The URL can be used to link to this page

Home My WebLink AboutORDINANCES-2002-083-O-02• C] ORDINANCE NUMBER 83-0-02 AN ORDINANCE providing for the issuance of not to exceed $35,000,000 General Obligation Corporate Purpose and Refunding Bonds, Series 2002, of the City of Evanston, Cook County, Illinois, and providing for the levy and collection of a direct annual tax for the payment of the principal of and interest on said bonds. Adopted by the City Council on the 9th day of September 2002. Published in Pamphlet Form by the Authority of �e City Council on the �= day of September 2002. 1384676.01.07 21CO261 • TVM • 9/4/02 TABLE OF CONTENTS PAGE Preambles...................................................................................................... . Section1. Definitions.................................................................................... Section 2. Incorporation of Preambles.............................................................. 1 Section 3. Determination To Issue Bonds.......................................................... 10 Section4. Bond Details............................................................................... 1 Section 5. Book Entry Provisions.................................................................... 12 Section 6. Execution; Authentication................................................................ 14 Section 7. Term Bonds, Mandatory Redemption and Covenants; Optional Redemption................................................................................ 15 Section 8. Term Bonds Purchase or Redemption .................................................. 16 Section 9. Redemption Procedure.................................................................... 16 Section 10. Registration of Bonds; Persons Treated as Owners ................................... 20 Section11. Form of Bond.............................................................................. 22 Section 12. Security; Tax Levy........................................................................ 28 Section 13. Filing with County Clerk................................................................. 30 Section 14. Sale of Bonds; Bond Order; Bond Series .............................................. 31 Section 15. Creation of Funds and Appropriations................................................. 33 Section 16. Tax Covenants Generally................................................................ 35 Section 17. Specific Tax Covenants.................................................................. 35 Section 17.101. Definitions......................................................................... 35 Section 17.201. Purpose of the Bonds............................................................ 40 Section 17.202. The Project — Binding Commitment and Timing ........................... 40 Section 17.203. Reimbursement................................................................... 1 Section 17.204. Working Capital.................................................................. 42 Section 17.205. Consequences of Contrary Expenditure ....................................... 42 Section 17.206. Investment of Bond Proceeds ................................................... 42 Section 17.207. No Grants.......................................................................... 43 Section17.208. Hedges............................................................................: 43 Section 17.209. Abusive Transactions. ............. 43 Section 17.210. Internal Revenue Service Audits ............................................... 43 Section 17.301. Use of Proceeds................................................................... 3 Section 17.302. Purpose of Bond Fund........................................................... 44 Section 17.303. The Prior Bonds................................................................... 44 Section 17.304. The Escrow Fund................................................................. 45 Section 17.305. No Other Gross Proceeds........................................................ 45 Section 17.401. Compliance with Rebate Provisions ........................................... 46 Section 17.402. Rebate Fund....................................................................... 6 Section17.403. Records............................................................................ 47 Section 17.404. Fair Market Value; Certificates of Deposit and Investment Agreements................................................................... 47 Section 17.405. Arbitrage Elections............................................................... 50 Section 17.406. Small Issuer Exception.......................................................... 50 • Section 17.501. Section 17.502. Issue Price......................................................... Yield Limits.. ................. 50 50 Section 17.503. Yield Limits on Prior Bonds .................................................... 51 Section 17.504. Continuing Nature of Yield Limits ............................................ 51 Section 17.505. Federal Guarantees............................................................... 51 Section 17.506. Investments After the Expiration of Temporary Periods, Etc .............. 52 Section 17.507. Treatment of Certain Credit Facility Fees ..................................... 52 Section 17.508. Escrow Yield...................................................................... 52 Section 17.509. Bidding of Government Securities ............................................. 53 Section 17.601. Payment and Use Tests.......................................................... 53 Section 17.602. IRS Form 8038-G................................................................. 54 Section 17.603. Bank Qualification............................................................... 54 Section 17.701. Covenants Remain After Bonds Paid .......................................... 54 Section 17.702. No Common Plan of Financing ................................................ 54 Section 17.703. No Sale of the Project or Prior Project ........................................ 54 Section 17.704. Purchase of Bonds by City ...................................................... 55 Section 17.705. First Call Date Limitation....................................................... 55 Section 17.706. Registered Form................................................................. . 55 Section 17.707. First Amendment................................................................. 55 Section 17.708. Future Events..................................................................... 55 Section 17.709. Permitted Changes; Opinion of Bond Counsel ............................... 55 Section 17.710. Excess Proceeds.................................................................. 56 Section 17.711. Expectations....................................................................... 56 Section 18. Continuing Disclosure.................................................................... 56 Section 19. Prior Bonds and Taxes.................................................................... 57 Section 20. Pertaining to the Bond Registrar........................................................ 58 Section 21. Defeasance.................................................................................. 59 Section 22. Publication of Ordinance................................................................. 60 Section 23. Superseder and Effective Date........................................................... 60 n U -ll- ORDINANCE NUMBER 83-0-02 • AN ORDINANCE providing for the issuance of not to exceed $35,000,000 General Obligation Corporate Purpose and Refunding Bonds, Series 2002, of the City of Evanston, Cook County, Illinois, and providing for the levy and collection of a direct annual tax for the payment of the principal of and interest on said bonds. PREAMBLES WHEREAS A. The City of Evanston, Cook County, Illinois (the "City"), has a population in excess of 25,000 as determined by the last official census and, accordingly, pursuant to the provisions of the 1970 Constitution of the State of Illinois and particularly Article VII, Section 6(a) thereof, the City is a home rule unit and as such may exercise any power or perform any function pertaining to its government and affairs, including, but not limited to, the power to tax and to incur debt. B. Pursuant to the provisions of said Section 6 of Article VII of the 1970 Constitution, the City has the power to incur debt payable from ad valorem tax receipts maturing within 40 years from the time it is incurred and without prior referendum approval. C. The City has a Capital Improvement Plan (the "Plan"), which is reviewed and revised annually, and most recently has included the fiscal year 2001 through 2005 and is currently in effect for the years 2002 through 2006. D. It is deemed by the City Council of the City (the "City Council") to be necessary and advisable and in the best interests of the inhabitants of the City to obtain funds to reimburse or pay a portion of the costs of certain of the capital projects (the "Plan Projects") set forth in the Plan for the fiscal years ending 2002 and 2003 at an estimated cost of $11,000,000, certain water system improvements at an estimated cost of $3,000,000, the acquisition and • I implementation of financial management software for the City at an estimated cost of • $3,600,000, and downtown street improvements at an estimated cost of $100,000 (collectively, all of said projects or purposes being the "Series 2002 Capital Improvements") and subject to amendment for such other corporate purposes as the City Council may determine as hereinafter provided. E. The estimated total cost to the City of the Series 2002 Capital Improvements to be provided for hereunder (collectively the "Series 2002 Capital Funding Cost") is the sum of not in excess of $18,000,000 plus the estimated available amount of interest earnings on said sum prior to its expenditure. F. It is necessary for the payment of the costs of the Series 2002 Capital Improvements that money be borrowed at this time and in evidence of such borrowing, general obligation bonds of the City be issued in the principal amount of not to exceed $18,000,000 and that such indebtedness be incurred in accordance with the home rule powers of the City, as aforesaid, and without submitting the question of incurring such indebtedness to the electors of said City for their approval. G. The City has heretofore issued and there are now outstanding the following legal and validly binding and subsisting obligations of the City: GENERAL OBLIGATION CORPORATE PURPOSE BONDS SERIES 1997 DATED MAY 1,1997 Original Principal Amount: $35,280,000 Originally Due Serially on December 1 in the Years: 1997 to 2017 Amount Remaining Outstanding: $33,325,000 Amount Which May Be $12,295,000 • Refunded: -2- REMAINING OUTSTANDING BONDS AND BONDS WHICH MAY BE REFUNDED DUE AND DESCRIBED AS FOLLOWS: DECEMBER 1 RATE OF AMOUNT WHICH OF THE YEAR AMOUNT ($) INTEREST (%) MAY BE REFUNDED 2002 790,000 5.25 None 2003 2,440,000 5.25 None 2004 2,350,000 5.25 None 2005 2,260,000 5.25 None 2006 2,430,000 5.25 None 2007 2,560,000 5.25 None 2008 2,550,000 5.25 None 2009 2,750,000 5.25 None 2010 2,900,000 5.30 None 2011 3,080,000 5.40 All 2012 3,315,000 5.50 All 2013 1,215,000 5.50 All 2014 1,295,000 5.50 All 2015 1,435,000 5.50 All 2016 945,000 5.50 All 2017 1,010,000 5.50 All of which bonds (the "Series 1997 Bonds"), those which may be refunded as shown in the table above may be referred to as the "Series 1997 Eligible Bonds" and are subject to redemption prior to maturity at the option of the City, on any date on or after June 1, 2007, at the redemption price of par and accrued interest. UNLIMITED AD VALOREM PROPERTY TAX BONDS OF SPECIAL SERVICE AREA NUMBER 5, DATED AUGUST 1,1996 Original Principal Amount: $1,940,000 Originally Due Serially on December 1 in the Years: 1997 to 2015 Amount Remaining Outstanding: $1,620,000 • Amount Which May Be Refunded: All -3- • REMAINING OUTSTANDING BONDS AND BONDS WHICH MAY BE REFUNDED DUE AND DESCRIBED AS FOLLOWS: DECEMBER 1 RATE OF AMOUNT WHICH OF THE YEAR AMOUNT ($) INTEREST (%) MAY BE REFUNDED 2002 85,000 5.75 All 2003 90,000 5.75 All 2004 90,000 5.75 All 2005 95,000 5.75 All 2006 100,000 5.75 All 2007 110,000 5.75 All 2008 110,000 5.80 All 2009 115,000 5.80 All 2010 125,000 5.80 All 2011 125,000 5.80 All 2012 125,000 5.80 All 2013 150,000 5.80 All 2014 150,000 5.80 All 2015 150,000 5.80 All of which bonds (the "Series 1996 Bonds"), the portion due on or after December 1, 2007 (the "Series 1996 Callable Bonds") are subject to redemption prior to maturity at the option of the City, on any date on or after December 1, 2006, at the redemption price of par and accrued interest. UNLIMITED AD VALOREM PROPERTY TAX BONDS OF SPECIAL SERVICE AREA NUMBER 5, SERIES 1995 DATED JUNE 15,1995 Original Principal Amount: $3,060,000 Originally Due Serially on December 1 in the Years: 1996 to 2015 Amount Remaining Outstanding: $2,520,000 • Amount Which May Be Refunded: All El REMAINING OUTSTANDING BONDS AND BONDS WHICH MAY • BE REFUNDED DUE AND DESCRIBED AS FOLLOWS: DECEMBER 1 RATE OF AMOUNT WHICH OF THE YEAR AMOUNT ($) INTEREST (%a) MAY BE REFUNDED 2002 120,000 5.30 All 2003 135,000 5.30 All 2004 135,000 5.30 All 2005 145,000 5.30 All 2006 150,000 5.35 All 2007 160,000 5.50 All 2008 170,000 5.60 All 2009 180,000 5.70 All 2010 190,000 5.80 All 2011 200,000 5.85 All 2012 215,000 5.875 All 2013 235,000 5.90 All 2014 240,000 5.90 All 2015 255,000 5.90 All of which bonds (the "Series 1995 Bonds"), the portion due on or after December 1, 2006 (the "Series 1995 Callable Bonds") are subject to redemption prior to maturity at the option of the: City, on any date on or after January 1, 2005, at the redemption price of par and accrued interest. H. The City Council of the City has considered and determined that interest rates available in the bond market are currently more favorable for the City than they were at the time when the Series 1997 Bonds, the Series 1996 Bonds, and the Series 1995 Bonds (collectively, the "Prior Bonds") were issued and that it is possible, proper and advisable to provide for the timely refunding, if such favorable rates continue, of the Series 1997 Eligible Bonds, the Series 1996 Bonds, and the Series 1995 Bonds (collectively, the "Eligible Prior Bonds"), and to provide for the payment and redemption thereof as same become due and at their respective earliest dates of redemption, to the end of taking advantage of the debt service savings which may result from such lower interest rates (which refunding may hereinafter be referred to as the "Refunding"). I. The City Council does hereby determine that it is advisable and in the best interests • of the City to provide for the borrowing of not to exceed $17,500,000 at this time pursuant to the -5- • Act as hereinafter defined for the purpose of paying the costs of the Refunding and, in evidence of such borrowing, provide for the issuance of its full faith and credit bonds in the aggregate principal amount of not to exceed such $17,500,000. Now THEREFORE Be It Ordained by the City Council of the City of Evanston, Cook County, Illinois, in the exercise of its home rule powers, as follows: Section 1. Definitions. Words and terms used in this Ordinance shall have the meanings given them, unless the context or use clearly indicates another or different meaning is intended. Words and terms defined in the singular may be used in the plural and vice -versa. Reference to any gender shall be deemed to include the other and also inanimate persons such as corporations, where applicable. A. The following words and terms are as defined in the preambles hereto. • City City Council Eligible Bonds Plan Plan Projects Prior Bonds Refunding Series 2002 Capital Funding Cost Series 2002 Capital Improvements Series 1997 Bonds Series 1996 Bonds • Series 1995 Bonds Series 1997 Eligible Bonds 0 Series 1996 Callable Bonds • Series 1995 Callable Bonds B. The following words and terms are defined as set forth. "Act" means the Illinois Municipal Code, as supplemented and amended, and the home rule powers of the City under Section 6 of Article VII of the Illinois Constitution of 1970; and in the event of conflict between the provisions of said code and home rule powers, the home rule powers shall be deemed to supersede the provisions of said code. "Bonds" means the not to exceed $35,000,000 General Obligation Corporate Purpose and Refunding Bonds, Series 2002, authorized to be issued by this Ordinance. "Bond Moneys" means the Pledged Taxes and any other moneys deposited into the Debt Service Fund and investment income earned in the Bond Fund. "Bond Order" means a Bond Order as authorized to be executed by the Designated Officials of the City in Section (13) of this Ordinance, substantially in the • form (with related certificates) as attached hereto as Exhibit B, and by which the final terms of the Bonds will be established. "Bond Purchase Agreement" means the Bond Purchase Agreement as authorized to be executed by the Designated Officials of the City in Section (13) of this Ordinance, substantially in the form (with related certificates) as attached hereto as Exhibit A, and by which the final terms of the Bonds will be established. "Bond Register" means the books of the City kept by the Bond Registrar to evi- dence the registration and transfer of the Bonds. "Bond Registrar" means American National Bank and Trust Company of Chicago, Chicago, Illinois, a bank having trust powers, or a successor thereto or a successor designated as bond registrar hereunder. • -7- • "Book Entry Form " means the form of the Bonds as fully registered and available in physical form only to the Depository. "Code" means the Internal Revenue Code of 1986, as amended. "Continuing Disclosure Undertaking" means the undertaking by the City for the benefit of the Purchasers as authorized in Section (22) hereof and substantially in the form as attached hereto as Exhibit C. "County Clerk" means the County Clerk of The County of Cook. "Debt Service Fund" means the Debt Service Fund established and defined in Section (15) of this Ordinance. "Depository" means The Depository Trust Company, an New York limited trust company, its successors, or a successor depository qualified to clear securities under • applicable state and federal laws. "Designated Officials " means the City Manager and Finance Director of the City, acting together. "Escrow Agent" means American National Bank and Trust Company of Chicago, Chicago, Illinois, a bank having trust powers, or a successor thereto or a successor designated as Escrow Agent hereunder. "Escrow Agreement" means the agreement by and between the City and the Escrow Agent as authorized in Section (14) hereof and set forth as Exhibit C. "Ordinance" means this Ordinance, numbered 83-0-02, and passed by the City Council on the 9th day of September 2002. "Paying Agent" means American National Bank and Trust Company of Chicago, • Chicago, Illinois, a bank having trust powers, or a successor thereto or a successor designated as paying agent hereunder. Elf "Pledged Taxes" means the taxes levied on the taxable property within the cor- • porate limits of the City to pay principal of and interest on the Bonds as provided in Section (12) hereof. "Project Fund" means the Project Fund as established and defined in Section (15) of this ordinance. "Rebate Fund" means the Rebate Fund authorized to be established and as defined in Section (17) of this Ordinance. "Record Date" means the 15th day of the month preceding any regular or other interest payment date occurring on the first day of any month and 15 days preceding any interest payment date occasioned by .the redemption of Bonds on other than the first day of a month. "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. "Term Bonds" means Bonds subject to mandatory redemption by operation of the Debt Service Fund and designated as term bonds in the Bond Order. "Underwriter" means Legg Mason Wood Walker, Inc., with offices at 225 West Washington Street, Chicago, Illinois, as the purchaser and underwriter of the Bonds. C. Definitions also appear in the preambles hereto or in specific sections, as appear below. The headings in this Ordinance are for the convenience of the reader and are not a part of this Ordinance. • In • Section 2. Incorporation of Preambles. The City Council hereby finds that all of the recitals contained in the preambles to this Ordinance are true, correct and complete and does incorporate them into this Ordinance by this reference. Section 3. Determination To Issue Bonds. It is necessary and in the best interests of the City to provide for the Series 2002 Capital Improvements for the public health, safety and welfare, and to pay all the Series 2002 Capital Funding Costs (including within such costs capitalized interest through January 1, 2003 and all related costs and expenses incidental thereto), and to borrow money and issue a portion of the Bonds for such purposes. It is further necessary and in the best interests of the City to provide for the Refunding to achieve a net debt service savings, to pay all related costs and expenses incidental thereto, and to borrow money and issue the necessary portion of the Bonds for such purposes. It is hereby found and • determined that such borrowing of money is for a proper public purpose or purposes and is in the public interest, and is authorized by the Act. Section 4. Bond Details. There shall be issued and sold the Bonds in the aggregate principal amount of not to exceed $35,000,000. The Bonds shall each be designated "General Obligation Corporate Purpose and Refunding Bond, Series 2002" or such other name or names or series designations as may be appropriate and as stated in the Bond Order; be dated September 15, 2002, or such other date or dates as may be set forth in the Bond Order if it is determined therein to be a date better suited to the advantageous marketing of the Bonds (the "Dated Date"); and shall also bear the date of authentication thereof. The Bonds shall be fully registered and in Book Entry Form, shall be in denominations of $5,000 or integral multiples thereof (but no single Bond shall represent principal maturing on more than one date), and shall • be numbered consecutively in such fashion as shall be determined by the Bond Registrar. The not to exceed $18,000,000 portion of the Bonds to be issued to provide the Series 2002 Capital W11 Funding Cost, shall mature serially on January 1 of the years and in not to exceed the amounts as • follows (subject to the right of prior redemption hereinafter stated): YEAR AMOUNT ($) YEAR AMOUNT ($) 2003 1,500,000 2013 1,500,000 2004 1,500,000 2014 1,500,000 2005 1,500,000 2015 1,500,000 2006 1,500,000 2016 1,500,000 2007 1,500,000 2017 1,500,000 2008 1,500,000 2018 1,500,000 2009 1,500,000 2019 1,500,000 2010 1,500,000 2020 1,500,000 2011 1,500,000 2021 1,500,000 2012 1,500,000 and as subject to reduction in individual years and in the aggregate as shall be set forth in the Bond Order. The portion of the Bonds to be issued to pay the costs of the Refunding, and all related costs and expenses incidental thereto, shall mature on January 1 of such years as shall be set forth in the Bond Order, and in such principal amounts as shall be set forth therein; provided, • however, that the sum of the principal of and interest on such portion of the Bonds allocated to the refunding of a series of the Prior Bonds due (or subject to mandatory redemption) in any given annual period from January 2 to the following January 1 (a "Bond Year") shall not exceed the sum of the principal of- and interest on the related series of Prior Bonds during the annual period from December 2 to the following December 1 overlapping for 11 months any such Bond Year, plus, in each year, the sum of $5,000. The Bonds may be issued in one or more series as may be specified in the Bond Order or Bond Orders. Each Bond shall bear interest, at a rate not to exceed 9% per annum, from the later of its Dated Date as herein provided or from the most recent interest payment date to which interest has been paid or duly provided for, until the principal amount of such Bond is paid or duly provided for, such interest (computed upon the basis of a 360-day year of twelve 30-day months) being payable on January 1 and July 1 of each • year, commencing on January 1, 2003 or July 1, 2003, as provided in the Bond Order. Interest -11- • on each Bond shall be paid by check or draft of the Paying Agent, payable upon presentation thereof 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 applicable Record Date and mailed to the registered owner of the Bond as shown in the Bond Registrar or at such other address furnished in writing by such Registered Owner, or as otherwise may be agreed with the Depository for so long as the Depository or its nominee is the registered owner as of a given Record Date. The principal of or redemption price due on the Bonds shall be payable in lawful money of the United States of America upon presentation thereof at the principal corporate trust office of the Paying Agent located in the City of Chicago, Illinois, or at successor Paying Agent and locality. 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 the Depository or a designee or nominee of the Depository (such depository or nominee being the "Book Entry Owner"). Except as otherwise expressly provided, all of the outstanding Bonds from time to time shall be registered in the Bond Register in the name of the Book Entry Owner (and accordingly in Book Entry Form as such term is used in this Ordinance). Any City officer, as representative of the City, is hereby authorized, empowered, and directed to execute and deliver or utilize a previously executed and delivered Letter of Representations or. Blanket Letter of Representations (either being the "Letter of Representations") substantially in the form common in the industry, or with such changes therein as the officer executing the Letter of Representations on behalf of the City shall approve, his or her execution thereof to constitute conclusive evidence of approval of such changes, as shall be necessary to effectuate Book Entry Form. Without limiting the generality of the authority given with respect to entering into such • Letter of Representations, it may contain provisions relating to (a) payment procedures, (b) -12- 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 the Book Entry Owner, none of the City, its Finance Director, or the Bond Registrar shall have any responsibility or 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, its Finance Director, and the Bond Registrar shall have no responsibility or obligation with respect to (a) the accuracy of the records of the Depository, the Book Entry Owner, 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 or as otherwise expressly provided in the Letter of Representations, 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. In the event that (a) the City determines that the Depository is incapable of discharging its responsibilities described herein and in the Letter of Representations, (b) the agreement among the City, the Bond Registrar, and the Depository evidenced by the Letter of Representations shall be terminated 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 • -13- • either that they be able to obtain certificated Bonds or that another depository is preferable, the City shall notify the Depository and the Depository shall notify the Depository Participants of the availability of Bond certificates, and the Bonds shall no longer be restricted to being registered in the Bond Register in the name of the Book Entry Owner. Alternatively, at such time, the City may determine that the Bonds shall be registered in the name of and deposited with a successor depository operating a system accommodating Book Entry Form, 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 of this Ordinance. Section 6. Execution; Authentication. The Bonds shall be executed on behalf of the City by the manual or duly authorized facsimile signature of its Mayor and attested by the manual or duly authorized 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 Ordinance. The certificate of authentication on any Bond -14- 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. Term Bonds, Mandatory Redemption and Covenants; Optional Redemption. The Bonds may be subject to mandatory redemption (as Term Bonds) as provided in the Bond Order; provided, however, that in such event the amounts due as provided for under such mandatory redemption shall be the amounts used to satisfy the test set forth in Section (4) of this Ordinance for the maximum amounts of principal due on the Bonds in any given period. Bonds designated as Term Bonds shall be made subject to mandatory redemption by operation of the Debt Service Fund at a price of not to exceed par and accrued interest, without premium, on a given date of the years and in the amounts as shall be determined in the Bond Order. The City covenants that it will redeem any Term Bonds pursuant to the mandatory redemption requirement for such Term Bonds and levy taxes accordingly. The Bonds shall also be subject to redemption prior to maturity at the option of the City, from any available funds, in whole or in part on any date, not longer than ten and one-half (10-1/2) years from the Dated Date, as provided in the Bond Order, and if in part, in such order of maturities (and, if applicable, order of mandatory redemption payments) as shall be specified in the Bond Order, and if less than an entire maturity, in integral multiples of $5,000, selected by lot by the Bond Registrar as hereinafter provided, at the redemption price (expressed as a percentage of the principal amount being redeemed) of not to exceed 103% of par plus accrued interest to the date fixed for redemption, as provided in the Bond Order. Notwithstanding any other provision of this Ordinance, the Bond Order may provide for non -callable Bonds for the first ten and one-half (10-1/2) years. • • • -15- • Section 8. Term Bonds Purchase or Redemption. If the City redeems pursuant to optional redemption as hereinabove provided or purchases Term Bonds of any maturity and cancels the same from Bond Moneys as hereinafter described, then an amount equal to the principal amount of Term Bonds so redeemed or purchased shall be deducted from the mandatory redemption requirements provided for Term Bonds of such maturity, first, in the current year of such requirement, until the requirement for the current year has been fully met, and then in any order of such Term Bonds as due at maturity or subject to mandatory redemption in any year, as the City shall determine. If the City redeems pursuant to optional redemption or purchases Term Bonds of any maturity and cancels the same from moneys other than Bond Moneys, then an amount equal to the principal amount of Term Bonds so redeemed or purchased shall be deducted from the amount of such Term Bonds as due at maturity or subject to • mandatory redemption requirement in any year, as the City shall determine. Section 9. Redemption Procedure. The Bonds subject to redemption shall be identified, notice given, and paid and redeemed pursuant to the procedures as follows. A. Notice to Registrar. For a mandatory redemption, unless otherwise notified by the City, the Bond Registrar will proceed on behalf of the City as its agent to provide for the mandatory redemption of such Term Bonds without any further order or direction hereunder or otherwise. For an optional redemption, the City shall, at least 45 days prior to a 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. B. Selection of Bonds within a Maturity. 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 by the Bond Registrar for the Bonds of such -16- maturity by such method of lottery as the Bond Registrar shall deem fair and appropriate; provided, 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 make such selection upon the earlier of the irrevocable receipt of funds sufficient to pay the redemption price of the Bonds to be redeemed or the time of the giving of official notice of redemption. C. Official Notice of Redemption. 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 U.S. 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 name of the Bonds and at least the information as follows: (1) the redemption date; (2) the redemption price; (3) 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; • -17- • (4) 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 (5) the place where such Bonds are to be surrendered for payment of the redemption price, which place of payment shall be the principal office of the Bond Registrar maintained for that purpose. D. Conditional Redemption. Unless moneys sufficient to pay the redemption price of the Bonds to be redeemed shall have been received by the Bond Registrar prior to the giving of such notice of redemption, such notice may, at the option of the City, state that said redemption shall be conditional upon the receipt of such moneys by the Bond Registrar on or prior to the date fixed for redemption. If such moneys are not • received, such notice shall be of no force and effect, the City shall not redeem such Bonds, and the Bond Registrar shall give notice, in the same manner in which the notice of redemption was given, that such moneys were not so received and that such Bonds will not be redeemed. E. Bonds Shall Become Due. Subject to the stated condition in paragraph D immediately preceding, official notice of redemption having been given as described, 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. Upon surrender of such Bonds for redemption in accordance with said notice, such Bonds shall be paid by the Bond • -18- 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. F. Insufficiency in Notice Not Affecting Other Bonds; Failure to Receive Notice; Waiver. 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. In lieu of the foregoing official notice, so long as the Bonds are held in Book Entry Form, notice may be given as provided in the Letter of Representations, and the giving of such notice shall constitute a waiver by the Depository and the Book Entry Owner, as registered owner, of the foregoing notice. G. New Bond in Amount Not Redeemed. Upon surrender for any partial redemption of any Bond, there shall be prepared 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. H. Effect of Nonpayment upon Redemption. If any Bond or portion of 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. • -19- • 1. Bonds to be Cancelled; Payment to Identify Bonds. All Bonds which have been redeemed shall be cancelled and destroyed by the Bond Registrar and shall not be reissued. Upon the payment of the redemption price of Bonds being redeemed, each check or other transfer of funds issued for such purpose shall bear the CUSIP number identifying, by issue and maturity, the Bonds being redeemed with the proceeds of such check or other transfer. J. Additional Notice. The City agrees to provide such additional notice of redemption as it may deem advisable at such time as it determines to redeem Bonds, taking into account any requirements or guidance of the Securities and Exchange Commission, the Municipal Securities Rulemaking Board, the Government Accounting Standards Board, or any other federal or state agency having jurisdiction or authority in • such matters; provided, however, that such additional notice shall be (1) advisory in nature, (2) solely in the discretion of the City, (3) not be a condition precedent of a valid redemption or a part of the Bond contract, and (4) any failure or defect in such notice shall not delay or invalidate the redemption of Bonds for which proper official notice shall have been given. Reference is also made to the provisions of the Continuing Disclosure Undertaking of the City with respect to the Bonds, which may contain other provisions relating to notice of redemption of Bonds. Section 10. Registration of Bonds; Persons Treated as Owners. The City shall cause books (the "Bond Register" as defined) 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 in the City of Chicago, Illinois, which is hereby constituted and appointed the registrar of the • City for the Bonds. 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 -20- use in the transfer and exchange of Bonds. Subject to the provisions of this Ordinance relating to • the Bonds in Book Entry 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 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. 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 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 • -21- • or sums so paid. No service charge shall be made to any registered owner of Bonds for any . 6 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. Section 11. Form of Bond. 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 of the front side of the Bond and the legend "See Reverse Side for Additional Provisions" shall be omitted and paragraphs on the reverse side of the Bond shall be inserted immediately after the first paragraph on the front side. -22- [Form of Bond - Front Side] REGISTERED REGISTERED NO. $ UNITED STATES OF AN ERICA STATE OF ILLINOIS THE COUNTY OF COOK CITY OF EVANSTON GENERAL OBLIGATION CORPORATE PURPOSE AND REFUNDING BOND, SERIES 2002 See Reverse Side for Additional Provisions. Interest Maturity Rate: % Date: January 1, Registered Owner: Principal Amount: Dated Date: September 15, 2002 CUSIP: Dollars KNOW ALL PERSONS BY THESE PRESENTS that the City of Evanston, Cook County, Illinois, a municipality, home rule unit 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 (subject to right of prior redemption as hereinafter stated), 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 later of 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 January 1 and July 1 of each year, commencing 2003, until the Principal Amount is paid or duly provided for. The principal of or redemption price on this Bond is payable in lawful money of the United States of America upon presentation hereof at the principal corporate trust office of American National Bank and Trust Company of Chicago, in the City of Chicago, L� • -23- • Illinois, as paying agent (the "Paying Agent"). Payment of interest shall be made to the Registered Owner hereof as shown on the registration books of the City maintained by American National Bank and Trust Company of Chicago, in the City of Chicago, Illinois, as bond registrar (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 preceding any regular interest payment date or a redemption on the first day of any month and the 15th day preceding any other interest payment date which may be occasioned by a redemption of Bonds on a day other than the first day of any month. Interest shall be paid by check or draft of the Paying Agent, 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 the Bond Registrar and a qualified securities clearing corporation as depository, or nominee, for so long as this Bond shall be in Book Entry 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 conditions, acts and things required by the Constitution and Laws of the State of Illinois to exist or to be done precedent to and in the issuance of this Bond, have existed and have been properly done, happened and been performed in regular and due form and time as required by law; that the indebtedness of the City, represented by the Bonds, and including all other indebtedness of the City, howsoever evidenced or incurred, does not exceed any constitutional or statutory or other lawful limitation; and that • provision has been made for the collection of a direct annual tax, in addition to all other taxes, on all of the taxable property in the City sufficient to pay the interest hereon as the same falls due, -24- excepting such interest as may be provided for from the proceeds of the Bonds, and also to pay and discharge the principal hereof at maturity. 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 Evanston, Cook County, Illinois, by its City Council, has caused this Bond to be executed by 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: 1JU'�ld City it of Evanston Y Cook Cou y, llinois [SEAL] ' r Mayor, City of Evanston Cook County, Illinois • -25- • CERTIFICATE OF AUTHENTICATION Date of Authentication: This Bond is one of the Bonds described in the within -mentioned Ordinance and is one of the General Obligation Corporate Purpose and Refunding Bonds, Series 2002, of the City of Evanston, Cook County, Illinois. American National Bank and Trust Company of Chicago, as Bond Registrar [FORM OF BOND - REVERSE SIDE] This bond is one of a series of bonds (the "Bonds") in the aggregate principal amount of $ issued by the City for the purpose of paying the costs of the Series 2002 Capital Improvements in and for the City and of refunding certain City bonds of various series, and of paying expenses incidental thereto, all as described and defined in the Ordinance Number 83-0- 02, duly adopted by the City Council on the day of September 2002, authorizing the Bonds (the "Ordinance"), pursuant to and in all respects in compliance with the applicable provisions of the Illinois Municipal Code, as supplemented and amended, and as further supplemented and, where necessary, superseded, by the powers of the City as a home rule unit under the provisions of Section 6 of Article VII of the Illinois Constitution of 1970 (such code and powers being the "Act"), and with the Ordinance, which has been duly approved by the Mayor of the City, and published in pamphlet form, in all respects as by law required. [The Bonds due on January 1 of the years 20_ and 20_ are Term Bonds and are subject to mandatory redemption by operation of the Debt Service Fund at a price of par and accrued • interest, without premium, on January 1 of the years and in the amounts as follows: -26- For the Term Bonds due January 1, 200*: • YEAR AMOUNT ($) 200* 200* with $ remaining to be paid at maturity in 200*. For the Term Bonds due January 1, 20_: YEAR AMOUNT ($) 20 20 20 with $ remaining to be paid at maturity in 20_.] Those of the Bonds due on or after January 1, , are subject to redemption prior to maturity, at the option of the City, from any available funds, in whole or in part, on any date on or after January 1, , and if in part, in any order of maturity (and, if applicable, any order of mandatory redemption payment) as selected by the City, and if less than an entire maturity, in integral multiples of $5,000, selected by lot by the Bond Registrar, at the redemption price of par plus accrued interest to the date of redemption. In each case of redemption, such further terms and provision for notice of redemption shall be as set forth in the Ordinance. 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. 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 • -27- Bonds or to transfer or exchange any Bond all or a portion of which has been called for redemption. The City, the Bond Registrar and the Paying Agent 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 the City, the Bond Registrar and the Paying Agent shall not be affected by any notice to the contrary. ASSIGNMENT FOR VALUE RECEIVED, the undersigned sells, assigns and transfers unto [Here insert identifying number such as TID, SSN, or other] (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. Section 12. Security; Tax Levy. The Bonds are a general obligation of the City, for which the full faith and credit of the City are irrevocably pledged, and are payable from the levy • of the Pledged Taxes on all of the taxable property in the City, without limitation as to rate or amount. 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, 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 sufficientfor that purpose. Such levy shall be fully set forth in the Bond Order for the Bonds; and if there shall be more than one series of the Bonds, the levy for each such series shall be set forth in the Bond Order therefor. The Pledged Taxes and other moneys on deposit (collectively, the "Bond Moneys") in the Debt Service Fund and allocable to the Bonds shall be applied to pay principal of and interest on the Bonds as follows: A. Bond Moneys shall be applied to the payment of interest when due and principal or redemption price when due at maturity or as redeemed pursuant to mandatory redemption from the Debt Service Fund, or B. On or before 65 days preceding a mandatory redemption date, and provided notice is given to the Bond Registrar on or before said 65th day preceding a mandatory, -' redemption date, Bond Moneys up to the amount of the redemption requirement on such mandatory redemption date plus interest due on Term Bonds on such date may be applied (1) to the purchase of Term Bonds of the maturity for which such mandatory redemption requirement was established at prices (including commissions and charges, if any) not exceeding par and accrued interest to such mandatory redemption date or (2) to the redemption of such Bonds, without premium, pursuant to optional redemption provisions applicable thereto. Upon the purchase or redemption of Term Bonds of any maturity pursuant to this paragraph (B), an amount equal to the principal amount of such Bonds or applicable portion thereof so purchased or redeemed shall be deducted from the mandatory redemption requirement as provided for Term Bonds of such maturity, first, in the current year of such requirement, until the requirement for the current year has been • -29- • fully met, and then in any order of payment on the Term Bonds as due at maturity or subject to mandatory redemption in any year as the City shall at such time determine. 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 purchasers 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 Debt Service 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 herein for the payment of same, the City Council shall, by proper proceedings, direct the deposit of such funds into the Debt Service 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. Section 13. Filing with County Clerk. After this Ordinance becomes effective and promptly upon a sale of Bonds and execution and delivery of a Bond Order, a copy hereof, certified by the City Clerk of the City, shall be filed with the County Clerk; and the County Clerk shall in and for each of the years required ascertain the rate percent required to produce the aggregate tax herein provided to be levied and set forth in a Bond Order for each of the years; • and the County Clerk shall (to the extent said tax has not been abated as provided herein) extend -30- the same for collection on the tax books in connection with any other taxes that may be levied in • said years in and by the City for general corporate purposes of the City; and in said years such annual tax shall be levied and collected by and for and on behalf of the City in like manner as provided by law for the levy and collection of taxes for general corporate purposes for said years, without limit as to either rate or amount, and in addition to and in excess of all other taxes. Section 14. Sale of Bonds; Bond Order; Bond Series. The Designated Officials are hereby authorized to proceed, without any further authorization or direction whatsoever from the City Council, to sell and deliver the Bonds upon the terms as prescribed in this Section, pursuant to one or more Bond Orders. The Bonds shall be sold and delivered to the Underwriter at the price of not less than 97% of the par value of the principal amount thereof, plus accrued interest to the date of delivery. Such sale shall be made upon the advice (in the form of a written certificate or report) of the Underwriter that the net interest cost rate on the Bonds, calculated in accordance with customary market practice, does not exceed 6.00% and that the terms of the ' Bonds are fair and reasonable in view of current conditions in the bond markets. As an additional limitation on the sale of that portion of the Bonds to be sold to provide for the Refunding, the Underwriter's certificate or report (as hereinabove described) must set forth that the Refunding will provide a present value debt service savings to the City resulting from the issuance of Bonds to refund each series of the Eligible Bonds which are chosen to be refunded, which report shall demonstrate the amount of such savings. The Designated Officials may choose all or any lesser portion of the Eligible Bonds to be refunded, in such manner as will provide such savings. Nothing in this Section shall require the Designated Officials to sell any of the Bonds if in their judgment, aided by the Underwriter, the conditions in the bond markets shall have deteriorated from the time of adoption thereof or the sale of all or any portion of the Bonds shall for some other reason not be deemed advisable, but the Designated Officials shall -31- • have the authority to sell the Bonds in any event so long as the limitations set forth in this Ordinance and the conditions of this Section shall have been met. As a further exercise of this authority, the Designated Officials may sell the Bonds in more than one series; and, in such event, shall be authorized to change the name of the Bonds for each such series so that such series may properly be identified separately. Further, in such event, the provisions for registration, redemption and exchange of Bonds shall be read as applying to Bonds only of each series, respectively, and not as between series. Upon the sale of the Bonds or any series of the Bonds, the Designated Officials and any other officers of the City as shall be appropriate, shall be and are hereby authorized and directed to approve or execute, or both, such documents of sale of the Bonds as may be necessary, including, without limitation, the Bond Order, Preliminary Official Statement, Official Statement, Bond Purchase Contract (as hereinafter defined), and • closing documents. The City Council, by its Aldermen voting hereon, finds and determines that no person holding any office of the City either by election or appointment, is in any manner financially interested either directly, in his or her own name, or indirectly in the name of any other person, association, trust or corporation in said Contract with the Underwriter for the purchase of the Bonds. The distribution of the Preliminary Official Statement relating to the Bonds is hereby in all respects authorized and approved, and the proposed use by the Underwriter of an Official Statement (in substantially the form of the Preliminary Official Statement but with appropriate variations to reflect the final terms of the Bonds) is hereby approved. A bond purchase contract for the sale of the Bonds to the Underwriters (the "Bond Purchase Contract"), substantially in the form attached hereto as Exhibit A, is hereby in all respects authorized and approved. Upon the sale of the Bonds, the Designated Officials shall prepare the Bond Order, to be substantially in the form of Exhibit B attached hereto, which shall • include the pertinent details of sale as provided herein, and such shall be entered into the records -32- of the City and made available to all City Council members at the next public meeting thereof. • The Designated Officials shall also file with the County Clerk the Bond Order or like document including a statement of taxes. The authority granted in this Ordinance to the Designated Officers to sell Bonds as provided herein shall expire on February 28, 2003. Section 15. Creation of Funds and Appropriations. Bond proceeds and other funds of the City as noted are hereby appropriated as follows: A. Accrued interest and premium, if any, on the Bonds shall be and is hereby appropriated for the purpose of paying the first interest due on the Bonds and to such end is hereby ordered to be deposited into the "General Obligation Corporate Purpose and Refunding Bonds, Series 2002, Debt Service Fund" (the "Debt Service Fund"), hereby created, which shall be the fund for the payment of principal of and interest on the Bonds. B. The Pledged Taxes shall either be deposited into the Debt Service Fund and used solely and only for paying the principal of and interest on the Bonds or be used to reimburse a • fund or account from which advances to the Debt Service Fund may have been made to pay principal of or interest on the Bonds prior to receipt of Pledged Taxes. Interest income or investment profit earned in the Debt Service Fund shall be retained in the Debt Service Fund for payment of the principal of or interest on the Bonds on the interest payment date next after such interest or profit is received or, to the extent lawful and as determined by the City Council, transferred to such other fund as may be determined. The City hereby pledges, as equal and ratable security for the Bonds, all present and future proceeds of the Pledged Taxes for the sole benefit of the registered owners of the Bonds, subject to the reserved right of the City Council to transfer certain interest income or investment profit earned in the Debt Service Fund to other funds of the City, as described in the preceding sentence. • 99M • C. The amount necessary from the proceeds of the Bonds shall be used to pay costs of issuance of the Bonds and shall be deposited into a separate fund, hereby created, designated the "Expense Fund". Any disbursements from such fund shall be made from time to time as necessary. Any excess in said fund shall be deposited into the Project Fund hereinafter created after six months from the date of issuance of the Bonds. D. Provided that the Refunding portion of the Bonds is to be sold and delivered, the amount necessary from the proceeds of the Bonds, together with such money in the debt service funds for the Prior 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 the Escrow Agent as is designated, all in accordance with the provisions of the Escrow Agreement, substantially in the form attached hereto as Exhibit D 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. E. The amount necessary to pay interest on the Corporate Purpose portion of the Bonds to and including January 1, 2003 shall be deposited into the Debt Service Fund and be used for such purpose. F. The remaining proceeds of the Bonds shall be set aside in a separate fund, hereby created, and designated as the "Series 2002 Capital Project Fund" (the "Project Fund"), hereby created, and be used to pay costs of the 2002 Bonds Capital Improvements, including costs of issuance of the Bonds which for any reason are not paid from the Expense Fund. G. Alternatively, the Finance Director may allocate proceeds of the Bonds otherwise • designated for the Debt Service Fund, the Expense Fund or the Project Fund to one or more -34- related funds of the City already in existence; provided, however, that this shall not relieve the Finance Director of the duty to account for the proceeds as herein provided. H. The City Council reserves the right, as it becomes necessary from time to time, to revise the list of projects hereinabove set forth, to change priorities, to revise cost allocations between projects and to substitute projects, in order to meet current needs of the City; subject, however, to limitations of the Act and to the tax covenants set forth herein. Section 16. Tax Covenants Generally. The purpose of this Section and the next Section is to set forth various facts regarding the Bonds and to establish the expectations of the City as to future events regarding the Bonds and the use of Bond proceeds. The certifications, covenants, and representations contained herein are made on behalf of the City for the benefit of the owners from time to time of the Bonds. 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 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. Section 17. Specific Tax Covenants. The following certifications, representations and covenants are made relating to the Tax-exempt status of the Bonds. Section 17.101. 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. "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 • C, -35- 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 relating to such a modification or establishment during that one-year period). "Bond Counsel" means Chapman and Cutler 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. "Bond Fund" means the Debt Service Fund as defined in this Ordinance. "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. "Closing" means the first date on which the City shall receive the purchase price • for the Bonds. "Code" means the Internal Revenue Code of 1986. "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; provided, however, that 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. • "Controlling Entity" means any entity or one of a group of entities directly or indirectly having Control of any entities or group of entities. -36- "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 the Control of the other entities. "Costs of Issuance" means the costs of issuing the Bonds, including underwriter's discount and legal fees, but not including any fees, as may be applicable, for the Credit Facility described in Section 17.507 hereof. "Credit Facility" means the Municipal Bond Insurance Policy, if any, issued by a Credit Facility Provider. "Credit Facility Provider" means a municipal bond insurance issuing company, as may be applicable, providing a Credit Facility. "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 Agent" means the Escrow Agent as named in this Ordinance. "Escrow Agreement" means the agreement so named in this Ordinance. "Escrow Fund" means the fund established pursuant to the Escrow Agreement. 0,7 "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 to be held under the Escrow Agreement. "Gross Proceeds" means amounts in the funds listed in Section 17.301 hereof. "Net Sale Proceeds" means amounts actually or constructively received from the sale of 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. -37- • "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. "Preliminary Expenditures" means architectural, engineering, surveying, soil testing, Costs of Issuance and similar costs that were incurred prior to commencement of construction, rehabilitation or acquisition of the Project, if any, but do not include any costs related to land acquisition, site preparation, and similar costs incident to commencement of construction. "Prior Bond Fund" means the fund or account or funds or accounts established with respect to each series of the Prior Bonds from which current debt service on such series of the Prior Bonds has been or will be paid excluding any interest paid on the Prior Bonds from Prior Bond Proceeds. "Prior Bond Proceeds" means amounts actually or constructively received from the sale of the Prior Bonds and all other amounts properly treated as gross proceeds of the Prior Bonds under the Regulations, 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 Prior Bonds were issued but only if it is to be paid within one year after the Prior Bonds were issued and (b) amounts derived from the sale of any right that is part of the terms of a Prior Bond or is otherwise associated with a Prior Bond (e.g., a redemption right). "Prior Project" means the facilities financed, collectively, and directly or indirectly, with the proceeds of the Prior Bonds. "Private Business Use" means any use of the Project or 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 Project or 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 Project or 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 Project or the Prior Project that is not available for use by the general public. "Project" means the entire Series 2002 Capital Improvements as defined herein. • "Project Fund" means Project Fund as defined herein. "Project Portion of the Bonds" means that portion of the Bonds correctly allocated to be used for the Project. so "Purchaser" means and may be used interchangeably with Underwriter. • "Qualified Administrative Costs of Investments" means (a) reasonable, direct administrative costs (other than carrying costs) such as separately stated brokerage or selling commissions (other than a broker's commission paid on behalf of either the City or the provider of a GIC to the extent such commission exceeds the lesser of a reasonable amount or the present value of annual payments equal to 0.05 percent of the weighted average amount reasonably expected to be invested each year of the term of the GIC (for this purpose, present value is computed using the yield on the GIC)), 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. herein. "Rebate Fund" means the fund, if any, identified and defined in Section 17.402 "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 in fact refunded by the Bonds. "Refunding Portion of the Bonds" means that portion of the Bonds correctly allocated to be used for the refunding of the Refunded 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. • "Reimbursement Allocation" means the act of allocating the amount of Sale Proceeds to reimburse Reimbursed Expenditures. -39- • "Sale Proceeds" means amounts actually or constructively received from the sale of the Bonds, including (a) amounts used to pay underwriter's 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). "Supplemental Tax Certificates" means one or more certificates or agreements given in connection with the delivery of the Bonds, including information in certificates or agreements not limited to or expressly stated as responsive to tax exemption of the Bonds. "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 Refunding Portion of the Bonds to the extent allocated to the Bonds under the Regulations. "Verifier" means the firm of accountants or other recognized professionals which shall verify the computations with respect to the Bonds and the Refunding. "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 Section 5.1), 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. Section 17201. Purpose of the Bonds. The Bonds are being issued to finance the Project and to refund in advance of maturity the Refunded Bonds, each in a manner consistent with the revenue needs of the City. A breakdown of the sources and uses of funds is attached as Exhibit A. At least 75% of the sum of (i) Sale Proceeds of the Project Portion of the Bonds plus (ii) all investment earnings thereon, less (iii) Costs of Issuance paid from Sale Proceeds of the Project Portion of the Bonds or investment earnings thereon, are expected to be used for construction purposes with respect to property owned by a governmental unit. Section 17.202. The Project — Binding Commitment and Timing. The City has incurred or expects to incur, within six months of the Closing, a substantial binding obligation (not subject to contingencies within the control of the City or any member of the same Controlled Group as the • City) to a third party to expend at least five percent of the Net Sale Proceeds on the Project. It is expected that the work of acquiring and constructing the Project and the expenditure of amounts deposited into the Project Fund will continue to proceed with due diligence through a date not later than September 15, 2005, at which time it is anticipated that all such Sale Proceeds and ." investment earnings thereon will have been spent. It is expected that the Sale Proceeds deposited • into the Project Fund, including investment earnings on the Project Fund will be spent to pay costs of the Project in accordance with an estimated drawdown schedule to be contained in a Supplemental Tax Certificate. Section 17.203. Reimbursement. Except for Reimbursed Expenditures, to be identified in a Supplemental Tax Certificate, none of the Sale Proceeds or investment earnings thereon will be used to reimburse the City for an expenditure paid prior to the date of Closing. The City may make the Reimbursement Allocation to allocate a portion of the Sale Proceeds to the Reimbursed Expenditures incurred in connection with acquiring, constructing, renovating, improving and equipping the Project and will, after such Reimbursement Allocation, treat such proceeds as being spent. In support of any such Reimbursement Allocation, the City represents as follows: (a) Except as described in (f) below, the City declared an official intent to reimburse such expenditures not later than 60 days after the date such expenditures were paid. At the time the official intent described above was declared, the City reasonably expected to reimburse the non -Preliminary Expenditures related thereto with the proceeds of a future borrowing. A copy of the declaration of such intent, if applicable, shall be provided at closing. With respect to expenditures paid within the 60 day period ending on this date and with respect to which no declaration of intent was previously made, the City hereby declares its intent to reimburse such expenditures. (b) Except as described in (f) below, the Closing shall be within 18 months after the later of (i) the first date on which a Reimbursed Expenditure was paid or (ii) the first date on which the property relating to a Reimbursed Expenditure was Placed -in -Service or abandoned, but in no event more than three years after the first date on which a Reimbursed Expenditure was paid. (c) All Reimbursed Expenditures shall represent Capital Expenditures or Costs of Issuance. (d) The City acknowledges that if within one year after Closing the City deposits any money or other property into any fund or account (other than amounts deposited into a bona fide debt service fund) to pay principal of or interest on the Bonds or any other tax-exempt obligations in an amount corresponding to Gross Proceeds used to reimburse a Reimbursed Expenditure (unless such money or other property constitutes proceeds of a borrowing by the City), it may adversely affect the tax-exempt status of the Bonds. The City further acknowledges that it has covenanted not to take any action that would cause interest on the Bonds to become includible in the gross income of the holders thereof for federal income tax purposes. (e) No Reimbursement Allocation will employ any action that results in the City issuing more Bonds, issuing Bonds earlier, or allowing Bonds to remain outstanding • longer than is reasonably necessary to accomplish the governmental purposes of the Bonds, based upon all of the facts and circumstances. -41- • (f) The restrictions in (a) and (b) above do not apply to (i) an amount of Preliminary Expenditures that does not exceed 20% of the Sale Proceeds being .used to finance the portion of the Project with respect to which the Preliminary Expenditures were incurred, (ii) Costs of Issuance or (iii) an amount not in excess of the lesser of $100,000 or five percent of the Sale Proceeds. (g) None of the Reimbursed Expenditures have been previously paid with proceeds of debt. Section 17204. Working Capital. All Sale Proceeds and investment earnings thereon will be used, directly or indirectly, to finance Capital Expenditures or to pay principal of, interest on and redemption premium on (if any) the Refunded Bonds, other than the following: (a) an amount not to exceed five percent of the Sale Proceeds of the Project Portion of the Bonds for working capital expenditures directly related to Capital Expenditures financed by the Bonds; (b) payments of interest on the Bonds to the extent allocable to the Project Portion of the Bonds for a period commencing at Closing and ending on the later of the date three years after Closing or one year after the date on which the Project is Placed -in - Service; (c) Costs of Issuance and Qualified Administrative Costs of Investments; (d) payments of rebate or Yield Reduction Payments made to the United States under the Regulations; (e) principal of or interest on the Bonds paid from unexpected excess Sale Proceeds and investment earnings thereon; and (f) fees for a qualified guarantee within .the meaning of Regulations Section 1.148-4(f). No Gross Proceeds may be spent for non -capital purposes pursuant to Section 17.204 hereof if the expenditure merely substitutes Gross Proceeds for other amounts that would have been used to make expenditures in a manner that gives rise to Replacement Proceeds. Section 17205. Consequences of Contrary Expenditure. The City acknowledges that if Sale Proceeds and investment earnings thereon are spent for non -Capital Expenditures other than as permitted by Section 17.204 hereof, a like amount of then available funds of the City will be treated as unspent Sale Proceeds. Section 17.206. Investment of Bond Proceeds. Not more than 50% of the Sale Proceeds of • the Project Portion of the Bonds and investment earnings thereon are or will be invested in investments (other than Qualified Tax Exempt Obligations) having a Yield that is substantially guaranteed for four years or more. No portion of the Bonds is being issued solely for the KIM purpose of investing a portion of Sale Proceeds or investment earnings thereon at a Yield higher • than the Yield on the Bonds. Section 17.207. No Grants. None of the Sale Proceeds or investment earnings thereon will be used to make grants to any person. Section 17.208. 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. Section 17.209. Abusive Transactions. Neither the City nor any member of the same Controlled Group as the City has employed or shall employ a device or has entered into or shall enter 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 any 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. Section 17.210. 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. Section 17.301. 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 will be contained in a Supplemental Tax Certificate. No Sale Proceeds will be used to prepay for services or goods to be received over a period of years prior to the date such services or goods are to be received, except for the payment, if any, to a 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 following funds and accounts will be funded at Closing: Bond Fund, Escrow Fund, Expense Fund, and Project Fund. There are no other funds or accounts created • under the Ordinance other than the Rebate Fund if it is created as provided for in Section 17.402. (c) Principal of and interest on the Bonds will be paid from the Bond Fund. -43- • (d) Costs of Issuance incurred in connection with the Bonds will be paid from the Expense Fund. Any moneys remaining in the Expense Fund after the payment of all Costs of Issuance shall be transferred to the Project Fund within six months of Closing. (e) The costs of the Project will be paid from the Project Fund and no other moneys (except for investment earnings on amounts in the Project Fund) are expected to be deposited therein. (f) The Bonds will be allocated between the Refunding Portion of the Bonds and the Project Portion of the Bonds in the Supplemental Tax Certificate. Allocation of specific maturities to each portion will be made at such time as is necessary. Section 17.302. Purpose of Bond Fund. The Bond Fund, except for any amount of capitalized interest therein, 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. Section 17.303. The Prior Bonds. (a) Each series of the Prior Bonds was issued in the calendar year in which such series was dated pursuant to proceedings properly taken by the City. • The Prior Bonds were issued for the purposes of (i) financing the construction of certain municipal capital improvements, and (ii) paying certain costs of issuance with respect to the Prior Bonds. As of the date three years after each series of the Prior Bonds was issued all Prior Bond Proceeds derived from such series, including investment earnings thereon, were completely spent. (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 as may. be on deposit in the Prior Bond Funds. (c) Each Prior Bond Fund established in connection with the issuance of a series of Prior Bonds 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. Each such 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 of such series. (d) At the time each series of the Prior Bonds was issued, the City reasonably expected • to spend at least 85% of the proceeds (including investment earnings) of such series of Prior Bonds to be used for non -refunding purposes for such other purposes within three years of the date such Prior Bonds were issued, and such proceeds were so spent. Not more than 50% of the proceeds of each series of the Prior Bonds to be used for non -refunding purposes was invested in • investments having a Yield that was substantially guaranteed 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 such Refunded Bonds. (f) The Refunded Bonds do not include, directly or indirectly in a series, any advance refunding obligations. (g) The City acknowledges that (i) the final rebate payment with respect to the each series of the Prior Bonds may be required to be made sooner than if the refunding had not , occurred and (ii) the final rebate is due for a series 60 days after the such series of the Prior Bonds is paid in full. Section 17.304. The Escrow Fund. (a) The Escrow Fund will be funded from Bond proceeds and may be funded for some moneys on hand in the Prior Bond Funds, which moneys, if so used, will be allocated to pay the debt service payments for which accumulated. (b) The uninvested cash and anticipated receipts from the Government Securities on deposit in the Escrow Fund, 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 the Refunded Bonds, as shall be based on the verification report of the Verifier (the "Verification Report"). (c) Any moneys remaining on deposit in the Escrow Fund 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 Finance Director to be used to pay debt service on the related portion of the Bonds used to accomplish the Refunding. Section 17.305. No Other Gross Proceeds. (a) Except as described in the definition of Gross Proceeds, and except for investment earnings that may have been commingled as described in Section 17.202, and the Credit Facility, 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 or 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 -45- • 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 the obligations under the Credit Facility or any other 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 owners of the Bonds, the Credit Facility Provider, or any other 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 owners 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), (ii) or (iii) 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, the Credit Facility, or any other 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 weighted average maturity of the Bonds shall not exceed 120 percent of the average reasonably expected economic life of the Project and the Prior Project. Section 17.401. 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. Section 17.402. Rebate Fund. The City is authorized hereby to create and establish a special fund to be known as the Rebate Fund authorized herein, 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. -46- Section 17.403. 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 Section 17.404(c)) 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; (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. • Section 17.404. 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. 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: -47- (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); (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; `0 (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 paragraph (b)(xi) of this section; (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 Section • 17.404. 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 Section 17.404 satisfy various safe harbors set forth in the Regulations relating to the valuation of certain types of investments. The safe harbor provisions of this Section 17.404 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 intend to comply with the provisions of this Section 17.404 and forego the protection provided by the safe harbors provided herein. Modifications to this Ordinance can be made in accordance with Section 17.709 hereof. • Section 17.405. Arbitrage Elections. The City hereby waives its right to invest Sale Proceeds of the Bonds and investment earnings thereon in the Escrow Fund in investments with Yields higher than Bond Yield. A schedule of other elections regarding certain matters with respect to arbitrage may be provided in a Supplemental Tax Certificate. Section 17.406. Small Issuer Exception. The City will not avail itself of the small issuer exception under the Regulations in calendar year 2002. Section 17.501. Issue Price. Prior to Closing, the Purchaser shall certify, in a certificate or other proper instrument, the first offering price at which it sold at least ten percent of each maturity of the Bonds. Section 17.502. Yield Limits. Except as provided in paragraphs (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 plus if only amounts in the Project Fund are subject to this yield limitation, 1/8th of one percent. -50- The following may be invested without Yield restriction: (a) amounts as follows: (i) 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 Section 17.302 hereof; (ii) amounts on deposit in the Project Fund that are reasonably expected to pay for the costs of the Project, costs of issuance of the Bonds, or interest on the Bonds during the three year period beginning on the date of issue of the Bonds prior to three years after Closing; (iii) amounts in the Expense Fund prior to transfer to the Project Fund; (b) and further amounts as follows: (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 (except for investments in the Escrow Fund) for a period of one year from the date received. Section 17.503. Yield Limits on Prior Bonds. There are no original proceeds, investment proceeds or replacement proceeds of the Prior Bonds, and the only sinking fund proceeds are in the Prior Bond Funds, which are not currently subject to any Yield restriction. Section 17.504. Continuing Nature of Yield Limits. Except as provided in Section 17.709, once moneys are subject to the Yield limits of Section 17.502 or 17.503 hereof, such moneys remain Yield restricted until they cease to be Gross Proceeds. Section 17.505. Federal Guarantees. Except for investments meeting the requirements of • Sections 17.502(a) hereof and except for investments in the Escrow Fund, 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 -51- investments in obligations issued pursuant to Section 21B(d)(3) of the Federal Home Loan Bank • Act, 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 this Section and the Regulations, no portion of the payment of principal or interest on the Bonds, the Credit Facility, as may be applicable, or any other 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 Section nor Section 17.506 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. Section 17.506. Investments After the Expiration of Temporary Periods, Etc. After the expiration of the temporary period set forth in Section 17.502(a)(ii), amounts in the Project Fund may not 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). Any other amounts that are subject to the yield limitation in Section 17.502 because Section 17.502(a) is not applicable and amounts not subject to yield restriction only because they are described in Section 17.502(b) are also subject to the limitation set forth in the preceding sentence. Section 17507. Treatment of Certain Credit Facility Fees. Provided appropriate representations, as reviewed by Bond Counsel, are made at Closing, which the City shall review and have no reason to believe to be untrue, and the representations contained in this Ordinance, 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 shall be a Related Person as defined in Section 144(a)(3) of the Code to a Credit Facility Provider. The fee paid to any Credit Facility Provider shall not exceed ten percent of the Sale Proceeds. Other than any fee paid to the Credit Facility Provider, neither the Credit Facility Provider, if any, 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 shall not exceed a reasonable, arm's length charge for the transfer of credit risk. The fee shall not include any payment for any direct or indirect services other than the transfer of credit risk. Section 17508. Escrow Yield. The Yield on the Government Securities purchased with Sale • Proceeds of the Bonds, taking into account any Transferred Proceeds, shall not be greater than the Yield on the Bonds. -52- Section 17.509. Bidding of Government Securities. If for any reason the Government • Securities are not of the State and Local Government Series, then the Government Securities shall be procured by the City through the employment of an experienced agent (the "Bidding Agent") who shall provide satisfactory certificate or other proper instrument to the City. Such certificate shall describe the bidding procedure used and set forth the amount of the brokerage commission, broker fee, or bidding fee paid to or by the entity from whom the City acquired the Government Securities (the "Provider"). The City shall be provided with a copy of the purchase agreement or confirmation for the purchase of the Government Securities. The terms of the purchase agreement for the Government Securities shall be identical to the bid solicitation form or otherwise expressly approved by Bond Counsel. There shall be no other terms (or oral terms) of the agreement. The City shall be provided with the receipt or other record of the amount actually paid by the City for the Government Securities. The City covenants to retain for three years after the bonds are redeemed such certificate, including the attachments referenced in this section, with the bond documents. The Bidding Agent shall make a determination that the most efficient and cheapest portfolio of cash and United States Treasury Certificates of Indebtedness, Notes and Bonds of the State and Local Government Series that could produce cash flows sufficient to defease the obligations being refunded by the Bonds and could have been purchased on the settlement date pursuant to a subscription delivered to the Bureau of Public Debt on the date that the bidding was conducted would have cost no less than a stated amount. The City shall review the above -referenced certificates and shall find that it has no reason to believe that the representations made in each such certificate are untrue or incorrect. Section 17.601. Payment and Use Tests. (a) No more than five percent of the proceeds of each issue of the Prior Bonds and the Bonds, each considered separately and investment earnings thereon were used or will be used, and no more than five percent of the Sale Proceeds of the Project Portion of Bonds plus investment earnings thereon will be 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 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 any issue of the Prior Bonds, each 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 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. -53- • (d) No user of the Project or the Prior Project other than a state or local governmental unit will use more than five percent of the Project or the Prior Project, in the aggregate, on any basis other than the same basis as the general public. (e) No more than the lesser of five percent of each issue of the Prior Bonds or $5,000,000 of the proceeds of each issue of the Prior Bonds and investment earnings thereon were used, and no more than the lesser of five percent of the proceeds of the Bonds or $5,000,000 of proceeds of the Bonds and investment earnings thereon have been or will be used, to provide professional sports facilities. For purposes of this paragraph, the term "professional sports facilities" (i) means real property or related improvements used for professional sports exhibitions, games or training, regardless of whether the admission of the public or press is allowed or paid and (ii) includes any use of a facility that generates a direct or indirect monetary benefit (other than reimbursement for out-of-pocket expenses) for a person who uses such facilities for professional sport exhibitions, games or training. Section 17.602. IRS Form 8038-G. The information contained in an Information Return for Tax -Exempt Governmental Obligations, Form 8038-G, shall be prepared as true and complete. The City will file Form 8038-G (and all other required information reporting forms) in a timely manner. Section 17.603. Bank Qualification. Prior to the date hereof in the current year, no obligations that constitute "qualified tax-exempt obligations" for the purposes and within the • meaning of Section 265(b)(3) of the Code have been issued by any of the following: (i) the City; (ii) an entity issuing obligations on behalf of the City; and (iii) any member of the same Controlled Group as the City or the same Controlled Group as an entity issuing obligations on behalf of the City. Section 17.701. Covenants Remain After Bonds Paid. The covenants made herein which relate to the tax-exempt status of the Bonds and made for the benefit of the owners of the Bonds shall remain in force until the date all Bonds have been paid and for a period of six years thereafter. Section 17.702. No Common Plan of Financing. Since a date not less than 30 days prior to action on this Ordinance, neither the City nor any member of the same Controlled Group as the City has sold or delivered any obligations other than the Bonds that are reasonably expected to be paid out of substantially the same 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 hereof any obligations other than the Bonds that are reasonably expected to be paid out of substantially the same source of funds as the Bonds. Section 17.703. No Sale of the Project or Prior Project. (a) Other than as provided in the next sentence, neither the Project, 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 -54- 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 Bond -financed property 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. Section 17.704. Purchase of Bonds by City. The City will not purchase any of the Bonds except to cancel such Bonds. Section 17.705. First Call Date Limitation. The period between the date of Closing and the first call date of the Bonds shall be not more than 10-1/2 years. Section 17.706. 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. Section 17.707. First Amendment. The City acknowledges and agrees that it will not use, or allow the Project to be used, in a manner that 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. Section 17.708. 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. Section 17.709. Permitted Changes; Opinion of Bond Counsel. The Yield restrictions contained in Section 17.502 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. -55- • Section 17.710. Excess Proceeds. Gross Proceeds allocable to the Refunding Portion of the Bonds and investment earnings thereon and all unspent Prior Bond Proceeds as of the date of Closing and investment earnings thereon shall not exceed by more than one percent the Sale Proceeds of the Bonds allocable to the Refunding Portion of the Bonds the amount that will be used for: (i) payment of principal, of or interest, or call premium on Refunded Bonds; (ii) payment of pre -issuance accrued interest on the Refunding Portion of the Bonds and interest on the Refunding Portion of 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 Refunding Portion of the Bonds; (iv) payment of administrative costs allocable to repaying the Refunded Bonds, carrying and repaying the Refunding Portion of the Bonds or investments of the Refunding Portion of the Bonds; (v) Prior Bond Proceeds that will be used or maintained for the governmental purpose of the Refunded Bonds; (vi) replacement proceeds in a sinking fund for the refunding issue; and 1 0 (vii) costs of the Credit Facility allocable to the Refunding Portion of the Bonds. Section 17.711. Expectations. The City has reviewed the facts, estimates and circumstances presented by the City and other persons in existence on this date. 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. Section 18. Continuing Disclosure. The Mayor or the City Clerk of the City is hereby authorized, empowered and directed to execute and deliver the Continuing Disclosure Undertaking (the "Continuing Disclosure Undertaking") substantially in the form attached • hereto as Exhibit C to this Ordinance, made a part hereof by this reference, and hereby approved; the officer signatory to such Continuing Disclosure Undertaking being hereby -56- authorized and directed to execute same, his or her execution to constitute conclusive proof of • action in accordance with this Ordinance, and approval of all completions or revisions necessary or appropriate to such undertaking. When the Continuing Disclosure Undertaking is executed and delivered on behalf of the City as herein provided, the Continuing Disclosure Undertaking will be binding upon 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. Notwithstanding any other provision of this Ordinance, the sole remedies for failure to comply with the Continuing Disclosure Undertaking shall be the ability of the beneficial owner of any Bond to seek mandamus or specific performance by court order, to cause the City to comply with its obligations under the Continuing Disclosure Undertaking. Section 19. Prior Bonds and Taxes. The taxes previously levied to pay principal of and interest on the Series 1997 Bonds, to the extent such principal and interest is provided for from the proceeds of the Bonds or from the Escrow Account under the Escrow Agreement as hereinabove described, 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. l Such taxes as previously levied which are either on hand or cannot be abated (already in the process of extension) shall be used for lawful purposes of the City, including the payment of debt service on the Bonds so as to reduce the need for the levy of taxes for the Bonds. The Series 1996 Bonds and the Series 1995 Bonds (collectively the "SSA Bonds") shall not be cancelled upon Refunding or upon redemption but rather shall be acquired as an asset of the Corporate Fund of the City. The taxes levied to pay the SSA Bonds shall remain in place and shall enable • the City to abate the taxes on the portion of the Bonds issued for the purpose of refunding the -57- • SSA Bonds. The savings derived from the refunding of the SSA Bonds has been capitalized in the Project Portion of the Bonds and will be used to provide street improvements in Special Service Area Number 5. Section 20. Pertaining to the Bond Registrar. If requested by the Bond Registrar or the Paying Agent, or both, any officer of the City is authorized to execute standard forms of agreements between the City and the Bond Registrar or Paying Agent with respect to the obligations and duties of the Bond Registrar or Paying Agent under this Ordinance. In addition to the terms of such agreements and subject to modification thereby, the Bond Registrar and Paying Agent by acceptance of duties under this Ordinance agree (a) to act as bond registrar, paying agent, authenticating agent, and transfer agent as provided herein; (b) as to the Bond Registrar, to maintain a list of Bondholders as set forth herein and to furnish such list to the City upon request, but otherwise to keep such list confidential to the extent permitted by law; (c) as to • the Bond Registrar, to cancel and/or destroy Bonds which have been paid at maturity or upon redemption or submitted for exchange or transfer; (d) as to the Bond Registrar, to furnish the City at least annually a certificate with respect to Bonds cancelled and/or destroyed; and (e) to furnish the City at least annually an audit confirmation of Bonds paid, Bonds outstanding and payments made with respect to interest on the Bonds. The City covenants with respect to the Bond Registrar, and the Bond Registrar further covenants and agrees as follows: (A) The City shall at all times retain a Bond Registrar with respect to the Bonds; it will maintain at the designated office(s) of such Bond Registrar a place or places where Bonds may be presented for payment, registration, transfer or exchange; and it will require that the Bond Registrar properly maintain the Bond Register and perform the other duties and obligations imposed upon it by this Ordinance in a manner consistent with the standards, customs and practices of the municipal • securities industry. (B) The Bond Registrar shall signify its acceptance of the duties and -58- obligations imposed upon it by this Ordinance by executing the certificate of authentication on W any Bond, and by such execution the Bond Registrar shall be deemed to have certified to the City that it has all requisite power to accept and has accepted such duties and obligations not only with respect to the Bond so authenticated but with respect to all the Bonds. Any Bond Registrar shall be the agent of the City and shall not be liable in connection with the performance of its duties except for its own negligence or willful wrongdoing. Any Bond Registrar shall, however, be responsible for any representation in its certificate of authentication on Bonds. (C) The City may remove the Bond Registrar at any time. In case at any time the Bond Registrar shall resign, shall be removed, shall become incapable of acting, or shall be adjudicated a bankrupt or insolvent, or if a receiver, liquidator, or conservator of the Bond Registrar or of the property thereof shall be appointed, or if any public officer shall take charge or control of the Bond Registrar or of the property or affairs thereof, the City covenants and agrees that it will thereupon appoint a successor Bond Registrar. The City shall give notice of any such appointment made by it to each registered owner of any Bond within twenty days after such appointment in the same manner, or as nearly the same as may be practicable, -as for a redemption of Bonds. Any Bond Registrar appointed under the provisions of this Section shall be a bank, trust company, or national banking association maintaining its principal corporate trust office in Illinois, and having capital and surplus and undivided profits in excess of $10,000,000. The City Clerk of the City is hereby directed to file a certified copy of this Ordinance with the Bond Registrar and the Paying Agent. Section 21. Defeasance. Any Bond or Bonds which (a) are paid and cancelled, (b) which have matured and for which sufficient sums been deposited with the Paying Agent to pay all principal and interest due thereon, or (c) for which sufficient funds and Defeasance Obligations have been deposited with the Paying Agent or similar institution to pay, taking into • -59- • account investment earnings on such obligations, all principal of and interest on such Bond or Bonds when due at maturity or as called for redemption, pursuant to an irrevocable escrow or trust agreement, shall cease to have any lien on or right to receive or be paid from the Pledged Taxes and shall no longer have the benefits of any covenant for the registered owners of outstanding Bonds as set forth herein as such relates to lien and security of the outstanding Bonds. All covenants relative to the Tax-exempt status of the Bonds; and payment, registration, transfer, and exchange; are expressly continued for all Bonds whether outstanding Bonds or not. For purposes of this section, "Defeasance Obligations" means (a) direct and general full faith and credit obligations of the United States Treasury ( "Directs" ), (b) certificates of participation or trust receipts in trusts comprised wholly of Directs or (c) other obligations unconditionally guaranteed as to timely payment by the United States Treasury. Section 22. Publication of Ordinance. A full, true and complete copy of this Ordinance shall be published within ten days after passage in pamphlet form by authority of the City Council. Section 23. Superseder and Effective Date. All ordinances, resolutions and orders, or parts thereof, in conflict herewith, are to the extent of such conflict hereby superseded; and this Ordinance shall be in full force and effect immediately upon its passage, approval and publication. • AYES Engelman, Rainey, Feldman, Newman Jean-Bantiste, Wynne_ Bernstei* Kent, Moran NAYS: None ABSENT: None ADOPTED: September 9, 2002 APPROVED: September—, 2002 Mayor, City of Evanston Cook County, Illinois RECORDED In City Records: September`] 2002. PUBLISHED in pamphlet form by authority of the City Council on September W 2002. Attest: City r t o vanston Cook Cou ty Il ' ois • -61- • STATE OF ILLINOIS ) SS COUNTY OF COOK ) CERTIFICATION OF MINUTES AND ORDINANCE I, the undersigned, do hereby certify that I am the duly qualified and acting City Clerk of the City of Evanston, Cook County, Illinois (the "City"), and as such official I am the keeper of the official journal of proceedings, books, records, minutes and files of the City and of the City Council (the "City Council") thereof. I do further certify that the foregoing is a full, true and complete transcript of that portion of the minutes of the meeting of the City Council held on the 9th day of September 2002 insofar as the same relates to the adoption of an ordinance numbered 83-0-02 and entitled: AN ORDINANCE providing for the issuance of not to exceed $35,000,000 General Obligation Corporate Purpose and Refunding Bonds, Series 2002, of the City of Evanston, Cook County, Illinois, and providing for the levy and collection of a direct annual tax for the payment of the principal of and interest on said bonds. a true, correct and complete copy of which said ordinance as adopted at said meeting appears in the foregoing transcript of the minutes of said meeting. I do further certify that the deliberations of the City Council on the adoption of the ordinance were taken openly; that the vote on the adoption of the ordinance was taken openly; that the meeting was held at a specified time and place convenient to the public; that an agenda for the meeting, including a specific item listed showing the proposed adoption of the Ordinance, was posted at the location where the meeting was held and at the principal office of the City Council at least 48 hours in advance of the holding of the meeting; that notice of the meeting was duly given to all newspapers, radio or television stations and other news media requesting such notice; and that the meeting was called and held in strict compliance with the provisions of the Open Meetings Act of the State of Illinois, as amended, and the Illinois Municipal Code, as amended, and that the City Council has complied with all of the provisions of the act and code so cited and with all of the procedural rules of the City Council in the adoption of the ordinance. J WITNESS WH REOFI hereunto affix my official signature and the seal of the City this day of 2002. 9 [SEAL] 04V"�4 �it lerk STATE OF ILLINOIS ) SS COUNTY OF COOK ) CERTIFICATION OF MINUTES SHOWING INTRODUCTION I, the undersigned, do hereby certify that I am the duly qualified and acting City Clerk of the City of Evanston, Cook County, Illinois (the "City"), and as such official I am the keeper of the official journal of proceedings, books, records, minutes and files of the City and of the City Council (the "City Council") thereof. I do further certify that the foregoing is a full, true and complete transcript of that portion of the minutes of the meeting of the City Council held on the 12th day of August 2002 insofar as the same relates to the introduction of an ordinance (which subsequently, upon adoption, was numbered 83-0-02) and entitled: AN ORDINANCE providing for the issuance of not to exceed $35,000,000 General Obligation Corporate Purpose and Refunding Bonds, Series 2002, of the City of Evanston, Cook County, Illinois, and providing for the levy and collection of a direct annual tax for the payment of the principal of and interest on said bonds. I do further certify that the meeting was held at a specified time and place convenient to the public; that an agenda for the meeting was posted at the location where the meeting was held and at the principal office of the City Council at least 48 hours in advance of the holding of the meeting; that notice of the meeting was duly given to all newspapers, radio or television stations and other news media requesting such notice; and that the meeting was called and held in strict compliance with the provisions of the Open Meetings Act of the State of Illinois, as amended, and the Illinois Municipal Code, as amended, and that the City Council has complied with all of the provisions of the act and code so cited and with all of the procedural rules of the City Council in the introduction of the ordinance. jd,,IN WITN S NYHEREOF I hereunto affix my official signature and the seal of the City this day of 2002. [SEAL] 9OV] r e k 7ty1ty • STATE OF ILLINOIS ) • ) SS COUNTY OF COOK ) CERTIFICATE OF PUBLICATION IN PAMPHLET FORM I, the undersigned, do hereby certify that I am the duly qualified and acting City Clerk of the City of Evanston, Cook County, Illinois (the "City"), and as such official I am the keeper of the official journal of proceedings, books, records, minutes, and files of the City and of the City Council (the "City Council") thereof. I do further certify that on the � day of September 2002 there was published in pamphlet form, by authority of the City Council, a true, correct and complete copy of Ordinance Number 83-0-02 of the City providing for the issuance of not to exceed $35,000,000 General Obligation Corporate Purpose and Refunding Bonds, Series 2002, dated September 15, 2002, of the City and that said ordinance as so published was on said date readily available for public inspection and distribution, in sufficient number to meet the needs of the general public, at my office as City Clerk located in the City. IN WITNESS WHEREOF I have affixed hereto my official signature and the seal of the City this _�D day of 244kW2002. [SEAL] 0 nC &erk EXHIBIT A BOND PURCHASE AGREEMENT • • • • • • STATE OF ILLINOIS SS COUNTY OF COOK EXMBIT B BOND ORDER We, Roger D. Crum and William A. Stafford, do hereby certify that we are, respectively, the City Manager and the Finance Director of the City of Evanston, Cook County, Illinois (the "City"); and as such officers, we have reviewed the books, records, minutes and files of the City, and from such review and based on our authority, we do further certify as follows: 1. On September 24, 2002, the City Council adopted Ordinance Number 83- 0-02 of the City entitled: AN ORDINANCE providing for the issuance of not to exceed $35,000,000 General Obligation Corporate Purpose and Refunding Bonds, Series 2002, of the City of Evanston, Cook County, Illinois, and providing for the levy and collection of a direct annual tax for the payment of the principal of and interest on said bonds. (the "Bond Ordinance"). Terms used in this Bond Order which are not defined are as defined in the Bond Ordinance. 2. The Bond Ordinance, in accordance with delegated limits, authorizes us to establish a final maturity and rate schedule for the Bonds (as authorized and defined in the Bond Ordinance), to calculate the tax levy for the Bonds, and to advise the County Clerk of the determinations so made. 3. We have received the Underwriter's Certificate Re: Bond Sale. Please be advised that responsive to the information contained in such Certificate and the authority contained in the Bond Ordinance, a contract for the purchase of the Bonds in the face amount of $ was awarded by us as the City Manager and Finance Director of the City, to the Underwriter, at a price of $ , being % of the par value of the principal amount of the Bonds. 4. The net present value debt service savings from the Refunding is demonstrated in the Underwriter's Certificate Re: Bond Sale. 5. The terms of the Bonds are fair and reasonable in view of current conditions in the bond market. 6. The final schedule for the Bonds is as follows: Principal Amount: $ Dated: September 15, 2002. Due: Serially, on January 1 of the years, in the amounts, and bearing interest at the rates percent per annum as follows: YEAR AMOUNT ($) RATE (%) YEAR AMOUNT ($) RATE (%) • • • -2- • 7. The levy amounts to be provided to pay principal of and interest on the Bonds are as follows: FOR THE YEAR A TAX SUFFICIENT TO PRODUCE THE DOLLAR SUM OF: 2002 $ for interest and principal up to and including January 1, 2004 2003 $ for interest and principal 2004 $ for interest and principal 2005 $ for interest and principal 2006 $ for interest and principal 2007 $ for interest and principal 2008 $ for interest and principal 2009 $ for interest and principal 2010 $ for interest and principal • 2011 $ for interest and principal 2012 $ for interest and principal 2013 $ for interest and principal 2014 $ for interest and principal 2015 $ for interest and principal 2016 $ for interest and principal 2017 $ for interest and principal 2018 $ for interest and principal 2019 $ for interest and principal M11 8. The final terms of redemption for the Bonds are as follows: • A. Term Bonds: [The Bonds due on January 1 of the years 20_ and 20_ are Term Bonds and are subject to mandatory redemption by operation of the Debt Service Fund at a price of par and accrued interest, without premium, on January 1 of the years and in the amounts as follows: For the Term Bonds due January 1, 200*: YEAR AMOUNT ($) 200* 200* with $ remaining to be paid at maturity in 200*. For the Term Bonds due January 1, 20_: YEAR AMOUNT ($) 20 • 20 20 with $ remaining to be paid at maturity in 20_.] • -4- • B. Those of the Bonds due on or after January 1, , are subject to redemption prior to maturity, at the option of the City, from any available funds, in whole or in part, on any date on or after January 1, , and if in part, in any order of maturity (and, if applicable, any order of mandatory redemption payment) as selected by the City, and if less than an entire maturity, in integral multiples of $5,000, selected by lot by the Bond Registrar, at the redemption price of par plus accrued interest to the date of redemption. 9. All other terms are as provided in the Bond Ordinance. 10. Please be further advised that we find and determine that no person holding any office of the City either by election or appointment, is in any manner financially interested, either directly, in his or her own name, or indirectly in the name of any other person, associate, trust or corporation, in the Bond Purchase Contract with the Underwriters. 11. Finally, please be advised that this Bond Order shall be entered into the records of the City and made available to all Aldermen. IN WITNESS WHEREOF we have hereunto affixed our official signatures this day of • September 2002. • Roger D. Crum City Manager William A. Stafford Finance Director -5- Sep 24 02 07:39p 09/24/2002 04:45 8474488123 STAFFORD PAGE 05/06 IN IVnWESS WHEREOF we have hereunto affixed our official signatures this 20th day of September 2002. -S- Roger D. Cram City Manager Will"Sre Financc Director • • • STATE OF ILLINOIS ) ) SS COUNTY OF COOK ) GENERAL OBLIGATION CORPORATE PURPOSE AND REFUNDING BONDS SERIES 2002 AND RELATED BOND ORDER AVAILABILITY OF BOND ORDER I, the undersigned, do hereby certify that I am the duly qualified and acting City Clerk of the City of Evanston, Cook County, Illinois (the "City"), and as such official I am the keeper of the official journal of proceedings, books, records, minutes and files of the City and of the City Council (the "City Council") thereof. I do further certify that I made available to all members of the City Council at the regular meeting of the City Council held on the � day of 002, a Bond Order, as such T term is defined in Ordinance Number 83-0-02 and entitled: • AN ORDINANCE providing for the issuance of not to exceed $35,000,000 General Obligation Corporate Purpose and Refunding Bonds, Series 2002, of the City of Evanston, Cook County, Illinois, and providing for the levy and collection of a direct annual tax for the payment of the principal of and interest on said bonds. which Bond Order is responsive to such Ordinance; a true, correct and complete copy of which said Bond Order as provided at said meeting being attached hereto. IN WITNESS WHEREOF I hereunto affix my official signature and the seal of the City this "*day of SgAMkM002. City Clerk City of Evanston Cook County, Illinois • [SEAL] GENERAL OBLIGATION CORPORATE PURPOSE AND REFUNDING BONDS SERIES 2002 AND RELATED BOND ORDER • UNDERWRITER'S CERTIFICATE RE: BOND SALE I, the undersigned, do hereby certify that I am an officer of Legg Mason Wood Walker, Inc., Chicago, Illinois (the "Underwriter"), and as such officer I do further certify as follows: 1. The Underwriter is the duly appointed purchaser and underwriter for the City of Evanston, Cook County, Illinois (the "City"), $ General Obligation Corporate Purpose and Refunding Bonds, Series 2002, of the City (the "Bonds"). 2. The Bonds have been sold to the Underwriter, and the City is to receive $ being % of the par value of the principal amount of the Bonds, plus accrued interest from the sale of the Bonds; and the net interest cost rate on the Bonds, calculated in accordance with customary market practice, is %, not in excess of the maximum rate of 6.00%. 3. The Bonds were sold to the Underwriter by the City in a negotiated sale • conducted at arms -length. In our opinion, the terms of the Bonds are fair and reasonable in view of current conditions in the bond market. 4. The net present value debt service savings to the City from the issuance of the Bonds for the Refunding is demonstrated in the attached schedules. 0 • IN WITNESS WHEREOF I hereunto affix our name and my signature this day of September 2002. LEGG MASON WOOD WALKER, INC. U • By: Title: -2- • 17�