)
under federal income tax principles if the City were treated as a corporation subject to
federal income taxation, taking into account the definition of Placed -in -Service set forth
herein.
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"Closing" means the first date on which the City is receiving the purchase price
for the Bonds.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commingled Fund" means any fund or account containing both Gross Proceeds
and an amount in excess of $25,000 that are not Gross Proceeds if the amounts :in the
fund or account are invested and accounted for, collectively, without regard to the source
of funds deposited in the fund or account. An open-ended regulated investment company
under Section 851 of the Code is not a Commingled Fund.
"Control" means the possession, directly or indirectly through others, of either of
the following discretionary and non -ministerial rights or powers over another entity:
(a) to approve and to remove without cause a controlling portion of the
governing body of a Controlled Entity; or
(b) to require the use of funds or assets of a Controlled Entity for any
purpose.
"Controlled Entity" means any entity or one of a group of entities that is subject
to Control by a Controlling Entity or group of Controlling Entities.
"Controlled Group" means a group of entities directly or indirectly subject to
Control by the same entity or group of entities, including the entity that has Control of the
other entities.
"Controlling Entity" means any entity or one of a group of entities directly or
indirectly having Control of any entities or group of entities.
"Costs of Issuance" means the costs of issuing the Bonds, including underwriters'
discount and legal fees, but not including the fees for the Credit Facility described in
paragraph 5.8 hereof.
"Credit Facility" means the municipal bond insurance policy issued by the Credit
Facility Provider.
"Credit Facility Provider" means Financial Security Assurance Inc.
"De minimis Amount of Original Issue Discount or Premium" means with respect
to an obligation (a) any original issue discount or premium that does not exceed two
percent of the stated redemption price at maturity of the Bonds plus (b) any original issue
premium that is attributable exclusively to reasonable underwriter's compensation.
"Escrow Account" means the account established pursuant to the Escrow
Agreement.
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"Escrow Agent" means J.P. Morgan Trust Company, National Association,
Chicago, Illinois, as escrow agent under the Escrow Agreement.
"Escrow Agreement" means the agreement between the Escrow Agent and the
City providing for the deposit in trust of certain Government Securities for the purpose of
refunding in advance of maturity the Refunded Bonds.
"External Commingled Fund" means a Commingled Fund in which the City and
all members of the same Controlled Group as the City own, in the aggregate, not more
than ten percent of the beneficial interests.
"GIC" means (a) any investment that has specifically negotiated withdrawal or
reinvestment provisions and a specifically negotiated interest rate and (b) any agreement
to supply investments on two or more future dates (e.g., a forward supply contract).
"Government Securities" means the obligations held and to be held under the
Escrow Agreement.
"Gross Proceeds" means amounts in the Bond Fund and the Escrow Account.
"Net Sale Proceeds" means amounts actually or constructively received from the
sale of the Bonds reduced by any such amounts that are deposited in a reasonably
required reserve or replacement fund for the Bonds.
"Person" means any entity with standing to be sued or to sue, including any
natural person, corporation, body politic, governmental unit, agency, authority,
partnership, trust, estate, association, company, or group of any of the above.
"Placed - in -Service" means the date on which, based on all facts and
circumstances (a) a facility has reached a degree of completion that would permit its
operation at substantially its design level and (b) the facility is, in fact, in operation at
such level.
"Prior Bond Fund" means the fund or funds established in connection with the
issuance of the Prior Bonds to pay the debt service on the Prior Bonds.
"Prior Bond Proceeds" means amounts actually or constructively received from
the sale of the Refunded Bonds, including (a) amounts used to pay underwriters' discount
or compensation and accrued interest, other than accrued interest for a period not greater
than one year before the Refunded Bonds were issued but only if it is to be paid within
one year after the Refunded Bonds were issued and (b) amounts derived from the sale of
any right that is part of the terms of a Refunded Bond or is otherwise associated with a
Refunded Bond (e.g., a redemption right).
"Prior Bonds" means the City's outstanding issues being refunded by the Bonds,
as more particularly described in the preambles hereof.
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"Prior Project" means the facilities financed, directly or indirectly with the
proceeds of the Prior Bonds.
"Private Business Use" means any use of the Prior Project by any Person other
than a state or local government unit, including as a result of (i) ownership, (ii) actual or
beneficial use pursuant to a lease or a management, service, incentive payment, research
or output contract or (iii) any other similar arrangement, agreement or understanding,
whether written or oral, except for use of the Prior Project on the same basis as the
general public. Private Business Use includes any formal or informal arrangement with
any person other than a state or local governmental unit that conveys special legal
entitlements to any portion of the Prior Project that is available for use by the general
public or that conveys to any person other than a state or local governmental unit any
special economic benefit with respect to any portion of the Prior Project that is not
available for use by the general public.
"Qualified Administrative Costs of Investments" means (a) reasonable, direct
administrative costs (other than carrying costs) such as separately stated brokerage or
selling commissions but not legal and accounting fees, recordkeeping, custody and
similar costs; or (b) all reasonable administrative costs, direct or indirect, incurred by a
publicly offered regulated investment company or an External Commingled Fund.
"Qualified Tax Exempt Obligations" means (a) any obligation described in
Section 103(a) of the Code, the interest on which is excludable from gross income of the
owner thereof for federal income tax purposes and is not an item of tax preference for
purposes of the alternative minimum tax imposed by Section 55 of the Code; (b) an
interest in a regulated investment company to the extent that at least ninety-five percent
of the income to the holder of the interest is interest which is excludable from gross
income under Section 103 of the Code of any owner thereof for federal income tax
purposes and is not an item of tax preference for purposes of the alternative minimum tax
imposed by Section 55 of the Code; and (c) certificates of indebtedness issued by the
United States Treasury pursuant to the Demand Deposit State and Local Government
Series program described in 31 C.F.R. part 344.
"Rebate Fund" means the fund, if any, identified and defined in paragraph 4.1
herein.
"Rebate Provisions" means the rebate requirements contained in Section 148(f)
of the Code and in the Regulations.
"Refunded Bonds" means those certain Prior Bonds being refunded by the Bonds.
"Regulations" means United States Treasury Regulations dealing with the
tax-exempt bond provisions of the Code.
"Reimbursed Expenditures" means expenditures of the City paid prior to Closing
to which Sale Proceeds or investment earnings thereon are or will be allocated.
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"Sale Proceeds" means amounts actually or constructively received from the sale
of the Bonds, including (a) amounts used to pay underwriters' discount or compensation
and accrued interest, other than accrued interest for a period not greater than one year
before Closing but only if it is to be paid within one year after Closing and (b) amounts
derived from the sale of any right that is part of the terms of a Bond or is otherwise
associated with a Bond (e.g., a redemption right).
"Transferred Proceeds" means amounts actually or constructively received from
the sale of the Prior Bonds, plus investment earnings thereon, which have not been spent
prior to the date principal on the Refunded Bonds is discharged by ,the Bonds.
"Verification Report" means the verification report and opinion of the Verifier
concerning the Yield on the Bonds and the Government Securities.
"Verifier" means Dunbar, Breitweiser & Company, LLP, Bloomington, Illinois.
"Yield" means that discount rate which when used in computing the present value
of all payments of principal and interest paid and to be paid on an obligation (using
semiannual compounding on the basis of a 360-day year) produces an amount equal to
the obligation's purchase price (or in the case of the Bonds, the issue price as established
in paragraph 5.1 hereof), including accrued interest.
"Yield Reduction Payment" means a rebate payment or any other amount paid to
the United States in the same manner as rebate amounts are required to be paid or at such
other time or in such manner as the Internal Revenue Service may prescribe that will be
treated as a reduction in Yield of an investment under the Regulations.
2.1. Purpose of the Bonds. The Bonds are being issued solely and exclusively to
refund in advance of maturity the Refunded Bonds in a prudent manner consistent with
the revenue needs of the City. A breakdown of the sources and uses of funds is set forth
in the preceding Section of this Ordinance. Except to pay the Refunded Bonds and
except for any accrued interest on the Bonds used to pay first interest due on the Bonds,
no proceeds of the Bonds will be used more than 30 days after the date of issue of the
Bonds for the purpose of paying any principal or interest on any issue of bonds, notes,
certificates or warrants or on any installment contract or other obligation of the City or
for the purpose of replacing any funds of the City used for such purpose.
2.2. Bond Fund Investment. The investment earnings on the Bond Fund will be
spent to pay interest on the Bonds, or to the extent permitted by law, investment earnings
on amounts in the Bond Fund will be commingled with substantial revenues from the
governmental operations of the City, and the earnings are reasonably expected to be: spent
for governmental purposes within six months of the date earned.
2.3. Reimbursement. None of the Sale Proceeds or investment earnings thereon
will be used for Reimbursed Expenditures.
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2.4. Working Capital. All Sale Proceeds and investment earnings thereon will
be used, directly or indirectly, to pay principal of, interest on and redemption premium on
(if any) of the Refunded Bonds, other than the following:
(a) payments of interest on the Bonds for the period commencing at
Closing and ending on the date one year after the date on which the Prior Project
is Placed -in -Service;
(b) Costs of Issuance and Qualified Administrative Costs of Investments;
(c) payments of rebate or Yield Reduction Payments made to the United
States under the Regulations;
(d) principal of or interest on the Bonds paid from unexpected excess
Sale Proceeds and investment earnings thereon;
(e) fees for the Credit Facility; and
(f) investment earnings that are commingled with substantial other
revenues and are expected to be allocated to expenditures within six months:, and
2.5. Consequences of Contrary Expenditure. The City acknowledges that if Sale
Proceeds and investment earnings thereon are spent other than as permitted by
paragraph 2.4 hereof, a like amount of then available funds of the City will be treated as
unspent Sale Proceeds.
2.6. Investment of Bond Proceeds. No portion of the Bonds is being issued
solely for the purpose of investing a portion of Sale Proceeds or investment earnings
thereon at a Yield higher than the Yield on the Bonds.
2.7. No Grants. None of the Sale Proceeds or investment earnings thereon will
be used to make grants to any person.
2.8. Hedges. Neither the City nor any member of the same Controlled Group as
the City has entered into or expects to enter into any hedge (e.g., an interest rate swap,
interest rate cap, futures contract, forward contract or an option) with respect to the
Bonds or the Prior Bonds. The City acknowledges that any such hedge could affect,
among other things, the calculation of Bond Yield under the Regulations. The Internal
Revenue Service could recalculate Bond Yield if the failure to account for the hedge fails
to clearly reflect the economic substance of the transaction.
The City also acknowledges that if it acquires a hedging contract with an
investment element (including e.g. an off -market swap agreement, or any cap agreement
for which all or a portion of the premium is paid at, or before the effective date of the cap
agreement), then a portion of such hedging contract may be treated as an investment of
Gross Proceeds of the Bonds, and be subject to the fair market purchase price rules,
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rebate and yield restriction. The City agrees not to use proceeds of the Bonds to pay for
any such hedging contract in whole or in part. The City also agrees that it will not: give
any assurances to any Bond holder, the Credit Facility Provider or any other credit or
liquidity enhancer with respect to the Bonds that any such hedging contract will be
entered into or maintained. The City recognizes that if a portion of a hedging contract is
determined to be an investment of gross proceeds, such portion may not be fairly priced
even if the hedging contract as a whole is fairly priced.
2.9. Internal Revenue Service Audits. The City represents that the Internal
Revenue Service has not contacted the City regarding the Prior Bonds or any other
obligations issued by or on behalf of the City. To the best of the knowledge of the City,
no such obligations of the City are currently under examination by the Internal Revenue
Service.
2.10. Abusive Transactions. Neither the City nor any member of the same
Controlled Group as the City has employed a device or entered into any arrangements or
understandings in connection with the issuance of the Bonds or the advance refunding of
the Refunded Bonds, or in connection with any transaction or series of transactions
related to the issuance of the Bonds or the advance refunding of the Refunded Bonds, to
obtain a material financial advantage based on arbitrage. Neither the City nor any
member of the same Controlled Group as the City will realize any material financial
advantage based on arbitrage in connection with the issuance of the Bonds or the advance
refunding of the Refunded Bonds, or in connection with any transaction or series of
transactions related to the issuance of the Bonds or the advance refunding of the
Refunded Bonds. In particular, neither the City nor any member of the same Controlled
Group as the City will receive a rebate or credit resulting from any payments having; been
made in connection with the issuance of the Bonds or the advance refunding of the
Refunded Bonds.
3.1. Use of Proceeds. (a) The use of the Sale Proceeds and investment earnings
thereon and the funds held under this Ordinance at the time of Closing are described in
the preceding Section of this Ordinance. No Sale Proceeds will be used to pre -pay for
goods or services to be received over a period of years prior to the date such goods or
services are to be received, except for any payment to the Credit Facility Provider. No
Sale Proceeds or any investment earnings thereon will be used to pay for or otherwise
acquire goods or services from an Affiliated Person.
(b) Only the funds and accounts described in said Section will be funded at
Closing. There are no other funds or accounts created under this Ordinance, other than
the Rebate Fund if it is created as provided in paragraph 4.2 hereof.
(c) Principal of and interest on the Bonds will be paid from the Bond Fund.
(d) Any Costs of Issuance incurred in connection with the issuance of the Bonds
to be paid by the City will be paid at the time of Closing.
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3.2. Purpose of Bond Fund. The Bond Fund will be used primarily to achieve a
proper matching of revenues and earnings with principal and interest payments on the
Bonds in each bond year. It is expected that the Bond Fund will be depleted at least once
a year, except for a reasonable carry over amount not to exceed the greater of (a) the
earnings on the investment of moneys in the Bond Fund for the immediately preceding
bond year or (b) 1/12th of the principal and interest payments on the Bonds for the
immediately preceding bond year.
3.3. The Prior Bonds. (a) As of the earlier of (i) the time of the Closing or
(ii) the date three years after the Prior Bonds were issued, all Prior Bond Proceeds,
including investment earnings thereon, were completely spent to pay the costs of Capital
Expenditures.
(b) As of the date hereof, no Prior Bond Proceeds or money or property of any
kind (including cash) is on deposit in any fund or account, regardless of where held or the
source thereof, with respect to the Prior Bonds or any credit enhancement or liquidity
device relating to the foregoing, or is otherwise restricted to pay the City's obligations
other than amounts on deposit in the Escrow Account.
(c) The Prior Bond Fund was used primarily to achieve a proper matching of
revenues and earnings with principal and interest payments on the Prior Bonds in each
bond year. The Prior Bond Fund was depleted at least once a year, except for a
reasonable carry over amount not to exceed the greater of (i) the earnings on the
investment of moneys in such account for the immediately preceding bond year or
(ii) one -twelfth (1/12th) of the principal and interest payments on the Prior Bonds.
(d) At the time the Prior Bonds were issued, the City reasonably expected to
spend at least 85% of the proceeds (including investment earnings) of the Prior Bonds to
be used for non -refunding purposes for such purposes within three years of the date the
Prior Bonds were issued and such proceeds were so spent. Not more than 50% of the
proceeds of the Prior Bonds to be used for non -refunding purposes was invested in
investments having a substantially guaranteed Yield for four years or more.
(e) The Refunded Bonds subject to redemption prior to maturity will be called
on the first optional redemption date of the Refunded Bonds.
(f) The Refunded Bonds do not include, directly or indirectly in a series, any
advance refunding obligations.
(g) The City has not been notified that the Prior Bonds are under examination
by the Internal Revenue Service, and to the best of the City's knowledge the Prior Bonds
are not under examination by the Internal Revenue Service.
(h) The City acknowledges that (i) the final rebate payment with respect to the
Prior Bonds may be required to be made sooner than if the refunding had not occurred
and (ii) the final rebate is due 60 days after the Prior Bonds are paid in full.
"ro
3.4. The Escrow Account. (a) The Escrow Account will be funded at the
Closing.
(b) The uninvested cash and anticipated receipts from the Government
Securities on deposit in the Escrow Account, without regard to any reinvestment thereof,
will be sufficient to pay, when due, principal and interest on the Refunded Bonds as such
become due and payable and to redeem the outstanding principal amount of any callable
Refunded Bonds on the first optional redemption date of such callable Refunded Bonds,
at the applicable redemption price thereof based on the Verification Report.
(c) Any moneys remaining on deposit in the Escrow Account upon the final
disbursement of funds sufficient to pay principal and interest of the Refunded Bonds shall
be transferred by the Escrow Agent to the Bond Fund to be used to pay interest on the
Bonds.
3.5. No Other Gross Proceeds. (a) Except for the Bond Fund and except for
investment earnings that have been commingled as described in paragraph 2.2 and any
credit enhancement or liquidity device related to the Bonds, after the issuance of the
Bonds, neither the City nor any member of the same Controlled Group as the City has or
will have any property, including cash, securities or any other property held as a passive
vehicle for the production of income or for investment purposes, that constitutes:
(i) Sale Proceeds;
(ii) amounts in any fund and account with respect to the Bonds (other
than the Rebate Fund);
(iii) Transferred Proceeds;
(iv) amounts that have a sufficiently direct nexus to the Bonds or to the
governmental purpose of the Bonds to conclude that the amounts would have
been used for that governmental purpose if the Bonds were not used or to be used
for that governmental purpose (the mere availability or preliminary earmarking of
such amounts for a governmental purpose, however, does not itself establish such
a sufficient nexus);
(v) amounts in a debt service fund, redemption fund, reserve fund,
replacement fund or any similar fund to the extent reasonably expected to be used
directly or indirectly to pay principal of or interest on the Bonds or any amounts
for which there is provided, directly or indirectly, a reasonable assurance that the
amount will be available to pay principal of or interest on the Bonds or any
obligations under any credit enhancement or liquidity device with respect to the
Bonds, even if the City encounters financial difficulties;
(vi) any amounts held pursuant to any agreement (such as an agreement to
maintain certain levels of types of assets) made for the benefit of the Bondholders
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or any credit enhancement provider, including any liquidity device or negative
pledge (e.g., any amount pledged to pay principal of or interest on an issue held
under an agreement to maintain the amount at a particular level for the direct or
indirect benefit of holders of the Bonds or a guarantor of the bonds); or
(vii) amounts actually or constructively received from the investment and
reinvestment of the amounts described in (i) or (ii) above.
(b) No compensating balance, liquidity account, negative pledge of property
held for investment purposes required to be maintained at least at a particular level or
similar arrangement exists with respect to, in any way, the Bonds or any credit
enhancement or liquidity device related to the Bonds.
(c) The term of the Bonds is not longer than is reasonably necessary for the
governmental purposes of the Bonds. The average reasonably expected remaining
economic life of the Prior Project is at least 20 years. The weighted average maturity of
the Bonds does not exceed 11 years and does not exceed 120 percent of the average
reasonably expected economic life of the Prior Project. The maturity schedule of the
Bonds (the "Principal Payment Schedule") is based on an analysis of revenues expected
to be available to pay debt service on the Bonds. The Principal Payment Schedule is not
more rapid (i.e., having a lower average maturity) because a more rapid schedule would
place an undue burden on tax rates and cause such rates to be increased beyond prudent
levels, and would be inconsistent with the governmental purpose of the Bonds as set forth
in paragraph 2.1 hereof.
4.1. Compliance with Rebate Provisions. The City covenants to take such
actions and make, or cause to be made, all calculations, transfers and payments that may
be necessary to comply with the Rebate Provisions applicable to the Bonds. The City
will make, or cause to be made, rebate payments with respect to the Bonds in accordance
with law.
4.2. Rebate Fund. The City is hereby authorized to create and establish a
special fund to be known as the Rebate Fund (the "Rebate Fund"), which, if created,
shall be continuously held, invested, expended and accounted for in accordance with this
Ordinance. Moneys in the Rebate Fund shall not be considered moneys held for the
benefit of the owners of the Bonds. Except as provided in the Regulations, moneys in the
Rebate Fund (including earnings and deposits therein) shall be held in trust for payment
to the United States as required by the Rebate Provisions and by the Regulations and as
contemplated under the provisions of this Ordinance.
4.3. Records. The City agrees to keep and retain or cause to be kept and retained
until six years (three years for the records required by paragraph 4.4(c) hereof) after the
Bonds are paid in full adequate records with respect to the investment of all Gross
Proceeds and amounts in the Rebate Fund. Such records shall include: (a) purchase
price; (b) purchase date; (c) type of investment; (d) accrued interest paid; (e) interest rate;
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(f) principal amount; (g) maturity date; (h) interest payment date; (i) date of liquidation;
and 0) receipt upon liquidation.
If any investment becomes Gross Proceeds on a date other than the date such
investment is purchased, the records required to be kept shall include the fair market
value of such investment on the date it becomes Gross Proceeds. If any investment is
retained after the date the last Bond is retired, the records required to be kept shall
include the fair market value of such investment on the date the last Bond is retired.
Amounts or investments will be segregated whenever necessary to maintain these
records.
4.4. Fair Market Value; Certificates of Deposit and Investment Agreements. The
City will continuously invest all amounts on deposit in the Rebate Fund, together with the
amounts, if any, to be transferred to the Rebate Fund, in any investment permitted under
this Ordinance. In making investments of Gross Proceeds or of amounts in the Rebate
Fund the City shall take into account prudent investment standards and the date on which
such moneys may be needed. Except as provided in the next sentence, all amounts that
constitute Gross Proceeds and all amounts in the Rebate Fund shall be invested at all
times to the greatest extent practicable, and no amounts may be held as cash or be
invested in zero yield investments other than obligations of the United States purchased
directly from the United States. In the event moneys cannot be invested, other than as
provided in this sentence due to the denomination, price or availability of investments,
the amounts shall be invested in an interest bearing deposit of a bank with a yield not less
than that paid to the general public or held uninvested to the minimum extent necessary.
Gross Proceeds and any amounts in the Rebate Fund that are invested in
certificates of deposit or in GICs shall be invested only in accordance with the following
provisions:
(a) Investments in certificates of deposit of banks or savings and loan
associations that have a fixed interest rate, fixed payment schedules and
substantial penalties for early withdrawal shall be made only if either (i) the Yield
on the certificate of deposit (A) is not less than the Yield on reasonably
comparable direct obligations of the United States and (B) is not less than the
highest Yield that is published or posted by the provider to be currently available
from the provider on reasonably comparable certificates of deposit offered to the
public or (ii) the investment is an investment in a GIC and qualifies under
paragraph (b) below.
(b) Investments in GICs shall be made only if
(i) the bid specifications are in writing, include all material terms
of the bid and are timely forwarded to potential providers (a term is
material if it may directly or indirectly affect the yield on the GIC);
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(ii) the terms of the bid specifications are commercially reasonable
(a term is commercially reasonable if there is a legitimate business
purpose for the term other than to reduce the yield on the GIC);
(iii) all bidders for the GIC have equal opportunity to bid so that,
for example, no bidder is given the opportunity to review others bids (a
last look) before bidding;
(iv) any agent used to conduct the bidding for the GIC does not bid
to provide the GIC;
(v) at least three of the providers solicited for bids for the GIC are
reasonably competitive providers of investments of the type purchased
(i.e., providers that have established industry reputations as competitive
providers of the type of investments being purchased);
(vi) at least three of the entities that submit a bid do not have a
financial interest in the Bonds;
(vii) at least one of the entities that provided a bid is a reasonably
competitive provider that does not have a financial interest in the Bonds;
(viii) the bid specifications include a statement notifying potential
providers that submission of a bid is a representation that the potential
provider did not consult with any other provider about its bid, that the bid
was determined without regard to any other formal or informal agreement
that the potential provider has with the City or any other person (whether
or not in connection with the Bonds) and that the bid is not being
submitted solely as a courtesy to the City or any other person for purposes
of satisfying the federal income tax requirements relating to the bidding
for the GIC;
(ix) the determination of the terms of the GIC takes into account
the reasonably expected deposit and drawdown schedule for the amounts
to be invested;
(x) the highest -yielding GIC for which a qualifying bid is made
(determined net of broker's fees) is in fact purchased; and
(xi) the obligor on the GIC certifies the administrative costs that it
is paying or expects to pay to third parties in connection with the GIC.
(c) If a GIC is purchased, the City will retain the following records with
its bond documents until three years after the Bonds are redeemed in their
entirety:
(i) a copy of the GIC;
(ii) the receipt or other record of the amount actually paid for the
GIC, including a record of any administrative costs paid, and the
certification under subparagraph (b)(xi) of this paragraph;
(iii) for each bid that is submitted, the name of the person and entity
submitting the bid, the time and date of the bid, and the bid results; and
(iv) the bid solicitation form and, if the terms of the GIC deviated
from the bid solicitation form or a submitted bid is modified, a brief
statement explaining the deviation and stating the purpose for the
deviation.
Moneys to be rebated to the United States shall be invested to mature on or prior
to the anticipated rebate payment date. All investments made with Gross Proceeds or
amounts in the Rebate Fund shall be bought and sold at fair market value. The fair
market value of an investment is the price at which a willing buyer would purchase the
investment from a willing seller in a bona fide, arm's length transaction. Except for
investments specifically described in this Section and United States Treasury obligations
that are purchased directly from the United States Treasury, only investments that are
traded on an established securities market, within the meaning of regulations promulgated
under Section 1273 of the Code, will be purchased with Gross Proceeds. In general, an
"established securities market" includes: (i) property that is listed on a national securities
exchange, an interdealer quotation system or certain foreign exchanges; (ii) property that
is traded on a Commodities Futures Trading Commission designated board of trade: or an
interbank market; (iii) property that appears on a quotation medium; and (iv) property for
which price quotations are readily available from dealers and brokers. A debt instrument
is not treated as traded on an established market solely because it is convertible into
property which is so traded.
An investment of Gross Proceeds in an External Commingled Fund shall be made
only to the extent that such investment is made without an intent to reduce the amount to
be rebated to the United States Government or to create a smaller profit or a larger loss
than would have resulted if the transaction had been at arm's length and had the rebate or
Yield restriction requirements not been relevant to the City. An investment of Gross
Proceeds shall be made in a Commingled Fund other than an External Commingled Fund
only if the investments made by such Commingled Fund satisfy the provisions of this
paragraph.
A single investment, or multiple investments awarded to a provider based on a
single bid may not be used for funds subject to different rules relating to rebate or yield
restriction.
The foregoing provisions of this paragraph satisfy various safe harbors set forth in
the Regulations relating to the valuation of certain types of investments. The safe harbor
M72
provisions of this paragraph are contained herein for the protection of the City, who has
covenanted not to take any action to adversely affect the tax-exempt status of the interest
on the Bonds. The City will contact Bond Counsel if it does not wish to comply with the
provisions of this paragraph and forego the protection provided by the safe harbors
provided herein.
4.5. Arbitrage Elections. The City hereby waives its right to invest Sale
Proceeds of the Bonds and investment earnings thereon in the Escrow Account in
investments with Yields higher than Bond Yield. The Mayor, Clerk and Treasurer of the
City are hereby authorized to execute one or more elections regarding certain matters
with respect to arbitrage.
4.6. Small Issuer Exception. (a) The City is a governmental unit that has the
power to impose a tax or to cause another entity to impose a tax of general applicability
that, when collected, may be used for the governmental purposes of the City. The power
to impose such tax is not contingent on approval by another governmental unit; a tax of
general applicability is one that is not limited to a small number of persons. The City is
not subject to Control by any other governmental unit or political subdivision. None of
the Bonds is or will be a "private activity bond" (as defined in Section 141 of the Code).
Ninety-five percent or more of the Sale Proceeds will be used for local governmental
activities of the City. Neither the City, any entity that issues tax-exempt bonds on behalf
of the City nor any entity subject to Control by the City will issue, during the calendar
year 2005, any tax-exempt bonds in an aggregate face amount in excess of the maximum
aggregate face amount (as hereinafter defined). As used herein, (a) "tax-exempt bonds"
means obligations of any kind, the interest on which is excludable from gross income of
the holders or owners thereof for federal income tax purposes pursuant to Section 103 of
the Code but not including (i) "private activity bonds" (as defined in Section 141 of the
Code) or (ii) obligations issued to refund another obligation if it is issued not more than
90 days before the redemption of the refunded obligation to the extent the amount of the
refunding obligation does not exceed the outstanding amount of the refunded obligation,
(b) "aggregate face amount" means, if an issue has more than a De minimis Amount of
Original Issue Discount or Premium, the issue price of the issue and otherwise means the
face amount of the issue and (c) "maximum aggregate face amount" means $5,000,000.
As of the date hereof, no tax-exempt bonds or other obligations (other than the Bonds)
have been issued by the City, any entity that issues tax-exempt bonds on behalf of the
City or any entity subject to Control by the City during the calendar year 2005. The City
does not reasonably expect that it, any entity that issues tax-exempt bonds on behalf of
the City or any entity subject to Control by the City (including but not limited to the: City)
will issue any such tax-exempt bonds or other obligations within calendar year 2005.
Therefore, subject to compliance with all the terms and provisions of this paragraph 4.6,
the City is excepted from the required rebate of arbitrage profits on the Bonds under
Section 148(f)(4)(D) of the Code and from the terms and provisions of this Ordinance
that need only be complied with if the City is subject to the arbitrage rebate requirement.
.m
(b) The Refunded Bonds were issued as part of an issue which qualified for the
small issuer exception to rebate under the Rebate Provisions or which was issued at a
time when no such rebate requirement existed.
(c) The average maturity date of the Bonds is not later than the average maturity
date of the Refunded Bonds.
(d) No Bond has a maturity date which is later than the date which is 30 years
after the date on which the earliest issue of the Prior Bonds was issued.
1
5.1. Issue Price. For purposes of determining the Yield on the Bonds, the
purchase price of the Bonds is equal to the first offering price (including accrued interest)
at which the Purchaser sold at least ten percent of the principal amount of each maturity
of the Bonds to the public (excluding bond houses, brokers or similar persons or
organizations acting in the capacity of underwriters, placement agents or wholesalers).
All of the Bonds have been the subject of a bona fide initial offering to the public
(excluding bond houses, brokers, or similar persons or organizations acting in the
capacity of underwriters, placement agents or wholesalers) at prices equal to those set
forth in the Official Statement. Based upon prevailing market conditions, such prices are
not less than the fair market value of each Bond as of the sale date for the Bonds.
5.2. Yield Limits. Except as provided in paragraph (a) or (b), all Gross Proceeds
shall be invested at market prices and at a Yield (after taking into account any Yield
Reduction Payments) not in excess of the Yield on the Bonds.
The following may be invested without Yield restriction:
(a) amounts on deposit in the Bond Fund (except for capitalized interest) that
have not been on deposit under the Ordinance for more than 13 months, so long as the
Bond Fund continues to qualify as a bona fide debt service fund as described in
paragraph 3.2 hereof;
(b) (i) An amount not to exceed the lesser of $100,000 or five percent of the
Sale Proceeds;
(ii) amounts invested in Qualified Tax Exempt Obligations (to the extent
permitted by law and this Ordinance);
(iii) amounts in the Rebate Fund;
(iv) all amounts other than Sale Proceeds for the first 30 days after they
become Gross Proceeds; and
(v) all amounts derived from the investment of Sale Proceeds or
investment earnings thereon other than those on deposit in the Escrow Account
for a period of one year from the date received.
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5.3. Yield Limits on Prior Bond Proceeds. Except for an amount not to exceed
the lesser of $100,000 or five percent of Prior Bond Proceeds, the City acknowledges that
all Prior Bond Proceeds must be invested at market prices and at a Yield not in excess of
the Yield on the Prior Bonds.
5.4. Continuing Nature of Yield Limits. Except as provided in paragraph 7.9
hereof, once moneys are subject to the Yield limits of paragraph 5.2 hereof, such moneys
remain Yield restricted until they cease to be Gross Proceeds.
5.5. Federal Guarantees. Except for investments meeting the requirements of
paragraph 5.2(a) hereof and except for investments in the Escrow Account, investments
of Gross Proceeds shall not be made in (a) investments constituting obligations of or
guaranteed, directly or indirectly, by the United States (except obligations of the United
States Treasury or investments in obligations issued pursuant to Section 21B(d)(3) of the
Federal Home Loan Bank, as amended (e.g., Refcorp Strips)); or (b) federally insured
deposits or accounts (as defined in Section 149(b)(4)(B) of the Code). Except as
otherwise permitted in the immediately prior sentence and in the Regulations, no portion
of the payment of principal or interest on the Bonds or any credit enhancement or
liquidity device relating to the foregoing is or will be guaranteed, directly or indirectly (in
whole or in part), by the United States (or any agency or instrumentality thereof),
including a lease, incentive payment, research or output contract or any similar
arrangement, agreement or understanding with the United States or any agency or
instrumentality thereof. No portion of the Gross Proceeds has been or will be used to
make loans the payment of principal or interest with respect to which is or will be
guaranteed (in whole or in part) by the United States (or any agency or instrumentality
thereof). Neither this paragraph nor paragraph 5.5 hereof applies to any guarantee by the
Federal Housing Administration, the Federal National Mortgage Association, the Federal
Home Loan Mortgage Corporation, the Government National Mortgage Association, the
Student Loan Marketing Association or the Bonneville Power Administration pursuant to
the Northwest Power Act (16 U.S.C. 839d) as in effect on the date of enactment of the
Tax Reform Act of 1984.
5.6. Investments After the Expiration of Temporary Periods, Etc. Any amounts,
other than amounts in the Escrow Account, that are subject to the yield limitation in
Section 5.2 because Section 5.2(a) is not applicable and amounts not subject to yield
restriction only because they are described in Section 5.2(b) cannot be invested in
(i) federally insured deposits or accounts (as defined in Section 149(b)(4)(B) of the Code
or (ii) investments constituting obligations of or guaranteed, directly or indirectly, by the
United States (except obligations of the United States Treasury or investments in
obligations issued pursuant to Section 21B(d)(3) of the Federal Home Loan Bank Act, as
amended (e.g., Refcorp Strips).
5.7. Escrow Yield. The Yield on the Government Securities purchased with Sale
Proceeds of the Bonds, taking into account any Transferred Proceeds, has been computed
by the Purchaser and verified by the Verifier to be not greater than the Yield on the
Bonds computed by the Purchaser and verified by the Verifier.
5.8. Treatment of Certain Credit Facility Fees. The fee paid to the Credit
Facility Provider with respect to the Credit Facility may be treated as interest in
computing Bond Yield.
Neither the City nor any member of the same Controlled Group as the City is a
Related Person as defined in Section 144(a)(3) of the Code to the Credit Facility
Provider. The fee paid to the Credit Facility Provider does not exceed ten percent of the
Sale Proceeds. Other than the fee paid to the Credit Facility Provider, neither the Credit
Facility Provider nor any person who is a Related Person to the Credit Facility Provider
within the meaning of Section 144(a)(3) of the Code will use 'any Sale Proceeds or
investment earnings thereon. The fee paid for the Credit Facility does not exceed a
reasonable, arm's length charge for the transfer of credit risk. The fee does not include
any payment for any direct or indirect services other than the transfer of credit risk.
6.1. Payment and Use Tests. (a) No more than five percent of the proceeds of
each issue of the Prior Bonds and investment earnings thereon were used, directly or
indirectly, in whole or in part, in any Private Business Use. The City acknowledges that,
for purposes of the preceding sentence, Gross Proceeds used to pay costs of issuance and
other common costs (such as capitalized interest and fees paid for a qualified guarantee or
qualified hedge) or invested in a reserve or replacement fund must be ratably allocated
among all the purposes for which Gross Proceeds are being used.
(b) The payment of more than five percent of the principal of or the interest on
the Bonds or on each issue of the Prior Bonds considered separately will not be, directly
or indirectly (i) secured by any interest in (A) property used or to be used in any Private
Business Use or (B) payments in respect of such property or (ii) on a present value basis,
derived from payments (whether or not to the City or a member of the same Controlled
Group as the City) in respect of property, or borrowed money, used or to be used in any
Private Business Use.
(c) No more than the lesser of $5,000,000 or five percent of the sum of the
proceeds of each issue of the Prior Bonds and investment earnings thereon were used,
and no more than the lesser of $5,000,000 or five percent of the sum of the Sale Proceeds
and investment earnings thereon will be used, directly or indirectly, to make or finance
loans to any persons. The City acknowledges that, for purposes of the preceding
sentence, Gross Proceeds used to pay costs of issuance and other common costs (such as
capitalized interest and fees paid for a qualified guarantee or qualified hedge) or invested
in a reserve or replacement fund must be ratably allocated among all the purposes for
which Gross Proceeds are being used.
(d) No user of the Prior Project other than a state or local governmental unit will
use more than five percent of such facilities, considered separately, on any basis other
than the same basis as the general public.
6.2. I.R.S. Form 8038-G. The information contained in the Information Return
for Tax -Exempt Governmental Obligations, Form 8038-G, is true and complete. The
City will file Form 8039-G (and all other required information reporting forms) in a
timely manner.
6.3. Bank Qualification. (a) The City hereby designates each of the Bonds as a
"qualified tax-exempt obligation" for the purposes and within the meaning of
Section 265(b)(3) of the Code. In support of such designation, the City hereby certifies
that (i) none of the Bonds will be at anytime a "private activity bond" (as defined in
Section 141 of the Code) other than a "qualified 501(c)(3) bond" (as defined in
Section 145 of the Code), (ii) as of the date hereof in calendar year 2005, the City has not
issued any tax-exempt obligations of any kind other than the' Bonds nor have any
tax-exempt obligations of any kind been issued on behalf of the City and (iii) not more
than $10,000,000 of obligations of any kind (including the Bonds) issued by or on behalf
of the City during calendar year 2005 will be designated for purposes of
Section 265(b)(3) of the Code.
(b) The City is not subject to Control by any entity, and there are no entities
subject to Control by the City.
(c) On the date hereof, the City does not reasonably anticipate that for calendar
year 2005 it will issue any Section 265 Tax -Exempt Obligations (other than the Bonds),
or that any Section 265 Tax -Exempt Obligations will be issued on behalf of it. "Section
265 Tax -Exempt Obligations" are obligations the interest on which is excludable from
gross income of the owners thereof under Section 103 of the Code, except for private
activity bonds other than qualified 501(c)(3) bonds, both as defined in Section 141 of the
Code. The City will not issue or permit the issuance on behalf of it or by any entity
subject to Control by the City (which may hereafter come into existence) of Section 265
Tax -Exempt Obligations (including the Bonds) that exceed the aggregate amount of
$10,000,000 during calendar year 2005 unless it first obtains an opinion of Bond Counsel
to the effect that such issuance will not adversely affect the treatment of the Bonds as
"qualified tax-exempt obligations" for the purposes and within the meaning of
Section 265(b)(3) of the Code.
7.1. Termination; Interest of City in Rebate Fund. The terms and provisions set
forth in this Section shall terminate at the later of (a) 75 days after the Bonds have been
fully paid and retired or (b) the date on which all amounts remaining on deposit in the
Rebate Fund, if any, shall have been paid to or upon the order of the United States and
any other payments required to satisfy the Rebate Provisions of the Code have been made
to the United States. Notwithstanding the foregoing, the provisions of paragraph 4.3
hereof shall not terminate until the sixth anniversary of the date the Bonds are fully paid
and retired, and the provisions of paragraph 4.4(c) hereof shall not terminate until the
third anniversary of the date the Bonds are fully paid and retired.
7.2. No Common Plan of Financing. Since a date that is 15 days prior to the date
of sale of the Bonds by the City to the Purchaser, neither the City nor any member of the
same Controlled Group as the City has sold or delivered any tax-exempt obligations other
than the Bonds that are reasonably expected to be paid out of substantially the same
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source of funds as the Bonds. Neither the City nor any member of the same Controlled
Group as the City will sell or deliver within 15 days after the date of sale of the Bonds
any tax-exempt obligations other than the Bonds that are reasonably expected to be paid
out of substantially the same source of funds as the Bonds.
7.3. No Sale of the Prior Project. (a) Other than as provided in the next
sentence, neither the Prior Project nor any portion thereof has been, is expected to be, or
will be sold or otherwise disposed of, in whole or in part, prior to the earlier of (i) the last
date of the reasonably expected economic life to the City of the property (determined on
the date of issuance of the Bonds) or (ii) the last maturity date of the Bonds. The City
may dispose of personal property in the ordinary course of an established government
program prior to the earlier of (i) the last date of the reasonably expected economic life to
the City of the property (determined on the date of issuance of the Bonds) or (ii) the last
maturity of the Bonds, provided: (A) the weighted average maturity of the Bonds
financing the personal property is not greater than 120 percent of the reasonably expected
actual use of that property for governmental purposes; (B) the City reasonably expects on
the issue date that the fair market value of that property on the date of disposition will be
not greater than 25 percent of its cost; (C) the property is no longer suitable for its
governmental purposes on the date of disposition; and (D) the City deposits amounts
received from the disposition in a commingled fund with substantial tax or other
governmental revenues and the City reasonably expects to spend the amounts on
governmental programs within six months from the date of the commingling.
(b) The City acknowledges that if property financed with the Prior Bonds is
sold or otherwise disposed of in a manner contrary to (a) above, such sale or disposition
may constitute a "deliberate action" within the meaning of the Regulations that may
require remedial actions to prevent the Bonds from becoming private activity bonds. The
City shall promptly contact Bond Counsel if a sale or other disposition of Bond -financed
property is considered by the City.
7.4. Purchase of Bonds by City. The City will not purchase any of the Bonds
except to cancel such Bonds.
7.5. First Call Date Limitation. The period between the date of Closing and the
first call date of the Bonds is not more than 10-1/2 years.
7.6. Registered Form. The City recognizes that Section 149(a) of the Code
requires the Bonds to be issued and to remain in fully registered form in order that
interest thereon be exempt from federal income taxation under laws in force at the time
the Bonds are delivered. In this connection, the City agrees that it will not take any
action to permit the Bonds to be issued in, or converted into, bearer or coupon form.
7.7. First Amendment. The City acknowledges and agrees that it will not use, or
allow the Prior Project to be used, in a manner which is prohibited by the Establishment
of Religion Clause of the First Amendment to the Constitution of the United States of
America or by any comparable provisions of the Constitution of the State of Illinois..
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7.8. Future Events. The City acknowledges that any changes in facts or
expectations from those set forth herein may result in different Yield restrictions or rebate
requirements from those set forth herein. The City shall promptly contact Bond Counsel
if such changes do occur.
7.9. Record Retention. The City agrees to keep and retain or cause to be kept
and retained sufficient records to support the continued exclusion of the interest paid on
the Bonds from federal income taxation and to show that all tax-exempt Bond related
returns submitted to the Internal Revenue Service are correct. Such records shall include,
but are not limited to, basic records relating to the Bond transaction (including this
Resolution and the Bond Counsel opinion); documentation evidencing the expenditure of
Bond proceeds; documentation evidencing the use of Bond -financed property by public
and private sources (i.e., copies of management contracts and research agreements);
documentation evidencing all sources of payment or security for the Bonds; and
documentation pertaining to any investment of Bond proceeds (including the purchase
and sale of securities, SLGs subscriptions, yield calculations for each class of
investments, actual investment income received from the investment of proceeds,
guaranteed investment contracts and rebate calculations). Such records shall be kept for
as long as the Bonds are outstanding, plus three (3) years after the later of the final
redemption date of the Bonds or the final redemption date of any obligations or series of
obligations issued to refund all or a portion of the Bonds.
7.10. Permitted Changes; Opinion of Bond Counsel. The Yield restrictions
contained in paragraph 5.2 hereof or any other restriction or covenant contained herein
need not be observed or may be changed if such nonobservance or change will not result
in the loss of any exemption for the purpose of federal income taxation to which interest
on the Bonds is otherwise entitled and the City receives an opinion of Bond Counsel to
such effect.
7.11. Excess Proceeds. Gross Proceeds of the Bonds and investment earnings
thereon and all unspent Prior Bond Proceeds as of the date of Closing and investment
earnings thereon do not exceed by more than one percent of the Sale Proceeds of the
Bonds the amount that will be used for:
(i) payment of principal of or interest or call premium on the Refunded Bonds;
(ii) payment of pre -issuance accrued interest on the Bonds and interest on the
Bonds that accrues for a period up to the completion date of any capital project for which
the prior issue was issued, plus one year;
(iii) payment of cost of issuance of the Bonds;
(iv) payment of administrative costs allocable to repaying the Refunded Bonds,
carrying and repaying the Bonds or investments of the Bonds;
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(v) Prior Bond Proceeds that will be used or maintained for the governmental
purpose of the Refunded Bonds;
(vi) interest on purpose investments; and
(vii) costs of the Credit Facility allocable to the Bonds.
7.12. Successors and Assigns. The terms, provisions, covenants and conditions of
this Section shall bind and inure to the benefit of the respective successors and assigns of
the Corporate Authorities and the City.
7.13. Expectations. The Corporate Authorities have reviewed the facts, estimates
and circumstances in existence on the date of issuance of the Bonds. Such facts,
estimates and circumstances, together with the expectations of the City as to future
events, are set forth in summary form in this Section. Such facts and estimates are true
and are not incomplete in any material respect. On the basis of the facts and estimates
contained herein, the City has adopted the expectations contained herein. On the basis of
such facts, estimates, circumstances and expectations, it is not expected that Sale
Proceeds, investment earnings thereon or any other moneys or property will be used in a
manner that will cause the Bonds to be arbitrage bonds within the meaning of the Rebate
Provisions and the Regulations. Such expectations are reasonable and there are no other
facts, estimates and circumstances that would materially change such expectations.
The City also agrees and covenants with the purchasers and holders of the Bonds from
time to time outstanding that, to the extent possible under Illinois law, it will comply with
whatever federal tax law is adopted in the future which applies to the Bonds and affects the tax-
exempt status of the Bonds.
The Corporate Authorities hereby authorize the officials of the City responsible for
issuing the Bonds, the same being the Mayor, Clerk and Treasurer of the City, to make such
further covenants and certifications as may be necessary to assure that the use thereof will not
cause the Bonds to be arbitrage bonds and to assure that the interest in the Bonds will be exempt
from federal income taxation. In connection therewith, the City and the Corporate Authorities
further agree: (a) through their officers, to make such further specific covenants, representations
as shall be truthful, and assurances as may be necessary or advisable; (b) to consult with counsel
approving the Bonds and to comply with such advice as may be given; (c) to pay to the United
States, as necessary, such sums of money representing required rebates of excess arbitrage
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profits relating to the Bonds; (d) to file such forms, statements, and supporting documents as
may be required and in a timely manner; and (e) if deemed necessary or advisable by their
officers, to employ and pay fiscal agents, financial advisors, attorneys, and other persons to assist
the City in such compliance.
Section 26. Continuing Disclosure Undertaking. To the extent applicable to the Bonds,
the Mayor or Treasurer of the City are hereby authorized, empowered and directed to execute
and deliver the Continuing Disclosure Undertaking (the "Continuing Disclosure Undertaking")
in substantially the same form now before the City, or with such changes therein as the
individual executing the Continuing Disclosure Undertaking on behalf of the City shall approve,
his execution thereof to constitute conclusive evidence of his approval of such changes. If and
when the Continuing Disclosure Undertaking is executed and delivered on behalf of the City as
herein provided, the Continuing Disclosure Undertaking will be binding on the City and the
officers, employees and agents of the City, and the officers, employees and agents of the City are
hereby authorized, empowered and directed to do all such acts and things and to execute all such
documents as may be necessary to carry out and comply with the provisions of the Continuing
Disclosure Undertaking as executed, and the Continuing Disclosure Undertaking shall constitute,
and hereby is made, a part of this Ordinance, and copies of the Continuing Disclosure
Undertaking shall be placed in the official records of the City, and shall be available for public
inspection at the office of the City. Notwithstanding any other provision of this Ordinance, the
sole remedies for failure to comply with the Continuing Disclosure Undertaking, if executed,
shall be the ability of any beneficial owner to take such actions as may be necessary and
appropriate, including seeking mandamus or specific performance by court order, to cause the
City to comply with its obligations under the Continuing Disclosure Undertaking.
Section 27. Purchase of the Government Securities. The Escrow Agent, Speer
Financial, Inc., the City's Financial Advisor, the Purchaser, and Chapman and Cutler LLP,
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Chicago, Illinois, be and the same are each hereby authorized to act as agent for the City in the
purchase of the Government Securities described and set forth in the Escrow Agreement.
Section 28. Severability. If any section, paragraph, clause or provision of this
Ordinance shall be held invalid, the invalidity of such section, paragraph, clause or provision
shall not affect any of the other provisions of this Ordinance.
Section 29. Repealer. All ordinances, resolutions or orders, or parts thereof, in conflict
with the provisions of this Ordinance are to the extent of such conflict hereby repealed.
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Section 30. Effective Date. This Ordinance shall be effective immediately upon its
adoption and approval.
PASSED by the City Council on July 11, 2005.
APPROVED: July 11, 2005.
J i
Mayor
AYES: SANTI, GLAB, MURGATROYD, WIMMER, PETERSON AND CONDON
NAYS:
ABSENT: SCHAEFER
REcoRDED in the Municipal Records on July 11, 2005.
ATTEST:
C
City Cle c
[SEAL] 77'
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