COMMITTEE SUBSTITUTE
FOR ORDINANCE NO. 050906
Authorizing the issuance of not
to exceed $30,000,000.00 principal amount of Water Revenue Bonds, Series 2005F,
of the City of Kansas City, Missouri, prescribing the form and details of such
revenue bonds and the covenants and agreements to provide for the payment and
security thereof; and authorizing certain actions and documents and prescribing
other matters relating thereto.
WHEREAS, the
City of Kansas City, Missouri (the City) is a constitutional charter City and
political subdivision duly organized and existing under the laws of the State
of Missouri (the State), and owns and operates a revenue producing waterworks
system serving the City and its inhabitants and others within its service area
(the System); and
WHEREAS, the
City desires to make certain extensions and improvements to the System and is
authorized under the provisions of the Constitution and statutes of the State
and its City Charter to issue and sell revenue bonds for the purpose of
providing funds for such purposes, upon obtaining the required voter approval
and provided that the principal of and interest on such revenue bonds shall be
payable solely from the revenues derived from the operation of the System; and
WHEREAS,
pursuant to such authority, a special bond election was duly held in the City
at the primary election on August 6, 1996 (the Election), on the following
question:
QUESTION
NO. 1
Shall the City of
Kansas City, Missouri, issue and sell waterworks revenue bonds in the principal
amount of $150,000,000.00 for the purpose of extending and improving the
waterworks system of the City including (1) the completion of the water main
transmission system to all parts of the City, (2) replacement of small water
mains, (3) replacement and additions to the water treatment plant and major
pump stations, and (4) automation of the system, with the principal and
interest of said bonds to be payable solely from the revenues derived by the
City from the operation of its waterworks system, including all future
improvements and extensions thereto?
and it was found and determined
that more than a majority of the qualified electors of the City voting on the
question had voted in favor of the issuance of the revenue bonds for the
purpose aforesaid, the vote on such question having been 28,959 votes for the
question to 8,821 votes against the question; and
WHEREAS, plans
for such extensions and improvements and an estimate of the cost thereof have
been prepared and made by the Director of the Department of Water Services of
the City and the Consulting Engineer (as defined below) and the same are hereby
accepted and approved and are on file in the office of the Director of Water
Services, the amount of such estimated cost being not less than $30,000,000;
and
WHEREAS, the
City has heretofore issued its Water Revenue Bonds, 7th Issue, Series D, dated
December 1, 1994, in the original principal amount of $35,000,000 of which
$1,690,000 principal amount remains Outstanding; its Water Refunding Revenue
Bonds, Series 1996A, in the original principal amount of $45,550,000 of which
$20,815,000 principal amount remains Outstanding; its Water Revenue Bonds,
Series 1996B, in the original principal amount of $28,000,000 of which
$19,960,000 principal amount remains Outstanding; its Water Refunding Revenue
Bonds, Series 1998A in the original principal amount of $38,260,000 of which
$33,680,000 remains Outstanding; its Water Revenue Bonds, Series 1998B in the
original principal amount of $14,410,000 of which $11,415,000 principal amount
remains Outstanding; its Water Revenue Bonds, Series 2000A in the original
principal amount of $25,000,000 of which $21,275,000 remains Outstanding; its
Water Revenue Bonds, Series 2002C, in the original principal amount of
$17,500,000 of which $15,960,000 remains Outstanding; and its Water Revenue
Bonds, Series 2004D, in the original principal amount of $25,000,000 of which
$25,000,000 remains Outstanding; and
WHEREAS, it is
hereby found and determined that it is necessary and advisable in the best
interests of the City and of its inhabitants at this time to authorize the
issuance and delivery of $30,000,000 principal amount of Water Revenue Bonds to
provide funds for the purpose of extending and improving the waterworks system
of the City, as aforesaid; NOW, THEREFORE,
BE IT ORDAINED
BY THE COUNCIL OF KANSAS CITY:
ARTICLE
I
DEFINITIONS
Section 101.
Definitions of Words and Terms. In addition to the words and terms otherwise
defined herein, unless the context shall clearly indicate some other meaning,
the words and terms as used in this Ordinance shall have the following
meanings:
2005F Bond
Reserve Account means the Water Revenue Bonds, Series 2005F, Reserve Account
created pursuant to Section 502 of the Ordinance.
2005F Water
Debt Fund means the Water Revenue Bonds, Series 2005F, Principal and Interest
Sinking Fund created pursuant to Section 502 of the Ordinance.
Additional
Bonds means any bonds on a parity with the Bonds issued pursuant to and in
accordance with Section 902 of this Ordinance.
Administrative
Service Fees means that portion of the Current System Expenses paid to the
general fund of the City for office space and certain administrative, data
processing, accounting and other support services provided to the System of the
City.
Bond Counsel
means Gilmore & Bell, P.C., or other attorney or firm of attorneys with a
nationally recognized standing in the field of municipal bond financing.
Bond Insurance
Policy means, with respect to the Series 2005F Bonds, the insurance policy
issued by the Bond Insurer guaranteeing the scheduled payment of the principal
of and interest on the Series 2005F Bonds when due.
Bond Insurer
means Financial Security Assurance Inc., a New York stock insurance company, or
any successor thereto or assignee thereof.
Bond Payment
Date means any date on which principal of or interest on any Bond is payable
at Maturity or any Interest Payment Date.
Bond Register
means the books for registration, transfer and exchange of Bonds kept at the
office of the Paying Agent as bond registrar.
Bond Reserve
Account means, with respect to each Series of Bonds, the account established
for deposit and maintenance of the bond reserve requirement, if any, with
respect to such Series of Bonds.
Bond Reserve
Requirement means the amount on the date of original issuance and delivery of
the Bonds equal to the least of (a) ten percent (10%) of the stated principal
amount of the Bonds, (b) the maximum Debt Service Requirements for the Bonds during
any fiscal year or (c) 125% of the average annual Debt Service Requirements for
the Bonds over the term of the Bonds. If the aggregate initial offering price
of the Bonds to the public is less than 98% or more than 102% of par, such
offering price shall be used in clause (a) in lieu of the stated principal
amount.
Bondowner or
Registered Owner when used with respect to any Bond means the Person in whose
name such Bond is registered on the Bond Register.
Bonds means
the Water Revenue Bonds, Series 2005F of the City, in the aggregate principal
amount of $30,000,000 authorized and issued pursuant to this Ordinance.
Business Day
means a day other than a Saturday, Sunday or holiday on which the Paying Agent
is scheduled in the normal course of its operations to be open to the public
for conduct of its banking operations.
Cede & Co.
means Cede & Co., as nominee name of The Depository Trust Company, New York, New York.
City means the
City of Kansas City, Missouri, and any successors or assigns.
Code means the
Internal Revenue Code of 1986, as amended, and the applicable regulations of
the Treasury Department proposed or promulgated thereunder.
Consulting
Engineer means each independent engineer or engineering firm with experience
in designing and constructing waterworks facilities and retained by the City.
Council means
the City Council of the City.
Current
System Expenses means all reasonable and necessary expenses of operating and
maintaining the System (excluding capital lease payments, if any, and interest
paid on water revenue bonds and depreciation and amortization charges) pursuant
to Section 601(a) of this Ordinance.
Debt
Service Requirements means the aggregate principal payments (whether at
maturity or pursuant to scheduled mandatory sinking fund redemption
requirements) and interest payments on all Water Revenue Bonds for the period
of time for which calculated; provided, however, that for purposes of
calculating such amount, principal and interest shall be excluded from the
determination of Debt Service Requirements to the extent that such principal or
interest is payable from amounts deposit in trust, escrowed or otherwise set
aside for the payment thereof with the Paying Agent or other commercial bank or
trust company located in the State and having full trust powers.
Defaulted
Interest means interest on any Bond which is payable but not paid on any
Interest Payment Date.
Defeasance
Obligations means any of the following obligations:
(a) United States Government Obligations that are not subject to
redemption in advance of their maturity dates; or
(b) obligations of any state or political subdivision of any
state, the interest on which is excluded from gross income for federal income
tax purposes and which meet the following conditions:
(1) the obligations are (i) not subject to redemption prior to
maturity or (ii) the trustee for such obligations has been given irrevocable
instructions concerning their call and redemption and the issuer of such
obligations has covenanted not to redeem such obligations other than as set
forth in such instructions;
(2) the obligations are secured by cash or United States
Government Obligations that may be applied only to principal of, premium, if
any, and interest payments on such obligations;
(3) such cash and the principal of and interest on such United
States Government Obligations serving as security for the obligations, plus any
cash in the escrow fund, are sufficient to meet the liabilities of the
obligations;
(4) such cash and United States Government Obligations serving as
security for the obligations, are held in an escrow fund by an escrow agent or
a trustee irrevocably in trust;
(5) such cash and United States Government Obligations serving as
security for the obligations, are not available to satisfy any other claims,
including those against the trustee or escrow agent; and
(6) the obligations are rated in the highest rating category by
Moodys Investors Service, Inc. (presently Aaa) and Standard & Poors
Ratings Group (presently AAA); or
(c) with the consent of the Bond Insurer, securities eligible for
AAA defeasance under then existing criteria of Standard and Poors Ratings
Group; or
(d) any combination of the foregoing; or
(e) Such
other securities not described above that are allowed pursuant to Missouri law and approved in writing by the Bond Insurer.
Depository
means DTC.
Director means, in
reference to the Department of Water Services of the City, the Director or any
Deputy Director of the Department of Water Services of the City, and in
reference to the Department of Finance of the City, the Director or any Acting
Director of the Department of Finance of the City.
DTC means The
Depository Trust Company.
Fiscal Year
means the Citys fiscal year then in effect.
Global Bond
Certificate means one or more Bond certificates of the City, representing the
entire principal amount of a particular Series due on a particular Stated
Maturity, immobilized from general circulation in the Depository.
Interest
Payment Date means the Stated Maturity of an installment of interest on any
Bond.
Maturity when
used with respect to any Bond means the date on which the principal of such
Bond becomes due and payable as therein and herein provided; whether at the
Stated Maturity thereof or call for optional or mandatory redemption or
otherwise.
Net Revenues
means for the period of determination, the Revenues less Current System
Expenses.
Ordinance
means this Ordinance as from time to time amended.
Outstanding
means, when used with reference to Bonds, as of any particular date, all Bonds
theretofore issued and delivered hereunder, except the following Bonds:
(a) Bonds
theretofore canceled by the Paying Agent or delivered to the Paying Agent for
cancellation;
(b) Bonds
deemed to be paid in accordance with the provisions of Section 1101; and
(c) Bonds
in exchange for or in lieu of which other Bonds have been registered and
delivered.
Parity Bonds
means the Series D Bonds, the Series 1996A Bonds, the Series 1996B Bonds, the
Series 1998A Bonds, the Series 1998B Bonds, the Series 2000A Bonds, the Series
2002C Bonds and the Series 2004D Bonds Outstanding on the date of the issuance
and delivery of the Bonds.
Parity
Ordinances means the ordinances heretofore adopted by the City under which the
outstanding Parity Bonds have
been issued, and the ordinances under which any additional Parity Bonds are
hereafter issued pursuant to Section 902 of this Ordinance.
Participants
means those financial institutions for whom the Depository effects book-entry
transfers and pledges of securities deposited with the Depository.
Paying Agent
means the paying agent selected from time to time by the Director of Finance.
Permitted
Investments means any of the following securities, if and to the extent the
same are at the time legal for investment of the Citys moneys held in the
funds and accounts referred to in Article V:
(a) United States Treasury Securities (Bills, Notes, Bonds and Strips) Obligations of
the United States government for which the full faith and credit of the United States are pledged for the payment of principal and interest.
(b) United States Agency Securities.
Obligations issued or guaranteed by any agency, including government sponsored
enterprises of the United States Government, which at the time of purchase have
a liquid market and a readily determinable market value that are described as
follows:
(i) U.S. Government Agency
Coupon and Zero Coupon Securities. Bullet coupon bonds with no embedded
options.
(ii) U.S. Government Agency
Discount Notes. Purchased at a discount with maximum maturities of one (1)
year.
(iii) U.S. Government Agency
Callable Securities. Restricted to securities callable at par only with
maximum final
maturities of five (5) years.
(iv) U.S. Government Agency
Step-Up Securities. The coupon rate is fixed for an initial term. At
coupon date, the coupon rate rises to a new, higher fixed interest rate. Restricted to securities with maximum final maturities of three (3) years.
(v) U.S. Government Agency
Floating Rate Securities. The coupon rate floats off of only one index. Restricted to coupons with no
interim caps that reset at least quarterly.
(vi) U.S. Government Agency Mortgage Backed Securities (MBS, CMO, Pass-Thru Securities). Restricted to securities with final maturities of
three (3) years or less or have the final projected
payment no greater than three (3) years when analyzed in a +300 basis point
interest rate environment. Restricted to obligations of FNMA, FHLMC and GNMA
only.
(c) Repurchase Agreements. Contractual
agreements between the City and commercial banks or primary government
securities dealers, organized under the laws of the United States or any state,
which contractual agreements are continuously and fully secured by any one or
more of the securities described in paragraphs (a) and (b) above and which have
a market value, exclusive of accrued interest, at all times at least equal to
the principal amount of such repurchase agreements. Securities acquired pursuant
to repurchase agreements shall be valued at the lower of the current market
value or the repurchase price thereof set forth in the repurchase agreement.
The Bond Market Associations guidelines for the Master Repurchase Agreement
will be used and will govern all repurchase agreement transactions. All
repurchase agreements shall result in transfer of legal title to identified
securities that are segregated in a custodial or trust account for the benefit
of the Paying Agent or delivered to the Paying Agent. Repurchase agreement
transactions will be either physical delivery or tri-party.
(d) Bankers Acceptances. Bankers
acceptances issued by domestic commercial banks
possessing the highest rating issued by Moodys Investor Services, Inc. or Standard
and Poors Corporation.
(e) Commercial Paper.
Commercial paper issued by domestic corporations, which has received the
highest rating issued by Moodys Investor Services, Inc. or Standard and
Poors Corporation. Eligible paper is further limited to issuing corporations
that have total assets in excess of five hundred million dollars ($500,000,000)
and are not listed on Credit Watch with negative
implications by any nationally recognized rating agency at the time of
purchase.
(f) Any full faith and credit obligations of the
State of Missouri rated at least A or A2 by Standard
and Poors or Moodys.
(g) Any full faith and credit obligations of any
county in which the City is located rated AA or Aa2
by Standard and Poors or Moodys.
(h) Any full faith and credit obligations of any
school district in Kansas City, Missouri rated AA or Aa2 by Standard and Poors or Moodys.
(i) Any full faith and credit obligations or
revenue bonds of the City of Kansas City, Missouri rated AA or Aa2 by Standard and Poors or Moodys.
(j) Any municipal obligation as
defined in (f), (g), (h) or (i) that is not rated but either pre-refunded or
escrowed to maturity with U.S. Treasury Securities as to both principal and
interest.
(k) Money market mutual funds
registered under the Federal Investment Company Act of 1940, whose shares are
registered under the Federal Securities Act of 1933, rated in either of the two
highest categories by Moodys and Standard & Poors (in either case without
regard to any modifier).
(l) Such other investments not
described above that are allowed pursuant to Missouri law and approved in
writing by the Bond Insurer.
References to particular ratings
and rating categories in this definition are applicable only at the time of
purchase of the Permitted Investment.
Person means
any natural person, corporation, partnership, joint venture, association,
joint-stock company, trust, unincorporated organization or government or any
agency or political subdivision thereof or other public body.
Project means
the extensions and improvements of the Citys waterworks system, as approved by
the voters of the City at the election held on August 6, 1996.
Project Fund
means the fund by that name created by Section 502 of this Ordinance.
Purchaser
means the original purchaser of the Bonds.
Rebate Fund
means the account by that name created pursuant to Section 502 of this
Ordinance.
Record Date
for the interest payable on any Interest Payment Date means the 15th day
(whether or not a Business Day) of the calendar month next preceding such
Interest Payment Date.
Redemption
Date when used with respect to any Bond to be redeemed means the date fixed
for redemption pursuant to the Ordinance.
Redemption
Price when used with respect to any Bond to be redeemed means the price at
which such Bond is to be redeemed pursuant to the Ordinance, including the
applicable redemption premium, if any, but excluding installments of interest
whose Stated Maturity is on or before the Redemption Date.
Replacement
Bonds means Bonds issued to the beneficial owners of the Bonds in accordance
with Section 211(c) hereof.
Reserve Policy
means any surety bond or debt service reserve fund policy issued by a Reserve
Policy Provider guaranteeing or insuring certain payments into the 2005F Bond
Reserve Account with respect to the Bonds as provided therein and subject to
the limitations set forth therein.
Reserve Policy
Provider shall mean, Financial Security Assurance Inc., a New York stock
insurance company, or any successor thereto or assignee thereof.
Revenues means
all income and revenues derived and accrued by the City from the ownership and
operation of the System, including interest received on moneys and securities
held pursuant to this Ordinance that is paid and credited to the Waterworks
Revenue Fund pursuant to Section 501 hereof and any amounts held in escrow in
connection with the construction of extensions and improvements to the System
to be applied
during the
period of determination to pay interest on water system revenue bonds, but
excluding any profits or losses on the early extinguishment of debt or on the
sale or other disposition of investments or fixed or capital assets not in the
ordinary course of business.
Securities
Depository means initially, The Depository Trust Company, New York, New York, and its successors and assigns.
Series and
Series of Bonds means any series of Additional Bonds.
Series D Bonds
means the Water Revenue Bonds, 7th Issue, Series D, of the City authorized by
Committee Substitute for Ordinance No. 941459.
Series 1996A
Bonds means the Water Refunding Revenue Bonds, Series 1996A, of the City
authorized by Committee Substitute for Ordinance No. 960924.
Series 1996B
Bonds means the Water Revenue Bonds, Series 1996B, of the City authorized by
Ordinance No. 961462.
Series 1998A
Bonds means the Water Refunding Revenue Bonds, Series 1998A, of the City
authorized by Committee Substitute for Ordinance No. 980278, as amended.
Series 1998B
Bonds means the Water Revenue Bonds, Series 1998B, of the City authorized by
Committee Substitute for Ordinance No. 980296, as amended.
Series 2000A
Bonds means the Water Revenue Bonds, Series 2000A, of the City authorized by
Ordinance No. 000037, as amended.
Series 2002C
Bonds or 2002C Bonds means the Water Revenue Bonds, Series 2002C, of the
City, authorized by Committee Substitute for Ordinance No. 020325, as amended.
Series 2004D
Bonds or 2004D Bonds means the Water Revenue Bonds, Series 2004D, of the
City, authorized by Ordinance No. 040693, as amended.
Special Record
Date for the date fixed by the Paying Agent pursuant to Section 205 for the
payment of any Defaulted Interest.
Stated
Maturity when used with respect to any Bond or any installment of interest
thereon means the date specified in the Ordinance as the fixed date on which
the principal of such Bond or such installment of interest is due and payable.
Surplus
Account means the account by that name created pursuant to Section 502 of the
Ordinance.
System or
Water System means the entire waterworks plant and system owned and operated
by the City for the production, storage, treatment and distribution of water,
to serve the needs of the City and its inhabitants and others, including all
appurtenances and facilities connected therewith or relating thereto, together
with all extensions, improvements, additions and enlargements thereto hereafter
made or acquired by the City. At the discretion of the City there may be
excluded from the System facilities which are hereafter constructed or acquired,
connected or separate from the System, which are not financed with the proceeds
of revenue bonds payable from the revenues of the System, and for which the
City maintains separate and distinct operations, facilities and records, and
which if connected to the System are billed for System use as a customer of the
System in accordance with the ordinances and regulations of the City.
Tax Compliance
Agreement means the Citys Tax Compliance Agreement, dated as of the date on
which the Bonds are originally issued and authenticated, as the same may be
amended or supplemented in accordance with the provisions thereof.
Terms
Ordinance means an ordinance of the City adopted prior to the issuance of the
Bonds, which, among other matters, establishes the maturities, interest rates
and sinking fund redemption provisions for the Bonds.
United States
Government Obligations means bonds, notes, treasury bills or other securities
constituting direct obligations of, or obligations the principal of and
interest on which are fully and unconditionally guaranteed as to full and
timely payment by, the United States of America, including evidences of
ownership of proportionate interest in future interest and principal payments
on United States Government Obligations held by a bank or trust company as
custodian, under which the owners of the investment is the real party in
interest and has the right to proceed directly and individually against the
obligor and the underlying United States Government Obligations and not available
to any person claiming through the custodian or to whom the custodian may be
obligated.
Water Revenue
Bonds means collectively the Bonds, the Parity Bonds and all other revenue
bonds which are payable out of, or secured by an interest in, the income and
Revenues derived from the operation of the System.
Waterworks
Revenue Fund means the fund created pursuant to Section 15 of the Committee
Substitute for Ordinance No. 63168 and referred to in Section 501 of this
Ordinance.
ARTICLE II
AUTHORIZATION
OF BONDS
Section 201. Authorization
of the Bonds. The Council hereby authorizes and directs the issuance of
the Water Revenue Bonds, Series 2005F, of the City in the principal amount of
$30,000,000, for the purpose of providing funds to pay part of the cost of the
Project, as provided in this Ordinance.
Section 202. Claims
Upon the Bond Insurance Policy and Payments by and to the Bond Insurer.
(a) If, on the third Business Day prior to the related Interest
Payment Date for the Bonds there is not on deposit with the Paying Agent, after
making all transfers and deposits required under this Ordinance, sufficient
moneys available to pay the principal of and interest on the Bonds due on such
date, the Paying Agent shall give notice to the Bond Insurer and to its
designated agent (if any) (the Fiscal Agent) by telephone or telecopy of the
amount of such deficiency by 12:00 noon, New York City time, on such Business
Day. If, on the Interest Payment Date, there continues to be a deficiency in
the amount available to pay the principal of and interest on the Bonds due on
such Interest Payment Date, the Paying Agent shall make a claim under the Bond
Insurance Policy and give notice to the Bond Insurer and the Fiscal Agent (if
any) by telephone of the amount of such deficiency, and the allocation of such
deficiency between the amount required to interest on the Bonds and the amount
required to pay principal of the Bonds, confirmed in writing to the Bond
Insurer and the Fiscal Agent by 12:00 noon, New York City time, on such
Interest Payment Date by filling in the form of Notice of Claim and Certificate
delivered with the Bond Insurance Policy.
(b) The Paying Agent shall designate any portion of payment of
principal on Bonds paid by the Bond Insurer, whether by virtue of mandatory
sinking fund redemption, maturity or other advancement of maturity, on its
books as a reduction in the principal amount of Bonds registered to the then
current Bondowner, whether DTC or its nominee or otherwise, and shall issue a
replacement Bond to the Bond Insurer, registered in the name of Financial
Security Assurance Inc., in a principal amount equal to the amount of principal
so paid (without regard to authorized denominations); provided that the Paying
Agents failure to so designate any payment or issue any Replacement Bonds
shall have no effect on the amount of principal or interest payable by the City
on any Bond or the subrogation rights of the Bond Insurer.
(c) The Paying Agent shall keep a complete and accurate record of
all funds deposited by the Bond Insurer into the Policy Payments Account (as
defined below) and the allocation of such funds to payment of interest on and
principal paid in respect of any Bond. The Bond Insurer shall have the right
to inspect such records at reasonable times upon reasonable notice to the
Paying Agent.
(d) Upon payment of a claim under the Bond Insurance Policy the
Paying Agent shall establish a separate special purpose trust account for the
benefit of Bondowners (the Policy Payments Account) and over which the Paying
Agent shall have exclusive control and sole right of withdrawal. The Paying
Agent shall receive any amount paid under the Bond Insurance Policy in trust on
behalf of Bondowners and shall deposit any such amount in the Policy Payments
Account and distribute such amount only for purposes of making the payments for
which a claim was made. Such amounts shall be disbursed by the Paying Agent to
Bondowners in the same manner as principal and interest payments are to be made
with respect to the Bonds under the sections hereof regarding payment of Bonds.
It shall not be necessary for such payments to be made by checks or wire
transfers separate from the check or wire transfer used to pay debt service
with other funds available to make such payments. Notwithstanding anything to
the contrary otherwise set forth in this Ordinance, and to the extent permitted
by law, in the event amounts paid under the Bond Insurance Policy are applied
to claims for payment of principal of or interest on the Bonds, interest on
such principal of and interest on such Bonds shall accrue and be payable from
the date of such payment at the greater of (1) the per annum rate of interest,
publicly announced from time to time by JPMorgan Chase Bank or its successor at
its principal office in the City of New York, as its prime or base lending rate
plus 3%, and (2) the then applicable rate of interest on the Bonds provided
that in no event shall such rate exceed the maximum rate permissible under
applicable usury or similar laws limiting interest rates.
(e) Funds held in the Policy Payments Account shall not be
invested by the Paying Agent and may not be applied to satisfy any costs,
expenses or liabilities of the Paying Agent. Any funds remaining in the Policy
Payments Account following an Interest Payment Date shall promptly be remitted
to the Bond Insurer.
(f) The Bond Insurer shall, to the extent it makes any payment of
principal of or interest on the Bonds, become subrogated to the rights of the
recipients of such payments in accordance with the terms of the Bond Insurance
Policy. The obligations to the Bond Insurer shall survive discharge or
termination of the Bonds or this Ordinance.
(g) The Bond Insurer shall be entitled to pay principal or
interest on the Bonds that shall become Due for Payment but shall be unpaid by
reason of Nonpayment by the City (as such terms are defined in the Bond
Insurance Policy) and any amounts due on the Bonds as a result of acceleration
of the maturity thereof in accordance with the provisions of this Ordinance,
whether or not the Bond Insurer has received a Notice of Nonpayment (as such
terms are defined in the Bond Insurance Policy) or a claim upon the Bond
Insurance Policy.
Section 203. Description
of the Bonds. The Bonds shall consist of fully registered bonds without
coupons, numbered from R-1 upward, in the denomination of $5,000 or any
integral multiple thereof and not exceeding the principal amount of Bonds
maturing in the year in which such Bond becomes due, as may be specified by the
Registered Owner of such Bond. The Bonds, as originally issued or issued upon
transfer, exchange or substitution, shall be substantially in the form set
forth in Section 401 of this Ordinance, with appropriate insertions and deletions
as are approved by the Director of Finance, which approval will be conclusively
evidenced by the Director of Finances signature on the Bonds. The Bonds shall
be subject to registration, transfer and exchange as provided in Section 206 of
this Ordinance. The Bonds shall be dated September 15, 2005, shall become due
in the amounts on the Stated Maturities (subject to optional and mandatory
redemption prior to their Stated Maturities as provided in Article III hereof),
and shall bear interest at the rates per annum to be determined upon the sale
of the Bonds as set forth in the Terms Ordinance.
At the election
of the original purchasers of the Bonds, term Bonds may be issued in lieu of
serial Bonds with Stated Maturities as in this section provided and such term
Bonds shall be subject to mandatory redemption in the annual amounts and on the
dates set forth in this section as the Stated Maturities for such serial Bonds.
The Bonds shall
bear interest (computed on the basis of a 360-day year of twelve 30-day months)
from the most recent Interest Payment Date to which interest has been paid in
full or, if no interest has been paid, from September 1, 2005. Interest on the
Bonds shall be payable semiannually on June 1 and December 1 in each year,
commencing June 1, 2006, and at their Stated Maturity.
Section 204. Designation
of Paying Agent and Bond Registrar. The Director of Finance shall
designate the Paying Agent for the payment of principal of and interest on the
Bonds and bond registrar with respect to the registration, transfer and
exchange of Bonds (in such capacity, the "Bond Registrar").
The City will at
all time maintain a Paying Agent meeting the qualifications herein described
for the performance of the duties hereunder. The City reserves the right to
appoint a successor Paying Agent by (1) filing with the bank or trust company
then performing such function a certified copy of the proceedings giving notice
of the termination of such bank or trust company and appointing a successor,
and (2) causing notice to be given by first class mail to each Bondowner. No
resignation or removal of the Paying Agent shall become effective until a
successor has been appointed and has accepted the duties of the Paying Agent.
Every Paying
Agent appointed hereunder shall at all times be (1) a commercial banking
association or corporation or trust company located in the State of Missouri
organized and in good standing and doing business under the laws of the United
States of America or of the State of Missouri and subject to supervision or
examination by federal or state regulatory authority and (2) shall have a
reported capital (exclusive of borrowed capital) plus surplus of not less than
$100,000,000 or consideration may be given by the City to a bank not meeting this
amount if the bank submits an acceptable form of guarantee for its financial
obligations to the City. If such
institution publishes reports of conditions at least annually pursuant to law
or regulation, then for the purposes of this Section the capital and surplus of
such institution shall be deemed to be its capital and surplus as set forth in
its most recent report of condition so published.
The
Paying Agent shall be paid in accordance with its proposal for fees and
expenses submitted to the Director of Finance as an operating expense of the
System.
Section 205. Method
and Place of Payment of Bonds. The principal or Redemption Price of and
interest on the Bonds shall be payable in any coin or currency of the United
States of America that, on the respective dates of payment thereof, is legal
tender for the payment of public and private debts.
The principal or
Redemption Price of each Bond shall be paid at Maturity by check or draft to
the Person in whose name such Bond is registered on the Bond Register at
Maturity thereof, upon presentation and surrender of such Bond at the principal
corporate trust office of the Paying Agent or at such other office as the
Paying Agent may designate.
The interest
payable on each Bond on any Interest Payment Date shall be paid to the
Registered Owner of such Bond as shown on the Bond Register at the close of
business on the Record Date for such interest (a) by check or draft mailed to
the Registered Owner at the address as it appears in the Bond Register or (b) at
the option of Registered Owner of such Bonds in the aggregate principal amount
of not less than $1,000,000 by wire transfer to an account designated by such
Registered Owner, upon written notice given to the Paying Agent by such
Registered Owner not later than the Record Date for such interest, containing
the electronic transfer instructions, including the bank (which shall be in the
continental United States), ABA routing number and account number to which such
Registered Owner wishes to have such transfer directed.
Notwithstanding
any of the foregoing provisions of this Section 205 to the contrary, any
interest on the Bonds which is payable, but is not punctually paid on any
Interest Payment Date (herein called Defaulted Interest), shall be payable
to the Persons in whose names the Bonds are registered at the close of business
on a Special Record Date. The Special Record Date shall be fixed in the
following manner: (a) the City shall notify the Bond Registrar and the
Depository in writing of the amount of Defaulted Interest proposed to be paid
on the Bonds and the date of the proposed payment, which proposed payment date
shall be at least thirty (30) days after receipt of the Bond Registrar of such
notice from the City; (b) at the same time the City shall deposit with the
Paying Agent an amount of money equal to the aggregate amount to be paid in
respect of such Defaulted Interest or shall make arrangements satisfactory to
the Paying Agent for such deposit prior to the date of the proposed payment;
and (c) thereupon, the Bond Registrar shall fix a Special Record Date for the
payment of such Defaulted Interest which shall be fifteen (15) calendar days
prior to the date of the proposed payment. Following receipt of such funds, the
Paying Agent shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 nor less than 10 days prior to the
date of the proposed payment. The Paying Agent shall promptly notify the City
of such Special Record Date and, in the name and at the expense of the City,
shall cause notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor to be mailed by first class mail, postage prepaid,
to each Registered Owner of a Bond entitled to such notice at the address of
such Registered Owner as it appears on the Bond Register not less than 10 days
prior to such Special Record Date.
The Paying Agent
shall keep a record of payment of principal and Redemption Price of and
interest on all Bonds and shall at least annually forward a copy or summary of
such records to the City.
Section 206. Registration,
Transfer and Exchange of Bonds. The City covenants that, as long as any of
the Bonds remain Outstanding, it will cause the Bond Register to be kept at the
corporate trust office of the Paying Agent for registration, transfer and
exchange of Bonds as herein provided. Each Bond when issued shall be registered
in the name of the Registered Owner as to both principal and interest in the
Bond Register.
Bonds may be
transferred in the Bond Register only on the Bond Register as provided in this
Section 206. Upon surrender of any Bond at the principal corporate trust office
of the Paying Agent or at such other officer as the Paying Agent may designate,
the Paying Agent shall transfer or exchange such bond for a new Bond or Bonds
in any authorized denominations of the same Stated Maturity and in the same
aggregate principal amount as the Bond that was presented for transfer or
exchange. Bonds presented for transfer or exchange shall be accompanied by a
written instrument or instruments of transfer or authorization for exchange, in
a form and with guarantee of signature satisfactory to the Paying Agent, duly
executed by the Registered Owner thereof or by the Registered Owners duly
authorized agent.
In all cases in
which the privilege of transferring or exchanging Bonds is exercised, the
Paying Agent shall authenticate and deliver Bonds in accordance with the
provisions of this Ordinance. The City shall pay the fees and expenses of the
Paying Agent for the registration, transfer and exchange of Bonds provided for
by this Ordinance and the cost of printing a reasonable supply of registered
bond blanks. Any additional costs or fees that might be incurred in the
secondary market, other than fees of the Paying Agent, are the responsibility
of the Registered Owners of the Bonds. In the event any Registered Owner fails
to provide a certified taxpayer identification number to the Paying Agent, the
Paying Agent may make a charge against such Registered Owner sufficient to pay
any governmental charge required to be paid as a result of such failure. In
compliance with Section 3406 of the Code, such amount may be deducted by the
Paying Agent from amounts otherwise payable to such Registered Owner hereunder
or under the Bonds.
The City and the
Paying Agent shall not be required (a) to register the transfer or exchange of
any Bond after notice calling such Bond or portion thereof for redemption has
been given or during the period beginning at the opening of business fifteen
(15) days preceding the date of mailing of a notice of redemption for Bonds
selected for redemption, or (b) to register the transfer or exchange of any
Bond during a period beginning at the opening of business on the day after
receiving written notice from the City of its intent to pay Defaulted Interest
and ending at the close of business on the date fixed for the payment of
Defaulted Interest pursuant to this Ordinance.
The City and the
Paying Agent may deem and treat the Person in whose name any Bond is registered
on the Bond Register as the absolute owner of such Bond, whether such Bond is overdue
or not, for the purpose of receiving payment of, or on account of, the
principal or Redemption Price of and interest on any Bond and for all other
purposes. All payments so made to any such Registered Owner or upon the
Registered Owners order shall be valid and effectual to satisfy and discharge
the liability upon such Bond to the extent of the sum or sums so paid, and
neither the City nor the Paying Agent shall be affected by any notice to the
contrary. At reasonable times and under reasonable regulations established by
the Paying Agent, the Bond Register may be inspected and copied by the
Registered Owners (or a designated representative thereof) of 10% or more in
principal amount of the Bonds then Outstanding or any designated representative
of such Registered Owners to be evidenced to the satisfaction of the Paying
Agent.
Section 207. Execution,
Authentication and Delivery of the Bonds. Each of the Bonds, including any
Bonds issued in exchange or as substitute for Bonds initially delivered, shall
be executed on behalf of the City by the manual or facsimile signature of its
Mayor and attested by the manual or facsimile certificate of its City Clerk and
countersigned by the manual signature of the Director of Finance of the City,
and shall have the seal of the City affixed thereto or imprinted thereon. In
the event any officer whose signature or facsimile thereof appears on any Bond
shall cease to be such officer before the delivery of such Bond, such signature
or facsimile thereof shall nevertheless be valid and sufficient for all
purposes, the same as if such person had remained in office until delivery. Any
Bond may be executed by such persons as at the actual time of the execution of
such Bond shall be the proper officers to sign such Bond although at the
original date of such Bond such persons may not have been such officers. The
Mayor, the City Clerk and the Director of Finance are hereby authorized and
directed to prepare and execute the Bonds as herein specified, and when duly
executed, to deliver the Bonds to the Paying Agent for authentication. The
Director of Finance is hereby authorized and directed to deliver the Bonds to
the original purchasers thereof upon the payment of the purchase price of the
principal amount of the Bonds plus premium, if any, and accrued interest to the
date of payment and delivery. The Bonds shall have endorsed thereon a
Certificate of Authentication substantially in the form hereinafter set forth
which shall have the registration date inserted and shall be manually executed
by the Paying Agent, but it shall not be necessary that the same officer or
employee sign the Certificate of Authentication on all of the Bonds that may be
issued hereunder at any one time. No Bond shall be entitled to any security or
benefit under this Ordinance or shall be valid or obligatory for any purpose
unless and until such Certificate of Authentication shall have been duly
executed by the Paying Agent by manual signature. Such executed Certificate of
Authentication upon any Bond shall be conclusive evidence that such Bond has
been duly authenticated and delivered under this Ordinance and that such
Registered Owner has been entered on record in the Bond Register kept by the
Bond Registrar. The Certificate of Authentication shall be deemed to have been
duly executed if the Registration Date has been inserted and if it has been
signed and dated by an authorized officer or employee of the Paying Agent.
Section 208. Mutilated,
Lost, Stolen or Destroyed Bonds. In the event any Global Bond Certificate
or replacement Bond shall become mutilated, or be lost, stolen or destroyed,
the City shall execute and the Bond Registrar shall authenticate and shall
deliver a new Bond of like date and tenor as the Bond mutilated, lost, stolen
or destroyed, provided that, in the case of any mutilated Bond, such mutilated
Bond shall first be surrendered to the Bond Registrar, and in the case of any
lost, stolen or destroyed Bond, there shall be first furnished to the City and
the Bond Registrar evidence of such loss, theft or destruction satisfactory to
the City and the Bond Registrar, together with indemnity satisfactory to them
to save each of them harmless, and provided further that any applicable
statutory requirements pertaining to mutilated, lost, stolen or destroyed Bonds
are met. In the event any such Bond shall have matured, instead of issuing a
replacement Bond the City may pay or authorize the payment of the same without
surrender thereof. Upon the issuance of any replacement Bond, the City and the
Bond Registrar may require the payment of any amount sufficient to reimburse
the City and the Bond Registrar for any tax or other governmental charge that
may be imposed with respect thereto and any other reasonable fees and expenses
incurred in connection therewith. The provisions of this Section 208 are
exclusive and shall preclude (to the extent lawful) all other rights and
remedies with respect to the replacement or payment of mutilated, lost, stolen
or destroyed Bonds.
Section 209. Cancellation
and Destruction of Bonds Upon Payment. All Bonds that have been paid or
redeemed or that otherwise have been surrendered to the Paying Agent, either at
or before Maturity, shall be cancelled by the Paying Agent immediately upon the
payment, redemption and surrender thereof to the Paying Agent and subsequently
destroyed in accordance with the customary practices of the Paying Agent and
applicable retention laws.
Section 210. Preliminary
and Final Official Statement. The Preliminary Official Statement, in the
form on file in the office of the Director of Finance, is hereby ratified and
approved, and the final Official Statement is hereby authorized and approved by
supplementing, amending and completing the Preliminary Official Statement, with
such changes and additions thereto as are necessary to conform to and describe
the transaction. The Director of Finance is hereby authorized to execute the
final Official Statement as so supplemented, amended and completed, and the use
and public distribution of the Official Statement by the Purchaser in
connection with the reoffering of the Bonds is hereby authorized. The proper
officials of the City are hereby authorized to execute and deliver a
certificate pertaining to such Official Statement as prescribed therein, dated as
of the date of payment for and delivery of the bonds.
For the purpose
of enabling the Purchaser to comply with the requirements of Rule
15c2-12-(b)(1) of the Securities and Exchange Commission, the City hereby deems
the information regarding the City contained in the Preliminary Official
statement to be final as of its date, except for the omission of such
information as is permitted by Rule 15c2-12(b)(1), and the appropriate officers
of the City are hereby authorized, if requested, to provide the Purchaser a
letter or certification to such effect and to take such other actions or
execute such other documents as such officers in their reasonable judgment deem
necessary to enable the Purchaser to comply with such requirement of such
Rule.
The City agrees
to provide to the Purchaser within seven Business Days of the date of the sale
of Bonds sufficient copies of the final Official Statement to enable the
Purchaser to comply with the requirements of Rule 15c2-12(b)(4) of the
Securities and Exchange Commission and with the requirements of Rule G-32 of
the Municipal Securities Rulemaking Board.
Section 211. Book-Entry
Only System.
(a) Notwithstanding
any other provision hereof, upon initial issuance of the Bonds, the Bonds shall
be registered in the name of Cede & Co., as nominee of DTC. Except as
provided in this Section 211, all of the outstanding Bonds shall be registered
in the name of Cede & Co., as nominee of DTC. The definitive Bonds shall be
initially issued in the form of one typewritten certificate for each stated
maturity of the Bonds.
(b) With
respect to the Bonds registered in the name of Cede & Co., as nominee of
DTC, the City and the Paying Agent shall have no responsibility or obligation
to any DTC Participant or to any person on behalf of whom such a DTC
Participant holds an interest in the Bonds, without limiting the immediately
preceding sentence, the City and the Paying Agent shall have no responsibility
or obligation with respect to (i) the accuracy of the records of DTC, Cede &
Co. or any DTC Participant with respect to any ownership interest in the Bonds,
(ii) the delivery to any DTC Participant or any other person, other than a
Registered Owner, as shown on the registration books of the City maintained by
the Paying Agent, of any notice with respect to the Bonds, including any notice
of redemption, or (iii) the payment to any DTC Participant or any other person,
other than a Registered Owner, as shown in the registration books of the City
maintained by the Paying Agent, of the principal, interest and premium, if any,
with respect to the Bonds. Notwithstanding any other provision of this
Ordinance to the contrary, the City and the Paying Agent shall be entitled to
treat and consider the person in whose name each Bond is registered in the Bond
Register as the absolute owner of such Bond for the purpose of payment of the
principal, interest and premium, if any, with respect to the Bonds, for the
purpose of registering transfer with respect to such Bond, and for all other
purposes whatsoever. The Paying Agent shall pay the principal, interest and
premium, if any, with respect to the Bonds only to or upon the order of the
respective Registered Owners, as shown in the registration books of the City
maintained by the Paying Agent, as provided in this Ordinance, or their
representative duly authorized in writing, and all such payments shall be valid
and effective to fully satisfy and discharge the Citys obligations with
respect to payment of the principal, interest and premium, if any, on the Bonds
to the extent of the sum or sums so paid. No person other than a Registered
Owner shall receive a Bond certificate evidencing the obligation of the City to
make payments of amounts due pursuant to this Ordinance. Upon delivery by DTC
to the Paying Agent of written notice to the effect that DTC has determined to
substitute a new nominee in place of Cede & Co., the phrase Cede & Co
in this Ordinance shall refer to such new nominee of DTC.
(c) Successor
Securities Depository: Transfer Outside Book-Entry Only System. In the event
that (i) the City (or DTC Participants owning at least fifty percent (50%) of
the Bonds based on current DTC records) determines that DTC is incapable of
discharging its responsibilities described herein and in any representation
letter (Letter of Representations) of the City and the Paying Agent to DTC,
(ii) the agreement among the City, the Paying Agent and DTC evidenced by any
such Letter of Representations, or (iii) DTC Participants owning at least fifty
percent (50%) of the Bonds based on current DTC records determines that it is
in the best interest of the Beneficial Owners of the Bonds that they be able to
obtain certificated Bonds, the City shall (A) appoint a successor securities
depository, qualified to act as such under Section 17(a) of the Securities and
Exchange Act of 1934, as amended, notify DTC and DTC Participants of the
appointment of such successor securities depository and transfer one or more
Bonds to such successor securities depository, in which event the Bonds shall
be registered in the name of the successor securities depository or its
nominee, or (B) notify DTC and DTC Participants of the availability through DTC
of certificated Bonds and transfer one or more separate Bonds to DTC
Participants having Bonds credited to their DTC accounts, in which event the
Bonds shall be registered in whatever name or names Registered Owners
transferring or exchanging Bonds shall designate, in accordance with the provisions
of this Ordinance. In connection therewith, the Paying Agent may rely
conclusively upon information provided by DTC with respect to the identity and
interests of the DTC Participants and upon information provided by said DTC
Participants with respect to the Beneficial Owners of the Bonds. The City under
such circumstances agrees to provide to the Paying Agent a sufficient supply of
Bond certificates to meet the Paying Agents requirements, including without
limitation Bond certificates for use in the case of transfers and exchanges of
Bonds.
(d) Payments
to Cede & Co. Notwithstanding any other provision of this Ordinance to the
contrary, so long as any Bonds are registered in the name of Cede & Co., as
nominee of DTC, all payments of the principal, interest and premium, if any,
with respect to such Bonds, and all notices with respect to such Bonds, shall
be made and given, respectively, in the manner provided in the Letter of
Representations of the City and the Paying Agent to DTC.
Section 212. Persons
Deemed Owners of Bonds. The Person in whose name any Bond shall be
registered in the Bond Register shall be deemed and regarded by the City, the
Bond Registrar and the Paying Agent as the absolute owner thereof, whether such
Bond shall be overdue or not, for the purpose of receiving payment therefor or
on account thereof and for all purposes, and neither the City, the Bond
Registrar nor the Paying Agent shall be affected by notice to the contrary,
except that the Bond Insurer shall be deemed to be the Bondowner of the Bonds
guaranteed by the Bond Insurance Policy for all purposes. Payment of or on
account of the principal of, premium, if any, and interest on any Bond shall be
made only to or upon the order of the Registered Owner thereof or agent duly
authorized in writing. All such payments shall be valid and effectual to
satisfy and discharge the liability upon such Bond, including the interest
thereon, to the extent of the sum or sums so paid.
ARTICLE
III
REDEMPTION
OF BONDS
Section 301. Redemption
of Bonds. The Bonds shall be subject to redemption and payment prior to
their Stated Maturities as follows:
(a) Mandatory
Redemption. In the event term Bonds are issued as provided in Section 203
of this Ordinance, such Bonds shall be subject to mandatory redemption and
payment prior to their Stated Maturity pursuant to the mandatory redemption
requirements of this Section 301 on the dates of the Stated Maturities for
serial Bonds at the principal amount thereof plus accrued interest to the Redemption
Dates, without premium. The City shall redeem on such dates the principal
amounts set forth as serial maturities by this Ordinance and the remaining
principal amount of Bonds maturing on the Stated Maturity of the respective
term bond, shall be paid at their Stated Maturity.
The Paying Agent
shall each year in which Bonds maturing on the Stated Maturity of the
respective term bond, are to be redeemed pursuant to this subsection make
timely selection of such Bonds or portion of such Bonds to be so redeemed and
shall give notice thereof as hereinafter provided. Upon instructions duly given
by the City, moneys deposited in the hereinafter referred to 2005F Water Debt
Fund may be used at any time after December 1, in the year next preceding the
first of such mandatory redemption to purchase Bonds maturing on the Stated
Maturity of the respective term bond, in the open market at a price not in
excess of their principal amount and moneys deposited in the 2005F Water Debt
Fund may be used for the purpose of paying interest on the Bonds so purchased
at the rate specified thereon to the date of purchase. Each bond so purchased
shall be credited at 100% of the principal amount thereof on the obligation of
the City to redeem Bonds on the next mandatory redemption date applicable to
Bonds of such Stated Maturity, and the principal amount of Bonds of such Stated
Maturity to be redeemed by operation of the preceding paragraph shall be
reduced accordingly.
(b) Optional
Redemption. The Bonds maturing on December 1, 2016, and thereafter shall be
subject to redemption and payment prior to their Stated Maturities at the
option of the City on and after December 1, 2015, at any time as a whole or in
part on any Interest Payment Date from maturities selected by the City (Bonds
of less than a full maturity to be selected in multiples of $5,000 principal
amount by the Paying Agent in such equitable manner as it shall designate), at
the redemption price equal to the principal amount thereof, plus accrued
interest to the Redemption Date.
Section 302. Selection
of Bonds to be Redeemed. The Paying Agent shall call Bonds for redemption
and payment as herein provided upon receipt at least forty-five (45) days prior
to the Redemption Date of a written request of the City; provided, however,
that no such request shall be required for mandatory redemption of Bonds
pursuant to Section 301(a) hereof. Such request shall specify the principal
amount of the Bonds to be called for redemption, the Redemption Price or
Price(s) and the Redemption Date. Bonds shall be redeemed in the principal
amount of $5,000 or an integral multiple thereof. In the case of a partial
redemption of Bonds of the same Stated Maturity, the Bonds to be redeemed shall
be selected by the Paying Agent from the Outstanding Bonds of that Stated
Maturity by such methods as the Paying Agent shall deem fair and appropriate
and which may provide for the selection for redemption of a portion of the
principal of Outstanding Bonds of that Stated Maturity that have been issued in
a denomination larger than $5,000. The portions of the principal of Outstanding
Bonds so selected for partial redemption shall be equal to $5,000 or integral
multiples thereof. Any Bond which is to be redeemed only in part shall be
submitted to the Paying Agent and delivered to the Bond Registrar, who shall
authenticate and deliver to the Registered Owner of such Bond, without service
charge, a new Bond or Bonds, of any authorized denomination as requested by
such Registered Owner in aggregate principal amount equal to and in exchange
for the unredeemed portion of the principal of the Bond so surrendered. If the
Registered Owner of any such Bond of a denomination greater than $5,000 shall
fail to present such Bond to the Paying Agent for payment and exchange as
aforesaid, such Bond shall, nevertheless, become due and payable on the
Redemption Date to the extent of the principal amount of such Bond called for
redemption (and to that extent only).
Section 303. Notice
and Effect of Call for Redemption. The Paying Agent shall give written
notice in the name of the City of its intention to redeem and pay Bonds at the
principal corporate trust office of the Paying Agent or such other office as
the Paying Agent may designate. Notice of redemption shall be given by first
class mail, postage prepaid, mailed not less than thirty (30) days prior to the
Redemption Date, to each Registered Owner of Bonds to be redeemed, at such
Registered Owners address appearing in the Bond Register. All notices of
redemption shall state:
(a) the
Redemption Date;
(b) the
Redemption Price;
(c) if
less than all Outstanding Bonds are to be redeemed, the identification (and in
the case of partial redemption, the respective principal amounts) of the Bonds
to be redeemed;
(d) that
on the Redemption Date, the Redemption Price will become due and payable upon
each such Bond, and that interest thereon shall cease to accrue from and after
said date;
(e) the
place where such Bonds are to be surrendered for payment of the Redemption
Price; and
(f) the
Bond Number and CUSIP number, if any.
The failure of
the Registered Owner of any Bond to be redeemed to receive written notice
mailed as hereinabove provided shall not affect or invalidate the redemption of
said Bond. If any Bond is called for redemption and payment as aforesaid, all
interest on such Bond shall cease from and after the date for which such call
is made, provided funds are made available to the Paying Agent for its payment
on the Redemption Date at the Redemption Price.
The Paying Agent
is also directed to comply with any mandatory or voluntary standards then in
effect for processing redemptions of municipal securities established by the
Securities and Exchange Commission. Failure to comply with such standards shall
not affect or invalidate the redemption of any Bond to be redeemed.
ARTICLE IV
FORM OF BONDS;
SECURITY FOR BONDS
Section 401. Form
of Bonds. The Series 2005F Bonds will be in substantially the following
form, with appropriate insertions and deletions as are approved by the Director
of Finance, which approval will be conclusively evidenced by the Director of
Finances signature on the Series 2005F Bonds.
FORM
OF BOND
Unless this
certificate is presented by an authorized representative of The Depository Trust
Company, a New York corporation (DTC), to the City or its agent for
registration of transfer, exchange or payment, and any certificate issued is
registered in the name of Cede & Co. or in such other name as is requested
by an authorized representative of DTC (and any payment is made to Cede &
Co. or to such other entity as is requested by an authorized representative of
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL, inasmuch as the registered owner hereof, Cede &
Co., has an interest herein.
REGISTERED REGISTERED
NUMBER R ________ $
________________
UNITED STATES OF AMERICA
STATE
OF MISSOURI
CITY
OF KANSAS CITY
WATER
REVENUE BOND
SERIES
2005F
Interest Rate Maturity
Date Dated Date CUSIP Number
____% December
1, 20___ September 15, 2005 ____________
REGISTERED OWNER:
_______________________________________________________
PRINCIPAL AMOUNT:
_______________________________________________DOLLARS
THE CITY OF
KANSAS CITY, MISSOURI, a constitutional charter city and a political
subdivision of the State of Missouri (the City), for value received, promises
to pay to the Registered Owner identified above, or registered assigns, but
only from the source and in the manner hereinafter specified, on the Maturity
Date identified above, unless called for redemption prior to maturity, the
Principal Amount identified above and to pay interest thereon from said sources
at the Interest Rate per annum specified above from the most recent interest
payment date to which interest have been paid in full or, if no interest has
been paid, from September 1, 2005, said interest being payable semiannually on
June 1 and December 1 in each year, commencing June 1, 2006, until such
principal amount has been paid.
The Principal
Amount of, redemption premium, if any, and interest (computed on the basis of a
360-day year of twelve 30-day months) on this Bond are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts. Interest will be paid by
check or draft mailed or wire transfer to the person in whose name this Bond
(or one or more predecessor Bonds) is registered in the Bond Register
maintained by the Bond Registrar at the close of business on the fifteenth day
of the month next preceding each interest payment date (the Record Date).
Interest not punctually paid will be paid as otherwise provided in the
hereinafter referred to ordinance authorizing this Bond. The Principal Amount
and redemption premium, if any, are payable by check or draft mailed or wire
transfer to the Registered Owner on presentation and surrender hereof at the
principal corporate trust office of the Paying Agent, COMMERCE BANK, N.A.,
KANSAS CITY, MISSOURI, or such other office as the Paying Agent may designate.
THIS BOND is one
of a duly authorized issue of fully registered bonds of the City designated
Water Revenue Bonds, Series 2005F aggregating the principal amount of $30,000,000
(the Bonds), issued for the purpose of paying part of the cost of extending
and improving the waterworks system of the City including (1) the completion of
the water main transmission system to all parts of the City, (2) replacement of
small water mains, (3) replacement and additions to the water treatment plant
and major pump stations, and (4) automation of the system (the waterworks
system together with all future improvements and extensions thereto hereafter
constructed or acquired by the City, being herein called the System) under
the authority of and in full compliance with the Constitution and laws of the
State of Missouri, and pursuant to an election held in the City at which a
majority of the qualified voters of the City voting on the question voted in
favor of the issuance of $150,000,000 principal amount of waterworks revenue
bonds and pursuant to ordinances duly adopted by the Council of the City
authorizing the issuance and delivery of the Bonds (the Ordinance).
Capitalized terms used herein and not otherwise defined herein shall have the
meanings assigned to such terms in the Ordinance.
THE BONDS are
special obligations of the City payable solely from, and secured as to the
payment of principal and interest by a pledge of, the Net Revenues derived by
the City from the operation of its Water System, including revenues derived
from extensions and improvements to the Water System hereafter constructed or
acquired by the City, after paying the operating expenses of the Water System,
maintenance and repair charges, and costs due to obsolescence, and the taxing
power of the City is not pledged to the payment of the Bonds as to principal or
interest. The Bonds shall not be or constitute a general obligation of the
City, nor shall they constitute an indebtedness of the City within the meaning
of any constitutional or statutory provision, limitation or restriction.
THE BONDS stand
on a parity and are equally and ratably secured as to the payment of principal,
premium, if any, and interest with the Citys Water Revenue Bonds, 7th Issue,
Series D, dated December 1, 1994, of which Bonds in the principal amount of
$1,690,000 remain Outstanding; its Water Refunding Revenue Bonds, Series 1996A,
dated September 1, 1996, of which Bonds in the principal amount of $20,815,000
remain Outstanding; its Water Revenue Bonds, Series 1996B, dated December 1,
1996, of which Bonds in the principal amount of $19,960,000 remain Outstanding;
its Water Refunding Revenue Bonds, Series 1998A, dated May 1, 1998, of which Bonds
in the principal amount of $33,680,000 remain Outstanding; its Water Revenue
Bonds, Series 1998B, dated May 1, 1998, of which Bonds in the principal amount
of $11,415,000 remain Outstanding; and its Water Revenue Bonds, Series 2000A,
dated February 15, 2000, of which Bonds in the principal amount of $21,275,000
remain Outstanding; its Water Revenue Bonds, Series 2002C, dated April 15,
2002, of which Bonds in the principal amount of $15,960,000 remain Outstanding;
and its Water Revenue Bonds, Series 2004D, dated July 15, 2004, of which Bonds
in the principal amount of $25,000,000 remain Outstanding. Under the terms of
the Ordinance, the City has the right to issue additional parity bonds payable
from the same source and secured by the same revenues as this Bond and the
series of which it is a part, provided, however, such additional bonds may be
so issued only in accordance with and subject to the covenants, conditions and
restrictions relating thereto set forth in the Ordinance. Reference is made to
the Ordinance for a description of the covenants of the City with respect to
the collection, segregation and application of the revenues of the waterworks
system of the City, the nature and extent of the security of the Bonds, the
rights, duties and obligation of the City with respect thereto and the rights
of the Registered Owners thereof.
(The
following paragraph is to be completed if Term Bonds are issued.)
[THE BONDS
maturing on December 1, 20___, are subject to mandatory redemption and payment
prior to maturity in the following principal amounts pursuant to the mandatory
redemption requirements of the Ordinance on December 1, 20___, and on each
December 1 thereafter to and including December 1, 20___, at the principal
amount thereof plus accrued interest to the redemption date, without premium.]
AT THE OPTION of
the City, the Bonds maturing on December 1, 2016, and thereafter are subject to
redemption and payment prior to maturity on and after December 1, 2015, as
whole at any time or in part on any Interest Payment Date at a redemption
prices equal to principal amount thereof, plus accrued interest thereon to the
Redemption Date. Bonds to be redeemed and paid pursuant to the provisions
described above shall be selected by the Bond Registrar in such manner as it
shall deem fair and appropriate.
WHEN BONDS are
called for redemption as aforesaid, written notice thereof will be given by
first class mail mailed not less than thirty (30) days prior to the redemption
date to each Registered Owner of Bonds to be redeemed. All Bonds so called for
redemption will cease to bear interest on the specified redemption date
provided funds or certain securities in such funds are invested for their
redemption are on deposit with the Paying Agent on such redemption date, and
will no longer be secured by the Ordinance and will not be deemed to be
outstanding under the provisions of the Ordinance. The failure of the
Registered Owner of any Bond called for redemption to receive written notice
mailed pursuant to the above provisions or any defect in such notice will not invalidate
or affect the redemption of such Bond.
The Bonds are
being issued by means of a book-entry system with no physical distribution of
bond certificates to be made except as provided in the Ordinance. One Bond
certificate with respect to each date on which the Bonds are stated to mature,
registered in the nominee name of the Securities Depository, is being issued
and required to be deposited with Securities Depository and immobilized in its
custody. The book-entry system will evidence positions held in the Bonds by the
Securities Depositorys Participants, beneficial ownership of the Bonds in
authorized denominations being evidenced in the records of such Participants.
Transfer of ownership shall be effected on the records of the Securities
Depository and its Participants pursuant to rules and procedures established by
the Securities Depository and its Participants. The City, the Bond Registrar
and the Paying Agent will recognize the Securities Depository nominee, while
the Registered Owner of the Bond, as the owner of the Bond for all purposes,
including (i) payments of principal of, and redemption premium, if any, and
interest on this Bond (ii) notices, and (iii) voting. Transfers of principal,
interest and any redemption premium payments to beneficial owners of the Bonds
by Participants of the Securities Depository will be the responsibility of such
Participants and other nominees of such beneficial owners. The City, the Bond
Registrar and the Paying Agent will not be responsible or liable for such transfers
of payments or for the maintaining, supervising or reviewing the records
maintained by the Securities Depository, the Securities Depository nominee, its
Participants or persons acting through such Participants.
While the
Securities Depository nominee is the owner of this bond, notwithstanding the
provisions hereinabove contained payments of principal of and interest on this
Bond shall be made in accordance with existing arrangements among the City, the
Paying Agent and the Securities Depository.
EXCEPT AS
OTHERWISE PROVIDED IN THE ORDINANCE THE GLOBAL BOND CERTIFICATE MAY BE
TRANSFERRED, IN WHOLE BUT NOT IN PART, ONLY TO ANOTHER NOMINEE OF THE
SECURITIES DEPOSITORY OR TO A SUCCESSOR SECURITIES DEPOSITORY OR TO A NOMINEE
OF A SUCCESSOR SECURITIES DEPOSITORY.
THE CITY hereby
covenants with the Registered Owner of this Bond that it will keep and perform
all covenants and agreements contained in the Ordinance, and will fix,
establish, maintain and collect such rates, fees and charges for the use and services
furnished by or through the System, as will produce revenues sufficient to pay
the costs of operation and maintenance of the System, pay the principal of and
interest on the Bonds as and when the same become due and provide reasonable
and adequate reserve funds. Reference is made to the Ordinance for a
description of the covenants and agreements made by the City with respect to
the collection, segregation and application of the revenues of the System, the
nature and extent of the security for the Bonds, the rights, duties and
obligations of the City with respect thereto, and the rights of the Registered
Owners thereof.
THIS BOND is
transferable, as provided in the Ordinance, only in the Bond Register upon
surrender of this Bond duly endorsed or accompanied by a written instrument of
transfer satisfactory to the Bond Registrar duly executed by the Registered
Owner hereof or his duly authorized attorney or legal representative, and
thereupon a new Bond or Bonds in the same aggregate principal amount shall be
issued to the transferee in exchange therefor subject to the conditions
provided in the Ordinance. The Bonds for each maturity are issuable only in the
form of fully registered Bond without coupons in denomination of $5,000 or any
integral multiple thereof. The Registered Owner of any Bond or Bonds may
surrender the same in exchange for an equal aggregate principal amount of Bonds
of any authorized denomination in the manner and subject to the conditions
provided in the Ordinance. No service charge will be made for any such transfer
or exchange, but the Bond Registrar or City may require payment of any tax or
governmental charge in connection therewith. The City, the Bond Registrar and
the Paying Agent may deem and treat the person in whose name this Bond is
registered as the absolute owner hereof for the purpose of receiving payment
of, or on account of, the Principal Amount or redemption price hereof and
interest due hereon and for all other purposes.
THIS BOND shall
not be valid or become obligatory for any purpose or be entitled to any
security or benefit under the Ordinance until the Certificate of Authentication
hereon shall have been dated and authenticated by the Bond Registrar.
IT IS HEREBY
CERTIFIED AND DECLARED that all acts, conditions and things required to exist,
happen and be performed precedent to and in the issuance of the Bonds have
existed, happened and been performed in due time, form and manner as required
by law, and that before the issuance of the bonds, provisions have been made
for the collection and segregation of the revenues of the System and the
application of the same as provided in the Ordinance.
IN WITNESS
WHEREOF, THE CITY OF KANSAS CITY, MISSOURI, has executed this Bond by causing
it to be signed by the manual or facsimile signature of its Mayor, attested by
the manual or facsimile signature of its City Clerk and countersigned by the
manual or facsimile signature of its Director of Finance, has caused its
corporate seal to be affixed hereto or printed hereon, and has caused this Bond
to be dated as of its registration date.
CITY OF KANSAS CITY, MISSOURI
By:
_______________________________
Mayor
Attest: Countersigned:
By:
________________________________ By:
________________________________
City Clerk Director
of Finance
CERTIFICATE
OF AUTHENTICATION
This Bond is one
of the Bonds described in the within mentioned Ordinance.
Registration Date:
______________________
COMMERCE BANK,
N.A., as Bond Registrar
and Paying
Agent
By:
_______________________________
ASSIGNMENT
FOR VALUE RECEIVED the
undersigned hereby sell(s), assigns(s) and transfer(s) unto
______________________________________________________________________________
(Social
Security or other identifying number of Transferee)
______________________________________________________________________________
(Please Print or
Typewrite Name and Address of Transferee)
______________________________________________________________________________
the within Bond and
all rights thereunder, and hereby irrevocably constitutes and appoints
______________________________________________________________________________
as agent to transfer
with the within Bond on the Bond Register kept by the Bond Registrar
with
full power and substitution in the premises.
Date: _________________
_________________________________________
NOTICE: The
signature to this assignment must correspond with the name as it appears upon
the face of the within Bond in every particular, without alteration or enlargement
or any change whatever.
Signature
Guaranteed:
_________________________________________
(Eligible
Guarantor Institution)
By:
______________________________________
Authorized
Officer
STATEMENT OF
INSURANCE
Financial
Security Assurance Inc. ("Financial Security"), New York, New
York, has delivered its municipal bond insurance policy with respect to the
scheduled payments due of principal of and interest on this Bond to Commerce
Bank, N.A., Kansas City, Missouri, or its successor, as paying agent for the
Bonds (the "Paying Agent"). Said Policy is on file and available for
inspection at the principal office of the Paying Agent and a copy thereof may
be obtained from Financial Security or the Paying Agent.
Section 402. Security
for Bonds. The Bonds shall be special obligations of the City payable
solely from, and secured as to the payment of principal and interest by a
pledge of, the Net Revenues, and the City hereby pledges such Net Revenues to
the payment of the principal of and interest on the Bonds. The Bonds shall not
be or constitute a general obligation of the City, nor shall they constitute an
indebtedness of the City within the meaning of any constitutional, statutory or
charter provision, limitation or restriction, and the taxing power of the City
is not pledged to the payment of the Bonds, either as to principal or interest.
The covenants
and agreements of the City contained herein and in the Bonds shall be for the
equal benefit, protection and security of the legal owners of any or all of the
Bonds, all of which Bonds shall be of equal rank and without preference or
priority of one Bond over any other Bond in the application of the funds herein
pledged to the payment of the principal of and the interest on the Bonds, or
otherwise, except as to rate of interest, date of maturity and right of prior
redemption as provided in this Ordinance. The Bonds shall stand on a parity and
be equally and ratably secured with respect to the payment of principal and
interest from the Net Revenues and in all other respects with any Parity Bonds.
The Bonds shall not have any priority with respect to the payment of principal
or interest from the Net Revenues or otherwise over the Parity Bonds and the
Parity Bonds shall not have any priority with respect to the payment of
principal or interest from the Net Revenues or otherwise over the Bonds.
As security for
the Citys repayment obligations with respect to the Reserve Policy, the
Reserve Policy Provider is hereby granted a security interest in the Net
Revenues, which shall be junior and subordinate to the security interest of the
Bondowners therein.
ARTICLE
V
CREATION
AND RATIFICATION OF FUNDS AND ACCOUNTS;
DEPOSIT
AND APPLICATION OF BOND PROCEEDS
Section 501. Waterworks
Revenue Fund. So long as any of the Bonds remain outstanding and unpaid,
the City covenants and agrees that all Revenues derived and to be derived by
the City from the operation and use of the System, and the facilities and
services furnished by the System, including the Revenues of all extensions and
improvements thereto hereafter constructed or acquired, subject, however, to
any liens upon or claims against the Revenues of any such extensions existing
at the time of the acquisition thereof by the City, will be paid and deposited
into the Waterworks Revenue Fund and that said Revenues will be segregated and
kept separate and apart from the other revenues and funds of the City.
So long as any
of the Bonds remain Outstanding, no Revenues shall be diverted to the general
governmental or municipal functions of the City.
Section 502. Ratification
and Creation of Funds and Accounts. The separate accounts and funds
created or acknowledged by the Outstanding Parity Ordinances are hereby
ratified and confirmed; and there are hereby created and established in the
appropriate existing funds, five (5) separate additional funds and accounts to
be known as the:
(a)
Water Revenue Bonds, Series 2005F, Principal and Interest Sinking Fund (the
2005F Water Debt Fund);
(b)
Water Revenue Bonds, Series 2005F, Reserve Account (the 2005F Bond Reserve
Account);
(c) Water
Revenue Bonds, Series 2005F, Project Fund (the Project Fund);
(d)
Water Revenue Bonds, Series 2005F, Costs of Issuance Fund (the Costs of
Issuance Fund); and
(e) Rebate
Fund for Water Revenue Bonds, Series 2005F (the Rebate Fund).
Section 503. Deposit
of Bond Proceeds. The net proceeds received from the sale of the Bonds
shall be deposited simultaneously with the delivery of the Bonds as follows:
(a) Any
accrued interest on the Bonds shall be deposited in the 2005F Water Debt Fund
and applied in accordance with Section 601 hereof.
(b) An
amount determined by the Director of Finance shall be deposited in the Costs of
Issuance Fund and shall be disbursed by the Director of Finance to pay costs of
issuing the bonds.
(c) The
remaining balance of the proceeds of the Bonds shall be deposited in the
Project Fund and applied in accordance with Section 504.
Section 504. Application
of Moneys in Project Fund. Moneys in the Project Fund shall be used solely
for the purpose of paying part of the cost of the Project as hereinbefore
provided, in accordance with the plans therefor and heretofore approved by the
Council of the City and on file in the office of the Director of the Department
of Water Services, including any alterations in or amendments to said plans deemed
advisable by the Director of the Department of Water Services and approved by
the Council of the City.
Withdrawals from
the Project Fund shall be made only when authorized by the Council and only on
duly authorized and executed warrants or vouchers therefor prepared in
accordance with procedures issued by the Director of the Department of Water
Services that such payment is being made for a purpose within the scope of this
Ordinance and that the amount of such payment represents only the contract price
of the property, equipment, labor, materials or service being paid for or, if
such payment is not being made pursuant to an express contract, that such
payment is not in excess of the reasonable value thereof.
Upon completion of
the extensions and improvements to the System as hereinbefore provided, any
surplus moneys remaining in the Project Fund and not required for the payment
of unpaid costs thereof shall be deposited in the 2005F Water Debt Fund. Any surplus credited to the 2005F Water Debt Fund shall be applied by the Paying Agent as directed by the
City solely to the payment of principal of, redemption premium, if any, and
interest on the Bonds through the payment or redemption thereof at the earliest
date permissible under the terms of this Ordinance. The balance transferred to
the 2005F Water Debt Fund may first be used to pay any principal payment on the
Bonds coming due in that current bond year. If the balance transferred is
greater than the current bond year principal payment, the excess shall be used
to call Bonds for redemption in accordance with subsection 301 (b) hereof. Any
Bonds purchased by the Paying Agent pursuant to this provision with moneys from
the 2005F Water Debt Fund will be deemed cancelled.
Notwithstanding
the foregoing, unless the Bond Insurer otherwise directs, upon the occurrence
and continuance of an event of default or the occurrence and continuation of an
event which with notice or lapse of time or both would constitute an event of
default, amounts on deposit in the Project Fund shall not be disbursed but
shall instead be applied to the payment of debt service or redemption price of
the Bonds.
Section 505. Application
of Moneys in Costs of Issuance Fund. Moneys in the Costs of Issuance Fund
shall be used solely for the purpose of paying the costs and expenses incident
to the issuance of the Bonds upon certification thereof by the Director of
Finance. On the latest to occur of (i) the payment in full of such amounts (as
certified by the Director of Finance) or (ii) the date which is six months
following the date on which the Bonds are issued and authenticated, any moneys
remaining in the Costs of Issuance Fund shall be transferred to the Project
Fund and applied in accordance with the provisions of Section 504 of this
Ordinance.
ARTICLE
VI
APPLICATION
OF REVENUES
Section 601. Application
of Moneys in Funds and Account. The City covenants and agrees that so long
as any of the Bonds remain Outstanding, moneys paid and deposited in the
Waterworks Revenue Fund by the City will be administered and disposed of as
follows:
(a) The
City, each month, shall pay or make provision for the payment from the moneys
in the Waterworks Revenue Fund of all operating expenses, all maintenance and
repair charges and all costs of the System due to obsolescence or other causes.
(b) After
paying or making provision for the payment each month of the reasonable and
proper expenses of operating and maintaining the System for the current month,
the City shall next pay and credit monthly from the Waterworks Revenue Fund to
the Water Revenue Bonds, 7th Issue Series D, Principal and Interest Sinking
Fund created by Committee Substitute for Ordinance No. 941459 of the City so
long as any of the Series D Bonds remain Outstanding; to the Water Revenue
Bonds, Series 1996A, Principal and Interest Account created by Committee
Substitute for Ordinance No. 960924 of the City so long as any of the Series
1996A Bonds remain Outstanding; to the Water Revenue Bonds, Series 1996B,
Principal and Interest Account created by Ordinance No. 961462 of the City so
long as any of the Series 1996B Bonds remain Outstanding; to the Water Revenue
Bonds, Series 1998A, Principal and Interest Account created by Committee
Substitute for Ordinance No. 980278, as amended, of the City so long as any of
the Series 1998A Bonds remain Outstanding; to the Water Revenue Bonds, Series
1998B, Principal and Interest Account created by Committee Substitute for
Ordinance No. 980296, as amended, of the City so long as any of the Series
1998B Bonds remain Outstanding; to the Water Revenue Bonds, Series 2000A,
Principal and Interest Account created by Ordinance No. 000037, as amended, of
the City so long as any of the Series 2000A Bonds remain Outstanding; to the
Water Revenue Bonds, Series 2002C, Principal and Interest Sinking Fund created
by Committee Substitute for Ordinance No. 020325, as amended, of the City so
long as any of the Series 2002C Bonds remain Outstanding; and to the Water
Revenue Bonds, Series 2004D, Principal and Interest Sinking Fund created by
Ordinance No. 040693, as amended, of the City so long as any of the Series
2004D Bonds remain Outstanding; all amounts required to be so paid and credited
by the provisions of said ordinances and, at the same time that said payments
and credits to said principal and interest sinking fund accounts are made, and
on a parity therewith, the City shall pay and credit monthly from the
Waterworks Revenue Fund to the 2005F Water Debt Fund, to the extent necessary
to meet at each Interest Payment Date and Maturity thereof, all interest on and
principal of the Bonds, the following sums:
(i) Beginning the first of said monthly deposits on October 1,
2005, and continuing on the first day of each month thereafter to and including
June 1, 2006, an equal pro rata portion of the amount of interest becoming due
on the Bonds on June 1, 2006; and thereafter, beginning on June 1, 2006, and
continuing on the first day of each month thereafter so long as any of the
Bonds shall remain Outstanding, an amount not less than 1/6th of the amount of
interest that will become due on the Bonds on the next succeeding Interest
Payment Date; and
(ii) Beginning
with the first of said monthly deposits on December 1, 2008 and continuing on the
first day of each month thereafter to and including November 1, 2009, an equal
pro rata portion of the amount of principal becoming due on the Bonds on
December 1, 2009; and thereafter, beginning on December 1, 2009, and continuing
on the first day of each month thereafter, so long as any of the Bonds shall
remain Outstanding an amount not less than 1/12th of the amount of principal
that will become due on the Bonds on the next succeeding Principal Payment
Date; and
(iii) On the first day of each month in which fees, if any, of the
Bond Registrar and Paying Agent are scheduled to become due, such amounts as
may be required to pay such fees of the Bond Registrar and the Paying Agent.
All
amounts paid and credited to the 2005F Water Debt Fund shall be expended and
used by the City for the sole purpose of paying any interest on and principal
of the Bonds as and when the same become due and the fees of the Bond Registrar
and the Paying Agent for acting as Bond Registrar and Paying Agent, if any.
If
at any time the moneys in the Waterworks Revenue Fund shall be insufficient to
make in full the payments and credits at the time required to be made by the
City to the principal and interest accounts established to pay the then
Outstanding Water Revenue Bonds of the City, including only the Bonds and other
Water Revenue Bonds of the City heretofore or hereafter issued and standing on
a parity with the Bonds, the available moneys in the Waterworks Revenue Fund
shall be divided among such principal and interest sinking fund accounts in
proportion to the respective principal amounts of said series of Water Revenue
Bonds of the City at the time outstanding which are payable from the moneys in
such principal and interest sinking fund accounts.
(c) Simultaneously
with the issuance of the Bonds, the City shall provide for the 2005F Bond
Reserve Account to contain an amount equal to the Bond Reserve Requirement. In
lieu of a cash deposit, the Bond Reserve Requirement will be satisfied by the
Reserve Policy, as more fully provided in Section 602 hereof. The prior
written consent of the Bond Insurer shall be a condition precedent to the
deposit of any credit instrument provided in lieu of a cash deposit into the
2005F Bond Reserve Account.
(d) All
moneys in any Bond Reserve Account will be used for the payment of principal of
and interest on the related Series of bonds for which funds might not otherwise
be available, or to pay a like amount of the last maturing bonds, of such
Series; provided, however, that the City shall not make a Notice of Nonpayment
under the Reserve Policy for the purpose of paying the last maturing Bonds.
Should the City expend any portion of the 2005F Bond Reserve Account and
thereby reduce the amount therein below the Bond Reserve Requirement, except
for the purpose of retiring all Outstanding Bonds, or should a valuation of the
2005F Bond Reserve Account indicate that it is below the Bond Reserve
Requirement, the City shall, subject to the provisions of the last paragraph of
this Section 601, transfer monthly to such 2005F Bond Reserve Account, all
available funds after providing for the payment and transfers set forth above,
until the 2005F Bond Reserve Account shall have again attained the Bond Reserve
Requirement. In no event shall the replenishment of the Bond Reserve
Requirement be accomplished in more than one year from the date of the initial
Notice of Nonpayment under the Reserve Policy.
If
at any time the moneys in the Waterworks Revenue Fund shall be insufficient to
make in full any payments and credits at the time required to be made by the
City to the Bond Reserve Accounts established by the City to protect the
payment of the outstanding water revenue bonds of the City including the
Outstanding Parity Bonds, and Additional Bonds issued and standing on a parity
with the Bonds, the available moneys in said Waterworks Revenue Fund shall be
divided among such Bond Reserve Accounts in proportion to the respective
principal amounts of said Series of water revenue bonds of the City at the time
Outstanding which are payable from the moneys in such Bond Reserve Accounts.
(e) When
and after there shall be in the Water Revenue Fund an amount sufficient to pay
the reasonable and proper expenses of operating and maintaining the System for
the current month as provided in paragraph (a) of this Section 601 and when and
after all amounts at the time required to be paid and credited from the Water
Revenue Fund under the provisions of paragraphs (b), (c) and (d) of this
Section 601 shall have been paid and credited, all moneys remaining in the
Water Revenue Fund shall be credited monthly to the Surplus Account. Except as
hereinafter provided, moneys in the Surplus Account shall be used solely for
the following purposes, as determined by the Council:
(i) paying the cost of operation, maintenance and repair of the
System to the extent that may be necessary after the application of the moneys
held in the Water Revenue Fund under the provisions of paragraph (a) of this
Section 601;
(ii) anticipating payments into or increasing the amounts of the
2005F Water Debt Fund and/or the 2005F Bond Reserve Account, referred to in
paragraphs (b) and (c) of this Section 601, or either of them, or establishing
or increasing the amount of any principal and interest account or bond reserve
account created by the City for the payment of any water revenue bonds of the
City heretofore or hereafter issued and standing on a parity with the Bonds;
(iii) paying the cost of enlarging, extending or improving the
System, including the acquisition of additional facilities by construction,
purchase, or by operation of law from other governmental agencies and the
assumption of the obligations thereof;
(iv) paying the principal of and interest on any general obligation
bonds of the City issued to provide funds to make enlargements, extensions or
improvements of the System, exclusive of bonds payable wholly or in part from
assessments against property benefited;
(v) as and when moneys accumulate in the Surplus Account of not
less than One Million Dollars ($1,000,000), the Director of Finance of the City
may advertise for tenders from the Registered Owners of any Bonds which at the
time are subject to redemption from moneys in the Surplus Account. Each request
for tenders shall be published once in an official newspaper or journal in the
City of New York, New York. Said notice shall specify the date on which sealed
tenders will be received and shall be published not less than fifteen days
prior
to the date so
specified. A copy of said notice shall be mailed to the manager of the
underwriting group that purchased the Bonds. Purchase of Bonds shall be made by
the acceptance of the lowest price tenders received, such price not to exceed
the redemption price;
(vi) calling, redeeming and paying prior to their Stated Maturity
the Bonds or any other water revenue bonds of the City heretofore or hereafter
issued and standing on a parity with the Bonds; or
(vii) paying all costs incident to the purchase or redemption of
Bonds including any interest or premium thereon, or
(vii) making payments on capital lease obligations; or
(ix) any other lawful purpose in connection with the operation of
the System and beneficial to governmental or municipal functions of the City.
No moneys credited to the Surplus
Account shall ever be diverted or applied to the general governmental or
municipal functions of the City so long as any of the Bonds remain Outstanding.
Section 602. Funding
of the 2005F Bond Reserve Account.
The
Director of Finance is hereby authorized to execute any and all agreements with
a Reserve Policy Provider in order to effectuate the issuance of a Reserve
Policy, specifically including but not limited to any agreement necessary in
order to reimburse the Reserve Policy Provider for moneys advanced under a
Reserve Policy. In the event moneys are advanced by a Reserve Policy Provider,
the City shall reimburse the Reserve Policy Provider from all funds legally
available to the Waterworks Revenue Fund, subject only to the payments required
by subsection (a) and (b) of Section 601 and the provisions of the last
paragraph of Section 601.
The
Reserve Policy shall terminate on the earlier of the scheduled final Stated
Maturity of the Bonds as of the issuance date of the Reserve Policy or the date
on which no Bonds are Outstanding under this Ordinance. As long as the Reserve
Policy shall be in full force and effect, the City and the Paying Agent agree
to comply with the following provisions:
(i) In the event that moneys on deposit in the 2005F Water Debt
Fund are not available to pay the amount of principal and interest coming due and
the City shall so notify the Paying Agent of it and such funds have not been
forwarded to the Paying Agent one business day prior to any Stated Maturity on
the Bonds, then the Paying Agent shall give notice of nonpayment to the Reserve
Policy Provider as provided in the Reserve Policy (the Notice of Nonpayment),
duly executed by the Paying Agent certifying that funds are not available in
the 2005F Water Debt Fund or the 2005F Bond Reserve Account to pay both
principal of and interest on the Bonds becoming due on the next Stated
Maturity, then upon the later (A) one Business Day after receipt by the Reserve
Policy Provider of the Notice of Nonpayment, or (B) the Stated Maturity on the
Bonds as specified in the Notice of Nonpayment presented by the Paying Agent to
the Reserve Policy Provider, the Reserve Policy Provider will make a deposit of
funds in an account with the Paying Agent, sufficient for the payment to the
Paying Agent, of amounts which are then required to pay the principal of and
interest becoming due on the Bonds on such Stated Maturity of the Bonds (as
specified in the Notice of Nonpayment) up to but not in excess of the Maximum
Amount, as defined in the Reserve Policy;
(ii) and to extent that cash has also been deposited in the 2005F
Bond Reserve Account, all such cash shall be used (or investments purchased
with such cash shall be liquidated and the proceeds applied as required) prior
to any drawing under the Reserve Policy, and the repayment of any Policy Costs,
as hereinafter defined, shall be made prior to replenishment of any such cash
amounts; and if, in addition to the Reserve Policy, any other reserve fund
substitute instrument (Additional Reserve Policy) is provided, drawings under
the Reserve Policy and any Additional Reserve Policy, and the repayment of
Policy Costs and reimbursement of amounts due under the Additional Reserve
Policy, shall be made on a pro rata basis (calculated by reference to the
maximum amounts available thereunder) after applying all available cash in the 2005F
Reserve Account and prior to the replenishment of any such cash draws,
respectively;
(iii) the City shall after submission to the Reserve Policy
Provider of the Notice of Nonpayment as provided in (i) above, make available
to the Reserve Policy Provider all records relating to the funds and accounts
maintained under this Ordinance; and
(iv) the Paying Agent shall, upon receipt of moneys received from a
Notice of Nonpayment under the Reserve Policy, as specified in the Notice of
Nonpayment, credit to the 2005F Bond Reserve Account to the extent of moneys
received pursuant to such Notice of Nonpayment and shall pay such moneys to the
Registered Owners of the Series 2005F Bonds as provided in this Ordinance.
The repayment of
any draws under the Reserve Policy shall include related reasonable expenses
incurred by the Reserve Policy Provider (together with interest thereon at the
Late Payment Rate, which is the lesser of (1) the greater of (A) the prime
rate of JPMorgan Chase Bank in effect from time to time plus 3% per annum, or
(ii) the highest rate permitted by law) (the Policy Costs). The Late Payment
Rate shall be computed on the basis of the actual number of days elapsed over a
year of 360 days. In the event JPMorgan Chase Bank ceases to announce its
prime rate publicly, the prime rate shall be the publicly announced prime or
base lending rate of such national bank as the Reserve Policy Provider shall
specify. The repayment of Policy Costs shall have the same priority as the
obligation to maintain and replenish the Bond Reserve Requirement. If the City
shall fail to repay any Policy Costs in accordance with the requirements of
this paragraph, the Reserve Policy Provider shall be entitled to exercise any
and all remedies available at law or under this Ordinance other than
acceleration of the maturity of the Series 2005F Bonds or remedies which would
adversely affect the Registered Owners of the Series 2005F Bonds.
Repayment of
Policy Costs shall commence in the first month following each draw, and each
such monthly payment shall be in an amount at least equal to 1/12 of the
aggregate of Policy costs related to such draw. Amounts in respect of Policy
Costs paid to the Reserve Policy Provider shall be credited first to interest
due, then to the expenses due and then to principal due. As to the extent that
payments are made to the Reserve Policy Provider on account of principal due,
the coverage under the Reserve Policy will be increased by a like amount,
subject to the terms of the Reserve Policy.
If the City
shall fail to pay any Policy Costs in accordance with the provisions of this
Section 602, the Reserve Policy Provider shall be entitled to exercise any and
all legal and equitable remedies available to it, including those provided
under this Ordinance other than (1) acceleration of the Series 2005F Bonds or
(2) remedies which would adversely affect owners of the Series 2005F Bonds.
This Ordinance shall
not be discharged until all Policy Costs owing to Reserve Policy Provider shall
have been paid in full. The Citys obligation to pay such amounts shall
expressly survive payment in full of the Series 2005F Bonds.
Section 603. Transfer
of Funds to Paying Agent. The Director of Finance is hereby authorized and
directed to withdraw from the 2005F Water Debt Fund and, to the extent
necessary to prevent a default in the payment of either principal of or
interest on the Bonds, from the 2005F Bond Reserve Account and the Surplus
Account as provided in Section 601, or, if funds are not available in the 2005F
Water Debt Fund or the 2005F Reserve Account, make a Notice of Nonpayment under
the Reserve Policy sums sufficient to pay the principal of and interest on the
Bonds as and when the same become due on any Bond Payment Date, and to pay the
charges for services rendered by the Bond Registrar and Paying Agent (other
than the City itself) in acting as Bond Registrar and Paying Agent for the Bonds,
if any, and to forward such sums to the Paying Agent no later than one business
day prior to the dates when such principal interest and fees will become due.
The obligations of the City to reimburse Reserve Policy Provider for any
amounts paid as a result of a Notice of Nonpayment shall be subordinate to the
payment of debt service on the Bonds. The amounts necessary to pay the charges
of the Bond Registrar and Paying Agent shall be forwarded to the Paying Agent
over and above the amount of the interest on the Bonds. The amounts held by the
Paying Agent for the payment of the interest or principal due on any date with
respect to particular Bonds shall, on and after such date and pending such
payment, be set aside on its books and held in trust by it for the Registered
of the Bonds entitled thereto.
Section 604. Payments
Due on Saturdays, Sundays and Holidays. In the case where a Bond Payment
Date is not a Business Day, then payment of principal, Redemption Price or
interest need not be made on such Bond Payment Date but may be made on the next
succeeding Business Day with the same force and effect as if made on such Bond
Payment Date, and no interest shall accrue for the period after such Bond
Payment Date.
Section 605. Nonpresentment
of Bonds. If any Bond is not presented for payment when the principal
thereof becomes due at Maturity, if funds sufficient to pay such Bond have been
made available to the Paying Agent all liability of the City to the Registered
Owner thereof for the payment of such Bond shall forthwith cease, determine and
be completely discharged, and thereupon it shall be the duty of the Paying
Agent to hold such funds, without liability for interest thereon, for the
benefit of the Registered Owner of such Bond, who shall thereafter be
restricted exclusively to such funds for any claim of whatever nature on his
part under this
Ordinance or on, or with respect
to, said Bond. If any Bond is not presented for payment within four years
following the date when such Bond becomes due at Maturity, the Paying Agent
shall repay the City the funds theretofore held by it for payment of such Bond,
and such Bond shall, subject to the defense of any applicable statute of
limitation, thereafter be an unsecured obligation of the City, and the Registered
Owner thereof shall be entitled to look only to the City for the payment, and
then only to the extent of the amount so repaid to it by the Paying Agent, and
the City shall not be liable for any interest thereon and shall not be
regarded as a trustee of such money.
Section 606. Application
of Moneys in the Rebate Fund.
(a) There
shall be deposited in the Rebate Fund such amounts as are required to be
deposited therein pursuant to the Tax Compliance Agreement. All money in the
Rebate Fund shall be held in trust, to the extent required to satisfy the
Rebate Amount (as defined in the Tax Compliance Agreement), for payment to the
United States of America, and neither the City nor the Registered Owner of any
Bond shall have any rights in or claim to such money. All amounts deposited
into or on deposit in the Rebate Fund shall be governed by this Section 606
and the Tax Compliance Agreement.
(b) The
City shall periodically determine the rebatable arbitrage under Section 148(f)
of the Code in accordance with the Arbitrage Instruction, and the City shall
make payments to the United States Government at the times and in the amounts
determined under the Tax Compliance Agreement. Any funds remaining in the
Rebate Fund after redemption and payment of all of the bonds and the interest
thereon and payment and satisfaction of any Rebate Amount, or provision made
therefor, shall be released to the City.
(c) Notwithstanding
any other provision of this Ordinance, including in particular Article XI, the
obligation to pay rebatable arbitrage to the United States and to comply with
all other requirements of this Section 606 and the Tax Compliance Agreement
shall survive the defeasance or payment in full of the Bonds.
Section 607. Deficiency
of Payments into Funds or Accounts. If at any time the Revenues derived by
the City from the operation of the System shall be insufficient to make any
payment or credit on the date or dates specified, the City shall make good the
amount of such deficiency by making payments or credits out of the first
available Revenues thereafter received by the City from the operation of the
System, such payments and credits being made and applied in the order specified
in Section 601 of this Ordinance.
ARTICLE
VII
DEPOSIT
AND INVESTMENT OF MONEYS
Section 701. Investments
of Moneys in Funds and Accounts. Any money held in or credited to the
Waterworks Revenue Fund, the 2005F Water Debt Fund and the Surplus Account may
be invested by the City in Permitted Investments, provided, however, that no such
investment shall be made for a period extending longer than the date when the
moneys invested may be needed for the purpose for which such fund or account
was created. Cash moneys in each of the funds and accounts created or
established in the Ordinance shall be deposited in a bank or banks in the City
of Kansas City, Missouri, which are members of the Federal Deposit Insurance
Corporation and all such bank deposits shall be secured by the banks holding
such deposits as required by the Citys Charter and Administrative Code.
The interest on
any investments held in any fund or account created by or referred to in this
Ordinance shall accrue to and become a part of the Waterworks Revenue Fund,
except that if and when the amount held in the 2005F Bond Reserve Account shall
be less than the Bond Reserve Requirement, then at all such times the interest
earned on investments or money held in the 2005F Bond Reserve Account shall be
deposited in the 2005F Bond Reserve Account. In determining the amount held in any
fund or account under any of the provisions of this Ordinance, obligations of
the United States Government shall be valued at the market value thereof. The
value of such investments shall be determined at least annually. If and when
the amount held in any fund or account shall be in excess of the amount
required by the provisions of this Ordinance, the City, by and through its
Director of Finance, may direct that such excess be paid into the Waterworks
Revenue Fund.
ARTICLE
VIII
GENERAL
COVENANTS, REPRESENTATIONS AND PROVISIONS
Section 801. General
Covenants. The City covenants and agrees with each of the Registered
Owners of any of the Bonds and the Bond Insurer, that so long as any of said
Bonds remain Outstanding:
(a) The
City will continuously own and will operate the System in an efficient and
economical manner and will keep and maintain the same in good condition, repair
and working order. The System will be operated on the basis of the same Fiscal
Year on which the City operates.
(b) The
City will fix and maintain rates and make and collect charges for the use and
services of the System sufficient to produce Revenues to pay the cost of
maintenance and operation thereof, to pay the principal of and the interest on
the Bonds, to provide in each Fiscal Year Net Revenues plus Administrative
Service Fees not less than 110% of the amount required to be paid in the
current Fiscal Year on account of principal of and interest on all obligations
payable from the revenues of the System at the time outstanding, including
capital lease payments, if any, (taking into account any scheduled mandatory
redemptions) and to provide funds ample to meet the requirements of this
Ordinance, including Policy Costs as defined in Section 601(d) hereof, and it
will revise said rates from time to time so as fully to meet said requirements
and the requirements of the statutes of the State of Missouri.
(c) None
of the facilities or services afforded by the System will be furnished to any
water user, without a reasonable charge being made therefor.
(d) The
City will not mortgage, pledge or otherwise encumber the System, nor will it
sell, lease or otherwise dispose of the System or any substantial part thereof;
provided, however, the City may sell at fair market value any portion of such
property which shall have been replaced by other similar property of at least
equal value, or which shall cease to be necessary for efficient operation of
the System, and in the event of sale, the City will apply the proceeds to
either (i) redemption of Outstanding Parity Bonds or water revenue bonds
hereafter issued on a parity with the Bonds in accordance with the provisions
governing prepayment of bonds in advance of maturity or (ii) replacement of the
property so disposed of by other property the revenues of which shall be
incorporated into the System as hereinbefore provided; and provided further,
however, that the City, with the written approval of the Director of the Water
Services, may dispose of any property which has become obsolete, nonproductive
or otherwise unusable to the advantage of the City.
(e) The
City will carry and maintain reasonable and adequate insurance upon all of the
properties forming a part of the System which may be of an insurable nature,
such insurance to be of the character and coverage and for such amount or
amounts as is customarily carried and maintained by other municipalities
rendering service of a similar character. In the event of loss or damage, the
City will use the proceeds of such insurance in reconstructing and replacing
the property damaged or destroyed, or if such reconstruction or replacement be
unnecessary, then in redeeming and paying the Citys outstanding water revenue
bonds, including only the Bonds, the Outstanding Parity Bonds or other water
revenue bonds of the City heretofore or hereafter issued and standing on a
parity with the Bonds, or for purchasing at the market price thereof any of
said bonds. The cost of all insurance shall be paid as an operating cost out of
the Revenues of the System. Nothing in this Ordinance shall be construed as
preventing the City from satisfying the insurance requirements herein set forth
through self insurance or the Citys risk retention program.
(f) The
City will maintain and keep proper books, records and accounts (separate from
all other records and accounts) in which complete and correct entries will be
made of all dealings and transactions relating to the System. Such accounts
shall show the Revenues received from the System, the application of such
Revenues, and all financial transactions in connection therewith. In accordance
with the provisions of Section 85, Article IV, of the Citys Charter, the
Council will provide that an independent certified audit of the Citys books
and records relating to the System will be made annually by certified public
accountants, experienced and qualified in municipal and governmental
accounting. Each such audit shall be detailed in scope and said accountants
shall certify as to the correctness of the schedules contained in the audit
report.
The
annual financial report relating to the Citys finances, required by Section
96, Article IV, of the Charter, shall contain complete statements covering the
results of the years operations and the financial condition of the System.
Said statements shall bear the certificate of the firm of certified public
accountants making the annual audit. A copy of each such annual report will be
filed with the City Clerk and will be open for public inspection, and a copy
will be forwarded promptly without cost to the manager of the underwriting
group purchasing the Bonds.
If
such audit and report shall disclose that proper provision has not been made
for all of the requirements of the law under which the Bonds are issued, and of
this Ordinance, the City covenants and agrees that it will promptly proceed to
cause to be charged for the services rendered by the System rates which will
adequately provide for such requirements.
(g) The
Registered Owner or Registered Owners of not less than ten percent (10%) in
aggregate principal amount of the Bonds at the time Outstanding, or their duly
authorized representative, shall have the right at all reasonable times to
inspect the System, and all records, accounts and data relating thereto, and
such Registered Owners or their representative shall be furnished by the City
with all such information concerning the System and the operation thereof which
may be reasonably requested.
(h) The
City hereby represents and covenants that the Bonds directed to be issued by
this Ordinance are issued in full compliance with the restrictions and
conditions upon the issuance of additional parity bonds as set forth and
contained in the Parity Ordinances, and that the Bonds herein directed to be
issued are issued in all respects on a parity and equality with the Outstanding
Parity Bonds heretofore issued and outstanding.
(i) The
City will punctually perform all duties with respect to the operation of the
System now or thereafter imposed upon the City by the Constitution and laws of
the State, and including all other duties and obligations imposed by law, and
by the provisions of this Ordinance. The City further covenants not to issue
parity debt or subordinate debt in any manner that inhibits the issuance of
bonds or other refunding obligations.
Section 802. Administrative
Personnel. The City shall use its best efforts to employ at all times
administrative personnel experienced and well qualified to operate the System.
The City further agrees that such administrative personnel shall be employed in
sufficient numbers to ensure that the System will be operated in a prudent and efficient
manner, following procedures generally accepted within the United States of America.
Section 803. Parity
Bond Certification. The City represents and covenants that the Bonds
directed to be issued by this Ordinance are so issued in full compliance with
the restrictions and conditions upon which the City may issue additional bonds
payable out of the revenues derived from the operation of the System and which
stand on a parity with the Parity Bonds heretofore issued and outstanding, as
set forth and contained in the Parity Ordinances under which such Parity Bonds
have been issued, and that the Bonds herein directed to be issued are so issued
in all respects on a parity and equality with the Parity bonds heretofore
issued and outstanding.
Section 804. Tax
Covenants.
(a) The
City covenants that (1) it will comply with all applicable provisions of the
Code, including Sections 103 and 141 through 150, necessary to maintain the
exclusion from federal gross income of the interest on the Bonds and (2) it
will not use or permit the use of any proceeds of Bonds or any other funds of
the City, nor take or permit any other action, or fail to take any action, if
any such action or failure to take action would adversely affect the exclusion
from federal gross income of the interest on the Bonds. The City will also
adopt such other ordinances or resolutions and take such other actions as may
be necessary to comply with the Code and with all other applicable future law
in order to ensure that the interest on the Bonds will remain excluded from
federal gross income, to the extent any such actions can be taken by the City.
(b) The
City covenants and agrees that (1) it will use the proceeds of the Bonds as
soon as practicable for the purposes for which the Bonds are issued, and (2) it
will not invest or directly or indirectly use or permit the use of any proceeds
of the Bonds or any other funds of the City in any manner, or take or omit to
take any action, that would cause the Bonds to be arbitrage bonds within the
meaning of Section 148(a) of the Code.
(c) The
City covenants that it will pay or provide for the payment from time to time of
all rebatable arbitrage to the United States pursuant to Section 148(f) of the
Code and the Tax Compliance Agreement. This covenant shall survive payment in
full or defeasance of the Bonds. The Tax Compliance Agreement may be amended or
replaced if, in the opinion of Bond Counsel, such amendment or replacement will
not adversely affect the exclusion from federal gross income of the interest on
the Bonds.
(d) The
City represents that (1) it is a governmental unit under Missouri law with
general taxing powers, (2) none of the Bonds is a private activity bond within
the meaning of Section 141 of the Code and (3) ninety-five percent (95%) or
more of the net proceeds of the Bonds will be used for local government
activity of the City.
(e) The
foregoing covenants shall remain in full force and effect notwithstanding the
defeasance of the Bonds pursuant to Article XI or any other provision of this
Ordinance until the final Stated Maturity of all Bonds Outstanding.
ARTICLE
IX
ADDITIONAL
BONDS AND OBLIGATIONS
Section 901. Senior
Lien Bonds. The City covenants and agrees that so long as any of the Bonds
remain Outstanding the City will not issue any additional bonds or incur or
assume any other debt obligations appearing as liabilities on the balance sheet
of the City for the payment of moneys determined in accordance with generally
accepted accounting principles consistently applied, including capital leases
as defined by generally accepted accounting principles, payable out of the Net
Revenues of the System or any part thereof which are superior to the Bonds.
Section 902. Parity
Lien Bonds and Other Obligations. The City further covenants and agrees
that, except as hereinafter in this Section 902 provided, the City will not
issue any such additional bonds or other obligations on a parity or equality
with the Bonds unless each of the following conditions are met:
(a) (1)
The City shall not be in default in making any payment of principal of or
interest on any Bonds or any Parity Bonds at the time Outstanding or in making
any payment at the time required to be made into the respective funds and
accounts created by and referred to in this Ordinance or any Parity Ordinance
(unless such additional revenue bonds or obligations are being issued to
provide funds to cure such default), and (2) the Bond Reserve Accounts for the
Outstanding Parity Bonds, including the Additional Bonds proposed to be issued
and standing on a parity with the Bonds are fully funded at the Bond Reserve
Requirement, in either case unless otherwise permitted by the Bond Insurer; and
(b) for
so long as any of the Series D Bonds, the Series 1996A Bonds, the Series 1996B
Bonds, the Series 1998A Bonds, the Series 1998B Bonds, the Series 2000A Bonds
and the Series 2002C Bonds remain Outstanding, the Net Revenues for the Fiscal
Year which ended next preceding the authorization of additional bonds shall
have been equal to at least 120% of the maximum amount required to be paid out
of said Net Revenues in any succeeding Fiscal Year on account of both principal
and interest becoming due (taking into account scheduled mandatory redemptions,
if any) including Policy Costs as defined in Section 601(d) hereof, with
respect to all water revenue obligations of the City (excluding subordinate
revenue bonds and any other subordinate obligations), including the additional
revenue bonds proposed to be issued, provided, however, that if the City shall
have made an increase in its water service charges and such increased charges
have not been in effect during the entire Fiscal Year which ended next
preceding the authorization of additional bonds, then the City may obtain a report
from the Consulting Engineer as to the amount of Net Revenues that the City
will derive from the operation of the System during the next full Fiscal Year
in which such new rates are in effect, which may be the Fiscal Year in which
the proposed additional revenue bonds are issued, and if said engineer or
engineers shall certify:
(i) that on the basis of such new rates the Net Revenues of the
System for such full Fiscal Year in which such new rates are in effect, will be
equal to at least 120% of the maximum amount required to be paid out of said
Net Revenues in any succeeding Fiscal Year on account of both principal and
interest including Policy Costs as defined in Section 601(d) hereof, becoming
due with respect to all water revenue obligations of the City (excluding
subordinate revenue bonds and any other subordinate obligations), including the
additional revenue bonds proposed to be issued, and
(ii) that the issuance of the additional water revenue bonds
proposed to be issued is advisable and will not impair the ability of the City
to pay when due the principal of or interest on the Bonds or to meet all
obligations resting upon the City by reason of the covenants and agreements
contained in this Ordinance, then the City may issue such additional water revenue
bonds.
(c)
for so long as any of the Series 2004D Bonds and the Series 2005F Bonds
remain Outstanding, the average Net Revenues plus average Administrative
Service Fees for the two most recent annual audits for the Fiscal Years
preceding the issuance of additional bonds shall have been equal to at least
120% of the maximum amount required to be paid out of said Net Revenues in any
succeeding Fiscal Year on account of both principal and interest becoming due
(taking into account scheduled mandatory redemptions, if any) including Policy
Costs as defined in Section 601(d) hereof, with respect to all water revenue
obligations of the City (excluding subordinate revenue bonds and any other
subordinate obligations), including the additional revenue bonds proposed to be
issued, provided, however, that if the City shall have made an increase in its
water service charges and such increased charges were not in effect during the
two most recent Fiscal Years for which annual audits are available, then the
City may obtain a report from the Consulting Engineer as to the amount of
adjusted Net Revenues that the City would have derived from the operation of
the System if the new rates had been in effect during the entire period or will
derive from the operation of the System during the next full Fiscal Year in
which such new rates are in effect, which may be the Fiscal Year in which the
proposed additional revenue bonds are issued, and if said engineer or engineers
shall certify:
(i) that on the basis of such increased rates the average
adjusted Net Revenues of the System plus average Administrative Service Fees
for the two most recent Fiscal Years for which annual audits are available
would have been, or the adjusted Net Revenues of the System plus Administrative
Service Fees for the full Fiscal Year in which such new rates are in effect,
will be equal to at least 120% of the maximum amount required to be paid out of
said Net Revenues in any succeeding Fiscal Year on account of both principal
and interest including Policy Costs as defined in Section 601(d) hereof,
becoming due with respect to all water revenue obligations of the City
(excluding subordinate revenue bonds and any other subordinate obligations),
including the additional revenue bonds proposed to be issued, and
(ii) that the issuance of the additional water revenue bonds
proposed to be issued is advisable and will not impair the ability of the City
to pay when due the principal of or interest on the Bonds or to meet all
obligations resting upon the City by reason of the covenants and agreements
contained in this Ordinance, then the City may issue such additional water
revenue bonds.
Additional Bonds
of the City issued under the conditions hereinbefore in this Section 902 set
forth shall stand on a parity with the Bonds and shall enjoy complete equality
of lien on and claim against the revenues of the System with the Bonds and the
City may make equal provision for paying said bonds and the interest thereon
out of the Waterworks Revenue Fund and may likewise provide for the creation of
a reasonable principal and interest account and a reasonable bond reserve
account for the payment of such Additional Bonds and the interest thereon out
of moneys in the Waterworks Revenue Fund.
Nothing in this
Section 902 shall prohibit or restrict the right of the City to issue
additional bonds or other revenue obligations for the purpose of
reconstructing, altering, repairing, enlarging, extending or improving the
System and to provide that the principal of and interest on said revenue bonds
or obligations shall be payable out of the Revenues of the System, provided at
the time of the issuance of such additional revenue bonds or obligations the
City shall not be in default in the performance of any covenant or agreement
contained in this Ordinance, and provided further that such additional revenue
bonds or obligations shall be junior or subordinate to the Bonds so that if at
any time the City shall be in default in paying either interest on or principal
of the Bonds, or if the City shall be in default in making any payments
required to be made by it under the provisions of this Ordinance, the City
shall make no payments of either principal of or interest on said junior and
subordinate revenue bonds or obligations until said default or defaults be
cured and no default shall exist on the part of the City under the covenants,
agreements and conditions contained in this Ordinance. In the event of the
issuance of any such junior and subordinate revenue bonds or obligations, the
City, subject to the provisions aforesaid, may make provisions for paying the
principal of and interest on said revenue bonds or obligations out of moneys in
the Waterworks Revenue Fund.
Section 903. Refunding
Bonds. The City shall have the right, without complying with the
provisions of Section 902, to refund any of the Bonds under the provisions of
any law then available, and the refunding bonds so issued shall enjoy complete
equality of pledge with any of the Bonds which are not refunded, if any, upon
the Revenues of the System; provided, however, that if only a portion of the
Bonds are refunded and if the Bonds are refunded in such manner that the
refunding bonds bear a higher average rate of interest or become due on a date
earlier than that of the Bonds which are refunded, then such Bonds may be
refunded without complying with the provisions of Section 902 only by and with
the written consent of the Registered Owners of a majority in principal amount
of the Bonds not refunded.
ARTICLE
X
DEFAULT
AND REMEDIES
Section 1001. Acceleration
of Maturity in Event of Default. The City covenants and agrees that if it
shall default in the payment of the principal of or interest on any of the
Bonds as the same shall become due on any Bond Payment Date, or if the City or
the Council of the City or any of the officers, agents, or employees thereof
shall fail or refuse to comply with any of the provisions of this Ordinance or
of the constitution or statutes of the State, and such default continues for a
period of thirty (30) days, or such extended period as is approved with the prior
written consent of the Bond Insurer, after written notice specifying such
default has been given to the City by the Bond Insurer or the Registered Owner
of any Bond then Outstanding, then, at any time thereafter and while such
default continues, the Bond Insurer or the Registered Owners of twenty-five
percent (25%) in principal amount of the Bonds then Outstanding may with the
prior written consent of the Bond Insurer, by written notice to the City filed
in the office of the City Clerk or delivered in person to the City Clerk,
declare the principal of all Bonds then Outstanding to be due and payable
immediately, and upon any such declaration given as aforesaid, all of the Bonds
shall become and be immediately due and payable, anything in this Ordinance or
in the Bonds contained to the contrary notwithstanding. This provision,
however, is subject to the condition that if at any time after the principal of
the Outstanding Bonds has been so declared to be due and payable, all arrears
of interest upon all Outstanding Bonds, except interest accrued but not yet due
on such Bonds, and all arrears of principal upon all of said Bonds shall have
been paid in full, and all other defaults, if any, by the City under the
provisions of this Ordinance and under the provisions of the statutes of the
State shall have been cured, then and in every such case, the Bond Insurer or
the Registered Owners of a majority in principal amount of the Bonds then
Outstanding may with the prior written consent of the Bond Insurer, by written
notice to the City given as hereinbefore specified, rescind and annul such
declaration and its consequences, but no such rescission or annulment shall
extend to or affect any subsequent default or impair any rights consequent
thereon. The City shall give prompt written notice to the Bond Insurer upon
any default hereunder.
In the event the
maturity of the Bonds is accelerated pursuant to this Section, the Bond Insurer
may elect, in its sole discretion, to pay accelerated principal and interested
accrued on such principal to the date of acceleration (to the extent unpaid by
the City) and the Paying Agent shall be required to accept such amounts. Upon
payment of such accelerated principal and interested accrued to the
acceleration as provided above, the Bond Insurers obligations under the Bond
Insurance Policy with respect to such Bonds shall be fully discharged.
After payment of
reasonable expenses of the Paying Agent, the application of funds realized upon
default shall be applied to payment of expenses of the City or rebate only
after payment of debt service due and past due on the Bonds, together with
replenishment of the 2005F Bond Reserve Account.
Section 1002. Other
Remedies. The provisions of this Ordinance, including the covenants and
agreements herein contained, shall constitute a contract between the City, the
Bond Insurer and the Registered Owners of the Bonds, and the Bond Insurer or
the Registered Owner or Registered Owners of not less than ten percent (10%) in
principal amount of the Bonds at the time Outstanding, with the consent of the
Bond Insurer, shall have the right for the equal benefit and protection of all
Registered Owners of Bonds similarly situated:
(a) by
mandamus or other suit, action or proceeding at law or in equity to enforce
such Registered Owners rights against the City and its officers, agents and
employees, and to require and compel duties and obligations required by the
provisions of this Ordinance or by the constitution and laws of the State;
(b) by
suit, action or other proceeding in equity or at law to require the City, its
officers, agent and employees to account as if they were the trustees of an
express trust; and
(c) by
suit, action or other proceeding in equity or at law to enjoin any acts or
things which may be unlawful or in violation of the rights of the Registered
Owners of the Bonds.
Nothing
contained in this Ordinance, however, shall be construed as imposing on the
City any duty or obligation to levy any taxes either to meet any obligation
incurred herein or to pay the principal of or interest on the Bonds.
No remedy
conferred hereby upon the Bond Insurer or any Registered Owner is intended to
be exclusive of any other remedy, but each such remedy is cumulative and in
addition to every other remedy and may be exercised without exhausting and
without regard to any other remedy conferred hereby. No waivers of any default
or breach of duty or contract by the Registered Owner shall extend to or affect
any subsequent default or breach of duty or contract or shall impair any rights
or remedies thereon. No delay or omission of the Registered Owner to exercise
any right or power accruing upon any default shall impair any such right or
power or shall be construed to be a waiver of any such default or acquiescence
therein. Every substantive right and every remedy conferred upon the Registered
Owners may be enforced from time to time and as often as may be deemed
expedient. In any suit, action or proceeding to enforce any right or exercise
any remedy shall be brought or taken and then discontinued or abandoned, or
shall be determined adversely to the Registered Owner, then, and in every such
case, the City and the Registered Owners shall be restored to their former
positions and rights and remedies as if no such suit, action or other
proceeding had been brought or taken.
Notwithstanding
any other provisions of this Ordinance, in determining whether the rights of
the Registered Owners will be adversely affected by an action taken pursuant to
the terms and provisions of this Ordinance, the City shall consider the effect
on the Registered Owners as if there were no Reserve Policy.
Section 1003. Limitations
on Rights of Bondowners. No one or more Bondowners secured hereby shall
have any right in any manner whatever by his or their action to affect, disturb
or prejudice the security granted and provided for herein, or to enforce any
right hereunder, except in the manner herein provided, and all proceedings at
law or in equity shall be instituted, had and maintained for the equal benefit
of all Registered Owners of such Outstanding Bonds.
Section 1004. Remedies
Cumulative. No remedy conferred herein upon the Bondowners is intended to
be exclusive of any other remedy, but each such remedy shall be cumulative and
in addition to every other remedy and may be exercised without exhausting and
without regard to any other remedy conferred herein. No waiver of any default
or breach of duty or contract by the Registered Owner of any Bond shall extend
to or affect any subsequent default or breach of duty or contract or shall
impair any rights or remedies consequent thereon. No delay or omission of any
Bondowner to exercise any right or power accruing upon any default shall
impair any such right or power or shall be construed to be a waiver of any such
default or acquiescence therein. Every substantive right and every remedy
conferred upon the Registered Owners of the Bonds by this Ordinance may be
enforced and exercised from time to time and as often as may be deemed
expedient. If any suit, action or proceedings taken by any Bondowner on account
of any default or to enforce any right or exercise any remedy has been
discontinued or abandoned for any reason, or has been determined adversely to
such Bondowner, then, and in every such case, the City and the Registered
Owners of the Bonds shall be restored to their former positions and rights
hereunder, respectively, and all rights, remedies, powers and duties of the
Bondowners shall continue as if no such suit, action or other proceedings had
been brought or taken.
Section 1005. No
Obligation to Levy Taxes. Nothing contained in this Ordinance shall be
construed as imposing on the City any duty or obligation to levy any taxes
either to meet any obligation incurred herein or to pay the principal of or
interest on the Bonds.
Section 1006. Provisions
Relating to the Bond Insurer. The provisions of this Section 1006 shall
govern, notwithstanding anything to the contrary set forth in this Ordinance.
(a) In
determining whether any amendment, consent or other action to be taken, or any
failure to act, under this Ordinance would adversely affect the security for
the Bonds or the rights of the Bondowners, the Paying Agent shall consider the
effect of any such amendment, consent, action or inaction as if there were no
Bond Insurance Policy.
(b) No
contract shall be entered into nor any action taken by which the rights of the
Bond Insurer or security for or sources of payment of the Bonds may be impaired
or prejudiced in any material respect except upon obtaining the prior written
constant of the Bond Insurer.
(c) The
City shall pay or reimburse the Bond Insurer any and all charges, fees, costs
and expenses which the Bond Insurer may reasonably pay or incur in connection
with (1) the administration, enforcement, defense or preservation of any rights
or security in the Bonds or this Ordinance, (2) the pursuit of any remedies
under this Ordinance or the Bonds or otherwise as afforded by law or equity,
(3) any amendment, waiver or other action with respect to, or related to, this
Ordinance or the Bonds whether or not executed or completed, or (4) any
litigation or other dispute in connection with this Ordinance or the Bonds or
the transactions contemplated thereby, other than amounts resulting from the
failure of the Bond Insurer to honor its obligations under the Bond Insurance
Policy. The Bond Insurer reserves the right to charge a reasonable fee as a
condition to executing any amendment, waiver or consent proposed in respect of
this Ordinance or the Bonds.
(d) The
Bond Insurer shall be provided with the following information:
(1) (i)
Annual audited financial statements within the later of (A) 150 days after the
end of the Citys fiscal year or (B) within 30 days of availability, (together
with certification of the City that it is not aware of any default under the
Ordinance), and (ii) the Citys annual budget within 30 days after the approval
thereof with such other information, data or reports a the Bond Insurer shall
reasonably request from time to time;
(2) Notice
of any draw upon the 2005F Bond Reserve Account within two Business Days after
knowledge thereof other than (A) withdrawals of amounts in excess of the Bond
Reserve Requirement and (B) withdrawals in connection with a refunding of the
Bonds;
(3) Notice
of any default known to the Paying Agent or the City within five Business Days
after knowledge thereof;
(4) Prior
notice of the advance refunding or redemption of any of the Bonds, including
the principal amount, maturities and CUSIP numbers thereof;
(5) Notice
of the resignation or removal of the Paying Agent and Bond Registrar and the
appointment of, and acceptance of duties by, any successor thereto;
(6) Notice
of the commencement of any proceeding by or against the City commenced under
the United States Bankruptcy Code or any other applicable bankruptcy,
insolvency, receivership, rehabilitation or similar law (an Insolvency
Proceeding);
(7) Notice
of the making of any claim in connection with any Insolvency Proceeding seeking
the avoidance as a preferential transfer of any payment of principal of, or
interest on, the Bonds;
(8) A
full transcript of all proceedings relating to the execution of any amendment
or supplement to this Ordinance or the Bonds; and
(9) All
reports, notices and correspondence to be deliver to the Bondowners under the
terms of this Ordinance and the Bonds.
(e) The Bond Insurer shall be deemed a third
party beneficiary of this Ordinance.
(f) The rights granted to the
Bond Insurer under this Ordinance or the Bonds to request, consent to or direct
any action are rights granted to the Bond Insurer in consideration of its
issuance of the Bond Insurance Policy. Any exercise by the Bond Insurer of
such rights is merely an exercise of the Bond Insurers contractual rights and
shall not be construed or deemed to be taken for the benefit or on behalf of
the Bondowners nor does such action evidence any position of the Bond Insurer,
positive or negative, as to whether Bondowner consent is required in addition
to consent of the Bond Insurer.
(g) All
notices to the Bond Insurer shall be addressed as follows:
Financial
Security Assurance Inc.
31 West 52nd Street
New York, New York 10019
Attention:
Managing Director Surveillance
Re:
Policy No. [To be inserted]
Telephone:
(212) 826-0100
Facsimile:
(212) 339-3556
In each case in which
notice or other communication refers to an event of default, then a copy of
such notice or other communication shall also be sent to the attention of the
General Counsel and shall be marked to indicate URGENT MATERIAL ENCLOSED.
(h) Notwithstanding
any other provision to the contrary contained in this Ordinance, for all
purposes of the provisions of this Ordinance governing events of default and
remedies, except the giving of notice of default to Bondowners, the Bond
Insurer shall be deemed to be the sole Bondowner for the purpose of exercising
any voting right or privilege or giving any consent or direction or taking any
action that the holders of the Bonds insured by it are entitled to take
pursuant to this Ordinance for so long as it is not in default of its payment
obligations under the Bond Insurance Policy.
ARTICLE XI
DEFEASANCE
Section 1101. Defeasance.
When any or all of the Bonds or the interest payments thereon have been paid
and discharged, then the requirements contained in this Ordinance and the
pledge of Net Revenues made hereunder and all other rights granted hereby shall
terminate with respect to the Bonds so paid and discharged. Bonds or the
interest payments thereon shall be deemed to have been paid and discharged
within the meaning of this Ordinance if there has been deposited with the Paying
Agent, or other commercial bank or trust company located in the State and
having full trust powers, at or prior to the Stated Maturity or Redemption Date
of such Bonds, in trust for and irrevocably appropriated thereto, moneys and/or
Defeasance Obligations which, together with the interest to be earned thereon,
will be sufficient for the payment of the principal of or Redemption Price of
such Bonds, and/or interest to accrue on such Bonds to the Stated Maturity or
Redemption Date, as the case may be, or if default in such payment shall have
occurred on such date, then to the date of the tender of such payments;
provided, however, that if any such Bonds shall be redeemed prior to the Stated
Maturity thereof, (1) the City shall have elected to redeem such Bonds, and (2)
either notice of such redemption shall have been given, or the City shall have
given irrevocable instruction, or shall have provided for an escrow agent to
give irrevocable instructions, to the Paying Agent to redeem such Bonds in
compliance with Section 302(a) of this Ordinance. Any moneys and Defeasance
Obligations that at any time shall be deposited with the Paying Agent or other
commercial bank or trust company by or on behalf of the City, for the purpose
of paying and discharging any of the Bonds or the interest payments thereon,
shall be and are hereby assigned, transferred and set over to the Paying Agent
or other bank or trust company in trust for the respective Registered Owners of
the Bonds, and such money shall be and are hereby irrevocably appropriated to
the payment and discharge thereof. All moneys and Defeasance Obligations
deposited with the Paying Agent or other bank or trust company shall be deemed
to be deposited in accordance with and subject to all of the provisions
contained in this Ordinance.
In the event of
an advance refunding, the City shall cause to be delivered (1) a verification
report of an independent firm of national recognized certified public
accountants or such other accountant as shall be acceptable to the Bond Insurer,
verifying the sufficiency of the escrow established to pay the Bonds in full on
the maturity or redemption date, which verification report shall be acceptable
in form and substance to the Bond Insurer and shall be addressed to the Bond
Insurer and the City, (2) an escrow deposit agreement, which shall be
acceptable in form and substance to the Bond Insurer, (3) an opinion of Bond
Counsel to the effect that the Bonds are no longer Outstanding, which opinion
shall be acceptable in form and substance to the Bond Insurer and addressed to
the Bond Insurer and the City. The Bond Insurer shall be provided with final
drafts of the above-referenced documentation not less than five Business Days
prior to the funding of the escrow.
Notwithstanding
any provisions of this Article XI to the contrary, this Ordinance shall remain
in full force and effect until all payments due to the Bond Insurer for amounts
paid by the Bond Insurer under the Bond Insurance Policy and all payments due
to the Reserve Policy Provider for Policy Costs have been paid in full. The
Citys obligation to pay all Policy Costs owing to the Reserve Policy Provider
shall expressly survive payment in full of the Bonds.
ARTICLE
XII
MISCELLANEOUS
PROVISIONS
Section 1201. Consent
of Reserve Policy Provider. The Reserve Policy Providers consent
hereunder shall be required in addition to consent of the Registered Owners,
when required, for the following purposes: (i) execution and delivery of any
supplemental Ordinance or any amendment hereof or thereof: (ii) removal of the
Paying Agent or selection and appointment of any successor paying agent; and
(iii) initiation or approval of any action not described in (i) or (ii) above
which requires consent of the Registered Owners.
Section 1202. Information
to be Given to Reserve Policy Provider. While the Reserve Policy is in
effect, the City shall furnish to the Reserve Policy Provider the information
required by the Terms Ordinance.
Section 1203. Amendments.
The rights and duties of the City and the Bondowners, and the terms and
provisions of the Bonds or of this Ordinance, may be amended or modified at any
time in any respect by ordinance of the City with the prior written consent of
the Bond Insurer or the Registered Owners of not less than a majority in
aggregate principal amount of the Bonds then Outstanding with the prior written
consent of the Bond Insurer; such consent to be evidenced by an instrument or
instruments executed by such Registered Owners or the Bond Insurer, as applicable,
and duly acknowledged or proved in the manner of a deed to be recorded, and
such instrument or instruments shall be filed with the City Clerk, but no such
modification or alteration shall:
(a) extend
the maturity of any payment of principal or interest due upon any Bonds;
(b) effect
a reduction in the amount which the City is required to pay by way of principal
of or interest on any Bonds;
(c) permit
the creation of a lien on the Revenues of the System prior or equal to the lien
of the Bonds or Parity Bonds;
(d) permit
preference or priority of any Bonds over any other Bonds; or
(e) reduce
the percentage in principal amount of Bonds required for the written consent to
any modification or alteration of the provisions of this Ordinance.
Any provision of
the Bonds or of this Ordinance may, however, be amended or modified by
ordinance duly adopted by the Council of the City at any time in any respect
with the written consent of the Bond Insurer or the Registered Owners of all of
the Bonds at the time Outstanding with the prior written consent of the Bond
Insurer.
Without notice
to or the consent of any Bondowners, but with the prior written consent of the
Bond Insurer, the City may amend or supplement this Ordinance for the purpose
of curing any formal defect, omission, inconsistency or ambiguity therein or in
connection with any other change therein which is not materially prejudicial to
the interests of the Bondowners.
Every amendment
or modification of a provision of the Bonds or of this Ordinance, to which the
written consent of the Bondowners or the Bond Insurer is given, as above
provided, shall be expressed in an ordinance adopted by the Council of the City
amending or supplementing the provisions of this Ordinance and shall be deemed
to be a part of this Ordinance. A certified copy of every such amendatory or
supplemental ordinance, if any, and a certified copy of this Ordinance shall
always be kept on file in the office of the City Clerk, and shall be made
available for inspection by the Registered Owner of any bond or a prospective
purchaser or owner of any bond authorized by this Ordinance, and upon payment
of the reasonable cost of preparing the same, a certified copy of any such
amendatory or supplemental ordinance or of this Ordinance will be sent by the
City Clerk to any such Bondowner or prospective Bondowner.
Any and all
modifications made in the manner hereinabove provided shall not become
effective until there has been filed with the City Clerk a copy of the
ordinance of the City hereinabove provided for, duly certified, as well as
proof of any required consent to such modification by the Bond Insurer or the
Registered Owners of the Bonds then Outstanding. It shall not be necessary to
note on any of the Outstanding Bonds any reference to such amendment or
modification.
The City shall
furnish the Paying Agent a copy of any amendment to the bonds or this Ordinance
made hereunder which affects the duties or obligations of the Paying Agent
under this Ordinance. Copies of any modification or amendment to the bonds or
this Ordinance shall also be sent to Standard & Poors Credit Market
Services and Moodys Investors Service, Inc. at least 10 days prior to the
effective date thereof.
Notwithstanding
any provisions of this Section 1203 to the contrary, so long as the Reserve
Policy shall remain in effect, this Ordinance shall not be modified or amended
without the prior written consent of the Reserve Policy Provider.
Section 1204. Notices,
Consents and Other Instrument by Bondowners. Any notice, consent, request,
direction, approval, objection or other instrument required by this Ordinance
to be signed and executed by the Bondowners may be in any number of concurrent
writings of similar tenor and may be signed or executed by such Bondowners in
person or by an agent appointed in writing. Proof of the execution of any such
instrument or of the writing appointing any such agent and of the ownership of
Bonds, if made in the following manner, shall be sufficient for any of the
purposes of this Ordinance, and shall be conclusive in favor of the City and
the Paying Agent with regard to any action taken, suffered or omitted under any
such instrument, namely:
(a) The
fact and date of the execution by any Person of any such instrument may be
proved by the certificate of any officer in any jurisdiction who by law has
power to take acknowledgments within such jurisdiction that the person signing
such instrument acknowledged before such officer the execution thereof, or by
affidavit of any witness to such execution.
(b) The
fact of ownership of Bonds and the amount or amounts, numbers and other
identification of such Bonds, and the date of holding the same shall be proved
by the Bond Register.
In determining
whether the Registered Owners of the requisite principal amount of Bonds
Outstanding have given any request, demand, authorization, direction, notice,
consent or waiver under this Ordinance, Bonds owned by the City shall be
disregarded and deemed not to be Outstanding under this Ordinance, except that,
in determining whether the Bondowners shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent or waiver, only
Bonds which the Bondowners know to be so owned shall be so disregarded.
Notwithstanding the foregoing, Bonds so owned which have been pledged in good
faith shall not be disregarded as aforesaid if the pledgee establishes to the
satisfaction of the Bondowners the pledgees right so to act with respect to
such Bonds and that the pledgee is not the City.
Section 1205. Further
Authority. The officers of the City, including the Mayor and the City
Clerk, shall be, and they hereby are, authorized and directed to execute all
documents and take such actions as they deem necessary or advisable in order to
carry out and perform the purposes of this Ordinance and to make ministerial
alterations, changes or additions in the foregoing agreements, statements,
instruments and other documents herein approved, authorized and confirmed which
they may approve and the execution or taking of such action shall be conclusive
evidence of such necessity or advisability.
Section 1206. Continuing
Disclosure. The City covenants and agrees to enter into a Continuing Disclosure
Agreement for the benefit of the Bondholders or similar undertaking intended to
satisfy the ongoing disclosure requirements of Securities and Exchange
Commission Rule 15c2-12. The Director of Finance is authorized to enter in a
Continuing Disclosure Agreement substantially in the form on file with the
office of the Director of Finance, with such changes therein as she deems
necessary or desirable.
Section 1207. Severability.
If any section or other part of this Ordinance, whether large or small, is for
any reason held invalid, the invalidity thereof shall not affect the other
provisions of this Ordinance.
Section
1208. Electronic Storage. The City agrees that the transaction
described herein may be conducted and related documents may be stored by
electronic means.
Section 1209. Governing
Law. This Ordinance shall be governed exclusively by and construed in
accordance with the applicable laws of the State.
______________________________________________
Approved as to
form and legality:
_____________________________
Heather A.
Brown
Assistant City Attorney