Section 107-399; Ord. 19094; Authorizing the issuance of $25,615,000 principal amount of Special Obligation Revenue Refunding and Improvement Bonds, Series 2006B of the City of Columbia, Missouri
authorizing the issuance of $25,615,000 * principal amount of Special Obligation Revenue Refunding and Improvement Bonds, Series 2006B of the City of Columbia, Missouri; prescribing the form and details of said 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; and fixing the time when this ordinance shall become effective.
WHEREAS, the City of Columbia, Missouri (the City), is a municipal corporation and political subdivision duly organized and existing under the laws of the State of Missouri and its charter;
WHEREAS, the City, proceeding under the authority of applicable law, held a special election on November 8, 2005 (the Capital Improvement Sales Tax Authorization), for the purpose of submitting to the qualified electors of said City propositions to authorize the imposition of various capital improvement sales taxes (the Sales Taxes) for the purpose of paying the cost of constructing, expanding, improving, repairing, replacing and equipping various capital improvements projects; and
WHEREAS, it was found and determined that more than a majority of the qualified voters of the City voting on such propositions voted in favor of such Capital Improvement Sales Tax Authorization; and
WHEREAS, it is hereby found and determined that it is necessary and advisable and in the best interest of the City and of its inhabitants that Special Obligation Revenue Refunding and Improvement Bonds (the Bonds) be issued and secured in the form and manner as hereinafter provided to provide funds of to construct, extend, expand, improve, repair, replace and equip various capital improvements projects as described in this Ordinance (the Project);
WHEREAS, the City, proceeding under authority of applicable law, issued its Certificates of Participation (City of Columbia, Missouri, Lessee) Series 2001A which remain outstanding in the principal amount of Two Million Eighty-Five Thousand dollars ($2,085,000) (the Prior 2001 Obligations); and
WHEREAS, the Prior 2001 Obligations were issued pursuant to a Trust Indenture, dated as of May 1, 2001 (the Prior 2001 Indenture) between the City and Paying Agent, as Trustee (the Prior 2001 Trustee) as authorized by Ordinance No. 016910 adopted by the City Council of the City on May 21, 2001; and
WHEREAS, the City desires to refund the Prior 2001 Obligations in order to achieve certain debt service savings and to release the City from certain restrictive and burdensome covenants and restrictions imposed by the Prior 2001 Indenture; and
NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF COLUMBIA, MISSOURI, AS FOLLOWS:
Section 101. Definitions of Words and Terms.
In addition to words and terms defined elsewhere herein, the following capitalized words and terms as used in this Ordinance shall have the following meanings:
Act means the City s Charter and the Constitution and laws of the State of Missouri, including particularly Section 27 of Article VI of the Constitution of Missouri.
Beneficial Owner means any person for which a Participant acquires an interest in any Bond.
Bond Counsel means Sonnenschein Nath & Rosenthal LLP, St. Louis, Missouri, or other attorney or firm of attorneys with a nationally recognized standing in the field of municipal bond financing selected by the City.
Bond Insurance Policy means the financial guaranty insurance policy issued by Bond Insurer insuring the payment when due of the principal of and interest on the Bonds as provided therein..
Bond Insurer means Ambac Assurance Corporation, a Wisconsin domiciled stock insurance company, and its successors and assigns.
Bond Payment Date means any date on which principal of or interest on any Bond is payable at the Maturity thereof or on any Interest Payment Date.
Bond Register means the books for the registration, transfer and exchange of Bonds kept by the Paying Agent.
Bond Year means a one year period beginning February 1 of each year and ending on January
31 of the next succeeding year.
Bondowner, Owner 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 Special Obligation Revenue Refunding and Improvement Bonds, Series 2006B, of the City, in the aggregate principal amount of $25,615,000, authorized and issued pursuant to this Ordinance.
Business Day means a day other than a Saturday, Sunday or holiday on which the Paying Agent shall be scheduled in the normal course of its operations to be open to the public for conduct of its banking operations.
Calculation Date means the Business Day immediately preceding February 1 of each year.
Cede & Co. means Cede & Co., the nominee of DTC, and any successor nominee of DTC with respect to the Bonds.
City means the City of Columbia, Missouri, and any successors and assigns.
City Council means the City Council of the City.
Code means the Internal Revenue Code of 1986, as amended, or any corresponding applicable provisions of succeeding law, and the applicable temporary, proposed and final regulations relating thereto.
Continuing Disclosure Certificate shall mean that certain Continuing Disclosure Certificate executed by the City and dated as of June 29, 2006, as originally executed and as it may be amended from time to time in accordance with the terms thereof.
Debt Service Account means the account by that name created by Section 401 hereof.
Debt Service Requirements means the aggregate principal payments and interest payments on the 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 deposited in trust, escrowed or otherwise set aside for the payment thereof with a trustee, paying agent or another Person approved by the City.
Debt Service Reserve Account means the account by that name created by Section 401 hereof.
Debt Service Reserve Requirement means the sum of $2,561,500.
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:
(b) U.S. Treasury Certificates, Notes and Bonds (including State and Local Governmenteries SLGs);
(c) Direct obligations of the Treasury which have been stripped by the Treasury itself, CATS, TIGRS and similar securities;
(d) Resolution Funding Corp. (REFCORP). Only the interest component of REFCORP strips which have been stripped by request to the Federal Reserve Bank of New York in book-entry form are acceptable;
(e) Pre-refunded municipal bonds rated Aaa by Moody s and AAA by S&P. If however, the issue is only rated by S&P ( i.e., there is no Moody s rating), then the pre-Prior 2001 Obligations must have been pre-refunded with cash, direct U.S. or U.S. guaranteed obligations, or AAA-rated pre-refunded municipals to satisfy this condition;
(f) Obligations issued by the following agencies which are backed by the full faith and credit of the U.S.:
(1) U.S. Export-Import Bank (Eximbank): Direct obligations or fully guaranteed certificates of beneficial ownership
(2) Farmers Home Administration (FmHA): Certificates of beneficial ownership
(3) Federal Financing Bank
(4) General Services Administration: Participation certificates
(5) U.S. Maritime Administration: Guaranteed Title XI financing
(6) U.S. Department of Housing and Urban Development (HUD):
U.S. Public Housing Notes and Bonds U.S. government guaranteed public housing notes and bonds
Dissemination Agent means First Bank of Missouri and any successor or assigns.
DTC means The Depository Trust Company of New York, New York.
Escrow Agent means First Bank of Missouri, Gladstone, Missouri, and any successors or assigns.
Escrow Agreement means the Escrow Trust Agreement dated as of June 29, 2006, between the City and the Escrow Agent.
Escrow Fund means the fund by that name established by the Escrow Agreement and referred to in Section 401 hereof.
Escrowed Securities means the investment securities as described in the Escrow Agreement.
Financial Advisor means, A.G. Edwards & Sons, Inc., St. Louis, Missouri.
Fiscal Year means the fiscal year of the City, currently the twelve-month period beginning October 1 and ending September 30.
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, whether at stated maturity or by call for redemption or otherwise, as therein and herein provided.
Ordinance means this Ordinance as from time to time amended in accordance with the terms hereof.
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 cancelled 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 1001 hereof; and
(c) Bonds in exchange for or in lieu of which other Bonds have been registered and delivered hereunder.
Participant means any broker-dealer, bank or other financial institution for which DTC holds Bonds as securities depository.
Participating Underwriter shall have the meaning ascribed thereto in the Continuing Disclosure Certificate.
Paying Agent means First Bank of Missouri, Gladstone, Missouri, and any successors and assigns.
Permitted Investments means any of the following securities and obligations, if and to the extent the same are at the time legal for investment of the City s funds:
(d) Defeasance Obligation,
(e) Bonds, debentures, notes or other evidence of indebtedness issued or guaranteed by any of the following non-full faith and credit U.S. government agencies (stripped securities are only permitted if they have been stripped by the agency itself):
(1) Federal Home Loan Bank System: Senior debt obligations
(2) Federal Home Loan Mortgage Corporation (FHLMC or Freddie Mae):
Senior debt obligations
(3) Federal National Mortgage Association (FNMA or Fannie Mae):
Mortgage-backed securities and senior debt obligations
(4) Student Loan Marketing Association (SLMA or Sallie Mae):
Senior debt obligations
(5) Resolution Funding Corporation (REFCORP): obligations
(6) Farm Credit System: Consolidated systemwide bonds and notes
(f) Money market funds registered under the Federal Investment Company Act of 1940, whose shares are registered under the Federal Securities Act of 1933, and having a rating by Standard & Poor s of AAAm-G; AAAm; or Aam and if rated by Moody s, rated Aaa, Aa1 or Aa2.
(g) Certificates of deposit secured at all times by collateral described in (a) and/or (b) above. Such certificates must be issued by commercial banks, savings and loan associations or mutual savings banks. The collateral must be held by a third party and the Trustee must have a perfected first security interest in the collateral.
(h) Certificates of deposit, savings accounts, deposit accounts or money market deposits which are fully insured by FDIC, including BIF and SAIF.
(i) Investment Agreements, including GIC s, Forward Purchase Agreements and Reserve Fund Put Agreements acceptable to the Bond Insurer.
(j) Commercial paper rated, at the time of purchase, Prime - 1 by Moody s and A-1 or better by Standard & Poor s.
(k) Bonds or notes issued by any state or municipality which are rated by Moody s and Standard & Poor s in one of the two highest rating categories assigned by such agencies.
(l) Federal funds or bankers acceptances with a maximum term of one year of any bank which has an unsecured, uninsured and unguaranteed obligation rating of Prime - 1 or A3 or better by Moody s and A-1 or A or better by Standard & Poor s.
(m) Repurchase agreements provide for the transfer of securities from a dealer bank or securities firm (seller/borrower) to a municipal entity (buyer/lender), and the transfer of cash from a municipal entity to the dealer bank or securities firm with an agreement that the dealer bank or securities firm will repay the cash plus a yield to the municipal entity in exchange for the securities at a specific date. Repurchase Agreements which exceed 30 days must be acceptable to the Bond Insurer. Repurchase Agreements for 30 days which satisfy follow the following criteria:
(1) Repos must be between the municipal entity and a dealer bank or securities firm
· Primary dealers on the Federal Reserve reporting dealer list which are rated A or better by Standard & Poor s Corporation and Moody s Investor Services, or
· Banks rated A or above by Standard & Poor s Corporation and Moody s Investor Services.
(2) The written repo contract must include the following:
· Securities which are acceptable for transfer are: (i) Direct U.S. governments, or (ii) Federal agencies backed by the full faith and credit of the U.S. government (and FNMA & FHLMC)
· The term of the repo may be up to 30 days
· The collateral must be delivered to the municipal entity, trustee (if trustee is not supplying the collateral) or third party acting as agent for the trustee (if the trustee is supplying the collateral) before/simultaneous with payment (perfection by possession of certificated securities)
· Valuation of Collateral: The securities must be valued weekly, marked-to-market at current market price plus accrued interest. The value of collateral must be equal to 104% of the amount of cash transferred by the municipal entity to the dealer bank or security firm under the repo plus accrued interest. If the value of securities held as collateral slips below 104% of the value of cash transferred by municipality, then additional cash and/or acceptable securities must be transferred. If, however, the securities used as collateral are FNMA or FHLMC, then the value of collateral must equal 105%.
· Legal opinion which must be delivered to the municipal entity: Repo meets guidelines under state law for legal investment of public funds.
(n) Such other investments as are approved in writing by the Bond Insurer.
Person means any natural person, corporation, partnership, firms joint venture, association, joint-stock company, trust, unincorporated organization, or government or any agency or political subdivision thereof or other public body.
Prior 2001 Obligations means the Prior 2001 Obligations as more fully described in the Recitals hereto.
Prior 2001 Trustee means Paying Agent, a state banking corporation organized and existing under the laws of the State of Missouri, with a corporate trust office located in Gladstone, Missouri and its successors or assigns.
Prior 2001 Indenture means the Trust Indenture dated as of May 1, 2001 between the City and the Prior 2001 Trustee which secures the Prior 2001 Obligations..
Project Account means the fund by that name created by Section 401 hereof.
Purchaser means, Banc of America Securities LLC, Charlotte, North Carolina, the original purchaser of the Bonds.
Rebate Fund means the fund by that name created in Section 401 hereof.
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.
Representation Letter means any applicable Representation Letter from the City or the Paying Agent to DTC with respect to the Bonds.
Special Record Date means the date fixed by the Paying Agent pursuant to Section 204 hereof for the payment of Defaulted Interest.
State means the State of Missouri.
Stated Maturity when used with respect to any Bond or any installment of interest thereon means the date specified in such Bond and this Ordinance as the fixed date on which the principal of such Bond or such installment of interest is due and payable.
United States Government Obligations means direct obligations of, or obligations the timely payment of the principal and interest of which are fully and unconditionally guaranteed by, the United States of America, including evidences of a direct ownership interest in future interest or principal payments on obligations issued or guaranteed by the United States of America, or securities which represent an undivided interest in such obligations or securities to the extent that the Treasury of the United States of America is ultimately responsible for payment thereof, such as stripped interest components of obligations of the Resolution Funding Corporation (established by Section 511 of the Financial Institutions Reform, Recovery and Enforcement Act of 1989, P.L. 101.73), its successors and assigns, which were stripped by the Federal Reserve Bank.
Tax Regulatory Agreement means the Tax Regulatory Agreement dated as of the date of issuance of the Bonds, between the City and the Paying Agent, as amended and supplemented in accordance with the provisions thereof.
AUTHORIZATION OF BONDS
Section 201. Authorization of Bonds
. There is hereby authorized and directed to be issued a series of bonds of the City, designated Special Obligation Revenue Refunding and Improvement Bonds, Series 2006B, in the principal amount of $25,615,000 (the Series 2006B Bonds or the Bonds) for the financing the cost of certain capital improvements within the City, refunding of the Prior 2001 Obligations, making a deposit to the Debt Service Reserve Account, and paying costs and expenses incident to issuance of the Bonds.
Section 202. Description of Bonds
. The Bonds shall consist of fully registered bonds without coupons in denominations of $5,000 or any integral multiple thereof, numbered from R-1 consecutively upward. The Bonds shall be substantially in the form set forth in Exhibit B attached hereto, and shall be subject to registration, transfer and exchange as provided in Section 205 hereof. The Bonds shall be dated their date of issuance and delivery, shall become due on the following Stated Maturity dates and shall bear interest at the rates per annum, as follows:
The Bonds shall bear interest at the above-specified rates (computed on the basis of a 360-day year of twelve 30-day months) from the date thereof or from the most recent Interest Payment Date to which interest has been paid or duly provided for, payable semiannually on February 1 and August 1 in each year, beginning on August 1, 2006.
Each of the Bonds, as originally issued or issued upon transfer, exchange or substitution, shall be in substantially the form set forth in Exhibit B attached hereto.
Section 203. Designation of Paying Agent
. First Bank of Missouri in the City of Gladstone, Missouri, is hereby designated as the City s 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 (herein called the Paying Agent).
The City will at all times 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 to perform the duties of paying agent and bond registrar 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 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 a commercial banking association or corporation or trust company located in the State of Missouri organized and doing business under the laws of the United States of America or of the State of Missouri, authorized under such laws to exercise trust powers and subject to supervision or examination by federal or state regulatory authority.
The Paying Agent shall be paid its fees for its services in connection therewith, which fees shall be paid as other expenses are paid.
Section 204. Method and Place of Payment of Bonds
. The principal 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 of each Bond shall be paid at Maturity to the Person in whose name such Bond is registered on the Bond Register at the Maturity thereof, upon presentation and surrender of such Bond at the principal payment office of the Paying Agent.
The interest payable on each Bond on any Interest Payment Date shall be paid to the Person in whose name such Bond is registered on the Bond Register at the close of business on the Record Date for such interest (a) by check or draft mailed by the Paying Agent to such Registered Owner at the address shown on the Bond Register or (b) at such other address as is furnished to the Paying Agent in writing by such Registered Owner or (c) in the case of an interest payment to any Owner of $100,000 or more in aggregate principal amount of Bonds, by wire transfer to such Registered Owner upon written notice signed by such Registered Owner and given to the Paying Agent, not less than 15 days prior to the Record Date for such interest, containing the wire transfer address (which shall be in the continental United States) to which such Registered Owner wishes to have such wire directed.
Notwithstanding the foregoing provisions of this Section, any Defaulted Interest with respect to any Bond shall cease to be payable to the Owner of such Bond on the relevant Record Date and shall be payable to the Owner in whose name such Bond is registered at the close of business on the Special Record Date for the payment of such Defaulted Interest, which Special Record Date shall be fixed as hereinafter specified in this paragraph. The City shall notify the Paying Agent in writing of the amount of Defaulted Interest proposed to be paid on each Bond and the date of the proposed payment (which date shall be at least 30 days after receipt of such notice by the Paying Agent) and shall deposit with the Paying Agent at the time of such notice an amount of money equal to the aggregate amount proposed 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. 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 Owner of a Bond entitled to such notice at the address of such 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 of and interest on all Bonds and shall at least annually forward a copy or summary of such records to the City.
Section 205. 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 office of the Paying Agent for the registration, transfer and exchange of Bonds as herein provided. Each Bond when issued shall be registered in the name of the Owner thereof on the Bond Register kept by the Paying Agent.
Bonds may be transferred and exchanged only on the Bond Register maintained by the Paying Agent as provided in this Section. Upon surrender of any Bond at the principal payment office of the Paying Agent, the Paying Agent shall transfer or exchange such Bond for a new Bond or Bonds in any authorized denomination 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 Owner s duly authorized agent. All Bonds presented for transfer or exchange shall be surrendered to the Paying Agent for cancellation.
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 correct 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 to register the transfer or exchange 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 Section 204 hereof.
The City and the Paying Agent may deem and treat the Person in whose name any Bond shall be registered in the Bond Register as the absolute owner of such Bond, whether such Bond shall be overdue or not, for the purpose of receiving payment of, or on account of, the principal of and interest on said Bond and for all other purposes. All payments so made to any such Registered Owner or upon the Registered Owner s 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 Owners (or a designated representative thereof) of 10% or more in principal amount of the Bonds then Outstanding or any designated representative of such Owners whose authority is to be evidenced to the satisfaction of the Paying Agent.
Section 206. Execution, Authentication and Delivery of Bonds
. Each of the Bonds, including any Bonds issued in exchange or as substitution for the Bonds initially delivered, shall be signed by the manual or facsimile signature of the Mayor, attested by the manual or facsimile signature of the City Clerk, and countersigned by the manual or facsimile signature of the Director of Finance of the City, and shall have the official seal of the City affixed thereto or imprinted thereon. In case any officer whose signature appears on any Bonds shall cease to be such officer before the delivery of such Bonds, such signature shall nevertheless be valid and sufficient for all purposes, as if such person had remained in office until delivery. Any Bond may be signed by such persons who at the actual time of the execution of such Bond shall be the proper officers to sign such Bond although at the date of such Bond such persons may not have been such officers.
The Mayor, City Clerk and 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 and delivery to the Underwriter in exchange for the purchase price thereof in an amount equal to $26,740,888.45, which is the principal amount of the Bonds plus premium of $1,125,888.45 and less discount of $-0-.
The Bonds shall have endorsed thereon a certificate of authentication substantially in the form set forth in Exhibit B attached hereto, which shall be manually executed by an authorized signatory of the Paying Agent, but it shall not be necessary that the same signatory 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 be valid or obligatory for any purpose unless and until such certificate of authentication shall have been duly executed by the Paying Agent. Such executed certificate of authentication upon any Bond shall be conclusive evidence that such Bond has been duly authenticated and delivered under this Ordinance. Upon authentication, the Paying Agent shall deliver the Bonds to the Purchaser of the Bonds, upon payment of the purchase price thereof.
Section 207. Mutilated, Destroyed, Lost and Stolen Bonds
. If (a) any mutilated Bond is surrendered to the Paying Agent, or the City and the Paying Agent receive evidence to their satisfaction of the mutilation, destruction, loss or theft of any Bond, and (b) there is delivered to the City and the Paying Agent such security or indemnity as may be required by the Paying Agent to save each of them harmless, then, in the absence of notice to the City and the Paying Agent that such Bond has been acquired by a bona fide purchaser, the City shall execute and, upon the City s request, the Paying Agent shall authenticate and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or stolen Bond, a new Bond of the same Stated Maturity and of like tenor and principal amount.
In case any such mutilated, destroyed, lost or stolen Bond has become or is about to become due and payable, the Paying Agent, in its discretion may pay such Bond instead of delivering a new Bond.
Upon the issuance of any new Bond under this Section, the City may require the payment by the Registered Owner of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Paying Agent) connected therewith.
Every new Bond issued pursuant to this Section shall constitute a replacement of the prior obligation of the City, and shall be entitled to all the benefits of this Ordinance equally and ratably with all other Outstanding Bonds.
Section 208. 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 and surrender thereof to the Paying Agent and subsequently destroyed in accordance with the customary practices of the Paying Agent. The Paying Agent shall execute a certificate in duplicate describing the Bonds so cancelled and destroyed and shall file an executed counterpart of such certificate with the City.
Section 209. Securities Depository
. The Bonds shall be initially issued as separately authenticated fully registered bonds, and one Bond shall be issued in the principal amount of each stated maturity of the Bonds. Upon initial issuance, the ownership of such Bonds shall be registered in the Bond Register in the name of Cede & Co., as nominee of DTC. The Paying Agent and the City may treat DTC (or its nominee) as the sole and exclusive Owner of the Bonds registered in its name for the purposes of payment of the principal of, premium, if any, or interest on the Bonds, selecting the Bonds or portions thereof to be redeemed, giving any notice permitted or required to be given to Owners of Bonds under this Ordinance, registering the transfer of Bonds, and for all other purposes whatsoever; and neither the Paying Agent nor the City shall have any responsibility or obligation to any Participant, any person claiming a beneficial ownership interest in the Bonds under or through DTC or any Participant, or any other person which is not shown on the Bond Register as being a Owner of any Bonds, with respect to the accuracy of any records maintained by DTC or any Participant, with respect to the payment by DTC or any Participant of any amount with respect to the principal of, premium, if any, or interest on the Bonds, with respect to any notice which is permitted or required to be given to Owners of Bonds under this Ordinance, with respect to the selection by DTC or any Participant of any person to receive payment in the event of a partial redemption of the Bonds, or with respect to any consent given or other action taken by DTC as the Owner of the Bonds. So long as any Bond is registered in the name of Cede & Co., as nominee of DTC, the Paying Agent shall pay all principal of, premium, if any, and interest on such Bonds, and shall give all notices with respect to such Bonds, only to Cede & Co. in accordance with the Representation Letter, and all such payments shall be valid and effective to fully satisfy and discharge the City s obligations with respect to the principal of, premium, if any, and interest on the Bonds to the extent of the sum or sums so paid. No person other than DTC, or the Paying Agent on behalf of DTC, shall receive an authenticated Bond for each separate stated maturity evidencing the obligation of the City to make payments of principal and interest. 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 Bonds will be transferable to such new nominee in accordance with paragraph (d) hereof.
(a) In the event the City determines that it is in the best interest of the Beneficial Owners that they be able to obtain Bond certificates, the City may notify DTC and the Paying Agent, whereupon DTC shall notify the Participants of the availability through DTC of Bond certificates. In such event, the Bonds will be transferable in accordance with paragraph (d) hereof. DTC may determine to discontinue providing its services with respect to the Bonds at any time by giving notice to the City and the Paying Agent and discharging its responsibilities with respect thereto under applicable law. In such event, the Bonds will be transferable in accordance with paragraph (d) hereof. The City and the Paying Agent shall be entitled to rely conclusively on the information provided to each of them by DTC and its Participants as to the names of the beneficial owners of the Bonds.
(b) The execution and delivery of the Representation Letter to DTC by the City Manager, Director of Finance, City Clerk or other authorized officer of the City, in the form presented to the City Council of the City herewith, with such changes, omissions, insertions and revisions as the officers of the City signing such Representation Letter shall deem advisable, is hereby authorized, and execution of the Representation Letter by such officers of the City shall be conclusive evidence of such approval. The Representation Letter shall set forth certain matters with respect to, among other things, notices, consents and approvals by Owners of the Bonds and Beneficial Owners and payments on the Bonds. The Paying Agent shall have the same rights with respect to its actions thereunder as it has with respect to its actions under this Ordinance.
(c) In the event that any transfer or exchange of Bonds is permitted under paragraph (a) or (b) hereof, such transfer or exchange shall be accomplished upon receipt by the Paying Agent of the Bonds to be transferred or exchanged and appropriate instruments of transfer to the permitted transferee in accordance with the provisions of this Ordinance. In the event Bond certificates are issued to holders other than Cede & Co., or its successor as nominee for DTC as holder of all of the Bonds, the provisions of this Ordinance shall also apply to all matters relating thereto, including, without limitation, the printing of such certificates and the method of payment of principal of and interest on such certificates.
REDEMPTION OF BONDS
Section 301. Redemption of Bonds
. The Series 2006B Bonds are not subject to redemption and payment prior to their Stated Maturity.
FUNDS AND ACCOUNTS
Section 401. Establishment of Funds and Accounts
. There are hereby created and ordered to be established and maintained in the treasury of the City (except for Escrow Fund to be maintained by the Escrow Agent) the following separate funds and accounts to be known respectively as the:
(a) Project Account for Special Obligation Revenue Refunding and Improvement Bonds, Series 2006B (the Project Account) including a Public Safety Project Subaccount and a Street and Sidewalk Project Subaccount.
(b) Debt Service Account for Special Obligation Revenue Refunding and Improvement Bonds, Series 2006B (the Debt Service Account).
(c) Debt Service Reserve Account for Special Obligation Revenue Refunding and Improvement Bonds, Series 2006B (the Debt Service Reserve Account).
(d) Rebate Fund for Special Obligation Revenue Refunding and Improvement Bonds, Series 2006B (the Rebate Fund).
(e) Escrow Fund for the Prior 2001 Obligations in the custody of the Escrow Agent pursuant to the provisions of the Escrow Agreement (the Escrow Fund).
Section 402. Administration of Funds and Accounts
. The funds and accounts referred to in paragraphs (a) through (d) of Section 401 hereof shall be maintained and administered by the City or the Paying Agent, as the case may be, solely for the purposes and in the manner as provided in this Ordinance so long as any of the Bonds remain outstanding within the meaning of this Ordinance. The Director of Finance of the City may allocate such funds and accounts on the books and records of the City as deemed necessary or desirable to reflect the sources of revenues and projects to be funded from the Bonds. The funds and accounts referred to in paragraph (e) of Section 401 hereof shall be maintained and administered by the Escrow Agent solely for the purposes and in the manner as provided in the Escrow Agreement.
APPLICATION OF BOND PROCEEDS
Section 501. Deposit of Bond Proceeds
. The net proceeds received from the sale of the Bonds, including any premium or accrued interest thereon, and certain other available moneys of the City, shall be deposited simultaneously with the delivery of the Bonds, as follows:
(a) There shall be deposited in the Debt Service Account any premium on the Series 2006B Bonds and any amount received on account of accrued interest on the Series 2006B Bonds, to be applied in accordance with Section 603(a) hereof.
(b) There shall be deposited in the Debt Service Reserve Account the sum of $2,561,500.00 from the proceeds of the Series 2006B Bonds and other available moneys of the City.
(c) There shall be deposited in the Escrow Fund the sum of $2,180,799.00 from the proceeds of the Series 2006B Bonds and other available funds of the City, to be applied in accordance with the provisions of the Escrow Agreement.
(d) There shall be deposited in the Project Account the sum of $22,021,650.75 from the proceeds of the Series 2006B Bonds and $1,273,476.45 from other funds of the City, to be applied in accordance with Section 503 hereof.
Section 502. Application of Moneys in the Escrow Fund
. Moneys and Escrowed Securities in the Escrow Fund shall be used solely for the purpose of paying the debt service on the Prior 2001 Obligations in accordance with the provisions of the Escrow Agreement.
Section 503. Application of Moneys in the Project Account.
(a) Moneys in the Public Safety Project Subaccount of the Project Account shall be used solely for the purpose of (a) paying the cost of purchasing and constructing capital improvements for the City s Public Safety Project in accordance with the plans and specifications therefor prepared by the City, including any alterations in or amendments to said plans and specifications deemed advisable and approved by the City Council of the City, and (b) for paying the costs and expenses incident to the issuance of the Bonds. Upon completion of the capital improvements, any surplus moneys remaining in such subaccount and not required for the payment of unpaid costs thereof shall be deposited in the Debt Service Account.
(b) Moneys in the Street and Sidewalk Project Subaccount of the Project Account shall be used solely for the purpose of (a) paying the cost of purchasing and constructing capital improvements for the City s Street and Sidewalk Project in accordance with the plans and specifications therefor prepared by the City, including any alterations in or amendments to said plans and specifications deemed advisable and approved by the City Council of the City, and (b) for paying the costs and expenses incident to the issuance of the Bonds. Upon completion of the capital improvements, any surplus moneys remaining in such subaccount and not required for the payment of unpaid costs thereof shall be deposited in the Debt Service Account.
APPLICATION OF ANNUAL APPROPRIATIONS
Section 601. Security for Bonds
. The Bonds shall be special obligations of the City payable solely from the annual appropriation of funds by the City for that purpose. The obligation of the City to make payments into the Debt Service Account, the Debt Service Reserve Account and any other obligations of the City to make payments under this Ordinance do not constitute a general obligation or indebtedness of the City for which the City is obligated to levy or pledge any form of taxation, or for which the City has levied or pledged any form of taxation and shall not be construed to be a debt of the City in contravention of any applicable constitutional, statutory or charter limitation or requirement, but in each Fiscal Year shall be payable solely from the amounts appropriated therefor (i) out of the income and revenues provided for such year plus (ii) any unencumbered balances for previous years. Subject to the preceding sentence, the obligations of the City to make payments hereunder and to perform and observe any other covenant and agreement contained herein shall be absolute and unconditional. The City does not pledge its full faith and credit and is not obligated to levy taxes or resort to any other moneys of the City to pay the principal and interest on the Bonds.
Section 602. Covenant to Request Appropriations
. The City Council hereby directs that from and after delivery of the Bonds and so long as any of the Bonds remain outstanding, subject to Section 601 hereof, the City s City Manager or any other officer of the City at any time charged with the responsibility of formulating budget proposals (i) to include in each annual budget prepared and filed as provided in Section 801 hereof an appropriation of the amount necessary (after taking into account any moneys legally available for such purpose) to pay debt service on the Bonds in the next succeeding Fiscal Year, and (ii) to take such further action (or cause the same to be taken) as may be necessary or desirable to assure the availability of moneys appropriated to pay such debt service on the Bonds in the next succeeding Fiscal Year.
Section 603. Application of Moneys in Funds and Accounts
. The City covenants and agrees that from and after the delivery of the Bonds and continuing so long as any of the Bonds shall remain Outstanding, it will on the day before the first day of each February and August administer and allocate all of the moneys then held and appropriated for payment of the Bonds as follows:
(a) Debt Service Account. There shall be paid and credited semiannually to the Debt Service Account, such an amount as is necessary to meet on each Bond Payment Date the payment of all interest on and principal of the Series 2006B Bonds. All amounts paid and credited to the Debt Service Account shall be expended and used by the City for the sole purpose of paying the interest on and principal of the respective series of Bonds to which such account relates, as and when the same become due at Maturity and on each Interest Payment Date.
(b) Debt Service Reserve Account. The City shall deposit to the Debt Service Reserve Account from funds available to the City the amount required so that such Account shall aggregate the Debt Service Reserve Requirement with respect to such account provided, further, that investments of moneys in each Debt Service Reserve Account (other than investment agreements, which permit the withdrawal of Debt Service Reserve Account moneys without penalty and which permit the reinvestment of Debt Service Reserve Account moneys at the same investment rate as those withdrawn) shall have a term to maturity not greater than five years from the date of purchase unless the Bond Insurer shall otherwise consent. Except as hereinafter provided in this section, all amounts paid and credited to the Debt Service Reserve Account shall be expended and used by the City solely to prevent any default in the payment of interest on or principal of the Series 2006B Bonds on any Maturity date or Interest Payment Date if the moneys in the Debt Service Account are insufficient to pay the interest on or principal of said Series 2006B Bonds as they become due. So long as a Debt Service Reserve Account aggregates the Debt Service Reserve Requirement with respect to such account, no further payments into said account shall be required, but if the City shall ever be required to expend and use a part of the moneys in said account for the purpose herein authorized and such expenditure shall reduce the amount of said account below the Debt Service Reserve Requirement with respect to such account, the City shall immediately make payments into said account until said account shall again aggregate the Debt Service Reserve Requirement with respect to such account, from moneys available as provided in Section 601 hereof.
The City may provide, in lieu of any amounts required to be on deposit in the Debt Service Reserve Account, a bond insurance policy in favor of the Paying Agent issued by an insurance company rated AAA or its equivalent by one of the Rating Agencies and sufficient, to provide to the Bondowners the amounts which would otherwise have been on deposit in such Debt Service Reserve Account at the times the Bondowners would have otherwise received such amounts.
Moneys in the Debt Service Reserve Account shall be used to pay and retire the last Outstanding Series 2006B Bonds unless such Series 2006B Bonds and all interest thereon are otherwise paid. Any amounts in the Debt Service Reserve Account in excess of the Debt Service Reserve Requirement with respect to such account on any Calculation Date shall be transferred to the Debt Service Account and applied to payment of principal of and interest on the Series 2006B Bonds due and payable on the next Bond Payment Date.
Section 604. Transfer of Funds to Paying Agent
. The Director of Finance of the City is hereby authorized and directed to withdraw from the respective Debt Service Account, and, to the extent necessary to prevent a default in the payment of either principal of or interest on each series of the Bonds, from the Debt Service Reserve Account with respect to such series, as provided in Section 603 hereof, sums sufficient to pay the principal of and interest on the related series of the Bonds as and when the same become due at Maturity or on any Interest Payment Date, and to forward such sums to the Paying Agent in a manner which ensures the Paying Agent will have available funds in such amounts on or before the Business Day immediately preceding the dates when such principal and interest will become due. If, through lapse of time, or otherwise, the Owners of Bonds shall no longer be entitled to enforce payment of their obligations, it shall be the duty of the Paying Agent forthwith to return said funds to the City. All moneys deposited with the Paying Agent shall be deemed to be deposited in accordance with and subject to all of the provisions contained in this Ordinance.
Section 605. Payments Due on Saturdays, Sundays and Holidays
. In any case where an Interest Payment Date or Maturity Date is not a Business Day, then payment of principal or interest need not be made on such date but may be made on the next succeeding Business Day with the same force and effect as if made on an Interest Payment Date or Maturity Date, and no interest shall accrue for the period after such date.
Section 606. Nonpresentment of Bonds
. In the event any Bond shall not be presented for payment when the principal thereof becomes due, if funds sufficient to pay such Bond shall have been made available to the Paying Agent all liability of the City to the 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 fund or funds, without liability for interest thereon, for the benefit of the Owner of such Bond, who shall thereafter be restricted exclusively to such fund or funds for any claim of whatever nature on his part under this Ordinance or on, or with respect to, said Bond. If any Bond shall not be presented for payment within four years following the date when such Bond becomes due, whether by maturity or otherwise, the Paying Agent shall repay to the City without liability for interest thereon 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 Owner thereof shall be entitled to look only to the City for 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 607. 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 Regulatory Agreement. All money at any time deposited in the Rebate Fund shall be held in trust, to the extent required to satisfy the Rebate Amount (as defined in the Tax Regulatory 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 and the Tax Regulatory Agreement.
(b) The City shall periodically determine the rebatable arbitrage under Section 148(f) of the Code in accordance with the Tax Regulatory Agreement, and the City shall make payments to the United States Government at the times and in the amounts determined under the Tax Regulatory 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 X hereof, the obligation to pay rebatable arbitrage to the United States and to comply with all other requirements of this Section and the Tax Regulatory Agreement shall survive the defeasance or payment in full of the Bonds.
DEPOSIT AND INVESTMENT OF MONEYS
Section 701. Investment of Moneys
. Moneys held in any fund or account referred to in this Ordinance (other than the Escrow Fund) may be invested 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. All earnings on any investments held in any fund or account shall accrue to and become a part of such fund or account. All earnings on investments held in each of the Debt Service Reserve Account shall accrue to and become a part of such account until the amount on deposit in such account shall aggregate the Debt Service Reserve Requirement with respect to such account; thereafter, all such earnings shall be credited to the Debt Service Account related to the respective series of the Bonds. In determining the amount held in any fund or account under any of the provisions of this Ordinance, obligations shall be valued at the lower of the cost or the market value thereof; provided, however, that investments held in each of the Debt Service Reserve Account shall be valued at cost only. The Paying Agent shall value the obligations held in each fund or account on each Bond Payment Date and 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 shall direct that such excess be paid and credited to the respective Debt Service Account.
GENERAL COVENANTS AND PROVISIONS
The City covenants and agrees with each of the Owners of any of the Bonds that so long as any of the Bonds remain Outstanding and unpaid it will comply with each of the following covenants:
Section 801. Annual Budget
. Prior to the commencement of each Fiscal Year, the City will cause to be prepared and filed with the City Clerk a budget setting forth the estimated receipts and expenditures of the City for the next succeeding Fiscal Year. Said annual budget shall be prepared in accordance with the requirements of the laws of Missouri and shall contain all information as shall be required by such laws.
Section 802. Annual Audit
. Annually, promptly after the end of the Fiscal Year, the City will cause an audit to be made of the City s operations for the preceding Fiscal Year by a certified public accountant or firm of certified public accountants to be employed for that purpose and paid by the City. Said annual audit shall cover in reasonable detail the operation of the City during such Fiscal Year.
Within 30 days after the completion of each such audit, a copy thereof shall be filed in the office of the City Clerk. Such audits shall at all times during the usual business hours be open to the examination and inspection by any taxpayer, any Owner of any of the Bonds, or by anyone acting for or on behalf of such taxpayer or Owner.
As soon as possible after the completion of such annual audit, the governing body of the City shall review such audit, and if any audit shall disclose that proper provision has not been made for all of the requirements of this Ordinance and the laws under which the Bonds are issued, the City covenants and agrees that it will promptly cure such deficiency.
Section 803. Tax Covenant
. The City covenants that it will not take any action or permit any action to be taken or omit to take any action or permit the omission of any action reasonably within its control which action or omission will cause the interest on the Bonds to be included in gross income for federal income taxation purposes or otherwise adversely affect the exemption of the interest on the Bonds from federal and State of Missouri taxation. This covenant shall survive the payment of the Bonds and the termination of this Ordinance as provided in Article X of this Ordinance.
Section 804. Tax Regulatory Agreement
. The City Manager or Director of Finance of the City is hereby authorized and directed to execute the Tax Regulatory Agreement on behalf of the City. The City Council of the City hereby approves the form of such Tax Regulatory Agreement attached hereto as Exhibit C.
Section 805. Certification of Verification Agent
. Prior to or concurrently with the issuance and delivery of the Bonds and the deposit of moneys with the Prior 2001 Trustee, the City shall obtain the certification of the Verification Agent that the moneys and Escrowed Securities to be deposited with the Escrow Agent pursuant to the provisions this Ordinance, will be sufficient for the timely payment of the principal of, redemption premium, if any, and interest on the Prior 2001 Obligations through the Redemption Date (as defined in this Ordinance).
Section 806. Redemption of Prior 2001 Obligations
. The Prior 2001 Obligations are hereby called for redemption and payment prior to maturity on February 1, 2011 (the Redemption Date). Said Prior 2001 Obligations shall be redeemed at the office of the bond registrar and paying agent for said bonds, on said redemption date by the payment of the principal thereof, together with the redemption premium and accrued interest thereon to the redemption date. The officers of the City and the paying agent for said Prior 2001 Obligations are hereby authorized and directed to take such action as may be necessary in order to effect the redemption and payment of said Prior 2001 Obligations as herein provided.
Section 807. Authorization of Escrow Agreement.
The City is hereby authorized to enter into the Escrow Agreement, dated as of June 29, 2006, between the City and the Escrow Agent, as escrow agent, in substantially the form attached hereto as Exhibit D, and the Mayor and City Clerk are hereby authorized and directed to execute the Escrow Agreement with such changes therein as such officials may deem appropriate, for and on behalf of and as the act and deed of the City. The Escrow Agent is hereby authorized to carry out, on behalf of the City, the duties, terms and provisions of the Escrow Agreement, and the Escrow Agent, the Financial Advisor and Bond Counsel are authorized to take all necessary actions for the subscription and purchase of the Escrowed Securities described therein, including the subscription for United States Treasury Securities State and Local Government Series.
DEFAULT AND REMEDIES
Section 901. Remedies
. The provisions of this Ordinance, including the covenants and agreements herein contained, shall constitute a contract between the City and the Owners of the Bonds and the Bond Insurer, or the Owner or Owners of not less than 10% in principal amount of the Bonds at the time Outstanding shall have the right for the equal benefit and protection of all Owners of Bonds similarly situated to:
(a) by mandamus or other suit, action or proceedings at law or in equity to enforce the rights of such Owner or Owners 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 of Missouri;
(b) by suit, action or other proceedings in equity or at law to require the City, its officers, agents and employees to account as if they were the trustees of an express trust; and
(c) by suit, action or other proceedings in equity or at law to enjoin any acts or things which may be unlawful or in violation of the rights of the Owners of the Bonds.
Section 902. Limitation 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 Owners of such Outstanding Bonds.
Section 903. 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 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 Owners of the Bonds by this Ordinance may be enforced and exercised from time to time and as often as may be deemed expedient. In case any suit, action or proceedings taken by any Bondowner on account of any default or to enforce any right or exercise any remedy shall have been discontinued or abandoned for any reason, or shall have been determined adversely to such Bondowner, then, and in every such case, the City and the 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 904. No Acceleration
. Notwithstanding anything herein to the contrary, the Bonds are not subject to acceleration upon the occurrence of an event of default hereunder.
Section 905. 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 1001. Satisfaction and Discharge of this Ordinance.
(a) When the principal of, premium, if any, and interest on all the Bonds shall have been paid in accordance with their terms or provision has been made for such payment, as provided in Section 1002 hereof, and provision shall also be made for paying all other sums payable hereunder, including the fees and expenses of the Paying Agent to the date of retirement of the Bonds, and all sums payable according to the provisions of the Tax Regulatory Agreement, then the requirements contained in this Ordinance, except as otherwise provided herein, and the pledge of the City s faith and credit made hereunder and all other rights granted hereby shall terminate, cease, determine and be void, and thereupon the Paying Agent shall execute, acknowledge and deliver to the City such instruments of satisfaction and discharge or release as the City shall request to evidence such release and the satisfaction and discharge of this Ordinance and shall transfer all amounts remaining in the funds and accounts created hereby to the City except funds or securities in which such moneys are invested and held by the Paying Agent for the payment of the principal of, premium, if any, and interest on the Bonds and any funds or securities in which such moneys are invested and held by the Paying Agent for payment of rebate payments required under Section 148(f) of the Code.
(b) The City is hereby authorized to accept a certificate of the Paying Agent stating that the whole amount of the principal, premium, if any, and interest so due and payable upon all of the Bonds then Outstanding has been paid or provision for such payment has been made in accordance with Section 1002 hereof as evidence of satisfaction of this Ordinance and upon receipt thereof the City shall cancel and erase the inscription of this Ordinance from its records.
(c) Notwithstanding the foregoing, nothing herein shall be construed to imply that any obligation imposed under the Tax Regulatory Agreement will terminate on the payment in full, or provision for payment thereof, of the Bonds.
Section 1002. Bonds Deemed to Be Paid.
(a) Bonds shall be deemed to be paid within the meaning of this Article when payment of the principal of and the applicable redemption premium, if any, on such Bonds, plus interest thereon to the due date thereof (whether such due date is by reason of maturity or upon redemption as provided in this Ordinance, or otherwise), either (i) shall have been made or caused to be made in accordance with the terms hereof, or (ii) provision therefor shall have been made by depositing with the Paying Agent, or other bank located in the State of Missouri and having full trust powers, at or prior to the maturity or redemption date of said Bonds, in trust for and irrevocably appropriated thereto, (1) moneys sufficient to make such payment or (2) noncallable Defeasance Obligations, maturing as to principal and interest in such amounts and at such times as will ensure the availability of sufficient moneys to make such payment; provided, however, that there shall be filed with the Paying Agent a verification report of a nationally recognized independent certified accounting firm that the moneys or Defeasance Obligations escrowed are sufficient to ensure the availability of sufficient moneys to make such payments when due and an opinion of Bond Counsel to the effect that so providing for the payment of any Bonds will not cause the interest on the Bonds to be included in gross income for purposes of federal income taxation. At such time as a Bond shall be deemed to be paid hereunder, as aforesaid, such Bond shall no longer be secured by or be entitled to the benefits of this Ordinance, except for the purposes of any such payment from such moneys or Defeasance Obligations; provided, however, that nothing herein shall be construed to imply that any obligation imposed under the Tax Regulatory Agreement will terminate on the payment in full, or provision for payment thereof, of the Bonds.
(b) Notwithstanding the foregoing, in the case of Bonds which by their terms may be redeemed prior to the stated maturities thereof, no deposit under clause (ii) of subsection (a) above shall be deemed a payment of such Bonds as aforesaid until, as to all such Bonds which are to be redeemed prior to their respective stated maturities, the City shall have irrevocably elected to redeem such Bonds and proper notice of such redemption shall have been given in accordance with Article III of this Ordinance or irrevocable instructions shall have been given to the Paying Agent to give such notice.
(c) Notwithstanding any provision of any other Section of this Ordinance which may be contrary to the provisions of this Section, all moneys or Defeasance Obligations set aside and held in trust pursuant to the provisions of this Section for the payment of Bonds (including premium thereon, if any) and interest thereon shall be and are hereby irrevocably appropriated for and shall be applied to and be used solely for the payment of the particular Bonds (including premium thereon, if any) and interest thereon with respect to which such moneys and Defeasance Obligations have been so set aside in trust.
(d) All moneys deposited with the Paying Agent or other bank shall be deemed to be deposited in accordance with and subject to all of the provisions contained in this Ordinance.
Section 1003. Bond Insurer Rights.
Notwithstanding anything herein to the contrary, in the event that the principal and/or interest due on the Bonds shall be paid by Bond Insurer pursuant to the Bond Insurance Policy, the Bonds shall remain Outstanding for all purposes, not be defeased or otherwise satisfied and not be considered paid by the City, and all covenants, agreements and other obligations of the City to the registered owners shall continue to exist and shall run to the benefit of Bond Insurer, and Bond Insurer shall be subrogated to the rights of such registered owners.
Section 1101. 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 written consent of the Bond Insurer and the Owners of not less than a majority in principal amount of the Bonds then Outstanding, such consent to be evidenced by an instrument or instruments executed by such Owners 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 Bond;
(b) effect a reduction in the amount which the City is required to pay by way of principal of or interest on any Bond;
(c) permit preference or priority of any Bonds of a series over any other Bonds of such series; or
(d) 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 governing body of the City at any time in any respect with the written consent of the Owners of all of the Bonds at the time Outstanding.
Without the consent of Bondowners and with written notice to the Bond Insurer, the City may amend or supplement the 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 adverse to the interests of the Bondowners.
Every amendment or modification of the provisions of the Bonds or of this Ordinance, to which the written consent of the Bondowners and the Bond Insurer is given, as above provided, shall be expressed in an ordinance adopted by the governing body 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 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. It shall not be necessary to note on any of the Outstanding Bonds any reference to such amendment or modification.
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 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 to the Paying Agent and the Bond Insurer a copy of any amendment to the Bonds or this Ordinance made hereunder, and no such amendment which affects the duties or obligations of the Paying Agent under this Ordinance shall become effective until the Paying Agent shall have consented thereto.
Section 1201. Successor Paying Agent.
(a) Any corporation or association into which the Paying Agent may be converted or merged, or with which it may be consolidated, or to which it may sell or transfer its corporate trust business and assets as a whole or substantially as a whole, or any corporation or association resulting from any such conversion, sale, merger, consolidation or transfer to which it is a party, provided that such surviving corporation or association shall maintain an office in the State of Missouri, shall be and become the successor Paying Agent hereunder, without the execution or filing of any instrument or any further act, deed or conveyance on the part of any of the parties hereof, anything herein to the contrary notwithstanding.
(b) The Paying Agent may at any time resign by giving thirty (30) days notice to the City. Such resignation shall not take effect until a successor Paying Agent has been appointed and accepted such appointment pursuant to subparagraph (d) of this Section 1201.
(c) The Paying Agent may be removed at any time by an instrument in writing delivered to the Paying Agent by the City. In no event, however, shall any removal of the Paying Agent take effect until a successor Paying Agent has been appointed and accepted such appointment pursuant to subparagraph (d) of this Section 1201.
(d) In case the Paying Agent shall resign or be removed, or be dissolved, or shall be in the course of dissolution or liquidation, or otherwise become incapable of acting as Paying Agent, or in case it shall be taken under the control of any public officer or officers, or of a receiver appointed by a court, a successor shall be appointed by the City. Every successor Paying Agent appointed pursuant to the provisions of this Section shall be, if there be such an institution willing, qualified and able to accept the duties of the Paying Agent upon customary terms, a bank or trust company within the State of Missouri, in good standing and having reported capital and surplus of not less than $10,000,000. Written notice of such appointment shall immediately be given by the City to the Owners of the Bonds. Any successor Paying Agent shall execute and deliver an instrument accepting such appointment and thereupon such successor, without any further act, deed or conveyance, shall become fully vested with all rights, powers, duties and obligations of its predecessor, with like effect as if originally named as Paying Agent, but such predecessor shall nevertheless, on the written request of the City, or of the successor, execute and deliver such instruments and do such other things as may reasonably be required to more fully and certainly vest and confirm in such successor all rights, powers, duties and obligations of such predecessor. If no successor Paying Agent has accepted appointment in the manner provided above within 90 days after the Paying Agent has given notice of its resignation as provided above, the Paying Agent may petition any court of competent jurisdiction for the appointment of a temporary successor Paying Agent; provided that any Paying Agent so appointed shall immediately and without further act be superseded by a Paying Agent appointed by the City as provided above.
PROVISIONS RELATING TO BOND INSURANCE
Section 1301. Consent of Bond Insurer.
Any provision of this Bond Ordinance expressly recognizing or granting rights in or to Bond Insurer may not be amended in any manner which affects the rights of Bond Insurer hereunder without the prior written consent of Bond Insurer. Bond Insurer reserves the right to charge the City a fee for any consent or amendment to the Bond Ordinance while the Bond Insurance Policy is outstanding.
Section 1302. Consent of Bond Insurer in lieu of Bondowner Consent.
Unless otherwise provided in this Section, Bond Insurer s consent shall be required in lieu of Bondowner consent, when required, for the following purposes: (i) execution and delivery of any supplemental Bond Ordinance or any amendment, supplement or change to or modification of the Bond Ordinance; (ii) removal of the Trustee or Paying Agent and selection and appointment of any successor trustee or paying agent; and (iii) initiation or approval of any action not described in (i) or (ii) above which requires Bondowner consent.
Section 1303. Consent of Bond Insurer in the Event of Insolvency.
Any reorganization or liquidation plan with respect to the City must be acceptable to Bond Insurer. In the event of any reorganization or liquidation, Bond Insurer shall have the right to vote on behalf of all Bondowners who hold Bond Insurer-insured Bonds absent a default by Bond Insurer under the applicable Bond Insurance Policy insuring such Bonds.
Section 1304. Consent of Bond Insurer Upon Default.
Anything in this Bond Ordinance to the contrary notwithstanding, upon the occurrence and continuance of an event of default as defined herein, Bond Insurer shall be entitled to control and direct the enforcement of all rights and remedies granted to the Bondowners or the Trustee for the benefit of the Bondowners under this Bond Ordinance.
Section 1305. Notices and Information to be sent to the Bond Insurer.
(a) While the Bond Insurance Policy is in effect, the City or the Trustee shall furnish to Bond Insurer, upon request, a copy of any financial statement, audit and/or annual report of the City and such additional information it may reasonably request. Upon request, such information shall be delivered at the City s expense to the attention of the Surveillance Department of the Bond Insurer, unless otherwise indicated.
(b) A copy of any notice to be given to the registered owners of the Bonds, including, without limitation, notice of any redemption of or defeasance of Bonds, and any certificate rendered pursuant to this Bond Ordinance relating to the security for the Bonds, at no cost to Bond Insurer.
(c) To the extent that the City has entered into a continuing disclosure agreement with respect to the Bonds, Bond Insurer shall be included as party to be notified.
(d) The Paying Agent or City shall notify Bond Insurer of any failure of the City to provide relevant notices, certificates, etc.
(e) Notwithstanding any other provision of this Bond Ordinance, the Paying Agent or City shall immediately notify Bond Insurer if at any time there are insufficient moneys to make any payments of principal and/or interest as required and immediately upon the occurrence of any event of default hereunder.
(f) The City will permit Bond Insurer to discuss the affairs, finances and accounts of the City or any information Bond Insurer may reasonably request regarding the security for the Bonds with appropriate officers of the City. The Trustee or City will permit Bond Insurer to have access to and to make copies of all books and records relating to the Bonds at any reasonable time.
Section 1306. Payment Provisions Under Bond Insurance Policy
. As long as the Obligation insurance shall be in full force and effect, the City and any Paying Agent agree to comply with the following provisions:
(a) At least one (1) business day prior to all Interest Payment Dates the Paying Agent will determine whether there will be sufficient funds in the Funds and Accounts to pay the principal of or interest on the Bonds on such Interest Payment Date. If the Paying Agent determines that there will be insufficient funds in such Funds or Accounts, the Paying Agent shall so notify Bond Insurer. Such notice shall specify the amount of the anticipated deficiency, the Bonds to which such deficiency is applicable and whether such Bonds will be deficient as to principal or interest, or both. If the Paying Agent has not so notified Bond Insurer at least one (1) business day prior to an Interest Payment Date, Bond Insurer will make payments of principal or interest due on the Bonds on or before the first (1st) business day next following the date on which Bond Insurer shall have received notice of nonpayment from the Paying Agent.
(b) the Paying Agent shall, after giving notice to Bond Insurer as provided in (a) above, make available to Bond Insurer and, at Bond Insurer s direction, to The Bank of New York, as insurance trustee for Bond Insurer or any successor insurance trustee (the Insurance Trustee), the registration books of the City maintained by the Paying Agent and all records relating to the Funds and Accounts maintained under this Bond Ordinance.
(c) the Paying Agent shall provide Bond Insurer and the Insurance Trustee with a list of registered owners of Bonds entitled to receive principal or interest payments from Bond Insurer under the terms of the Bond Insurance Policy, and shall make arrangements with the Insurance Trustee (i) to mail checks or drafts to the registered owners of Bonds entitled to receive full or partial interest payments from Bond Insurer and (ii) to pay principal upon Bonds surrendered to the Insurance Trustee by the registered owners of Bonds entitled to receive full or partial principal payments from Bond Insurer.
(d) the Paying Agent shall, at the time it provides notice to Bond Insurer pursuant to (a) above, notify registered owners of Bonds entitled to receive the payment of principal or interest thereon from Bond Insurer (i) as to the fact of such entitlement, (ii) that Bond Insurer will remit to them all or a part of the interest payments next coming due upon proof of Bondowner entitlement to interest payments and delivery to the Insurance Trustee, in form satisfactory to the Insurance Trustee, of an appropriate assignment of the registered owner s right to payment, (iii) that should they be entitled to receive full payment of principal from Bond Insurer, they must surrender their Bonds (along with an appropriate instrument of assignment in form satisfactory to the Insurance Trustee to permit ownership of such Bonds to be registered in the name of Bond Insurer) for payment to the Insurance Trustee, and not the Paying Agent and (iv) that should they be entitled to receive partial payment of principal from Bond Insurer, they must surrender their Bonds for payment thereon first to the Paying Agent who shall note on such Bonds the portion of the principal paid by the Paying Agent and then, along with an appropriate instrument of assignment in form satisfactory to the Insurance Trustee, to the Insurance Trustee, which will then pay the unpaid portion of principal.
(e) in the event that the Paying Agent has notice that any payment of principal of or interest on a Obligation which has become Due for Payment and which is made to a Bondowner by or on behalf of the City has been deemed a preferential transfer and theretofore recovered from its registered owner pursuant to the United States Bankruptcy Code by a trustee in bankruptcy in accordance with the final, nonappealable order of a court having competent jurisdiction, the Paying Agent shall, at the time Bond Insurer is notified pursuant to (a) above, notify all registered owners that in the event that any registered owner s payment is so recovered, such registered owner will be entitled to payment from Bond Insurer to the extent of such recovery if sufficient funds are not otherwise available, and the Paying Agent shall furnish to Bond Insurer its records evidencing the payments of principal of and interest on the Bonds which have been made by the Paying Agent and subsequently recovered from registered owners and the dates on which such payments were made.
(f) in addition to those rights granted Bond Insurer under this Bond Ordinance, Bond Insurer shall, to the extent it makes payment of principal of or interest on Bonds, become subrogated to the rights of the recipients of such payments in accordance with the terms of the Bond Insurance Policy, and to evidence such subrogation (i) in the case of subrogation as to claims for past due interest, the Paying Agent shall note Bond Insurer s rights as subrogee on the registration books of the City maintained by the Paying Agent upon receipt from Bond Insurer of proof of the payment of interest thereon to the registered owners of the Bonds, and (ii) in the case of subrogation as to claims for past due principal, the Paying Agent shall note Bond Insurer s rights as subrogee on the registration books of the City maintained by the Paying Agent upon surrender of the Bonds by the registered owners thereof together with proof of the payment of principal thereof.
Section 1307. Bond Insurer as Third Party Beneficiary
. To the extent that this Bond Ordinance confers upon or gives or grants to Bond Insurer any right, remedy or claim under or by reason of this Bond Ordinance, Bond Insurer is hereby explicitly recognized as being a third-party beneficiary hereunder and may enforce any such right, remedy or claim conferred, given or granted hereunder.
Section 1401. Notices, Consents and Other Instruments 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 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, other than the assignment of ownership of a Bond as set forth in Exhibit B, 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 a 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, the amount or amounts, numbers and other identification of Bonds, and the date of holding the same shall be proved by the registration books of the City maintained by the Paying Agent.
(c) In determining whether the 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 pledgee s right so to act with respect to such Bonds and that the pledgee is not the City.
Section 1402. Severability
. If any section or other part of this Ordinance, whether large or small, shall for any reason be held invalid, the invalidity thereof shall not affect the validity of the other provisions of this Ordinance.
Section 1403. Governing Law
. This Ordinance shall be governed exclusively by and constructed in accordance with the applicable laws of the State.
Section 1404. Official Statement
. The use of the Official Statement dated June 19, 2006 (the Official Statement), in substantially the form of the Preliminary Official Statement presented to this meeting of the City Council of the City and attached hereto as Exhibit D, by the City in connection with the sale of the Bonds is hereby authorized and ratified and the City Council does hereby approve and consent to the preparation and use by the City and the Purchaser of said Official Statement in connection with the sale of the Bonds and the execution thereof by the Mayor, City Manager or Director of Finance of the City on behalf of the City. The officials of the City have participated in the preparation of such Official Statement and have determined that the Preliminary Official Statement, dated June 9, 2006, was true, correct and complete in all material respects as of the date thereof. For the purpose of enabling the Purchaser of the Bonds to comply with the requirements of Rule 15c2-12(b)(1) of the Securities and Exchange Commission, the City hereby deems the information contained in such 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 officials of the City are hereby authorized, if requested, to provide a letter or certification to such effect and to take such further actions or execute such other documents as such officials in their reasonable judgment deem necessary to enable the Purchaser of the Bonds to comply with the requirements of such Rule.
Section 1405. Continuing Disclosure
. The City hereby covenants and agrees that it will comply with and carry out all of the provisions of the Continuing Disclosure Certificate. Notwithstanding any other provision of this Ordinance, failure of the City to comply with the Continuing Disclosure Certificate shall not be considered an event of default hereunder; however, any Bondholder or Beneficial Owner may take such actions as may be necessary and appropriate, including seeking mandate or specific performance by court order, to cause the City to comply with its obligations under this Section. For purposes of this Section, Beneficial Owner means any person which (a) has the power, directly or indirectly, to vote or consent with respect to, or to dispose of ownership of, any Bonds (including persons holding Bonds through nominees, depositories or other intermediaries), or (b) is treated as the owner of any Bonds for federal income tax purposes.
Section 1406. Further Authorization
. The City Manager, City Clerk and Director of Finance and the other officers of the City are hereby authorized, empowered and directed to do all such acts and things and to execute, acknowledge and deliver all such documents (including, without limiting the generality of the foregoing, any closing certificate, non-arbitrage certificate or tax compliance agreement in connection with the issuance of the Bonds) as may in his or their discretion be deemed necessary or desirable in order to carry out or comply with the terms and provisions of this Ordinance and the Official Statement and to make ministerial alterations, changes or additions in the foregoing agreements, statements, instruments or other documents herein approved, authorized and confirmed which they may approve and the execution or taking of such action shall be taken as conclusive evidence of its necessity or advisability. All of the acts and undertakings of such officers which are in conformity with the intent and purposes of this Ordinance, whether heretofore or hereafter taken or done shall be and the same are hereby in all respects, ratified, confirmed and approved. The City Council hereby approves the employment by the City of the services of Sonnenschein Nath & Rosenthal LLP, St. Louis, Missouri, as Bond Counsel.
Section 1407. Effective Date
. This Ordinance shall be in full force and effect from and after its passage by the City Council of the City.