Section 107-596; Ord. 19227; Authorizing the issuance of $38,535,000 principal amount of Special Obligation Electric Utility Improvement Bonds (annual appropriation), Series 2006C of the City of Columbia, Missouri
authorizing the issuance of $38,535,000 principal amount of Special Obligation Electric Utility Improvement Bonds (annual appropriation), Series 2006C 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.
WHEREAS, the City of Columbia, Missouri, a municipal corporation duly created, organized and existing under and by virtue of the laws of the State of Missouri and its home rule charter (the City), owns and operates a revenue producing municipal water and electric system (the System) consisting of a water utility (the Water Utility) and electric utility (the Electric Utility) serving the City and its inhabitants; and
WHEREAS, the System is operated as one plant and under one management, and the revenues produced by the Water Utility and the revenues produced by the Electric Utility are deposited in segregated accounts of a common revenue fund (the System Revenue Fund); and
WHEREAS, the City is fully authorized by its Charter and the Constitution and laws of the State of Missouri, including particularly Section 27 of Article VI of the Constitution of Missouri (the Act) to issue revenue bonds payables from the revenues of its revenue producing utilities, including the Electric Utility; and
WHEREAS, the City, proceeding under the authority of the Act, adopted an ordinance providing for the submission to the qualified electors of the City at an election held therein on August 8, 2006 (the 2006 Election), of the following question:
Shall the City of Columbia, Missouri, issue its Electric System Revenue Bonds in the amount of Sixty Million Dollars ($60,000,000) for the purpose of extending, expanding, improving, repairing, replacing and equipping the City-owned electric system?
WHEREAS, notice of said election was duly prepared, executed and published in the manner provided by law, and said election was duly held in accordance with the provisions of said ordinance and notice and the statutes of the State of Missouri; and
WHEREAS, the votes cast at said 2006 Election on said question were duly canvassed as provided by law and it was found and declared that more than a majority of the qualified electors of the City voting at said 2006 Election on said question voted in favor of the issuance of said Bonds, the vote on said question having been as follows: 9,563 votes for the issuance of said bonds and 1,547 votes against the issuance of said bonds; and
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:
(b) U.S. Treasury Certificates, Notes and Bonds (including State and Local Government Series 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
(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.
(a) Defeasance Obligation,
(b) 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
(c) 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.
(d) 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.
(e) Certificates of deposit, savings accounts, deposit accounts or money market deposits which are fully insured by FDIC, including BIF and SAIF.
(f) Investment Agreements, including GIC s, Forward Purchase Agreements and Reserve Fund Put Agreements acceptable to the Bond Insurer.
(g) Commercial paper rated, at the time of purchase, Prime - 1 by Moody s and A-1 or better by Standard & Poor s.
(h) 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.
(i) 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.
(j) 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.
(k) Such other investments as are approved in writing by the Bond Insurer.
AUTHORIZATION OF BONDS
. There is hereby authorized and directed to be issued a series of bonds of the City, designated Special Obligation Electric Utility Improvement Bonds, Series 2006C, in the principal amount of $38,535,000 (the Series 2006C Bonds or the Bonds) to provide funds to extend, expand, improve, repair, replace and equip the Electric Utility, making a deposit to the Debt Service Reserve Account, and paying costs and expenses incident to issuance of the 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 A 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:
Annual Rate of Interest
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 October 1 and April 1 in each year, beginning on April 1, 2007.
. UMB Bank, N.A. in the City of St. Louis, 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 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 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.
. 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.
. 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.
. 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.
. 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
. At the option of the City, the Series 2006C Bonds are subject to optional redemption and payment prior to their Stated Maturity, on October 1, 2016, and thereafter, in whole at any time or in part on any Interest Payment Date in any order of maturity selected by the City and by lot in multiples of $5,000 within a maturity, at a redemption price of 100% of the principal amount being redeemed, without premium, together with accrued interest thereon to the date of redemption.
. Notice of the City s intent to redeem Bonds (including, when only a portion of the Bonds are to be redeemed, the maturities of such Bonds and the principal amounts thereof) shall be given by or on behalf of the City by United States registered or certified mail, postage prepaid, to the Paying Agent, said notice to be mailed not less than forty-five (45) days prior to the date fixed for redemption. Notice of the selection or call for redemption identifying the Bonds or portions thereof to be redeemed, shall be given by the Paying Agent on behalf of the City by mailing a copy of the redemption notice at least thirty (30) days but not more than sixty (60) days prior to the date fixed for redemption by registered or certified mail to the Underwriter, as the underwriter of the Bonds, and by first class, registered or certified mail to the Owner of each Bond to be redeemed in whole or in part at the address shown on the Bond Register; and a second notice of redemption shall be sent by certified mail, return receipt requested, at such address to the Owner of any Bond who has not submitted his Bond to the Paying Agent for payment on or before the date sixty (60) days following the date fixed for redemption; provided, however, that neither any defect in giving such notice by mailing as aforesaid nor any defect in any notice so mailed shall affect the validity of any proceeding for the redemption of any Bond. Any notice mailed as provided in this Section shall be conclusively presumed to have been duly given, whether or not the Owner receives the notice.
. Bonds shall be selected for redemption as follows:
(a) Bonds shall be redeemed only in the principal amount of $5,000 or any integral multiple thereof. When less than all of the Outstanding Bonds of any maturity are to be redeemed and paid prior to maturity, such Bonds shall be selected by the Paying Agent in $5,000 units of face value in such equitable manner as the Paying Agent may determine.
(b) In the case of a partial redemption of Bonds when Bonds of denominations greater than $5,000 are then Outstanding, then for all purposes in connection with such redemption each $5,000 of face value shall be treated as though it were a separate Bond of the denomination of $5,000. If it is determined that one or more, but not all, of the $5,000 units of face value represented by any Bond is selected for redemption, then upon notice of intention to redeem such $5,000 unit or units, the Owner of such Bond or his attorney or legal representative shall forthwith present and surrender such Bond to the Paying Agent (1) for payment of the redemption price (including the premium, if any, and interest to the date fixed for redemption) of the $5,000 unit or units of face value called for redemption, and (2) for exchange, without charge to the Owner thereof, for a new Bond or Bonds of the aggregate principal amount of the unredeemed portion of the principal amount of such Bond. If the 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 $5,000 unit or units of face value called for redemption (and to that extent only).
. Whenever any Bond is called for redemption and payment as provided in this Article, all interest on such Bond shall cease from and after the date for which such call is made, provided funds are available for its payment at the price hereinbefore specified.
FUNDS AND ACCOUNTS
. There are hereby created and ordered to be established (provided that the Electric Utility Account of the Surplus Fund is ratified and confirmed) and maintained in the treasury of the City the following separate funds and accounts to be known respectively as the:
(a) Project Account for Special Obligation Electric Utility Improvement Bonds, Series 2006C (the Project Account).
(b) Debt Service Account for Special Obligation Electric Utility Improvement Bonds, Series 2006C (the Debt Service Account).
(c) Debt Service Reserve Account for Special Obligation Electric Utility Improvement Bonds, Series 2006C (the Debt Service Reserve Account).
(d) Rebate Fund for Special Obligation Electric Utility Improvement Bonds, Series 2006C (the Rebate Fund).
(e) Electric Utility Account of the Surplus Fund (the Pledged Revenue Account) for Water and Electric System Revenue Bonds created by the Water and Electric System Bond Ordinance.
. The funds and accounts referred to in paragraphs (a) through (e) 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 and with respect to the Pledged Revenue Account, the Water and Electric System Bond 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.
APPLICATION OF BOND PROCEEDS
. The net proceeds received from the sale of the Bonds after payment of Bond Insurance premium in the amount of $322,041.75 and Underwriters discount in the amount of $152,598.60, including any premium or accrued interest thereon, shall be deposited simultaneously with the delivery of the Bonds, as follows:
(a) There shall be deposited in the Debt Service Account any amount received on account of accrued interest on the Series 2006C 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 $3,853,500 from the proceeds of the Series 2006C Bonds and other available moneys of the City.
(c) There shall be deposited in the Project Account the remaining proceeds of the to be applied in accordance with Section 502 hereof.
Moneys in the Project Account shall be used solely for the purpose of (a) paying the cost of extending, expanding, improving, repairing, replacing and equipping the City-owned Electric Utility as a part of the System 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, and (b) for paying the costs and expenses incident to the issuance of the Bonds. Upon completion of the Project, any surplus moneys remaining in the Project Account and not required for the payment of unpaid costs thereof shall be deposited in the Debt Service Account.
APPLICATION OF PLEDGED REVENUES AND ANNUAL APPROPRIATIONS
. The Bonds shall be special obligations of the City payable solely from the annual appropriation of funds by the City for that purpose and the Pledged Revenues. 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 Pledged Revenues and 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.
. 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.
(a) The City has created the Pledged Revenue Account pursuant to the provisions of the Water and Electric System Bond Ordinance which provides for the deposit into such account of surplus revenues of the Electric Utility after payment of operating expenses of the Water and Electric System, paying debt service on Water and Electric System Revenue Bonds which may be issued and outstanding from time to time, and making deposits to debt service reserves and renewal and replacement accounts and making such other payments and deposits as may be required pursuant to such ordinance from time to time. No provision of this Ordinance shall limit or restrict in any way the ability of the City to issue bonds, notes or other obligations payable from the revenues of the Water and Electric System, including the Electric Utility, on a senior lien basis to the Bonds.
(b) The City shall charge and collect rates, fees and other charges for the sale of electric power and energy and other services, facilities and commodities of the Electric Utility component of the System as shall be required to provide revenues and income (including investment income) at least sufficient in each Fiscal Year to satisfy the requirements of the Water and Electric System Bond Ordinance and for deposit into the Electric Utility Account of the Surplus Fund of an amount at least equal to 110% of the debt service requirement on the Bonds then Outstanding for the year of computation and will enable the City to make all required payments, if any, into the funds and accounts held pursuant to this Ordinance. The Bonds shall be treated as utility revenue bonds of the Electric Utility pursuant to the provisions of the Act and the 2006 Election for purposes of this covenant.
(c) The City may issue one or more additional series of revenue bonds to finance the cost of the Electric Utility component of the System or to refund Outstanding Bonds, to be secured by a parity lien on and equally and ratably payable from the Pledged Revenues pledged to the Bonds, provided that the following conditions are met:
. 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 2006C 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 2006C 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 2006C 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 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.
. 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.
. 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.
(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
. Moneys held in any fund or account referred to in this Ordinance 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
. 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.
. 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.
. 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.
. 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 B.
The Certificate of Pledged Revenues, in substantially the form attached hereto as Exhibit D, is hereby approved with such changes as shall be approved by the Director of Finance of the City.
DEFAULT AND 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.
. 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.
. 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.
. Notwithstanding anything herein to the contrary, the Bonds are not subject to acceleration upon the occurrence of an event of default hereunder.
. 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.
(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.
(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.
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.
. 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.
(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
. 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.
. 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.
. 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.
. 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.
(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.
. 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.
. 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.
. 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 A, 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.
. 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.
. This Ordinance shall be governed exclusively by and constructed in accordance with the applicable laws of the State.
. The use of the Official Statement dated September 18, 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 C, 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.
. 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.
. 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.
. This Ordinance shall be in full force and effect from and after its passage by the City Council of the City.