Explanation
This ordinance authorizes the issuance of adjustable rate unlimited tax bonds in the amount not to exceed $79,980,000 for the Division of Sewerage and Drainage - Sanitary. This bond sale will be conducted on a negotiated basis and is a cooperative effort of the Department of Finance and Management and the City Auditor's Office. The bonds will fund various sanitary captial improvement projects. The bonds will be sold to JPMorgan Securities, Inc.
Title
To authorize the issuance of adjustable rate unlimited tax bonds in the amount not to exceed $79,980,000.00 for sanitary sewers. ($79,980,000.00)
Section 55(B) of the City Charter.
Body
WHEREAS, at the election held on November 2, 2004 on the proposition of issuing bonds for the purpose hereinafter stated in the sum of Ninety-Five Million Seven Hundred Eighty-Five Thousand Dollars ($95,785,000) and levying taxes outside the ten mill limitation to pay the principal of and interest on such bonds, the majority of those voting on the proposition voted in favor thereof; and
WHEREAS, it is now deemed necessary to issue and sell not to exceed $79,980,000 of bonds pursuant to such voted authority and under authority of the general laws of the State of Ohio, and in particular Section 133.23 of the Ohio Revised Code, for the purpose of acquiring real estate and interests in real estate, landscaping and making site improvements, expanding and improving existing wastewater treatment facilities, constructing new wastewater treatment facilities, acquiring and improving instrumentation and control systems, sewer lines, pumping stations, lagoons and levees, constructing storm and sanitary sewer septations, and acquiring related machinery, equipment and appurtenances; and refunding bonds previously issued for such purpose; and
WHEREAS, the Fiscal Officer has certified to this Council that the estimated life of the improvement stated above which is to be financed from the proceeds of said bonds exceeds five (5) years and the maximum maturity of said bonds is twenty-five (25) years;
NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF COLUMBUS:
SECTION 1. Definitions
When used in this Ordinance, and in addition to the words and terms elsewhere defined in this Ordinance, the following words and terms as used in this Ordinance shall have the following meanings unless the context or use indicates another or different meaning or intent, and such definitions shall be equally applicable to both the singular and plural forms of any of the words and terms herein defined:
"Agent Member" means a member of, or participant in, the Depository who shall act on behalf of a Bidder.
"All Hold Rate" means, as of any Auction Date, 55% of the Index in effect on such Auction Date.
"Alternate Liquidity Facility" means a bond purchase agreement, letter of credit, line of credit, revolving credit agreement or other agreement with the issuer of a Liquidity Facility, other than the initial Liquidity Facility Issuer, (i) that satisfies the requirements for such a facility as set forth in this Ordinance, and (ii) pursuant to which such Alternate Liquidity Facility Issuer agrees to purchase, or provide money to the Tender Agent for the payment of the purchase price of, the LFI Bonds that have been tendered or deemed tendered for purchase pursuant to Section 7 of this Ordinance and not remarketed. Any Alternate Liquidity Facility must provide that if the Tender Agent makes a drawing thereunder by 10:30 a.m., Eastern Time, on any Business Day, the Liquidity Facility Issuer will provide immediately available funds to the Tender Agent prior to 2:30 p.m., Eastern Time, on that Business Day.
"Auction" means each periodic implementation of the Auction Procedures.
"Auction Agent" means the auctioneer appointed in accordance with Section 9(k) and 9(l) hereof.
"Auction Agreement" means an agreement between the Auction Agent and the Bond Registrar pursuant to which the Auction Agent agrees to follow the procedures specified in Section 9 hereof with respect to the Bonds in the Auction Mode, as such agreement may from time to time be amended or supplemented.
"Auction Date" means (a) if the Bonds are in a daily Auction Period, each Business Day, (b) if the Bonds are in a Flexible Auction Period, the last Business Day of the Flexible Auction Period, and (c) if the Bonds are in any other Auction Period, the Business Day next preceding each Interest Payment Date for such Bonds (whether or not an Auction shall be conducted on such date); provided, however, that the last Auction Date with respect to the Bonds in an Auction Period other than a daily Auction Period or Flexible Auction Period shall be the earlier of (i) the Business Day next preceding the Interest Payment Date next preceding the Conversion Date for the Bonds and (ii) the Business Day next preceding the Interest Payment Date next preceding the final maturity date for the Bonds; and provided, further, that if the Bonds are in a daily Auction Period, the last Auction Date shall be the earlier of (x) the Business Day next preceding the Conversion Date for the Bonds and (y) the Business Day next preceding the final maturity date for the Bonds. The last Business Day of a Flexible Auction Period shall be the Auction Date for the Auction Period that begins on the next succeeding Business Day, if any. On the Business Day preceding the conversion from a daily Auction Period to another Auction Period, there shall be two Auctions, one for the last daily Auction Period and one for the first Auction Period following the conversion.
"Auction Mode" means that Interest Rate Mode in which the Bonds bear interest at the Auction Rate for an Auction Rate Period specified by the Municipality in accordance with the provisions of Section 9 of this Ordinance.
"Auction Mode Conversion Date" means the date on which the Bonds convert from an Interest Rate Mode other than an Auction Mode and begin to bear interest at the Auction Rate.
"Auction Period" means:
(a) a Flexible Auction Period;
(b) with respect to Bonds in a daily Auction Period, a period beginning on each Business Day and extending to but not including the next succeeding Business Day;
(c) with respect to Bonds in a seven-day Auction Period and with Auctions generally conducted on (i) Fridays, a period of generally seven days beginning on a Monday (or the day following the last day of the prior Auction Period if the prior Auction Period does not end on a Sunday) and ending on the next succeeding Sunday (unless such Sunday is not followed by a Business Day, in which case on the next succeeding day which is followed by a Business Day), (ii) Mondays, a period of generally seven days beginning on a Tuesday (or the day following the last day of the prior Auction Period if the prior Auction Period does not end on a Monday) and ending on the next succeeding Monday (unless such Monday is not followed by a Business Day, in which case on the next succeeding day which is followed by a Business Day), (iii) Tuesdays, a period of generally seven days beginning on a Wednesday (or the day following the last day of the prior Auction Period if the prior Auction Period does not end on a Tuesday) and ending on the next succeeding Tuesday (unless such Tuesday is not followed by a Business Day, in which case on the next succeeding day which is followed by a Business Day), (iv) Wednesdays, a period of generally seven days beginning on a Thursday (or the day following the last day of the prior Auction Period if the prior Auction Period does not end on a Wednesday) and ending on the next succeeding Wednesday (unless such Wednesday is not followed by a Business Day, in which case on the next succeeding day which is followed by a Business Day), and (v) Thursdays, a period of generally seven days beginning on a Friday (or the day following the last day of the prior Auction Period if the prior Auction Period does not end on a Thursday) and ending on the next succeeding Thursday (unless such Thursday is not followed by a Business Day, in which case on the next succeeding day which is followed by a Business Day);
(d) with respect to Bonds in a 28-day Auction Period and with Auctions generally conducted on (i) Fridays, a period of generally 28 days beginning on a Monday (or the day following the last day of the prior Auction Period if the prior Auction Period does not end on a Sunday) and ending on the fourth Sunday thereafter (unless such Sunday is not followed by a Business Day, in which case on the next succeeding day which is followed by a Business Day), (ii) Mondays, a period of generally 28 days beginning on a Tuesday (or the day following the last day of the prior Auction Period if the prior Auction Period does not end on a Monday) and ending on the fourth Monday thereafter (unless such Monday is not followed by a Business Day, in which case on the next succeeding day which is followed by a Business Day), (iii) Tuesdays, a period of generally 28 days beginning on a Wednesday (or the day following the last day of the prior Auction Period if the prior Auction Period does not end on a Tuesday) and ending on the fourth Tuesday thereafter (unless such Tuesday is not followed by a Business Day, in which case on the next succeeding day which is followed by a Business Day), (iv) Wednesdays, a period of generally 28 days beginning on a Thursday (or the day following the last day of the prior Auction Period if the prior Auction Period does not end on a Wednesday) and ending on the fourth Wednesday thereafter (unless such Wednesday is not followed by a Business Day, in which case on the next succeeding day which is followed by a Business Day), and (v) Thursdays, a period of generally 28 days beginning on a Friday (or the day following the last day of the prior Auction Period if the prior Auction Period does not end on a Thursday) and ending on the fourth Thursday thereafter (unless such Thursday is not followed by a Business Day, in which case on the next succeeding day which is followed by a Business Day);
(e) with respect to Bonds in a 35-day Auction Period and with Auctions generally conducted on (i) Fridays, a period of generally 35 days beginning on a Monday (or the day following the last day of the prior Auction Period if the prior Auction Period does not end on Sunday) and ending on the fifth Sunday thereafter (unless such Sunday is not followed by a Business Day, in which case on the next succeeding day which is followed by a Business Day), (ii) Mondays, a period of generally 35 days beginning on a Tuesday (or the day following the last day of the prior Auction Period if the prior Auction Period does not end on Monday) and ending on the fifth Monday thereafter (unless such Monday is not followed by a Business Day, in which case on the next succeeding day which is followed by a Business Day), (iii) Tuesdays, a period of generally 35 days beginning on a Wednesday (or the day following the last day of the prior Auction Period if the prior Auction Period does not end on Tuesday) and ending on the fifth Tuesday thereafter (unless such Tuesday is not followed by a Business Day, in which case on the next succeeding day which is followed by a Business Day), (iv) Wednesdays, a period of generally 35 days beginning on a Thursday (or the day following the last day of the prior Auction Period if the prior Auction Period does not end on Wednesday) and ending on the fifth Wednesday thereafter (unless such Wednesday is not followed by a Business Day, in which case on the next succeeding day which is followed by a Business Day), and (v) Thursdays, a period of generally 35 days beginning on a Friday (or the day following the last day of the prior Auction Period if the prior Auction Period does not end on Thursday) and ending on the fifth Thursday thereafter (unless such Thursday is not followed by a Business Day, in which case on the next succeeding day which is followed by a Business Day);
(f) with respect to Bonds in a three-month Auction Period, a period of generally three months (or shorter period upon a conversion from another Auction Period) beginning on the day following the last day of the prior Auction Period and ending on the calendar day immediately preceding the first Business Day of the month that is the third calendar month following the beginning date of such Auction Period; and
(g) with respect to Bonds in a six-month Auction Period, a period of generally six months (or shorter period upon a conversion from another Auction Period) beginning on the day following the last day of the prior Auction Period and ending on the next succeeding May 31 or November 30;
provided, however, that
(a) if there is a conversion of Bonds with Auctions generally conducted on Fridays (i) from a daily Auction Period to a seven-day Auction Period, the next Auction Period shall begin on the date of the conversion (i.e., the Interest Payment Date for the prior Auction Period) and shall end on the next succeeding Sunday (unless such Sunday is not followed by a Business Day, in which case on the next succeeding day which is followed by a Business Day), (ii) from a daily Auction Period to a 28-day Auction Period, the next Auction Period shall begin on the date of the conversion (i.e., the Interest Payment Date for the prior Auction Period) and shall end on the Sunday (unless such Sunday is not followed by a Business Day, in which case on the next succeeding day which is followed by a Business Day) which is more than 21 days but not more than 28 days from such date of conversion, and (iii) from a daily Auction Period to a 35 day Auction Period, the next Auction Period shall begin on the date of the conversion (i.e., the Interest Payment Date for the prior Auction Period) and shall end on Sunday (unless such Sunday is not followed by a Business Day, in which case on the next succeeding day which is followed by a Business Day) which is more than 28 days but no more than 35 days from such date of conversion;
(b) if there is a conversion of Bonds with Auctions generally conducted on Mondays (i) from a daily Auction Period to a seven-day Auction Period, the next Auction Period shall begin on the date of the conversion (i.e., the Interest Payment Date for the prior Auction Period) and shall end on the next succeeding Monday (unless such Monday is not followed by a Business Day, in which case on the next succeeding day which is followed by a Business Day), (ii) from a daily Auction Period to a 28-day Auction Period, the next Auction Period shall begin on the date of the conversion (i.e., the Interest Payment Date for the prior Auction Period) and shall end on the Monday (unless such Monday is not followed by a Business Day, in which case on the next succeeding day which is followed by a Business Day) which is more than 21 days but not more than 28 days from such date of conversion, and (iii) from a daily Auction Period to a 35 day Auction Period, the next Auction Period shall begin on the date of the conversion (i.e., the Interest Payment Date for the prior Auction Period) and shall end on Monday (unless such Monday is not followed by a Business Day, in which case on the next succeeding day which is followed by a Business Day) which is more than 28 days but no more than 35 days from such date of conversion;
(c) if there is a conversion of Bonds with Auctions generally conducted on Tuesdays (i) from a daily Auction Period to a seven-day Auction Period, the next Auction Period shall begin on the date of the conversion (i.e., the Interest Payment Date for the prior Auction Period) and shall end on the next succeeding Tuesday (unless such Tuesday is not followed by a Business Day, in which case on the next succeeding day which is followed by a Business Day), (ii) from a daily Auction Period to a 28-day Auction Period, the next Auction Period shall begin on the date of the conversion (i.e., the Interest Payment Date for the prior Auction Period) and shall end on the Tuesday (unless such Tuesday is not followed by a Business Day, in which case on the next succeeding day which is followed by a Business Day) which is more than 21 days but not more than 28 days from such date of conversion, and (iii) from a daily Auction Period to a 35 day Auction Period, the next Auction Period shall begin on the date of the conversion (i.e., the Interest Payment Date for the prior Auction Period) and shall end on Tuesday (unless such Tuesday is not followed by a Business Day, in which case on the next succeeding day which is followed by a Business Day) which is more than 28 days but no more than 35 days from such date of conversion;
(d) if there is a conversion of Bonds with Auctions generally conducted on Wednesdays (i) from a daily Auction Period to a seven-day Auction Period, the next Auction Period shall begin on the date of the conversion (i.e., the Interest Payment Date for the prior Auction Period) and shall end on the next succeeding Wednesday (unless such Wednesday is not followed by a Business Day, in which case on the next succeeding day which is followed by a Business Day), (ii) from a daily Auction Period to a 28-day Auction Period, the next Auction Period shall begin on the date of the conversion (i.e., the Interest Payment Date for the prior Auction Period) and shall end on the Wednesday (unless such Wednesday is not followed by a Business Day, in which case on the next succeeding day which is followed by a Business Day) which is more than 21 days but not more than 28 days from such date of conversion, and (iii) from a daily Auction Period to a 35 day Auction Period, the next Auction Period shall begin on the date of the conversion (i.e., the Interest Payment Date for the prior Auction Period) and shall end on Wednesday (unless such Wednesday is not followed by a Business Day, in which case on the next succeeding day which is followed by a Business Day) which is more than 28 days but no more than 35 days from such date of conversion; and
(e) if there is a conversion of Bonds with Auctions generally conducted on Thursdays (i) from a daily Auction Period to a seven-day Auction Period, the next Auction Period shall begin on the date of the conversion (i.e., the Interest Payment Date for the prior Auction Period) and shall end on the next succeeding Thursday (unless such Thursday is not followed by a Business Day, in which case on the next succeeding day which is followed by a Business Day), (ii) from a daily Auction Period to a 28-day Auction Period, the next Auction Period shall begin on the date of the conversion (i.e., the Interest Payment Date for the prior Auction Period) and shall end on the Thursday (unless such Thursday is not followed by a Business Day, in which case on the next succeeding day which is followed by a Business Day) which is more than 21 days but not more than 28 days from such date of conversion, and (iii) from a daily Auction Period to a 35 day Auction Period, the next Auction Period shall begin on the date of the conversion (i.e., the Interest Payment Date for the prior Auction Period) and shall end on Thursday (unless such Thursday is not followed by a Business Day, in which case on the next succeeding day which is followed by a Business Day) which is more than 28 days but no more than 35 days from such date of conversion.
Notwithstanding the foregoing, if an Auction is for an Auction Period of more than seven days and the Auction Rate on such Auction Date is the Maximum Interest Rate because Sufficient Clearing Bids do not exist, the Auction Period will automatically change to a seven-day Auction Period.
"Auction Procedures" means the procedures for conducting Auctions for Bonds during an Auction Rate Period set forth in Section 9 hereof.
"Auction Rate" means for each Auction Period, (i) if Sufficient Clearing Bids exist, (A) the Winning Bid Rate, or (B) if all of the Bonds are the subject of Submitted Hold Orders, the All Hold Rate for the Bonds, and (ii) if Sufficient Clearing Bids do not exist, the rate determined in accordance with Section 9(e) hereof, provided that such rate shall not exceed the Maximum Interest Rate.
"Auction Rate Period" means, with respect to the Bonds in the Auction Mode, a period from and including the Conversion Date on which the Bonds are converted to the Auction Mode to and including the day which is specified by the Municipality, in accordance with Section 9(b) hereof, as the last day of the Auction Rate Period.
"Authorized Denomination" means (i) when the Bonds are in the Daily Mode, Weekly Mode, Commercial Paper Mode, or Term Mode, $100,000 or any integral multiple of $5,000 in excess thereof, (ii) when the Bonds are in the Auction Mode, $25,000 and any integral multiple thereof, and (iii) when the Bonds are in the Fixed Rate Mode, $5,000 or an integral multiple thereof.
"Available Bonds" means on each Auction Date, the aggregate principal amount of Bonds that are not the subject of Submitted Hold Orders.
"Bid" has the meaning specified in Section 9(c) hereof.
"Bidder" means each Existing Owner and Potential Owner who places an Order.
"BMA Index" means, as of any date, the seven-day high grade market index of tax exempt variable rate demand obligations, as produced by Municipal Market Data or any successor thereto and published or made available by The Bond Market Association ("BMA"), or any person acting in cooperation or under the sponsorship of BMA, or, if such index is unavailable, then such other publicly available index or measurement of seven-day yields on high grade tax exempt variable rate demand obligations selected by the Municipality and agreed to by the Remarketing Agent.
"Bond Purchase Contract" means the Bond Purchase Contract between the Municipality and the Original Purchaser, providing for the sale of the Bonds to the Original Purchaser.
"Bond Register" means the books and records necessary for the registration, exchange and transfer of Bonds, maintained by the Bond Registrar pursuant to Section 11 of this Ordinance.
"Bond Registrar" means the Board of Trustees of the Sinking Fund of the City of Columbus, Ohio, or any national banking association or other appropriate institution appointed in accordance with Section 11 hereof.
"Bond Service Charges" means, for any period of time, the principal of (including mandatory sinking fund payments) and interest and any premium due on the Bonds for that period.
"Bondholder" or "holder" means the person in whose name a Bond is registered.
"Bonds" means the bonds of the Municipality authorized in Section 2 of this Ordinance.
"Book entry form" or "book entry system" means a form or system under which (i) the beneficial right to payment of principal of and interest and premium, if any, on the Bonds may be transferred only through a book entry and (ii) physical Bonds in fully registered form are issued only to a Depository or its nominee as registered owner, with the Bonds "immobilized" to the custody of the Depository, and the book entry is the record that identifies the owners of beneficial interests in those Bonds.
"Broker-Dealer" means any entity that is permitted by law to perform the function required of a Broker-Dealer described in Section 9 hereof, that is a member of, or a direct participant in, the Depository, that has been selected by the Municipality and that is a party to a Broker-Dealer Agreement with the Auction Agent.
"Broker-Dealer Agreement" means each agreement between the Auction Agent and a Broker-Dealer pursuant to which the Broker-Dealer agrees to participate in Auctions as set for in Section 9 of this Ordinance, as from time to time amended or supplemented.
"Broker-Dealer Deadline" means the internal deadline established by each Broker-Dealer after which it will not accept Orders or any change in any Order previously placed with such Broker-Dealer. Initially, the Broker-Dealer Deadline shall be 11:45 a.m. Eastern Time for any Auction in an Auction Period other than a daily Auction Period and 10:30 a.m. Eastern Time for any Auction in a daily Auction Period. Any Broker-Dealer may change the times referred to in the prior sentence as they relate to such Broker-Dealer by giving notice to the Auction Agent. Notwithstanding the foregoing, the Broker-Dealer Deadline is implemented for the benefit of the Broker-Dealers and may be waived by any individual Broker-Dealer in any particular circumstance in the sole discretion of such Broker-Dealer.
"Business Day" means any day of the year other than: (a) a Saturday; (b) a Sunday; (c) a day on which banks in any city in which the Principal Office of the Tender Agent or the Principal Office of the Liquidity Facility Issuer, if any, is located are required or authorized by law to remain closed; (d) a legal holiday in the Municipality; or (e) a day on which The New York Stock Exchange is closed; provided, however, that while Bonds are in the Auction Mode, the term Business Day shall not include days on which the Auction Agent or any Broker-Dealer are not open for business.
"Certificate of Award" means the Certificate of Award described in Section 13 of this Ordinance.
"Clerk" means the Clerk of Council of the Municipality.
"Code" means the Internal Revenue Code of 1986, as amended, and references to the Code and Sections of the Code shall include relevant regulations and proposed regulations thereunder, and any successor provisions to such Sections, regulations or proposed regulations.
"Commercial Paper Mode" means that Interest Rate Mode in which the Bonds bear interest at an interest rate which is adjusted as determined by the Remarketing Agent pursuant to the provisions of Section 6 of this Ordinance.
"Commercial Paper Rate" means the interest rate for the Bonds established by the Remarketing Agent on the first Business Day of that Commercial Paper Rate Period.
"Commercial Paper Rate Period" means, with respect to the Bonds in the Commercial Paper Mode, a period from and including the Conversion Date on which the Bonds are converted to the Commercial Paper Mode to and including the day which is specified by the Municipality, in accordance with Section 6 of this Ordinance, as the last day of the Commercial Paper Rate Period.
"Conversion Date" means the day on which a particular type of Interest Rate (i.e., a Daily Rate, Weekly Rate, Commercial Paper Rate, Term Rate, Fixed Rate or Auction Rate), becomes effective for the Bonds which is immediately preceded by a day on which such Bonds did not accrue interest at that type of rate and, when used with respect to any Term Rate Period, the day after the end of such Term Rate Period. Each Conversion Date shall be an Interest Payment Date for the Rate Period from which the Bonds are converted, which shall be the last Interest Payment Date for the then current Term Rate Period if the conversion is from a Term Rate Period, except that any Business Day may be a Conversion Date from a Daily Rate or Weekly Rate Period. Conversion Dates shall be established in accordance with Sections 6, 8 and 9 of this Ordinance.
"Council" means the City Council of the Municipality.
"Daily Mode" means that Interest Rate Mode in which the Bonds bear interest at the Daily Rate for a Daily Rate Period specified by the Municipality in accordance with the provisions of Section 6 of this Ordinance.
"Daily Rate" means the interest rate for the Bonds established by the Remarketing Agent effective from and including the commencement date of that Daily Rate Period.
"Daily Rate Period" means, with respect to the Bonds in the Daily Mode, a period from and including the Conversion Date on which the Bonds are converted to the Daily Mode to and including the day which is specified by the Municipality, in accordance with Section 6 of this Ordinance, as the last day of the Daily Rate Period.
"Debt Service Levy" shall have the meaning set forth for such term in Section 3 of this Ordinance.
"Depository" means The Depository Trust Company (a limited purpose trust company), New York, New York, its successors and their assigns, and any successor depository appointed in accordance with Section 12 of this Ordinance. Any successor depository shall be a clearing agency under federal law operating and maintaining, together with its participants, a book entry system to record beneficial ownership of obligations such as the Bonds, and to effect transfers of obligations such as the Bonds in book entry form.
"Director of Finance and Management" means the Municipality's Director of the Department of Finance and Management and any officer of the Municipality who succeeds to the functions thereof.
"Executive Officer" means the Mayor of the Municipality and any officer of the Municipality who succeeds to the function thereof.
"Existing Owner" means a Person who is listed as the beneficial owner of Bonds in the records of the Auction Agent; provided, however, that for purposes of conducting an Auction, the Auction Agent may consider a Broker-Dealer acting on behalf of its customer as an Existing Owner.
"Expiration Date" means the date established in the Liquidity Facility for the expiration thereof in accordance with its terms, the date set forth in the Certificate of Award, if any, and in the event such date is extended, such date as extended; or such earlier date, if any, on which the Liquidity Facility terminates pursuant to its terms or pursuant to subsection (e) of Section 15 of this Ordinance.
"Fiscal Officer" means the City Auditor of the Municipality and any officer of the Municipality who succeeds to the functions thereof.
Break1
"First Optional Redemption Date" means the December 1 occurring in the year which is a number of years after the Conversion Date to the Fixed Rate Mode equal to the number of full years between the December 1 immediately following such Conversion Date (unless such Conversion Date is a December 1, in which case from such December 1) and December 1 of the year in which the Maturity Date occurs, multiplied by 1/2 and rounded up to the nearest whole number.
"Fitch" means Fitch Ratings, Inc., and any successor thereto, and if such corporation shall be dissolved or liquidated or shall no longer perform the functions of a securities rating organization, "Fitch" shall be deemed to refer to any other nationally recognized securities rating organization approved by the Municipality.
"Fixed Interest " means a fixed non-adjustable interest rate on the Bonds to be bore by tBonds while the Bonds are in the Term Mode or the Fixed Rate Mode.
"Fixed Rate Mode" means that Interest Rate Mode in which the Bonds bear interest at the Fixed Interest Rate from the Conversion Date to the Maturity Date.
"Fixed Rate Period" means, with respect to the Bonds in the Fixed Rate Mode, the period from the Fixed Rate Conversion Date for such Bonds to the Maturity Date of the Bonds, unless earlier redeemed.
"Flexible Auction Period" means: (a) any period of 182 days or less which is divisible by seven and which begins on an Interest Payment Date and ends (i) in the case of Bonds with Auctions generally conducted on Fridays, on a Sunday unless such Sunday is not followed by a Business Day, in which case on the next succeeding day which is followed by a Business Day, (ii) in the case of Bonds with Auctions generally conducted on Mondays, on a Monday unless such Monday is not followed by a Business Day, in which case on the next succeeding day which is followed by a Business Day, (iii) in the case of Bonds with Auctions generally conducted on Tuesdays, on a Tuesday unless such Tuesday is not followed by a Business Day, in which case on the next succeeding day which is followed by a Business Day, (iv) in the case of Bonds with Auctions generally conducted on Wednesdays, on a Wednesday unless such Wednesday is not followed by a Business Day, in which case on the next succeeding day which is followed by a Business Day, and (v) in the case of Bonds with Auctions generally conducted on Thursdays, on a Thursday unless such Thursday is not followed by a Business Day, in which case on the next succeeding day which is followed by a Business Day or (b) any period which is longer than 182 days which begins on an Interest Payment Date and ends not later than the final scheduled maturity date of such Bonds.
"Index" shall have the meaning specified in Section 9(h) hereof.
"Interest Accrual Period" means the period during which the Bonds accrue interest payable on any Interest Payment Date. With respect to Bonds in the Daily Mode, the Interest Accrual Period shall commence on (and include) the first day of each month and shall extend through (and include) the last day of such month; provided, that if such month is the month in which the Bonds were authenticated and delivered or were changed to the Daily Mode, the Interest Accrual Period shall commence on the date of authentication and delivery of the Bonds or the Conversion Date, as the case may be; provided, further, that if no interest has been paid on Bonds in the Daily Mode, interest shall accrue from the date of original authentication and delivery of the Bonds or the Conversion Date, as appropriate. With respect to Bonds in the Weekly Mode, the Interest Accrual Period shall commence on (and include) the first Thursday of each month and shall extend through (and include) the Wednesday preceding the first Thursday of the following month (or, if no interest has been paid in such Interest Rate Mode, from the date of original authentication and delivery of the Bonds, or the Conversion Date, as the case may be). With respect to Bonds in all Interest Rate Modes other than the Daily Mode or Weekly Mode, the Interest Accrual Period shall commence on the last Interest Payment Date to which interest has been paid (or, if no interest has been paid in such Interest Rate Mode, from the date of original authentication and delivery of the Bonds, or the Conversion Date, as the case may be) to, but not including, the Interest Payment Date on which interest is to be paid.
"Interest Determination Date" means (i) with respect to the Bonds in the Weekly Mode, the Wednesday immediately preceding the commencement of such Interest Period, if such day is not a Business Day, then the Interest Determination Date shall be the next preceding Business Day, (ii) with respect to the Bonds in the Daily Mode, the first Business Day of the Daily Rate Period to which it relates, (iii) with respect to the Bonds in the Commercial Paper Mode, Term Mode or Fixed Rate Mode, the Business Day immediately preceding the commencement date of such Interest Period, and (iv) for the first Interest Period following any conversion of the Bonds from the Term Mode to the Weekly Mode, the Business Day immediately preceding the first day of such Interest Period. There shall be no Interest Determination Date for the Interest Period beginning on the Original Issuance Date.
"Interest Payment Date" means (i) while the Bonds are in the Daily Mode, the first Business Day of each calendar month following a month in which interest at such rate has accrued, and any day which is a Conversion Date from a Daily Rate Period, (ii) while the Bonds are in the Weekly Mode, the first Thursday of each month, commencing on the date specified in the Certificate of Award, (iii) while the Bonds are in the Commercial Paper Mode, the day after the last day of each Commercial Paper Rate Period applicable thereto, (iv) while the Bonds are in the Term Mode or the Fixed Rate Mode, each June 1 and December 1, and (v) while the Bonds are in the Auction Mode, (a) when used with respect to any Auction Period other than a daily Auction Period or a Flexible Auction Period, the Business Day immediately following such Auction Period, (b) when used with respect to a daily Auction Period, the first Business Day of the month immediately succeeding such Auction Period, (c) when used with respect to a Flexible Auction Period of (i) seven or more but fewer than 183 days, the Business Day immediately following such Flexible Auction Period, or (ii) 183 or more days, each June 1, and December 1, and on the Business Day immediately following such Flexible Auction Period, and (d) the Maturity Date.
"Interest Period" means, the duration for which the Bonds remain in one Interest Rate Mode pursuant to Section 6 of this Ordinance prior to the conversion of the Bonds into another Interest Rate Mode.
"Interest Rate Mode" means any of those modes of interest with respect to the Bonds authorized by this Ordinance; specifically, the Daily Mode, the Weekly Mode, the Commercial Paper Mode, the Term Mode, the Fixed Rate Mode, and the Auction Mode.
"LIBOR Rate" means on any date of determination for any Auction Period, the offered rate for deposits in U.S. dollars for a one-month period which appears on the Bloomberg BTMM US at approximately 11:00 A.M., London time, on such date, or if such date is not a date on which dealings in U.S. dollars are transacted in the London interbank market, then on the next preceding day on which such dealings were transacted in such market.
"LFI Bonds" mean Bonds that have been purchased and are being held by or on behalf of the Liquidity Facility Issuer, if any, as a result of a draw on the Liquidity Facility pursuant to subsection (g) of Section 7 of this Ordinance.
"LFI Tender Date" means the date on which all Bonds are to be purchased in accordance with subsection (b) of Section 7 of this Ordinance as a result of the delivery of a LFI Notice of Default.
"LFI Notice of Default" means a written notice from the Liquidity Facility Issuer to the Municipality and the Tender Agent stating that (i) an event of default under the Liquidity Facility has occurred; and (ii) that the Liquidity Facility will terminate on the date set forth in the notice.
"Liquidity Facility" means a bond purchase agreement, letter of credit, line of credit, revolving credit agreement or other agreement with a Liquidity Facility Issuer, (i) that satisfies the requirements for such a facility as set forth in this Ordinance, and (ii) pursuant to which the Liquidity Facility Issuer agrees to purchase, or provide money to the Tender Agent for the payment of the purchase price of, the LFI Bonds that have been tendered or deemed tendered for purchase pursuant to Section 7 of this Ordinance and not remarketed. After the delivery of an Alternate Liquidity Facility to the Tender Agent pursuant to Section 15 of this Ordinance, the Alternate Liquidity Facility shall become the Liquidity Facility.
"Liquidity Facility Event" means (a) an Expiration Date, or (b) the effective date of an Alternate Liquidity Facility delivered to the Tender Agent pursuant to Section 15 of this Ordinance if Rating Maintenance Letters from the Rating Agencies have not been delivered to the Tender Agent and the Bond Registrar in connection with such Alternate Liquidity Facility.
"Liquidity Facility Issuer" means the issuer of the Liquidity Facility, if any, and after the delivery of any Alternate Liquidity Facility, the issuer of the Alternate Liquidity Facility.
"Liquidity Facility Rate" means the rate of interest per annum to be borne by the LFI Bonds, as determined in accordance with the Liquidity Facility, if any, then in effect; provided, however, that such rate shall not exceed the maximum rate permitted by applicable law.
"Mandatory Redemption Dates" means December 1 in the years, if any, specified in the Certificate of Award, which are dates on which the Bonds are to be redeemed pursuant to the mandatory sinking fund redemption requirements set forth in Section 5 of this Ordinance.
"Maturity Date" means the stated maturity date of the Bonds specified in the Certificate of Award, which date shall not be later than December 1, 2031.
"Maximum Interest Rate" means the lesser of (a) fifteen percent (15%) per annum, and (b) the maximum rate permitted by applicable law.
"Maximum Liquidity Rate" means the maximum interest rate set forth in the Liquidity Facility, if any, which shall not be less than eight percent (8%) per annum.
"Moody's" means Moody's Investors Service, Inc., and any successor thereto, and if such corporation shall be dissolved or liquidated or shall no longer perform the functions of a securities rating organization, "Moody's" shall be deemed to refer to any other nationally recognized securities rating organization approved by the Municipality.
"Municipality" means the City of Columbus, Ohio.
"Order" means a Hold Order, Bid or Sell Order.
"Original Issuance Date" means the date on which the Bonds are first authenticated and delivered pursuant to the Bond Purchase Contract, which date shall be set forth in the Certificate of Award.
"Original Purchaser" means JPMorgan Securities Inc.
"Potential Owner" means any Person, including any Existing Owner, who may be interested in acquiring a beneficial interest in the Bonds in addition to the Bonds currently owned by such Person, if any.
"Purchase Price" means the amount paid by the Original Purchaser to the Municipality as consideration for the Bonds, which amount shall be set forth in the Certificate of Award, but such amount shall not be less than the par amount of the Bonds.
"Rating Agency" means Moody's, S&P or Fitch.
"Rating Maintenance Letter" means a letter from a Rating Agency to the Municipality, the Bond Registrar, the Tender Agent and the Remarketing Agent stating that the Rating Agency has reviewed a proposed Alternate Liquidity Facility and that substitution of such Alternate Liquidity Facility for the Liquidity Facility will not by itself result in a withdrawal, suspension or reduction of any of the Rating Agency's current ratings for the Bonds.
"Record Date" means (i) while the Bonds are in the Commercial Paper Mode, Daily Mode, or Weekly Mode, the close of business on the day (whether or not a Business Day) immediately preceding an Interest Payment Date, (ii) while the Bonds are in the Auction Mode, the close of business on the first Business Day immediately preceding an Interest Payment Date, or (iii) while the Bonds are in a Fixed Rate Mode or Term Mode, the day that is fifteen (15) days preceding the related Interest Payment Date.
"Remarketing Agent" means the Remarketing Agent identified in Section 16 of this Ordinance, and any successor Remarketing Agent appointed in accordance with Section 16 of this Ordinance. "Principal Office" of the Remarketing Agent means the office or offices designated from time to time as such by the Remarketing Agent in writing to the Municipality and the Tender Agent.
"Remarketing Agent Agreement" means the written agreement between the Municipality and the Remarketing Agent, authorized by Section 16 of this Ordinance, and any and all modifications, alterations, amendments and supplements thereto, and includes any agreement between the Municipality and a successor Remarketing Agent.
"S&P" means Standard & Poor's Ratings Services, a division of The McGraw Hill Companies, Inc., and any successor thereto, and if such corporation shall be dissolved or liquidated or shall no longer perform the functions of a securities rating organization, "S&P" shall be deemed to refer to any other nationally recognized securities rating organization approved by the Municipality.
"Sell Order" has the meaning specified in Section 9(c) hereof.
"Submission Deadline" means 1:00 p.m., Eastern Time, on each Auction Date not in a daily Auction Period and 11:00 a.m., Eastern Time, on each Auction Date in a daily Auction Period, or such other time on such date as shall be specified from time to time by the Auction Agent pursuant to the Auction Agreement as the time by which Broker-Dealers are required to submit Orders to the Auction Agent.
"Submitted Bid" has the meaning specified in Section 9(e) hereof.
"Submitted Hold Orders" has the meaning specified in Section 9(e) hereof.
"Submitted Order" has the meaning specified in Section 9(e) hereof.
"Submitted Sell Order" has the meaning specified in Section 9(e) hereof.
"Sufficient Clearing Bids" means an Auction for which the aggregate principal amount of such Bonds that are the subject of Submitted Bids by Potential Owners specifying one or more rates not higher than the Maximum Interest Rate is not less than the aggregate principal amount of such Bonds that are the subject of Submitted Sell Orders and of Submitted Bids by Existing Owners specifying rates higher than the Maximum Interest Rate.
"Tender Agent" means the Tender Agent identified in the Certificate of Award, and any successor Tender Agent appointed in accordance with Section 17 of this Ordinance. "Principal Office" of the Tender Agent means the office or offices designated from time to time as such by the Tender Agent in writing to the Municipality and the Remarketing Agent.
"Tender Agent Agreement" means the written agreement between the Municipality and the Tender Agent, authorized by Section 17 of this Ordinance, and any and all modifications, alterations, amendments and supplements thereto, and includes any agreement between the Municipality and a successor Tender Agent.
"Term Mode" means that Interest Rate Mode in which the Bonds bear interest at the Fixed Interest Rate for a Term Rate Period specified by the Municipality in accordance with the provisions of Section 6 of this Ordinance.
"Term Rate" means that interest rate to be determined for the Bonds for a term of at least six months pursuant to Section 6 of this Ordinance.
"Term Rate Period" means, with respect to Bonds in the Term Mode, a period from and including the Conversion Date on which the Bonds are converted to the Term Mode to and including the day which is specified by the Municipality, in accordance with Section 6 of this Ordinance, as the last day of the Term Rate Period. The last day of a Term Rate Period shall be no later than May 31 of the year in which the Maturity Date occurs.
"Weekly Mode" means that Interest Rate Mode in which the Bonds bear interest at an interest rate that is adjusted weekly in accordance with the provisions of Section 6 of this Ordinance.
"Weekly Rate" means that interest rate to be determined for the Bonds on a weekly basis pursuant to Section 6 of this Ordinance.
"Weekly Rate Period" means, with respect to the Bonds in the Weekly Mode, a period from and including the Conversion Date on which the Bonds are converted to the Weekly Mode to and including the day which is specified by the Municipality, in accordance with Section 6 of this Ordinance, as the last day of the Weekly Rate Period.
"Winning Bid Rate" means the lowest rate specified in any Submitted Bid of Bonds that, if selected by the Auction Agent as the Auction Rate, would cause the aggregate principal amount of such Bonds that are the subject of Submitted Bids specifying a rate not greater than such rate to be not less than the aggregate principal amount of Available Bonds of such Bonds.
SECTION 2. Authorization of the Bonds
Bonds of the Municipality shall be issued in an aggregate principal of not to exceed Seventy-Nine Million Nine Hundred Eighty Thousand Hundred Dollars ($79,980,000) (the "Bonds") or such lesser amount as shall be determined by the Director of Finance and Management or Fiscal Officer and certified to the Council, for the purpose set forth above and for paying the cost of advertising, printing and legal services and other costs incidental thereto. The Bonds shall be issued in one lot. The Bonds shall be designated "City of Columbus, Ohio Sanitary Sewer Adjustable Rate Unlimited Tax Bonds, Series 2006-1".
SECTION 3. Levy of Tax
There shall be and is hereby levied annually on all the taxable property in the Municipality, in addition to all other taxes and outside the ten mill limitation, a direct tax (the "Debt Service Levy") for each year during which any of the Bonds are outstanding, for the purpose of providing, and in an amount which is sufficient to provide, funds to pay interest upon the Bonds as and when the same falls due and to provide a fund for the repayment of the principal of the Bonds at maturity or upon redemption. Except as provided in Section 4 hereof, the Debt Service Levy shall not be less than the interest and sinking fund tax required by Article XII, Section 11 of the Ohio Constitution.
SECTION 4. Collection of Tax; Source of Payment
(a) The Debt Service Levy shall be and is hereby ordered computed, certified, levied and extended upon the tax duplicate and collected by the same officers, in the same manner, and at the same time that taxes for general purposes for each of such years are certified, extended and collected. The Debt Service Levy shall be placed before and in preference to all other items and for the full amount thereof. The funds derived from the Debt Service Levy shall be placed in a separate and distinct fund, which shall be irrevocably pledged for the payments of the premium, if any, and interest on and principal of the Bonds when and as the same fall due. Notwithstanding the foregoing, if the Municipality determines that funds will be available from other sources for the payment of the Bonds in any year, the amount of the Debt Service Levy for such year shall be reduced by the amount of funds which will be so available, and the Municipality shall appropriate such funds to the payment of the Bonds in accordance with law.
(b) For purposes of preparing the Municipality's annual budget for any year, commencing in 2007, in which the Bonds are, or are to be, in the Daily Mode, Weekly Mode, Commercial Paper Mode, or Auction Mode, the amount to be included in the budget and appropriated for Bond Service Charges shall be determined by assuming that the interest rate applicable to the Bonds when they are, or are to be, in the Daily Mode, Weekly Mode, Commercial Paper Mode, or Auction Mode is equal to the sum of two percent (2%) plus the greater of (a) the average rate per annum borne by the Bonds during that portion of the ninety day period ending on the last day of the month preceding the month in which the appropriation is made in which the Bonds were in the Daily Mode, Weekly Mode, Commercial Paper Mode, or Auction Mode, or (b) the average rate per annum borne by the Bonds during that portion of the twelve month period (or such shorter period during which the Bonds were outstanding) ended September 30th of the year preceding the budget year in which the Bonds were in the Daily Mode, Weekly Mode, Commercial Paper Mode, or Auction Mode.
SECTION 5. Form; Maturity and Redemption
(a) The Bonds shall be issued only as fully registered bonds in an Authorized Denomination but not exceeding the aggregate principal amount of Bonds; shall be numbered as determined by the Bond Registrar; shall be dated the Original Issuance Date; shall bear interest payable on Interest Payment Dates, until the principal sum is paid or payment is provided for; shall bear interest at the rates determined pursuant to Section 6 of this Ordinance; and shall mature on the Maturity Date and be subject to mandatory sinking fund redemption in the amounts and on the dates set forth in the Certificate of Award. If any Interest Payment Date, Mandatory Redemption Date, if any, or Maturity Date is not a Business Day, the payment of Bond Service Charges otherwise due and payable on that day may be made on the next succeeding Business Day with the same force and effect as if made on such Interest Payment Date, Mandatory Redemption Date or Maturity Date.
(b) While the Bonds are in the Daily Mode or Weekly Mode, the Bonds shall be subject to redemption, at the option of the Municipality, on any Business Day, in whole or in part in an Authorized Denomination at a redemption price equal to 100% of the principal amount redeemed, plus accrued interest to the redemption date.
(c) While the Bonds are in the Commercial Paper Mode, the Bonds shall be subject to redemption, at the option of the Municipality, on any Interest Payment Date, in whole or in part in an Authorized Denomination at a redemption price equal to 100% of the principal amount redeemed, plus accrued interest to the redemption date.
(d) While the Bonds are in the Term Mode, the Bonds shall be subject to redemption, at the option of the Municipality, on the Interest Payment Date immediately following the end of the Term Rate Period, in whole or in part in an Authorized Denomination at a redemption price equal to 100% of the principal amount redeemed, plus accrued interest to the redemption date.
(e) While the Bonds are in the Auction Mode, the Bonds shall be subject to redemption, at the option of the Municipality, on the Interest Payment Date immediately following the end of the Auction Rate Period, in whole or in part in an Authorized Denomination, at a redemption price equal to 100% of the principal amount redeemed, plus accrued interest to the redemption date; provided that after any optional redemption, if any Bonds then bear interest at the Auction Rate, then there shall be not less than $10,000,000 in aggregate principal amount of the Bonds bearing interest at the Auction Rate unless otherwise consented to by the Broker-Dealers.
(f) While the Bonds are in the Fixed Rate Mode, the Bonds shall be subject to redemption, at the option of the Municipality, on any Business Day on or after the First Optional Redemption Date, in whole or in part in an Authorized Denomination at a redemption price equal to 100% of the principal amount redeemed plus accrued interest to the redemption date.
(g) If specified in the Certificate of Award, the Bonds are subject to mandatory sinking fund redemption at a redemption price equal to 100% of the principal amount redeemed plus accrued interest to the redemption date on the Mandatory Redemption Dates and in the principal amounts to be set forth in the Certificate of Award.
(h) The Municipality shall have the option to deliver to the Bond Registrar for cancellation Bonds in any aggregate principal amount and to receive a credit against the then current mandatory sinking fund requirement for Bonds (and corresponding mandatory redemption obligation) of the Municipality. A credit against the then current mandatory sinking fund requirement (and corresponding mandatory redemption obligation) also shall be received by the Municipality for any Bonds, which prior thereto have been redeemed (other than through the operation of the mandatory sinking fund requirements) or purchased for cancellation and canceled by the Bond Registrar, to the extent not applied theretofore as a credit against any redemption obligation.
(i) Each Bond so delivered, previously redeemed, or purchased and canceled, shall be credited by the Bond Registrar at 100% of the principal amount thereof against the then current mandatory sinking fund obligation of Bonds. Any excess of that amount over the then current mandatory sinking fund requirement shall be credited against subsequent mandatory sinking fund redemption obligations with respect to the Bonds in the order directed by the Municipality.
(j) If fewer than all of the Bonds are to be redeemed, the selection of Bonds to be redeemed, or portions thereof in an Authorized Denomination, shall be made by the Bond Registrar in any such manner as the Bond Registrar may determine, except that LFI Bonds shall be redeemed prior to the redemption of any other Bonds. In the case of a partial redemption of Bonds by lot when Bonds of denominations greater than the minimum Authorized Denomination are then outstanding, each Authorized Denomination unit of principal thereof shall be treated as though it were a separate Bond of the minimum Authorized Denomination. If it is determined that one or more, but not all of the minimum Authorized Denomination units of principal amount represented by a Bond are to be called for redemption, then upon notice of redemption of an Authorized Denomination unit or units, the Bondholder of that Bond shall surrender the Bond to the Bond Registrar (i) for payment of the redemption price of the Authorized Denomination unit or units called for redemption (including without limitation, the interest accrued to the date fixed for redemption and any Bondholder premium), and (ii) for issuance, without charge to the Bondholder thereof, of a new Bond or Bonds in an Authorized Denomination in an aggregate principal amount equal to the unmatured and unredeemed portion of the Bond surrendered.
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(k) The right of redemption shall be exercised by notice specifying by numbers the Bonds to be called, the redemption price to be paid, the date fixed for redemption and the places where amounts due upon such redemption are payable. The Bond Registrar shall cause such notice to be given by first class mail, postage prepaid, to the holder or holders of the Bonds to be redeemed, mailed to the address shown on the registration books. Such notice may set forth any additional information relating to such redemption. Such notice shall be given at least fifteen (15) days prior to the redemption date if the Bonds are in the Daily Mode, Weekly Mode, Commercial Paper Mode or Auction Mode and at least thirty (30) days prior to the redemption date if the Bonds are in the Term Mode or the Fixed Rate Mode. All Bonds so called for redemption shall cease to bear interest on the redemption date, provided moneys for the redemption of said Bonds are on deposit at the office of the Bond Registrar at that time. If, because of the temporary or permanent suspension of regular mail service, or for any other reason, it is impossible or impractical to give such notice of redemption by mail in the manner herein provided, then such other manner of giving notice in lieu thereof as the Bond Registrar shall, in its discretion, select shall constitute a sufficient notice. Any defect in the notice or any failure to give or receive such notice with respect to any Bond shall not affect the validity of any proceedings for the redemption of any other Bond.
SECTION 6. Interest Rates
(a) The initial Interest Rate Mode for the Bonds shall be specified in the Certificate of Award, and for the first Interest Period, the Bonds shall bear interest at the rate per annum set forth in the Certificate of Award. Thereafter, the Interest Rate Mode may be changed from the Interest Rate Mode specified in the Certificate of Award to the Daily Mode, Weekly Mode, Commercial Paper Mode, Term Mode or the Auction Mode, and vice versa, in which event the Bonds shall bear interest at the applicable Interest Rate as determined in this Section. Subsequent to the conversion of the Bonds to the Fixed Rate Mode as determined in Section 8 of this Ordinance, no further changes in Interest Rate Mode shall be permitted. Additional provisions with respect to the initial Interest Rate Mode shall be specified in the Certificate of Award.
(b) For each Interest Period while the Bonds are in the Weekly Mode, the interest rate on the Bonds shall be a rate determined by the Remarketing Agent, in its discretion, to be the rate that, if borne by all Bonds, would, in the judgment of the Remarketing Agent, having due regard to prevailing financial market conditions, be the interest rate necessary (but not in excess of the interest rate necessary) to enable the Remarketing Agent to remarket all outstanding Bonds on the first day of such Interest Period at a price equal to 100% of the principal amount thereof. A Weekly Rate Period shall commence on the Thursday in each calendar week to and including the Wednesday in the following week, except that (i) the first Interest Period shall be the period from and including the Original Issuance Date to and including the Wednesday identified in the Certificate of Award as the last day of the first Interest Period, and (ii) the first Interest Period following any conversion of the Bonds from the Term Mode to the Weekly Mode shall be the period from and including the day on which the Bonds convert to the Weekly Mode to and including the next succeeding Wednesday. If, for any Interest Period, the Remarketing Agent fails to determine the interest rate to be borne by the Bonds as provided for in this Section 6, the interest rate for such Interest Period shall be equal to the BMA Index on the Interest Determination Date for the Interest Period.
(c) For each Interest Period while the Bonds are in the Daily Mode, the interest rate on the Bonds shall be a rate determined by the Remarketing Agent, in its discretion, to be the rate that, if borne by all Bonds, would, in thejdmnt of the Remarketing Agent, having due regard to prevailing financil market conditions, be the interest rate necessary (but not in excess of the interest rate necessary) to enable the Remarketing Agent to remarket all outstanding Bonds on the first day of such Interest Period at a prc qual to 100% of the principal amount thereof. A Daily Rate Period shall commence on a Daily Rate Conversion Date, which shall be a Business Day, and thereafter on each Business Day until the type of Rate Period of the Bonds is converted to another type of Rate Period and shall extend to, but not include, the next succeeding Business Day. The Daily Rate Period shall be made available to the Municipality, the Bond Registrar, the Liquidity Facility Issuer, if any, and the Tender Agent on the Interest Determination Date for such Interest Period.
(d) For each Interest Period while the Bonds are in the Commercial Paper Mode, the interest rate on the Bonds shall be a rate determined by the Remarketing Agent on or prior to the first Business Day of such Commercial Paper Rate Period, in its discretion, to be (i) the rate that will produce the greatest likelihood of the lowest net interest cost during the term of the Bonds, and (ii) the interest rate necessary (but not in excess of the interest rate necessary) to enable the Remarketing Agent to remarket all outstanding Bonds on the first day of such Interest Period at a price equal to 100% of the principal amount thereof. The Commercial Paper Rate Period shall be from one to 365 days in length, shall not exceed the remaining number of days prior to the Conversion Date if the Remarketing Agent has given or received notice of any conversion to a different Interest Rate Period, shall commence on a Business Day, shall end on a day preceding a Business Day or in any event, no later than the day preceding the Maturity Date. The Commercial Paper Rate Period shall be made available to the Municipality, the Bond Registrar, the Liquidity Facility Issuer, if any, and the Tender Agent on the Interest Determination Date for such Interest Period.
(e) For each Interest Period while the Bonds are in the Term Mode, the interest rate on the Bonds shall be a rate determined by the Remarketing Agent, in its discretion, to be the rate that, if borne by all Bonds, would, in the judgment of the Remarketing Agent, having due regard to prevailing financial market conditions, be the interest rate necessary (but not in excess of the interest rate necessary) to enable the Remarketing Agent to remarket all outstanding Bonds on the first day of such Interest Period at a price equal to 100% of the principal amount thereof. A Term Rate Period shall commence on a Term Rate Conversion Date and subsequently on a May 15 or November 15 (whichever next follows the Term Rate Conversion Date if the Term Rate Conversion Date is not a May 15 or November 15, or on the same such day if the Term Rate Conversion Date is a May 15 or November 15) which is at least six (6) calendar months after the Term Rate Conversion Date, and end on the earliest of (i) the day preceding (a) either the commencement date of the following Term Rate Period or (b) the Conversion Date on which a different Rate Period shall become effective; or (ii) the Maturity Date. The Term Rate for each Term Rate Period shall be effective from and including the commencement date thereof and remain in effect to and including the last day thereof. The Term Rate Period shall be made available to the Municipality, the Bond Registrar, the Liquidity Facility Issuer, if any, and the Tender Agent on the Interest Determination Date for such Interest Period.
(f) For each Interest Period while the Bonds are in the Auction Mode, the interest rate on the Bonds shall be a rate determined by the Auction Agent pursuant to the provisions set forth in Section 9 of this Ordinance.
(g) The Bonds bearing interest at the Fixed Rate may not be converted to any other type of Rate Period and shall not be secured by any Liquidity Facility. The Fixed Rate shall be that interest rate set forth in a firm underwriting or bond purchase contract from a recognized firm of bond underwriters or recognized institutional investors, which may be the Remarketing Agent, offering to underwrite or purchase the Bonds at a rate of 100% of the principal amount thereof at an agreed upon interest rate for the Bonds to be converted to the Fixed Rate. The Fixed Rate Period shall commence on a Fixed Rate Conversion Date and shall extend to the Maturity Date for the Bonds, accruing interest at such Fixed Rate, unless earlier redeemed. The Fixed Rate Period shall be made available to the Municipality, the Bond Registrar, and the Tender Agent on the Interest Determination Date for such Interest Period.
(h) While the Bonds are in the Daily Mode, Weekly Mode, or Commercial Paper Mode, interest shall be computed on the basis of a year of 365 or 366 days, as appropriate, and on the actual number of days elapsed. While the Bonds are in the Term Mode or the Fixed Rate Mode, interest shall be computed on the basis of a 360-day year consisting of twelve 30-day months. While the Bonds are in the Auction Mode, interest shall be computed on the basis of a 360-day year for the actual number of days elapsed, except in the case of an Auction Period of 180 days or more (a "Special Auction Period"), in which case it will be computed on the basis of twelve 30-day months.
(i) Notwithstanding anything to the contrary contained in this Ordinance, each LFI Bond shall bear interest (i) on the principal amount thereof at the Liquidity Facility Rate for each day it is an LFI Bond, (ii) on any interest that accrued on such Bond to but excluding the date it became an LFI Bond (the "Purchase Date"), but only to the extent that such accrued interest was included in the price for such Bond on the Purchase Date, at the Liquidity Facility Rate for each day from and including the Purchase Date to but excluding the first Interest Payment Date after the Purchase Date, and (iii) on any overdue interest on such Bond (including, without limitation, interest described in clause (ii) that is not paid on the first Interest Payment Date after the Purchase Date) for each day until paid, at the Liquidity Facility Rate for such day. All interest on an LFI Bond shall be payable on the Interest Payment Dates, on the date that such LFI Bond ceases to be an LFI Bond, on the date of redemption or maturity, and after maturity on demand of the Liquidity Facility Issuer.
(j) Notwithstanding anything to the contrary contained in this Ordinance, prior to the Expiration Date and while the Bonds are in the Daily Mode, Weekly Mode, or Commercial Paper Mode, the interest rate borne by the Bonds other than LFI Bonds shall not exceed the Maximum Liquidity Rate.
(k) Notwithstanding anything to the contrary contained in this Ordinance, in the event that the Municipality purchases Bonds in accordance with the provisions of Section 7(g) of this Ordinance, the interest rate borne by such Bonds during the period that such Bonds are held by the Municipality shall be the higher of (1) the prime rate of JPMorgan Chase Bank, N.A., and any successor thereto, as of the date of purchase or (2) 3% over the Federal Funds target rate published in the Wall Street Journal as of the date of purchase; provided, however, that, in no event shall the interest rate on such Bonds exceed the maximum rate permitted by applicable law.
(l) The determination of the interest rate borne by the Bonds as provided in this Section 6 with respect to the Bonds in the Daily Mode, Weekly Mode, Commercial Paper Mode, Term Mode, Fixed Rate Mode, or the Auction Mode shall be conclusive and binding upon the Municipality, the Bond Registrar, the Remarketing Agent, the Tender Agent, the Liquidity Facility Issuer, if any, and the holders of the Bonds.
SECTION 7. Purchase of Bonds.
(a) A Bond in the Daily Mode or Weekly Mode, other than an LFI Bond, shall be purchased, on the demand of the holder thereof, (i) on any Business Day at a purchase price equal to the principal amount thereof plus accrued interest, if any, to the date of purchase, upon delivery of an irrevocable written notice of tender not later than 5:00 p.m. Eastern Time, substantially in the form of Exhibit A attached to this Ordinance, or irrevocable telephonic notice of tender promptly confirmed in writing, to the Remarketing Agent at its Principal Office, which notice states the date on which such Bond shall be purchased pursuant to this subsection, which date shall be any Business Day prior to the seventh (7th) day next succeeding the date of the delivery of such notice if the Bonds are in a Weekly Mode, and (ii) on any Business Day provided notice is given not later than 11:00 a.m. Eastern Time, on the purchase date if the Bonds are in Daily Mode. The holder of a Bond described in the notice shall deliver such Bond (with instruments of transfer) to the Principal Office of the Tender Agent at or prior to 11:30 a.m., Eastern Time, on the date specified in such notice. Payment of the purchase price of a Bond purchased pursuant to this subsection (a) shall be made to the holder thereof by wire transfer of immediately available funds by the Tender Agent by the close of business on the date of purchase; provided, however, that payment of the purchase price shall be made only if the Bond is so delivered to the Tender Agent and only if the Bond so delivered to the Tender Agent conforms in all respects to the description thereof in the notice described in this subsection (a). A holder who gives notice of tender as set forth above may repurchase the Bonds so tendered on the purchase date specified in such notice if the Remarketing Agent agrees to sell the Bonds so tendered to such holder. If such holder decides to repurchase such Bonds and the Remarketing Agent agrees to sell such Bonds to such holder, the delivery requirements set forth above shall be waived and the Remarketing Agent shall notify the Tender Agent of such waiver by telecopy, telegraph, telex, facsimile transmission or other similar means of communication. In the event a holder of Bonds has given a written notice of tender and has failed to deliver the amount of Bonds specified in such notice and such amount represents less than all of the Bonds registered in such holder's name, Bonds owned by such holder selected by the Bond Registrar, in such manner as the Bond Registrar shall determine, shall be deemed to have been tendered. The determination by the Remarketing Agent as to whether or not a written notice of tender conforms to the provisions of this subsection (a) shall be binding upon the Municipality, the Tender Agent and the holder delivering such notice to the Remarketing Agent.
(b) All Bonds shall be purchased (i) on each Conversion Date, (ii) on the Interest Payment Date immediately preceding each Liquidity Facility Event, and (iii) on the LFI Tender Date at a purchase price equal to the principal amount thereof plus accrued interest, if any, to the date of purchase. Holders of the Bonds shall deliver such Bonds (with instruments of transfer) to the Principal Office of the Tender Agent at or prior to 11:30 a.m., Eastern Time, on each Conversion Date, on the Interest Payment Date immediately preceding each Liquidity Facility Event and on the LFI Tender Date. Payment of the purchase price of a Bond purchased pursuant to this subsection (b) shall be made to the holder thereof by wire transfer of immediately available funds by the Tender Agent by the close of business on the date of purchase; provided, however, that payment of the purchase price shall be made only if the Bond is so delivered to the Tender Agent.
(c) Upon (i) receipt of written notice from a Bondholder pursuant to subsection (a) of this Section 7 or (ii) receipt of notice from the Bond Registrar that the Bonds will become subject to mandatory tender as a result of the establishment of a Conversion Date or an LFI Tender Date or the occurrence of a Liquidity Facility Event, the Remarketing Agent shall offer for sale and use its best efforts to sell the Bonds described in any such notice, any such sale to be made on or after the date such Bonds are to be delivered to the Tender Agent in accordance with subsection (a) of this Section 7 or on or after the date on which the Bonds are subject to mandatory tender in accordance with subsection (b) of this Section 7, as the case may be, at a price equal to 100% of the principal amount thereof plus accrued interest. Notwithstanding the foregoing, (i) the Remarketing Agent shall not offer for sale or sell Bonds purchased pursuant to this Section 7 if the Liquidity Facility Issuer has directed the Remarketing Agent not to remarket the Bonds; and (ii) Bonds purchased with moneys described in clause (iii) of subsection (d) of this Section 7 and held by the Municipality for more than 29 days after the date of purchase shall not be remarketed by the Remarketing Agent unless the Municipality shall have delivered to the Remarketing Agent a written opinion of nationally recognized bond counsel acceptable to the Remarketing Agent stating that the remarketing of such Bonds will not adversely affect the exemption from federal income taxation of the interest on the Bonds.
(d) The purchase price of any Bonds, or portions thereof, purchased in accordance with subsection (a) or (b) of this Section 7 shall be derived from the following sources in the order of priority indicated, and the Tender Agent shall not be obligated to provide funds from any other source:
(i) proceeds of the sale of such Bonds by the Remarketing Agent;
(ii) moneys furnished pursuant to the Liquidity Facility, if any;
(iii) moneys furnished by the Municipality to the Tender Agent pursuant to subsection (g) of this Section 7.
(e) Not later than 11:30 a.m., Eastern Time, on the Business Day immediately preceding any day on which Bonds are tendered or deemed tendered pursuant to subsection (a) or (b) of this Section 7, the Remarketing Agent shall give notice, by telecopy, telegraph, telex, facsimile transmission or other similar means of communication, to the Municipality, the Liquidity Facility Issuer, if any, and the Tender Agent specifying the principal amount of such Bonds, if any, not remarketed by it as of such day pursuant to subsection (c) of this Section 7.
(f) Not later than 11:00 a.m., Eastern Time, on the day on which Bonds are to be purchased pursuant to subsection (a) or (b) of this Section 7, the Remarketing Agent shall deliver to the Tender Agent, in immediately available funds, the proceeds from the sale of all Bonds remarketed pursuant to subsection (c) of this Section 7.
(g) Not later than 12:00 noon, Eastern Time, on the day on which Bonds are to be purchased pursuant to subsection (a) or (b) of this Section 7, the Tender Agent shall draw on the Liquidity Facility, if any, in accordance with its terms and in an amount (the "Required Amount") equal to the amount of additional funds, if any, which the Tender Agent will need, after taking into account the funds received from the Remarketing Agent pursuant to subsection (f) of this Section 7, in order to pay the purchase price of Bonds payable on such day. If no Liquidity Facility is in effect, not later than 11:30 a.m., Eastern Time, on the day on which Bonds are to be purchased pursuant to subsections (a) or (b) of this Section 7, the Tender Agent shall notify the Municipality of the Required Amount and the Municipality shall deliver the Required Amount to the Tender Agent, in immediately available funds, prior to 2:00 p.m., Eastern Time, on such date.
(h) The Tender Agent shall hold in a separate account moneys representing the purchase price of Bonds purchased in accordance with this Section 7 until such Bonds are delivered to the Tender Agent by the holders thereof. Such moneys shall not be invested by the Tender Agent.
(i) Any Bonds sold by the Remarketing Agent pursuant to subsection (c) of this Section 7 shall be delivered to the purchasers thereof identified by the Remarketing Agent. Any Bonds purchased with moneys described in clause (ii) of subsection (d) of this Section 7 shall be held by the Tender Agent on behalf of the Liquidity Facility Issuer. Any Bonds purchased with moneys described in clause (iii) of subsection (d) of this Section 7 shall be held by the Tender Agent on behalf of the Municipality until such Bonds are resold or canceled as provided herein. The Fiscal Officer may direct that any Bonds held by the Tender Agent on behalf of the Municipality pursuant to this subsection (i) be delivered to the Bond Registrar for cancellation.
(j) Notwithstanding any failure by a holder of Bonds to deliver to the Tender Agent Bonds which have been tendered pursuant to subsection (a) of this Section 7 or which are to be purchased pursuant to subsection (b) of this Section 7, such Bonds shall be deemed to have been tendered, and funds necessary to purchase such tendered Bonds shall be set aside for such holder and held by the Tender Agent without liability for interest thereon. From and after the date on which such Bonds are deemed to have been tendered, and to the extent the Tender Agent is holding funds to pay the purchase price of such Bonds, such Bonds shall be deemed to be no longer outstanding with respect to the tending Holder and interest thereon shall cease to accrue, and such holder shall look only to the funds held by the Tender Agent on its behalf for payment.
(k) The Tender Agent shall notify the Bond Registrar of any failure to deliver a Bond tendered pursuant to subsection (a) of this Section 7 or which is to be purchased pursuant to subsection (b) of this Section 7 and the Bond Registrar shall thereupon notify the holder of such Bond by first class mail, postage prepaid, that such Bond is no longer an outstanding Bond and that funds equal to the purchase price of such Bond are being held for such holder without interest, by the Tender Agent. The Bond Registrar shall make note on the registration books that such Bond has been deemed to be no longer an outstanding Bond. Upon delivery to the Tender Agent of a Bond which was deemed tendered pursuant to subsection (j) of this Section 7 but was not timely delivered, the holder thereof shall be entitled to receive the amount held on its behalf by the Tender Agent.
(l) If, by 12:00 noon, Eastern Time, on the Business Day immediately succeeding the day on which any Bonds are to be purchased pursuant to subsections (a) or (b) of this Section 7, the Tender Agent shall not have received funds sufficient to purchase such Bonds, the Tender Agent shall give notice of such insufficiency, by telecopy, telegraph, telex, facsimile transmission or other similar means of communication, to the Fiscal Officer and the Bond Registrar, and the Tender Agent shall (i) return any Bonds delivered to it pursuant to subsections (a) or (b) of this Section 7 to the persons from whom such Bonds were received, and (ii) return any moneys delivered to it pursuant to subsections (f) or (g) of this Section 7 to the persons from whom such money was received.
(m) After the Bond Registrar has given notice of the establishment of the Conversion Date or the occurrence of a Liquidity Facility Event, pursuant to subsection (e) of Section 8 of this Ordinance, any Bonds purchased pursuant to subsection (a) of this Section 7 shall not be remarketed except to a buyer who, at the time of purchase, specifically acknowledges in writing to the Remarketing Agent that repurchase of such Bonds will occur on the Conversion Date or on the Interest Payment Date immediately preceding the Liquidity Facility Event, as the case may be, pursuant to subsection (b) of this Section 7.
(n) The Remarketing Agent shall use its best efforts to remarket LFI Bonds at a price equal to 100% of the principal amount thereof plus accrued interest thereon. If LFI Bonds are remarketed, the Remarketing Agent shall notify the Municipality, the Bond Registrar and the Tender Agent of such remarketing not later than 4:00 p.m., Eastern Time, on the Business Day immediately preceding the day on which the LFI Bonds are to be purchased pursuant to such remarketing. Not later than 10:00 a.m., Eastern Time, on the day of such purchase (i) the Remarketing Agent shall deliver or cause to be delivered to the Tender Agent, in immediately available funds, an amount equal to the proceeds from the remarketing of the LFI Bonds, and (ii) the Municipality shall deliver or cause to be delivered to the Tender Agent, in immediately available funds, an amount equal to the difference between the accrued interest payable with respect to such LFI Bonds calculated based upon the interest rate or rates applicable to such LFI Bonds and the accrued interest included in the remarketing proceeds. Upon receipt of such moneys, the Tender Agent shall deliver (i) the remarketed Bonds to the purchasers thereof (provided, however, that if a Liquidity Facility is then in effect, the Bonds shall not be so delivered until the Tender Agent has received notice from the Liquidity Facility Issuer that the Liquidity Facility has been reinstated with respect to the Bonds), and (ii) the moneys from the Remarketing Agent and the Municipality to the Liquidity Facility Issuer.
(o) Upon receipt of an LFI Notice of Default by the Municipality, the Bond Registrar shall establish the LFI Tender Date, which date shall be on or prior to the Business Day immediately preceding the Expiration Date.
SECTION 8. Change of Interest Rate Mode; Notices
(a) At any time subsequent to October 1, 2006 the Municipality may change the Interest Rate Mode or provide for an additional Term Rate Period for the Bonds by giving written notice, by first class mail postage prepaid, to the Tender Agent, the Liquidity Facility Issuer, if any, the Remarketing Agent, and the Rating Agencies, which notice shall specify (i) the Conversion Date, which shall be an Interest Payment Date not earlier than 30 days after the date of such notice, or any Business Day not earlier than 30 days after the date of such notice if the conversion is from a Daily or Weekly Rate Period, and if the Bonds are then in the Term Mode, the Conversion Date shall not be prior to the last day of the Term Rate Period, (ii) the new Interest Rate Mode for the Bonds (or that the Bonds are to remain in the Term Mode for an additional Term Rate Period), (iii) the date the Interest Rate shall be determined (which shall not be less than five Business Days prior to the proposed Conversion Date if the Bonds are converted to a Fixed Interest Rate; if the Bonds are to be converted to the Daily Mode, Weekly Mode, or Commercial Paper Mode, that the interest rate applicable to the first Interest Period after such conversion shall be determined on the first Business Day preceding the Conversion Date), (iv) that such Bonds will be subject to mandatory tender for purchase on the Conversion Date (except in the case of conversions between Daily and Weekly Rate Periods), (v) the new Interest Payment Date and Regular Record Dates, and (vi) if the Bonds are in certificated form, information with respect to the required delivery of Bond certificates and payment of the Purchase Price. Conversion of the Bonds to and from Auction Mode shall occur as set forth in Section 9 of this Ordinance.
(b) The notice described in subsection (a) of this Section 8 shall be accompanied by a written opinion of nationally recognized bond counsel selected by the Municipality stating that conversion of the Interest Rate Mode or the establishment of an additional Term Rate Period is authorized or permitted by this Ordinance and will not adversely affect the exclusion from gross income for purposes of federal income taxation of the interest on the outstanding Bonds.
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(c) If the Bonds are to be converted to the Term Mode or are to remain in the Term Mode for an additional Term Rate Period, the notice described in subsection (a) shall specify the last day of the new Term Rate Period, which shall be a May 31st or a November 30th not earlier than five months after the Conversion Date and not later than May 31st of the year in which the Maturity Date occurs. Such notice shall be sent not less than 30 days prior to the proposed Conversion Date.
(d) If the Bonds are to be converted from the Commercial Paper Mode, prior to the date on which notice of such conversion is required to be given by the Municipality, the Bond Registrar must receive written confirmation from the Remarketing Agent that it has not established and will not establish any Commercial Paper Rate Periods with respect to the Bonds that extend beyond the day before the Conversion Date.
(e) If the Bonds are to be converted from Daily Mode, Weekly Mode, or Commercial Paper Mode, no later than one day before the Conversion Date, the Bond Registrar and the Municipality must have been provided with written evidence from each Rating Agency that such conversion will not result in a reduction or withdrawal of the then current rating of the Bonds.
(f) On the date specified in the notice described in subsection (a) of this Section 8, the Remarketing Agent shall give notice to the Municipality and the Tender Agent of the interest rate applicable to the Bonds effective on the Conversion Date. The Fixed Interest Rate shall be the lowest rate of interest at which the Remarketing Agent has received commitments on or prior to the fifth Business Day next preceding the proposed Conversion Date to purchase all outstanding Bonds on the proposed Conversion Date at a purchase price of 100% of the principal amount thereof. If the Bonds are to be converted to the Daily Mode, Weekly Mode, or Commercial Paper Mode on the Conversion Date, the interest rate for the Interest Period that begins on the Conversion Date shall be determined in accordance with the provisions of Section 6 of this Ordinance. If the Bonds are to be converted to the Auction Mode on the Conversion Date, the interest rate for the Interest Period that begins on the Conversion Date shall be determined in accordance with the provisions of Section 9 of this Ordinance.
(g) If the Municipality has not given the notice described in subsection (a) of this Section 8 by the 30th day prior to the last day of a Term Rate Period, the Bonds shall automatically be converted to the Weekly Mode on the day following the last day of that Term Rate Period, provided that the Municipality delivers to the Tender Agent and the Remarketing Agent, not later than fifteen days prior to the last day of the Term Rate Period, a written opinion of nationally recognized bond counsel selected by the Municipality stating that conversion of the Interest Rate Mode to the Weekly Mode will not adversely affect the exemption from federal income taxation of the interest on the outstanding Bonds. If such written opinion is not so delivered, the Bonds will remain in the Term Mode for a Term Rate Period of one year.
(h) The Bond Registrar, on behalf of the Municipality, shall give written notice, by first class mail postage prepaid, to the holders of the Bonds of the establishment of a Conversion Date or the LFI Tender Date or the occurrence of a Liquidity Facility Event, which notice shall include a statement (i) of the date on which Bonds are to be purchased as a result of the establishment of the Conversion Date or the LFI Tender Date or the occurrence of a Liquidity Facility Event, (ii) that this Ordinance provides that the Bonds are required to be delivered to the Tender Agent for purchase on the date specified in such notice, and that Bonds not delivered to the Tender Agent on or before such date shall nonetheless be deemed to have been purchased and, accordingly, no interest subsequent to the date specified in such notice shall be payable to such holders, and (iii) that on the purchase date specified in such notice the Tender Agent shall hold moneys equal to the purchase price for all Bonds in trust for the holders of the Bonds, which moneys shall be paid upon surrender of the Bonds to the Tender Agent. Such notice shall be given at least fifteen (15) days prior to the Conversion Date, the LFI Tender Date or the Interest Payment Date immediately preceding the Liquidity Facility Event, as the case may be. If, because of the temporary or permanent suspension of regular mail service, or for any other reason, it is impossible or impractical to give such notice of purchase by mail in the manner herein provided, then such other manner of giving notice in lieu thereof as the Bond Registrar shall, in its discretion, select shall constitute a sufficient notice. Any defect in the notice or any failure to give or receive such notice with respect to any Bond shall not affect the validity of any proceedings for the purchase of any other Bond.
(i) Not less than thirty days prior to the last day of a Term Rate Period, the Municipality shall obtain from a commercial bank or other financial institution an irrevocable letter of credit or a standby bond purchase agreement (a "Term Take-out Facility") providing for a source of funds in an amount sufficient to pay the purchase price of the Bonds subject to mandatory tender, pursuant to subsection (b) of Section 7 of this Ordinance, on the Conversion Date immediately following the last day of that Term Rate Period. The Term Take-out Facility shall be delivered to the Tender Agent and shall be accompanied by a notice from each Rating Agency to the effect that the delivery of the Term Take-out Facility to the Tender Agent will not by itself result in a withdrawal, suspension or reduction of any of the Rating Agency's current ratings for the Bonds. Notwithstanding the foregoing, the Municipality shall not be required to deliver a Term Take-out Facility to the Tender Agent if the Municipality shall have received a notice from each Rating Agency to the effect that the failure to so deliver a Term Take-out Facility will not by itself result in a withdrawal, suspension or reduction of any of the Rating Agencies' current ratings for the Bonds.
SECTION 9. Auction Bond Provisions
(a) Conversion to an Auction Mode. Atth option of the Municipality, the Bonds (in an amount which is an Authrized Denomination for the new Rate Period) may be converted from a Daily Mode, Weekly Mode, Commercial Paper Mode, or Term Mode to an Auction Mode. Any such conversion shall be made as follows:
(i) In any such conversion from a Daily Mode, Weekly Mode, or Commercial Paper Mode, the Conversion Date shall be a regularly scheduled Interest Payment Date on which interest is payable for the Interest Rate Period from which the conversion is to be made, and in any conversion is from a Term Mode, the Conversion Date shall be a reulrl scheduled Interest Payment Date on which a new Term Rate Period would otherwise have commenced.
(ii) The Municipality shall give written notice of any such conversion to the Remarketing Agent, Bond Registrar, the Liquidity Facility Issuer, if any, the Auction Agent, and the Broker-Dealer not less than seven (7) Business Days prior to the date on which the Bond Registrar is required to notify the Bondholders of the conversion pursuant to subparagraph (iii) below. Such notice shall specify the Bonds to be converted, the Conversion Date and the length of the initial Auction Rate Period. Together with such notice, the Municipality shall file with the Bond Registrar an opinion of bond counsel to the effect that the conversion of the Bonds to an Auction Mode will not adversely affect the validity of the Bonds or any exclusion from gross income for federal income tax purposes to which interest on the Bonds would otherwise be entitled. No such change to an Auction Mode shall become effective unless the Municipality shall also file with the Bond Registrar an opinion of bond counsel to the same effect dated the Conversion Date.
(iii) Not less than fifteen (15) days prior to the Conversion Date, the Bond Registrar shall mail a written notice of the conversion to the holders of the Bonds to be converted; provided, however, that the Bond Registrar shall not mail such written notice if converting from a Flexible Rate Period until is has received a written confirmation from the Remarketing Agent that no Interest Period for the Bonds extends beyond the Auction Mode Conversion Date.
(iv) The Auction Rate for the Auction Rate Period commencing on the Auction Mode Conversion Date shall be the lowest rate that, in the judgment of the Broker-Dealer, is necessary to enable the Bonds in an Auction Mode to be remarketed at a price equal to the principal amount thereof, plus accrued interest, if any, on the Auction Mode Conversion Date. Such determination shall be conclusive and binding upon the Municipality, the Bond Registrar, the Auction Agent, the Liquidity Facility Issuer, if any, and the holder of the Bonds in an Auction Mode to which such rate will be applicable.
(v) Not later than 5:00 p.m., Eastern Time, on the date of determination of the Auction Rate, the Broker-Dealer shall notify the Municipality, the Bond Registrar, and the Auction Agent of the Auction Rate by telephone, promptly confirmed in writing.
(vi) The Municipality may revoke its election to effect a conversion of the interest rate on any Bonds to an Auction Mode by giving written notice of such revocation to the Bond Registrar, the Remarketing Agent, the Liquidity Facility Issuer, if any, the Auction Agent, and the Broker-Dealer at any time prior to the setting of the Auction Rate by the Broker-Dealer.
(vii) No Bonds may be converted to the Auction Rate when the Bonds are not held by a Depository in book entry form.
(b) Conversion from an Auction Mode. At the option of the Municipality, the Bonds (in an amount which is an Authorized Denomination for the new Interest Rate Mode) may be converted from an Auction Mode to a Daily Mode, a Weekly Mode, Commercial Paper Mode, a Term Mode, or a Fixed Rate Mode. Any such conversion shall be made as follows:
(i) The Conversion Date from an Auction Mode shall be the Interest Payment Date following the final Auction Period.
(ii) The Municipality shall give written notice of any such conversion to the Bond Registrar, the Remarketing Agent, if any, the Liquidity Facility Issuer, if any, the Auction Agent, and the Broker-Dealer not less than seven (7) Business Days prior to the date on which the Bond Registrar is required to notify the Bondholders of the conversion pursuant to subparagraph (iii) below. Such notice shall specify the Bonds in an Auction Mode to be converted, the Conversion Date and the new Interest Rate Mode to which the conversion will be made. Together with such notice, the Municipality shall file with the Bond Registrar an opinion of bond counsel to the effect that the conversion of the Bonds will not adversely affect the validity of the Bonds or any exclusion from gross income for federal income tax purposes to which interest on the Bonds would otherwise be entitled. No change to a Daily Mode, a Weekly Mode, a Commercial Paper Mode, a Term Mode, or Fixed Rate Mode shall become effective unless the Municipality shall also file with the Bond Registrar an opinion of bond counsel to the same effect dated the Conversion Date.
(iii) Not less than twenty (20) days prior to the Conversion Date, the Bond Registrar shall mail a written notice of the conversion to the holders of the Bonds in an Auction Mode to be converted, specifying the Conversion Date.
(iv) At anytime prior to 10:00 a.m. Eastern Time on the Business Day immediately preceding the Conversion Date the Municipality may withdraw its notice of conversion and the Auction for such Bonds in an Auction Mode shall be held on such Auction Date as if no conversion notice had ever been given. If on a Conversion Date there has not been a timely withdrawal of the conversion notice as set forth in the preceding sentence or any condition precedent to such conversion is not satisfied, the Bond Registrar shall give written notice by first class mail postage prepaid as soon as practicable and in any event not later than the next succeeding Business Day to the holders of the Bonds to be converted and the Liquidity Facility Issuer, if any, that such conversion has not occurred, that the Bonds in an Auction Mode will not be purchased on the failed Conversion Date, that the Remarketing Agent will continue to implement the Auction Procedures on the Auction Dates with respect to such Bonds in an Auction Mode which otherwise would have been converted excluding however, the Auction Date falling on the Business Day next preceding the failed Conversion Date, and that the interest rate will continue to be the Auction Rate; provided, however, that the interest rate borne by the Bonds in an Auction Mode which otherwise would have been converted during the Auction Period commencing on such failed Conversion Date will be the Maximum Interest Rate, and the Auction Period will be the seven-day Auction Period.
(v) On the Conversion Date applicable to the Bonds in an Auction Mode to be converted, such Bonds to be converted shall be subject to mandatory tender at a purchase price equal to 100% of the principal amount thereof, plus accrued interest. The principal portion of the purchase price of the Bonds so tendered is payable solely from the proceeds of the remarketing of such Bonds. In the event that the conditions of a conversion are not satisfied, including the failure to remarket all applicable Bonds in an Auction Mode on a mandatory tender date, such Bonds will not be subject to mandatory tender, will be returned to their owners, will automatically convert to a seven-day Auction Period and will bear interest at the Maximum Interest Rate.
(c) Orders by Existing Owners and Potential Owners.
(i) Prior to the Broker-Dealer Deadline on each Auction Date:
a) each Existing Owner may submit to a Broker-Dealer, in writing or by such other method as shall be reasonably acceptable to such Broker-Dealer, information as to:
(1) the principal amount of Bonds, if any, held by such Existing Owner which such Existing Owner commits to continue to hold for the next succeeding Auction Period without regard to the rate determined by the Auction Procedures for such Auction Period,
(2) the principal amount of Bonds, if any, held by such Existing Owner which such Existing Owner commits to continue to hold for the next succeeding Auction Period if the rate determined by the Auction Procedures for such Auction Period shall not be less than the rate per annum then specified by such Existing Owner (and which such Existing Owner irrevocably offers to sell on the next succeeding Interest Payment Date (or the same day in the case of a daily Auction Period) if the rate determined by the Auction Procedures for the next succeeding Auction Period shall be less than the rate per annum then specified by such Existing Owner), and/or
(3) the principal amount of Bonds, if any, held by such Existing Owner which such Existing Owner offers to sell on the next succeeding Interest Payment Date (or on the same day in the case of a daily Auction Period) without regard to the rate determined by the Auction Procedures for the next succeeding Auction Period; and
b) for the purpose of implementing the Auctions, the Broker-Dealers shall contact Potential Owners, including Persons that are Existing Owners, to determine the principal amount of Bonds, if any, which each such Potential Owner offers to purchase if the rate determined by the Auction Procedures for the next succeeding Auction Period is not less than the rate per annum then specified by such Potential Owner.
For the purposes hereof an Order containing the information referred to in clause a)(1) above is herein referred to as a "Hold Order," an Order containing the information referred to in clause a)(2) or b) above is herein referred to as a "Bid," and an Order containing the information referred to in clause a)(3) above is herein referred to as a "Sell Order."
(ii) a) a Bid by an Existing Owner shall constitute an offer to sell:
(1) the principal amount of Bonds specified in such Bid if the rate determined by the Auction Procedures on such Auction Date shall be less than the rate specified therein; or
(2) such principal amount or a lesser principal amount of Bonds to be determined as described in Section 9(f)(i)(e) hereof if the rate determined by the Auction Procedures on such Auction Date shall be equal to such specified rate; or
(3) a lesser principal amount of Bonds to be determined as described in Section 9(f)(ii)(d) hereof if such specified rate shall be higher than the Maximum Interest Rate and Sufficient Clearing Bids do not exist.
b) A Sell Order by an Existing Owner shall constitute an offer to sell:
(1) the principal amount of Bonds specified in such Sell Order; or
(2) such principal amount or a lesser principal amount of Bonds as described in Section 9(f)(ii)(d) hereof if Sufficient Clearing Bids do not exist.
c) A Bid by a Potential Owner shall constitute an offer to purchase:
(1) the principal amount of Bonds specified in such Bid if the rate determined by the Auction Procedures on such Auction Date shall be higher than the rate specified therein; or
(2) such principal amount or a lesser principal amount of Bonds as described in Section 9(f)(i)(f) hereof if the rate determined by the Auction Procedures on such Auction Date shall be equal to such specified rate.
(iii) Anything herein to the contrary notwithstanding:
a) for purposes of any Auction, any Order which specifies Bonds to be held, purchased or sold in a principal amount which is not $25,000 or an integral multiple thereof shall be rounded down to the nearest $25,000, and the Auction Agent shall conduct the Auction Procedures as if such Order had been submitted in such lower amount;
b) for purposes of any Auction other than during a daily Auction Period, any portion of an Order of an Existing Owner which relates to a Bond that has been called for redemption on or prior to the Interest Payment Date next succeeding such Auction shall be invalid with respect to such portion and the Auction Agent shall conduct the Auction Procedures as if such portion of such Order had not been submitted;
c) for purposes of any Auction other than during a daily Auction Period, no portion of a Bond that has been called for redemption on or prior to the Interest Payment Date next succeeding such Auction shall be included in the calculation of Available Bonds for such Auction; and
d) for purposes of any Auction, any Order by any Existing Owner or Potential Owner shall be revocable until the Broker-Dealer Deadline, and after the Broker-Dealer Deadline all Orders shall be irrevocable.
(d) Submission of Orders by Broker-Dealers to Auction Agent.
(i) Each Broker-Dealer shall submit to the Auction Agent in writing, through the Auction Agent's auction processing system or by such other method as shall be reasonably acceptable to the Auction Agent, including such electronic communication acceptable to the parties, prior to the Submission Deadline on each Auction Date, all Orders obtained by such Broker-Dealer and specifying, if requested, with respect to each Order:
a) the name of the Bidder placing such Order;
b) the aggregate principal amount of Bonds, if any, that are the subject of such Order;
c) to the extent that such Bidder is an Existing Owner:
(1) the principal amount of Bonds, if any, subject to any Hold Order placed by such Existing Owner;
(2) the principal amount of Bonds, if any, subject to any Bid placed by such Existing Owner and the rate specified in such Bid; and
(3) the principal amount of Bonds, if any, subject to any Sell Order placed by such Existing Owner; and
d) to the extent such Bidder is a Potential Owner, the rate specified in such Bid.
(ii) If any rate specified in any Bid contains more than three figures to the right of the decimal point, the Auction Agent shall round such rate up to the next highest one thousandth of one percent (0.001%).
(iii) If an Order or Orders covering all of the Bonds held by an Existing Owner is not submitted to the Auction Agent prior to the Submission Deadline, the Auction Agent shall deem a Hold Order to have been submitted on behalf of such Existing Owner covering the principal amount of Bonds held by such Existing Owner and not subject to Orders submitted to the Auction Agent; provided, however, that if there is a conversion from one Auction Period to another Auction Period and Orders have not been submitted to the Auction Agent prior to the Submission Deadline covering the aggregate principal amount of Bonds to be converted held by such Existing Owner, the Auction Agent shall deem a Sell Order to have been submitted on behalf of such Existing Owner covering the principal amount of Bonds to be converted held by such Existing Owner not subject to Orders submitted to the Auction Agent.
(iv) If one or more Orders covering in the aggregate more than the principal amount of Outstanding Bonds of a particular Series held by any Existing Owner are submitted to the Auction Agent, such Orders shall be considered valid as follows:
a) all Hold Orders shall be considered Hold Orders, but only up to and including in the aggregate the principal amount of Bonds held by such Existing Owner;
b) (1) any Bid of an Existing Owner shall be considered valid as a Bid of an Existing Owner up to and including the excess of the principal amount of Bonds held by such Existing Owner over the principal amount of the Bonds subject to Hold Orders referred to in paragraph a) above;
(2) subject to clause (1) above, all Bids of an Existing Owner with the same rate shall be aggregated and considered a single Bid of an Existing Owner up to and including the excess of the principal amount of Bonds held by such Existing Owner over the principal amount of Bonds held by such Existing Owner subject to Hold Orders referred to in paragraph a) above;
(3) subject to clause (1) above, if more than one Bid with different rates is submitted on behalf of such Existing Owner, such Bids shall be considered Bids of an Existing Owner in the ascending order of their respective rates up to the amount of the excess of the principal amount of Bonds held by such Existing Owner over the principal amount of Bonds held by such Existing Owner subject to Hold Orders referred to in paragraph a) above; and
(4) the principal amount, if any, of such Bonds subject to Bids not considered to be Bids of an Existing Owner under this paragraph b) shall be treated as the subject of a Bid by a Potential Owner;
c) all Sell Orders shall be considered Sell Orders, but only up to and including a principal amount of Bonds equal to the excess of the principal amount of Bonds held by such Existing Owner over the sum of the principal amount of the Bonds considered to be subject to Hold Orders pursuant to paragraph a) above and the principal amount of Bonds considered to be subject to Bids of such Existing Owner pursuant to paragraph b) above.
(v) If more than one Bid is submitted on behalf of any Potential Owner, each Bid submitted with the same rate shall be aggregated and considered a single Bid and each Bid submitted with a different rate shall be considered a separate Bid with the rate and the principal amount of Bonds specified therein.
(vi) Neither the Municipality, the Bond Registrar, nor the Auction Agent shall be responsible for the failure of any Broker-Dealer to submit an Order to the Auction Agent on behalf of any Existing Owner or Potential Owner.
(e) Determination of Auction Rate.
(i) Not later than 9:30 a.m., Eastern Time, on each Auction Date for the Bonds, the Auction Agent shall advise the Broker-Dealers and the Bond Registrar by telephone or other electronic communication acceptable to the parties of the All Hold Rate and the Index.
(ii) Promptly after the Submission Deadline for the Bonds on each Auction Date, the Auction Agent shall assemble all Orders submitted or deemed submitted to it by the Broker-Dealers (each such Order as submitted or deemed submitted by a Broker-Dealer being hereinafter referred to as a "Submitted Hold Order," a "Submitted Bid" or a "Submitted Sell Order," as the case may be, and collectively as a "Submitted Order") and shall determine (A) the Available Bonds, (B) whether there are Sufficient Clearing Bids, and (B) the Auction Rate.
(iii) Promptly after the Auction Agent has made the determinations pursuant to subsection (ii) above the Auction Agent shall advise the Bond Registrar by telephone (promptly confirmed in writing), telex or facsimile transmission or other electronic communication acceptable to the parties of the Auction Rate for the next succeeding Auction Period and the Bond Registrar shall promptly notify the Depository of such Auction Rate.
(iv) In the event the Auction Agent shall fail to calculate or, for any reason, fails to timely provide the Auction Rate for any Auction Period, (i) if the preceding Auction Period was a period of 35 days or less, the new Auction Period shall be the same as the preceding Auction Period and the Auction Rate for the new Auction Period shall be the same as the Auction Rate for the preceding Auction Period, and (ii) if the preceding Auction Period was a period of greater than 35 days, the preceding Auction Period shall be extended to the seventh day following the day that would have been the last day of such Auction Period had it not been extended (or if such seventh day is not followed by a Business Day then to the next succeeding day which is followed by A Business Day) and the Auction Rate in effect for the preceding Auction Period will continue in effect for the Auction Period as so extended. In the event an Auction Period is extended as set forth in clause (ii) of the preceding sentence, an Auction shall be held on the last Business Day of the Auction Period as so extended to take effect for an Auction Period beginning on the Business Day immediately following the last day of the Auction Period as extended which Auction Period will end on the date it would otherwise have ended on had the prior Auction Period not been extended.
Notwithstanding the foregoing, no Auction Rate shall be extended for more than 35 days. If at the end of the 35 days the Auction Agent fails to calculate or provide the Auction Rate, the Auction Rate shall be the Maximum Interest Rate.
(v) In the event of a failed conversion to an Interest Rate Mode other than an Auction Mode or in the event of a failure to change the length of the current Auction Period due to the lack of Sufficient Clearing Bids at the Auction on the Auction Date for the first new Auction Period, the Auction Rate for the next Auction Period shall be the Maximum Interest Rate and the Auction Period shall be a seven-day Auction Period.
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(vi) If the Bonds are no longer maintained in book-entry-only form by the Depository, then the Auction Rate shall be the Maximum Interest Rate.
(f) Allocation of Bonds.
(i) In the event of Sufficient Clearing Bids for Bonds, subject to the further provisions of subsections (iii) and (iv) below, Submitted Orders for Bonds shall be accepted or rejected as follows in the following order of priority:
a) the Submitted Hold Order of each Existing Owner shall be accepted, thus requiring each such Existing Owner to continue to hold the Bonds that are the subject of such Submitted Hold Order;
b) the Submitted Sell Order of each Existing Owner shall be accepted and the Submitted Bid of each Existing Owner specifying any rate that is higher than the Winning Bid Rate shall be rejected, thus requiring each such Existing Owner to sell the Bonds that are the subject of such Submitted Sell Order or Submitted Bid;
c) the Submitted Bid of each Existing Owner specifying any rate that is lower than the Winning Bid Rate shall be accepted, thus requiring each such Existing Owner to continue to hold the Bonds that are the subject of such Submitted Bid;
d) the Submitted Bid of each Potential Owner specifying any rate that is lower than the Winning Bid Rate shall be accepted, thus requiring each such Potential Owner to purchase the Bonds that are the subject of such Submitted Bid;
e) the Submitted Bid of each Existing Owner specifying a rate that is equal to the Winning Bid Rate shall be accepted, thus requiring each such Existing Owner to continue to hold the Bonds that are the subject of such Submitted Bid, but only up to and including the principal amount of Bonds obtained by multiplying (A) the aggregate principal amount of Outstanding Bonds which are not the subject of Submitted Hold Orders described in paragraph (i) above or of Submitted Bids described in paragraphs (iii) or (iv) above by (B) a fraction the numerator of which shall be the principal amount of Outstanding Bonds held by such Existing Owner subject to such Submitted Bid and the denominator of which shall be the aggregate principal amount of Outstanding Bonds subject to such Submitted Bids made by all such Existing Owners that specified a rate equal to the Winning Bid Rate, and the remainder, if any, of such Submitted Bid shall be rejected, thus requiring each such Existing Owner to sell any excess amount of Bonds;
f) the Submitted Bid of each Potential Owner specifying a rate that is equal to the Winning Bid Rate shall be accepted, thus requiring each such Potential Owner to purchase the Bonds that are the subject of such Submitted Bid, but only in an amount equal to the principal amount of Bonds obtained by multiplying (A) the aggregate principal amount of Outstanding Bonds which are not the subject of Submitted Hold Orders described in paragraph (i) above or of Submitted Bids described in paragraphs (iii), (iv) or (v) above by (B) a fraction the numerator of which shall be the principal amount of Outstanding Bonds subject to such Submitted Bid and the denominator of which shall be the sum of the aggregate principal amount of Outstanding Bonds subject to such Submitted Bids made by all such Potential Owners that specified a rate equal to the Winning Bid Rate, and the remainder of such Submitted Bid shall be rejected; and
g) the Submitted Bid of each Potential Owner specifying any rate that is higher than the Winning Bid Rate shall be rejected.
(ii) In the event there are not Sufficient Clearing Bids for Bonds, subject to the further provisions of subsections (c) and (d) below, Submitted Orders for Bonds shall be accepted or rejected as follows in the following order of priority:
a) the Submitted Hold Order of each Existing Owner shall be accepted, thus requiring each such Existing Owner to continue to hold the Bonds that are the subject of such Submitted Hold Order;
b) the Submitted Bid of each Existing Owner specifying any rate that is not higher than the Maximum Interest Rate shall be accepted, thus requiring each such Existing Owner to continue to hold the Bonds that are the subject of such Submitted Bid;
c) the Submitted Bid of each Potential Owner specifying any rate that is not higher than the Maximum Interest Rate shall be accepted, thus requiring each such Potential Owner to purchase the Bonds that are the subject of such Submitted Bid;
d) the Submitted Sell Orders of each Existing Owner shall be accepted as Submitted Sell Orders and the Submitted Bids of each Existing Owner specifying any rate that is higher than the Maximum Interest Rate shall be deemed to be and shall be accepted as Submitted Sell Orders, in both cases only up to and including the principal amount of Bonds obtained by multiplying (A) the aggregate principal amount of Bonds subject to Submitted Bids described in paragraph (iii) of this subsection (b) by (B) a fraction the numerator of which shall be the principal amount of Outstanding Bonds held by such Existing Owner subject to such Submitted Sell Order or such Submitted Bid deemed to be a Submitted Sell Order and the denominator of which shall be the principal amount of Outstanding Bonds subject to all such Submitted Sell Orders and such Submitted Bids deemed to be Submitted Sell Orders, and the remainder of each such Submitted Sell Order or Submitted Bid shall be deemed to be and shall be accepted as a Hold Order and each such Existing Owner shall be required to continue to hold such excess amount of Bonds; and
e) the Submitted Bid of each Potential Owner specifying any rate that is higher than the Maximum Interest Rate shall be rejected.
(iii) If, as a result of the procedures described in subsection (i) or (ii) above, any Existing Owner or Potential Owner would be required to purchase or sell an aggregate principal amount of Bonds which is not an integral multiple of $25,000 on any Auction Date, the Auction Agent shall by lot, in such manner as it shall determine in its sole discretion, round up or down the principal amount of Bonds to be purchased or sold by any Existing Owner or Potential Owner on such Auction Date so that the aggregate principal amount of Bonds purchased or sold by each Existing Owner or Potential Owner on such Auction Date shall be an integral multiple of $25,000, even if such allocation results in one or more of such Existing Owners or Potential Owners not purchasing or selling any Bonds on such Auction Date.
(iv) If, as a result of the procedures described in subsection (i) above, any Potential Owner would be required to purchase less than $25,000 in principal amount of Bonds on any Auction Date, the Auction Agent shall by lot, in such manner as it shall determine in its sole discretion, allocate Bonds for purchase among Potential Owners so that the principal amount of Bonds in the Auction Mode purchased on such Auction Date by any Potential Owner shall be an integral multiple of $25,000, even if such allocation results in one or more of such Potential Owners not purchasing Bonds on such Auction Date.
(g) Notice of Auction Rate.
(i) On each Auction Date, the Auction Agent shall notify by telephone or other telecommunication device or other electronic communication acceptable to the parties or in writing each Broker-Dealer that participated in the Auction held on such Auction Date of the following, with respect to Bonds for which an Auction was held on such Auction Date:
a) the Auction Rate determined on such Auction Date for the succeeding Auction Period;
b) whether Sufficient Clearing Bids existed for the determination of the Winning Bid Rate;
c) if such Broker-Dealer submitted a Bid or a Sell Order on behalf of an Existing Owner whether such Bid or Sell Order was accepted or rejected and the principal amount of Bonds, if any, to be sold by such Existing Owner;
d)such Brker-Dealer submitted a Bid on behalf of a Potential Owner, whether suc Bid was accepted or rejected and the principal amount of Bonds, if any, to be purchased by such Potential Owner;
e) if the aggregate principal amount of the Bonds to be sold by all Existing Owners on whose behalf such Broker-Dealer submitted Bids or Sell Orders is different from the aggregate principal amount of Bonds to be purchased by all Potential Owners on whose behalf such Broker-Dealer submitted a Bid, the name or names of one or more Broker-Dealers (and the Agent Member, if any, of each such other Broker-Dealer) and the principal amount of Bonds to be (A) purchased from one or more ExisingOwnrs on whose behalf such other Broker-Dealers submitted Bids or Sell Orders or (B) sold to one or more Potential Owners on whose behalf such Broker-Dealer submitted Bids; and
f) the immediately succeeding Auction Date.
(ii) On each Auction Date, with respect to Bonds for which an Auction was held on such Auction Date, each Broker-Dealer that submitted an Order on behalf of any Existing Owner or Potential Owner shall: (A) advise each Existing Owner and Potential Owner on whose behalf such Broker-Dealer submitted an Order as to (1) the Auction Rate determined on such Auction Date, (2) whether any Bid or Sell Order submitted on behalf of each such Owner was accepted or rejected and (3) the immediately succeeding Auction Date; (B) instruct each Potential Owner on whose behalf such Broker-Dealer submitted a Bid that was accepted, in whole or in part, to instruct such Existing Owner's Agent Member to pay to such Broker-Dealer (or its Agent Member) through the Depository the amount necessary to purchase the principal amount of Bonds to be purchased pursuant to such Bid (including, with respect to the Bonds in a daily Auction Period, accrued interest if the purchase date is not an Interest Payment Date for such Bond) against receipt of such Bonds; and (C) instruct each Existing Owner on whose behalf such Broker-Dealer submitted a Sell Order that was accepted or a Bid that was rejected in whole or in part, to instruct such Existing Owner's Agent Member to deliver to such Broker-Dealer (or its Agent Member) through the Depository the principal amount of Bonds to be sold pursuant to such Bid or Sell Order against payment therefor.
(h) Index.
(i) The Index on any Auction Date with respect to Bonds in any Auction Period of 35 days or less shall be the LIBOR Rate. The Index with respect to Bonds in any Auction Period of more than 35 days shall be the rate on United States Treasury Securities having a maturity which most closely approximates the length of the Auction Period as last published in The Wall Street Journal. If either rate is unavailable, the Index shall be an index or rate agreed to by all Broker-Dealers and consented to by the Municipality. For the purpose of this Section 9(h) an Auction Period of 35 days or less means a 35-day Auction Period or shorter Auction Period, i.e. a 35-day Auction Period which is extended because of a holiday would still be considered an Auction Period of 35 days or less.
(ii) If for any reason on any Auction Date the Index shall not be determined as hereinabove provided in this Section, the Index shall be the Index for the Auction Period ending on such Auction Date.
(iii) The determination of the Index as provided herein shall be conclusive and binding upon the Municipality, the Bond Registrar, the Broker-Dealer, the Auction Agent and the Owners of the Bonds.
(i) Miscellaneous Provisions Regarding Auctions.
(i) During an Auction Rate Period with respect to Bonds, the provisions of Section 9 of this Ordinance and the definitions used in this Section 9, including without limitation the definitions of All Hold Rate, Index, Interest Payment Date, Maximum Interest Rate, Auction Rate, may be amended by an amending ordinance of City Council for the Municipality by obtaining the consent of the owners of all affected Outstanding Bonds bearing interest at the Auction Rate as follows. If on the first Auction Date occurring at least 20 days after the date on which the Bond Registrar mailed notice of such proposed amendment to the registered owners of the affected Outstanding Bonds as required by this Ordinance, (i) the Auction Rate which is determined on such date is the Winning Bid Rate or the All Hold Rate and (ii) there is delivered to the Bond Registrar an opinion of Bond Counsel to the effect that such amendment shall not adversely affect the validity of the Bonds or any exemption from federal income tax to which the interest on the Bonds would otherwise be entitled, the proposed amendment shall be deemed to have been consented to by the owners of all affected Outstanding Bonds bearing interest at Auction Rate.
(ii) During an Auction Rate Period, so long as the ownership of the Bonds is maintained in book-entry form by the Depository, an Existing Owner or a beneficial owner may sell, transfer or otherwise dispose of a Bond only pursuant to a Bid or Sell Order in accordance with the Auction Procedures or to or through a Broker-Dealer, provided that (i) in the case of all transfers other than pursuant to Auctions such Existing Owner or its Broker-Dealer or its Agent Member advises the Auction Agent of such transfer and (ii) a sale, transfer or other disposition of Bonds from a customer of a Broker-Dealer who is listed on the records of that Broker-Dealer as the holder of such Bonds to that Broker-Dealer or another customer of that Broker-Dealer shall not be deemed to be a sale, transfer or other disposition for purposes of this paragraph if such Broker-Dealer remains the Existing Owner of the Bonds so sold, transferred or disposed of immediately after such sale, transfer or disposition.
(j) Changes in Auction Period or Auction Date.
(i) During any Auction Rate Period, the Municipality may, from time to time on the last Interest Payment Date of any Auction Period, change the length of the Auction Period with respect to all of the Bonds among daily, seven-days, 28-days, 35-days, three months, six months and a Flexible Auction Period in order to accommodate economic and financial factors that may affect or be relevant to the length of the Auction Period and the interest rate borne by such Bonds. The Municipality shall initiate the change in the length of the Auction Period by giving written notice to the Bond Registrar, the Auction Agent, the Broker-Dealer, and the Depository that the Auction Period shall change if the conditions described herein are satisfied and the proposed effective date of the change, at least 10 Business Days prior to the Auction Date for such Auction Period.
a) Any such changed Auction Period shall be for a period of one day, seven-days, 28-days, 35-days, three months, six months or a Flexible Auction Period and shall be for all of the Bonds in an Auction Mode.
b) The change in the length of the Auction Period shall not be allowed unless Sufficient Clearing Bids existed at the Auction immediately preceding the proposed change.
c) The change in length of the Auction Period shall take effect only if (A) the Bond Registrar and the Auction Agent receive, by 11:00 a.m., Eastern Time, on the Business Day before the Auction Date for the first such Auction Period, a certificate from the Municipality consenting to the change in the length of the Auction Period specified in such certificate and (B) Sufficient Clearing Bids exist at the Auction on the Auction Date for such first Auction Period. For purposes of the Auction for such first Auction Period only, each Existing Owner shall be deemed to have submitted Sell Orders with respect to all of its Bonds except to the extent such Existing Owner submits an Order with respect to such Bonds. If the condition referred to in (A) above is not met, the Auction Rate for the next Auction Period shall be determined pursuant to the Auction Procedures and the Auction Period shall be the Auction Period determined without reference to the proposed change. If the condition referred to in (A) is met but the condition referred to in (B) above is not met, the Auction Rate for the next Auction Period shall be the Maximum Interest Rate, and the Auction Period shall be a seven-day Auction Period.
(ii) During any Auction Rate Period, the Auction Agent, at the direction of the Corporation, may specify an earlier Auction Date (but in no event more than five Business Days earlier) than the Auction Date that would otherwise be determined in accordance with the definition of "Auction Date" in order to conform with then current market practice with respect to similar securities or to accommodate economic and financial factors that may affect or be relevant to the day of the week constituting an Auction Date and the interest rate borne on the Bonds. The Auction Agent shall provide notice of its determination to specify an earlier Auction Date for an Auction Period by means of a written notice delivered at least 45 days prior to the proposed changed Auction Date to the Municipality, the Bond Registrar, the Broker-Dealer and the Depository.
(k) Auction Agent.
(i) The Auction Agent shall be appointed by the Bond Registrar at the written direction of the Municipality, to perform the functions specified herein. The Auction Agent shall designate its Principal Office and signify its acceptance of the duties and obligations imposed upon it hereunder by a written instrument, delivered to the Municipality, the Bond Registrar, and each Broker-Dealer which shall set forth such procedural and other matters relating to the implementation of the Auction Procedures as shall be satisfactory to the Municipality and Bond Registrar
(ii) Subject to any applicable governmental restrictions, the Auction Agent may be or become the owner of or trade in Bonds with the same rights as if such entity were not the Auction Agent.
(l) Qualifications of Auction Agent; Resignation; Removal. The Auction Agent shall be (a) a bank or trust company organized under the laws of the United States or any state or territory thereof having a combined capital stock, surplus and undivided profits of at least $30,000,000, or (b) a member of NASD having a capitalization of at least $30,000,000 and, in either case, authorized by law to perform all the duties imposed upon it by this Ordinance and a member of or a participant in, the Depository. The Auction Agent may at any time resign and be discharged of the duties and obligations created by this Ordinance by giving at least ninety (90) days notice to the Municipality and the Bond Registrar. The Auction Agent may be removed at any time by the Municipality by written notice, delivered to the Auction Agent, and the Bond Registrar. Upon any such resignation or removal, the Bond Registrar at the direction of the Municipality, shall appoint a successor Auction Agent meeting the requirements of this section. In the event of the resignation or removal of the Auction Agent, the Auction Agent shall pay over, assign and deliver any moneys and Bonds held by it in such capacity to its successor. The Auction Agent shall continue to perform its duties until its successor has been appointed by the Bond Registrar. In the event that the Auction Agent has not been compensated for its services, the Auction Agent may resign by giving thirty (30) days notice to the Municipality and the Bond Registrar even if a successor Auction Agent has not been appointed.
SECTION 10. Execution and Authentication and Payment
(a) The Bonds shall set forth the purposes for which they are issued and that they are issued pursuant to this Ordinance, and shall be executed by the Mayor and the Fiscal Officer of the Municipality, in their official capacities, provided that any of those signatures may be a facsimile. No Bond shall be valid or become obligatory for any purpose or shall be entitled to any security or benefit under this Ordinance unless and until a certificate of authentication, as printed on the Bond, is signed by the Bond Registrar as authenticating agent. Authentication by the Bond Registrar shall be conclusive evidence that the Bond so authenticated has been duly issued and delivered under this Ordinance and is entitled to the security and benefit of this Ordinance.
(b) The Bond Service Charges on the Bonds shall be payable in lawful money of the United States of America without deduction for the services of the Bond Registrar as paying agent. The principal of and premium, if any, on the Bonds shall be payable upon presentation and surrender of the Bonds at the office of the Bond Registrar. Each Bond shall bear interest during each applicable Interest Accrual Period until the entire principal amount of the Bonds has been paid or duly provided for. Interest on any Bond shall be paid on each Interest Payment Date for such Bond for unpaid interest accrued during the Interest Accrual Period by check or draft mailed to the Bondholder as of the close of business on Record Date for such Interest Payment Date, as reflected on the Bond Register at the address appearing therein.
(c) Interest payable on the Bonds while in Auction Mode on any Interest Payment Date to a registered owner in the aggregate principal amount of $1,000,000 or more may, upon written request by such registered owner received by the Bond Registrar prior to the Record Date preceding such Interest Payment Date, be paid by wire transfer on the date due to a designated account in the United States. Such written request shall remain in effect until rescinded in writing by such registered owner. The principal of each Bond in Auction Mode at maturity will be paid upon presentation and surrender thereof at the office of the Bond Registrar.
(d) Notwithstanding the provisions of subsection (b) of this Section 10, when the Bonds are issuable only under a book entry system the portion of the interest due and payable on LFI Bonds equal to the difference between the total interest due and payable thereon and the interest that would have been due and payable thereon had the LFI Bonds borne interest at the rate or rates applicable to Bonds which are not LFI Bonds shall be paid by the Municipality directly to the Liquidity Facility Issuer rather than to the Depository, or its nominee, as holder of the LFI Bonds.
(e) Any interest on any Bond which is payable, but is not punctually paid or provided for, on any Interest Payment Date (herein called "Defaulted Interest") shall forthwith cease to be payable to the Bondholder on the relevant Record Date by virtue of having been such owner and such Defaulted Interest shall be paid to the Bondholder in whose name the Bond is registered at the close of business on a date (the "Special Record Date") to be fixed by the Bond Registrar, such Special Record Date to be not more than 15 nor less than 10 days prior to the date of proposed payment. The Bond Registrar shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be mailed, first class postage prepaid, to each Bondholder, at its address as it appears in the Bond Register, not less than 10 days prior to such Special Record Date, and may, in its discretion, cause a similar notice to be published once in a newspaper in each place where Bonds are payable, but such publication shall not be a condition precedent to the establishment of such Special Record Date. While the Bonds are in Auction Mode, the Bond Registrar shall determine, not later than 2:00 p.m. Eastern Time, on each Interest Payment Date, whether Defaulted Interest is due. Such Defaulted Interest shall equal the Non-Payment Rate on the first day of each such Auction Period, provided that if an Auction occurred on the Business Day immediately preceding any such Auction Period, the applicable Auction Rate for such Auction Period shall be the Non-Payment Rate.
(f) Subject to the foregoing provisions of this Section 10, each Bond delivered by the Bond Registrar upon transfer of or in exchange for or in lieu of any other Bond shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Bond.
SECTION 11. Registration; Transfer
(a) The Board of Trustees of the Sinking Fund of the City of Columbus, Ohio is hereby authorized and directed to serve as Bond Registrar for the Bonds. If at any time the Bond Registrar shall be unable or unwilling to serve as such, or the Director of Finance and Management or the Fiscal Officer, in such officer's discretion, shall determine that it would be in the best interest of the Municipality for such functions to be performed by another party, the Director of Finance and Management or the Fiscal Officer, may, and is hereby authorized and directed to, enter into an agreement with a national banking association or other appropriate institution experienced in providing such services, to perform the services required of the Bond Registrar hereunder. Each such successor Bond Registrar shall promptly advise all bondholders of the change in identity and new address of the Bond Registrar.
(b) So long as any of the Bonds remain outstanding, the Municipality will cause the Bond Register to be maintained and kept by the Bond Registrar at the office of the Bond Registrar. Subject to the provisions of Section 10 of this Ordinance, the person in whose name any Bonds shall be registered on the Bond Register shall be regarded as the absolute owner thereof for all purposes, and payment of or on account of the Bond Service Charges on any Bond shall be made only to or upon the order of that person. Neither the Municipality nor the Bond Registrar shall be affected by any notice to the contrary, but the registration may be changed as herein provided. All payments shall be valid and effectual to satisfy and discharge the liability upon the Bonds, including the interest thereon, to the extent of the amount or amounts so paid.
(c) Any Bond, upon presentation and surrender at the office of the Bond Registrar, together with a request for exchange signed by the registered owner or by a person authorized by the owner to do so by a power of attorney in a form satisfactory to the Bond Registrar, may be exchanged for Bonds of any authorized denomination or denominations equal in the aggregate to the unmatured principal amount of the Bonds surrendered, and bearing interest at the same rate and maturing on the same date.
(d) A Bond may be transferred only on the Bond Register upon presentation and surrender thereof at the principal office of the Bond Registrar, together with an assignment executed by the registered owner or by a person authorized by the owner to do so by a power of attorney in a form satisfactory to the Bond Registrar. Upon that transfer, the Bond Registrar shall complete, authenticate and deliver a new Bond or Bonds of any authorized denomination or denominations equal in the aggregate to the unmatured principal amount of the Bonds surrendered, and bearing interest at the same rate and maturing on the same date.
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(e) In all cases in which Bonds are exchanged or transferred hereunder, the Municipality shall cause to be executed and the Bond Registrar shall authenticate and deliver Bonds in accordance with the provisions of this Ordinance. The exchange or transfer shall be without charge to the owner; except that the Municipality and Bond Registrar may make a charge sufficient to reimburse them for any tax or other governmental charge required to be paid with respect to the exchange or transfer. The Municipality or the Bond Registrar may require that those charges, if any, be paid before it begins the procedure for the exchange or transfer of the Bonds. All Bonds issued upon any transfer or exchange shall be the valid obligations of the Municipality, evidencing the same debt, and entitled to the same benefits under this Ordinance, as the Bonds surrendered upon that transfer or exchange.
SECTION 12. Book Entry System
(a) The Bonds shall be initially issued to a Depository for use in a book entry system, and the provisions of this Section shall apply notwithstanding any other provision of this Ordinance: (i) there shall be a single Bond of each maturity; (ii) those Bonds shall be registered in the name of the Depository or its nominee, as registered owner, and immobilized in the custody of the Depository; (iii) the beneficial owners in book entry form shall have no right to receive Bonds in the form of physical securities or certificates; (iv) ownership of beneficial interests in any Bonds in book entry form shall be shown by book entry on the system maintained and operated by the Depository, and transfers of the ownership of beneficial interests shall be made only by the Depository and by book entry; and (v) the Bonds as such shall not be transferable or exchangeable, except for transfer to another Depository or to another nominee of a Depository, without further action by the Municipality.
(b) If any Depository determines not to continue to act as a depository for the Bonds for use in a book entry system, the Municipality and the Bond Registrar may attempt to have established a depository/book entry relationship with another qualified Depository under this Ordinance. If the Municipality and the Bond Registrar do not or are unable to do so, the Municipality and the Bond Registrar, after the Bond Registrar has made provision for notification of the beneficial owners by the then Depository, shall permit withdrawal of the Bonds from the Depository, and authenticate and deliver Bond certificates in fully registered form to the assigns of the Depository or its nominee, all at the cost and expense (including costs of printing definitive Bonds), if the event is not the result of action or inaction by the Municipality or the Bond Registrar, of those persons requesting such issuance.
(c) Notwithstanding anything in this Ordinance to the contrary, so long as the Bonds are held under a book entry system, Bonds will not be delivered in connection with the provisions of this Ordinance relating to the tender or deemed tender of Bonds; rather, transfer of beneficial ownership of Bonds tendered or deemed tendered pursuant to this Ordinance shall be effected pursuant to the rules and procedures established by the Depository.
SECTION 13. Sale of Bonds; Certificate of Award; Official Statement
(a) The sale and award of the Bonds shall be evidenced by the Certificate of Award signed by the Director of Finance and Management or the Fiscal Officer. The Certificate of Award shall state, among other things, the Purchase Price, the Initial Interest Rate and the Wednesday that is the last day of the first Interest Period.
(b) The Bonds shall be awarded and sold to the Original Purchaser, in accordance with the Bond Purchase Contract, at the Purchase Price. The Bond Purchase Contract shall be executed on behalf of the Municipality by the Director of Finance and Management and the Fiscal Officer, or either of them acting alone, and shall be in such form and shall contain such terms, covenants and conditions not inconsistent with this Ordinance and permitted by applicable law as shall be approved by the official executing the Bond Purchase Contract. The approval of the Bond Purchase Contract shall be conclusively evidenced by the execution of the Bond Purchase Contract by such official. It is hereby determined that the Purchase Price, the provisions for the determination of the interest rates and the Conversion Date for the Bonds, the manner of sale and the terms of the Bonds, all as provided in this Ordinance and in the Bond Purchase Contract, will be in the best interests of the Municipality and consistent with all legal requirements.
(c) The Director of Finance and Management, the Fiscal Officer and the Clerk are directed to make the necessary arrangements on behalf of the Municipality to establish the date, location, procedure and conditions for the delivery of the Bonds to the Original Purchaser. Those officers are further directed to take all steps necessary to effect due execution, authentication and delivery of the Bonds under the terms of this Ordinance and the Bond Purchase Contract.
(d) The distribution of an Official Statement of the Municipality, in preliminary and final form, relating to the original issuance of the Bonds is hereby authorized, and the Director of Finance and Management is hereby authorized and directed to prepare and execute, on behalf of the Municipality and in his or her official capacity, the Official Statement and any supplements thereto as so executed in connection with the original issuance of the Bonds, and the Director of Finance and Management is authorized and directed to advise the Original Purchaser in writing regarding limitations on the use of the Official Statement and any supplements thereto for purposes of marketing or reoffering the Bonds as deemed necessary or appropriate to protect the interests of the Municipality.
(e) To provide for the payment of the costs of issuance of the Bonds, which shall include, but shall not be limited, to the fees and expenses of the Municipality's bond counsel, the fees and expenses of the Municipality's financial advisor, the fees and expenses of the Underwriter, rating agency fees and printing fees, the Municipality is hereby authorized to expend a sum not to exceed Five Hundred Thousand Dollars ($500,000), and such amount is hereby deemed appropriated, which amount shall be allocated to, and paid from, the benefiting funds as determined by the Fiscal Officer.
(f) This Council hereby declares that the Bonds are "obligations" within the meaning of Section 323.07(a)(7) of the Columbus City Codes. The Certificate of Award shall identify the annual financial information and operating data which will constitute the "annual information" for purposes of said Section 323.07.
SECTION 14. Application of Proceeds
(a) The proceeds from the sale of the Bonds, except accrued interest, premium, if any, or costs of issuance allocable to the Bonds (to wit: $79,980,000) shall be deposited in the City Treasury and allocated to the following funds and projects in the amounts set forth below:
|
Fund |
Project |
Amount |
Description |
|
664 |
650014 |
$ 500,000 |
Sanitary Sewer Construction |
|
664 |
650033 |
24,995,300 |
Big Walnut Sanitary Trunk Extension, Section F1 |
|
664 |
650046 |
4,000,000 |
Alum Creek Sanitary Relief Sewer |
|
664 |
650100 |
150,000 |
Sanitary Sewer Contingencies |
|
664 |
650243 |
366,163 |
JPWWTP, Sludge Holding Facilities |
|
664 |
650247 |
789,000 |
JPWWTP A-Plant Wet Weather Hydraulic Imp |
|
664 |
650253 |
900,000 |
JPWWTP, Disinfection Chemical Handling Fac |
|
664 |
650252 |
462,927 |
JPWWTP, New Headworks |
|
664 |
650255 |
92,300 |
JPWWTP, Skimmings Concentration Sys Imp |
|
664 |
650258 |
978,000 |
Facilities & Equipment Upgrade for WSST |
|
664 |
650348 |
855,557 |
WWTF Instrumentation & Control Sys Upgrade |
|
664 |
650349 |
210,000 |
SWWTP, Sludge Dewatering & Misc Imp |
|
664 |
650350 |
1,000,000 |
WWTF's Renovations & Rehab-Dry Basement |
|
664 |
650351 |
3,554,075 |
Wastewater Treatment Facilities Const. & Cont. |
|
664 |
650358 |
1,069,000 |
SWWTP, Center Train Concrete Rehab |
|
664 |
650359 |
1,208,000 |
SWWTP, Sludge Thickening Imp & Add'l Renov |
|
664 |
650360 |
3,000,000 |
Wastewater Treatment Facilities Upgrade-Gen. |
|
664 |
650363 |
2,736,000 |
SWWTP, New Effluent Pump Sta & Outfall |
|
664 |
650364 |
1,729,000 |
SWWTP, New Headworks, Part 2 |
|
664 |
650366 |
4,710,000 |
SWWTP, Final Clarifier Add & Imp |
|
664 |
650390 |
2,723,402 |
Program Mgt of WWMO 2005-2010 Projects |
|
664 |
650404 |
3,458,000 |
Sanitary System Rehab. - City Wide |
|
664 |
650405 |
1,500,000 |
San. Sys. Rehab. |
|
664 |
650429 |
542,045 |
Cleveland Ave Fort Hayes Separation |
|
664 |
650460 |
1,500,000 |
Sewer System Capacity Model Update 2006 |
|
664 |
650491 |
2,000,000 |
BWAI Intermodal (Rickenbacker) |
|
664 |
650497 |
4,000,000 |
Upper Scioto W Subtrunk-Hayden Run Rd |
|
664 |
650552 |
395,500 |
Utilities Complex Imp, New Customer Svc |
|
664 |
650577 |
700,000 |
Hilock/Lewis Roads Assess. Sewer |
|
664 |
650600 |
1,860,460 |
Franklin-Main Int. Rehab |
|
664 |
650618 |
140,000 |
Chestnut St. Combined Sewer Rehab. |
|
664 |
650619 |
1,457,954 |
Strimple , Kilbourne and Minerva Ave San Sewer |
|
664 |
650625 |
100,000 |
Beulah Rd. Trunk Sewer Rehab. |
|
664 |
650691 |
52,450 |
OSIS-Downtown Odor Control |
|
664 |
650695 |
375,867 |
Fulton/Mound/Noble Sewer Rehab |
|
664 |
650696 |
1,000,000 |
Scioto Main/West Side Relief Sewer Rehab. |
|
664 |
650697 |
1,090,000 |
Downtown Manhole Rehab |
|
664 |
650698 |
575,000 |
Sewer System I/I-Downspout Elim. Pilot Proj. |
|
64 |
650699 |
50,000 |
Merwin Hill Area Assessment Sewer |
|
664 |
650704 |
2,000,000 |
OSIS (OARS)Aug. and Relief Sewer-Whittier to JPWWTP Phs 2,3,4 |
|
664 |
650718 |
100,000 |
Whetstone Park Wet Weather Relief Project |
|
664 |
650719 |
17,000 |
Downtown Comb. Area Sys. Renov.-Pt. 1 |
|
664 |
650720 |
18,000 |
Downtown Comb. Area Sys. Renov.-Pt. 2 |
|
664 |
650721 |
15,000 |
Downtown Comb. Area Sys. Renov.-Pt. 3 |
|
664 |
650722 |
22,000 |
Downtown Comb. Area Sys. Renov.-Pt. 4 |
|
664 |
650879 |
902,000 |
McKinley Ave. Sanitary |
|
|
|
|
|
|
|
Total |
$79,980,000 |
|
(b) All moneys necessary to carry out the purpose of this Ordinance are hereby demed pproriated and authorized for expenditure by the Fiscal Officer.
SECTION 15. Liquidity Facility; Alternate Liquidity Facility; Release of Liquidity Facility
(a) No Liquidity Facility shall be provided initially with respect to the Bonds. The Municipality is authorized, but the Municipality shall not be required, to deliver to the Tender Agent a Liquidity Facility provided, however, that such officials shall not deliver a Liquidity Facility, and a Liquidity Facility shall not be considered in effect for purposes of this Ordinance unless: (i) the Liquidity Facility would satisfy the requirements of Section 7(g) of this Ordinance, and (ii) the Municipality has obtained, at or prior to the delivery of the Liquidity Facility, (A) a written opinion of nationally recognized bond counsel stating that the delivery of the Liquidity Facility is authorized under this Ordinance, complies with the terms of this Ordinance, and will not adversely affect the exemption from federal income taxation of interest on any Bonds, (B) a written opinion of counsel to the Liquidity Facility Issuer to the effect that upon its delivery to the Tender Agent, the Liquidity Facility will be a valid and binding obligation of the Liquidity Facility Issuer, enforced in accordance with its terms, subject to customary exceptions relating to bankruptcy and insolvency, and (C) Rating Maintenance Letters have been received from the Rating Agencies. The Director of Finance and Management and the Fiscal Officer, or either of them acting alone, are authorized to execute and deliver any agreements necessary in connection with the delivery of the Liquidity Facility and are also authorized to make covenants and representations in the Certificate of Award that are determined by such officers to be necessary in connection with a Liquidity Facility or in connection with the Municipality providing its own liquidity for the Bonds.
(b) The Municipality may arrange for the extension of the Expiration Date for any integral multiples of one year periods, provided that written evidence of any such extension is furnished by the Liquidity Facility Issuer to the Bond Registrar, the Tender Agent and the Remarketing Agent at least 45 days prior to the Expiration Date then in effect.
(c) The Municipality may at any time substitute an Alternate Liquidity Facility for an existing Liquidity Facility, subject to the limitations set forth in this Section 15. Any Alternate Liquidity Facility must be effective on the Expiration Date of the Liquidity Facility then in effect, and the stated Expiration Date of the Alternate Liquidity Facility must be no earlier than the first anniversary of its effective date.
(d) The Municipality shall provide written notice to the Bond Registrar, the Tender Agent, and the Remarketing Agent of its intention to deliver an Alternate Liquidity Facility at least 30 days prior to the effective date of the Alternate Liquidity Facility. The notice shall be accompanied by (i) a written opinion of nationally recognized bond counsel selected by the Municipality stating that delivery of the Alternate Liquidity Facility will not adversely affect the exemption from federal income taxation of the interest on the outstanding Bonds; (ii) a written opinion of counsel to the issuer of the Alternate Liquidity Facility to the effect that, upon its delivery to the Tender Agent, the Alternate Liquidity Facility will be a valid and binding obligation of the issuer thereof, enforceable in accordance with its terms, subject to customary exceptions relating to bankruptcy and insolvency; and (iii) Rating Maintenance Letters, if any, received from the Rating Agencies. If Rating Maintenance Letters from the Rating Agencies are not delivered to the Bond Registrar at least 30 days prior to the effective date of the Alternate Liquidity Facility, the Bond Registrar shall give the holders of the Bonds a notice of occurrence of a Liquidity Facility Event, in accordance with the provisions of subsection (a) of Section 8 of this Ordinance. Within two (2) Business Days following receipt of notice of the Municipality's intention to deliver an Alternate Liquidity Facility, the Bond Registrar shall forward a copy of such notice to the Depository. The Director of Finance and Management and the Fiscal Officer, or either of them acting alone, are authorized to execute and deliver any agreements necessary in connection with the delivery of the Liquidity Facility.
(e) The Municipality may at any time, by written notice to the Tender Agent with copies to the Bond Registrar, the Remarketing Agent, and the Rating Agencies, direct the Tender Agent to release the Liquidity Facility and surrender the Liquidity Facility to the Liquidity Facility Issuer without substituting an Alternate Liquidity Facility. The written notice shall set forth the date on which the Liquidity Facility is to be released and surrendered, which date (i) shall not be earlier than 45 days after the date of notice, (ii) shall be the 15th day of a calendar month (or if such day is not a Business Day, the next succeeding Business Day), and (iii) shall become the Expiration Date for purposes of this Ordinance. Upon receipt of the notice, the Bond Registrar shall give the holders of the Bonds a notice of occurrence of a Liquidity Facility Event, in accordance with the provisions of subsection (a) of Section 8 of this Ordinance.
SECTION 16. Remarketing Agent
(a) J.P.Morgan Securities Inc. shall be the Remarketing Agent. The Director of Finance and Management and the Fiscal Officer, and either of them acting alone, are authorized and directed to execute and deliver, as may be appropriate, in the name and on behalf of the Municipality, the Remarketing Agent Agreement. The Remarketing Agent Agreement shall be in such form and contain such terms, covenants and conditions not inconsistent with this Ordinance, including but not limited to, the agreements of the Remarketing Agent:
(i) to keep such books and records as shall be consistent with prudent industry practice and to make such books and records available for inspection by the Municipality and the Tender Agent at all reasonable times;
(ii) to deliver to the Municipality and the Tender Agent, within one Business Day of the receipt thereof by the Remarketing Agent, advice of each notice delivered to it in accordance with subsection (a) of Section 7 of this Ordinance;
(iii) not later than 4:00 p.m., Eastern Time, on the Business Day immediately preceding any day on which Bonds are tendered or deemed tendered pursuant to subsection (a) or (b) of Section 7 of this Ordinance, to give notice, by telecopy, telegraph, telex, facsimile transmission or other similar means of communication, to the Municipality, the Liquidity Facility Issuer, if any, and the Tender Agent specifying the principal amount of such Bonds, if any, not remarketed by it as of such day pursuant to subsection (c) of Section 7 of this Ordinance;
(iv) not later than the close of business on each Interest Determination Date, to give notice, by telecopy, telegraph, telex, facsimile transmission or other similar means of communication, to the Municipality and the Liquidity Facility Issuer, if any, specifying the interest rate for the Bonds for the next Interest Period, determined pursuant to and in accordance with Section 6 of this Ordinance; and
(v) to deliver any Bonds delivered to it pursuant to this Ordinance to the persons to whom the same are to be delivered in accordance with subsection (i) of Section 7 of this Ordinance.
(b) The Remarketing Agent may at any time resign and be discharged of the duties and obligations created by this Ordinance by giving at least ninety (90) days' notice to the Municipality, the Tender Agent and the Liquidity Facility Issuer, if any. The Remarketing Agent may be removed at any time, upon ten day (10) days written notice, at the direction of the Municipality, by an instrument signed by the Executive Officer, the Director of Finance and Management or the Fiscal Officer, filed with the Remarketing Agent, the Tender Agent and the Liquidity Facility Issuer. A successor Remarketing Agent shall be selected by the Municipality and shall have a capitalization of at least $5,000,000, shall be a member of the National Association of Securities Dealers, Inc. and be authorized by law to perform all the duties imposed upon it by the this Ordinance, provided, however, that no person shall be appointed successor Remarketing Agent if the appointment of such person as successor Remarketing Agent would result in a reduction in the ratings of the Bonds by a Rating Agency, if the Bonds are then rated by such Rating Agency.
(c) In the event that the Remarketing Agent shall resign or be removed, or be dissolved, or if the property or affairs of the Remarketing Agent shall be taken under the control of any state or federal court or administrative body because of bankruptcy or insolvency, or for any other reason, and the Municipality shall not have appointed a successor Remarketing Agent, the Bond Registrar shall, to the extent permitted by law, be deemed to be the Remarketing Agent for all purposes of this Ordinance until the appointment by the Municipality of a successor Remarketing Agent; provided, however, that the Bond Registrar acting in the capacity of Remarketing Agent shall not be obligated to (i) offer for sale any Bonds delivered to the Tender Agent pursuant to Section 7 of this Ordinance or (ii) determine an interest rate for the Bonds pursuant to Section 6 of this Ordinance.
SECTION 17. Tender Agent
(a) The Tender Agent shall be identified in the Certificate of Award. The Director of Finance and Management and the Fiscal Officer, and either of them acting alone, are authorized and directed to execute and deliver, as may be appropriate, in the name and on behalf of the Municipality, the Tender Agent Agreement. The Tender Agent Agreement shall be in such form and contain such terms, covenants and conditions not inconsistent with this Ordinance, including but not limited to, the agreements of the Tender Agent:
(i) to hold all Bonds delivered to it pursuant to this Ordinance in trust for the benefit of the respective Bondholders who shall have so delivered such Bonds until moneys representing the purchase price of such Bonds shall have been delivered to or for the account of or to the order of such Bondholders;
(ii) to hold all moneys delivered to it for the purchase of Bonds in trust for the benefit of the person who shall have so delivered such moneys until the Bonds purchased with such moneys shall have been delivered to or for the account of such person;
(iii) to keep such books and records as shall be consistent with prudent industry practice and to make such books and records available for inspection by the Municipality, the Bond Registrar and the Remarketing Agent; and
(iv) not later than the close of business on any day on which Bonds are deemed tendered pursuant to subsections (a) or (b) of Section 7 of this Ordinance, to notify the Municipality of any failure of delivery of such Bonds.
(b) The Tender Agent may at any time resign and be discharged of the duties and obligations created by this Ordinance by giving at least sixty (60) days' notice to the Municipality, the Bond Registrar, the Liquidity Facility Issuer, if any, and the Remarketing Agent. The Tender Agent may be removed at any time upon ten (10) days' written notice, at the direction of the Municipality, by an instrument signed by the Executive Officer, the Director of Finance and Management or the Fiscal Officer, filed with the Tender Agent, the Bond Registrar, the Liquidity Facility Issuer, if any, and the Remarketing Agent. A successor Tender Agent shall be appointed by the Municipality and shall be a bank or trust company having an aggregate of capital, paid in surplus and retained earnings of not less than $15,000,000. If the Tender Agent resigns or is removed, the Bond Registrar shall assume the duties and responsibilities of Tender Agent for all purposes of this ordinance and the Bonds until a successor Tender Agent is appointed. If the Bonds have been withdrawn from a book entry system and delivered in certificated form, any successor Tender Agent shall have its Principal Office in New York, New York.
SECTION 18. Notices to Rating Agencies
The Director of Finance and Management or the Fiscal Officer shall give written notice to each Rating Agency of: (i) any optional redemption or defeasance of Bonds; (ii) any amendment to this Ordinance; (iii) any termination or expiration of the Liquidity Facility or modification of the Expiration Date; and (iv) any substitution of Tender Agent or Remarketing Agent.
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SECTION 19. Federal Income Tax Compliance
(a) The Municipality hereby covenants that it will comply with the requirements of all existing and future laws which must be satisfied in order that interest on the Bonds is and will continue to be excluded from gross income for federal income tax purposes, including without limitation restrictions on the use of the property financed with the proceeds of the Bonds so that the Bonds will not constitute "private activity bonds" within the meaning of Section 141 of the Code. The Municipality further covenants that it will restrict the use of the proceeds of the Bonds in such manner and to such extent, if any, as may be necessary, after taking into account reasonable expectations at the time the debt is incurred, so that they will not constitute arbitrage bonds under Section 148 of the Code and the regulations prescribed thereunder.
(b) The Fiscal Officer and the Director of Finance and Management, or either of them acting alone, are hereby authorized and directed (a) to make or effect any election, selection, designation, choice, consent, approval or waiver on behalf of the Municipality with respect to the Bonds as permitted or required to be made or given under the federal income tax laws, for the purpose of assuring, enhancing or protecting favorable tax treatment or the status of the Bonds or interest thereon or assisting compliance with requirements for that purpose, reducing the burden or expense of such compliance, reducing any rebate amount or any payment of penalties, or making any payments of special amounts in lieu of making computations to determine, or paying, any excess earnings as rebate, or obviating those amounts or payments, as determined by the Fiscal Officer or the Director of Finance and Management, which action shall be in writing and signed by the Fiscal Officer or the Director of Finance and Management; (b) to take any and all actions, make or obtain calculations, and make or give reports, covenants and certifications of and on behalf of the Municipality, as may be appropriate to assure the exclusion of interest from gross income and the intended tax status of the Bonds; and (c) to give an appropriate certificate on behalf of the Municipality for inclusion in the transcript of proceedings, setting forth the facts, estimates and circumstances, and reasonable expectations of the Municipality pertaining to the representations, warranties and covenants of the Municipality regarding compliance by the Municipality with Sections 141 through 150 of the Code.
(c) The Fiscal Officer shall keep and maintain adequate records pertaining to investment of all proceeds of the Bonds sufficient to permit, to the maximum extent possible and presently foreseeable, the Municipality to comply with any federal law or regulation now or hereafter having applicability to the Bonds which limits the amount of Bond proceeds which may be invested at an unrestricted yield or requires the Municipality to rebate arbitrage profits to the United States Department of the Treasury. The Fiscal Officer is hereby authorized and directed to file such reports with, and rebate arbitrage profits to, the United States Department of the Treasury, to the extent that any federal law or regulation having applicability to the Bonds requires any such reports or rebates. Moneys necessary to make such rebate payments are hereby appropriated for such purposes.
SECTION 20. Valid and Binding Obligations
It is hereby found and determined that all acts, conditions and things necessary to be done precedent to and in the issuing of the Bonds in order to make them legal, valid and binding obligations of the Municipality have happened, been done and been performed in regular and due form as required by law; that the faith, credit and revenue of the Municipality are hereby irrevocably pledged for the prompt payment of the principal and interest thereof at maturity; and that no limitation of indebtedness or taxation, either statutory or constitutional, has been exceeded in issuing the Bonds.
SECTION 21. Open Meeting Compliance
It is hereby found and determined that all formal actions of this Council concerning and relating to the adoption of this Ordinance were adopted in an open meeting of this Council, and that all deliberations of this Council and of any of its committees that resulted in such formal action, were in meetings open to the public, in compliance with all legal requirements including Section 121.22 of the Ohio Revised Code.
SECTION 22. Filings with County Auditors
The City Clerk is hereby directed to forward certified copies of this Ordinance to the County Auditors of Franklin, Fairfield and Delaware Counties, Ohio.
SECTION 23. Effective Date
In accordance with Section 55(b) of the Charter of the City of Columbus, Ohio, this Ordinance shall take effect and be in force from and immediately after its passage and approval by the Mayor, or ten days after passage if the Mayor neither approves nor vetoes the same.
EXHIBIT A
[FORM OF NOTICE OF TENDER PURSUANT TO SECTION 7(a)]
NOTICE OF TENDER
OF
CITY OF COLUMBUS, OHIO
VARIOUS PURPOSE ADJUSTABLE RATE UNLIMITED TAX BONDS
SERIES 2006-1
TO: _________, as Tender Agent
_________, as Remarketing Agent
|
DESCRIPTION OF BONDS TO BE TENDERED |
Name(s), Address(es) and DTC Participant Bond(s) Tendered
(Attach additional number(s) of Bondholder(s) list if necessary)
(Please fill in)
Principal Amount
Numbers of Bonds Tendered
The undersigned, Bondholder(s) of the above-described Bonds, hereby irrevocably submit(s) this Notice of Tender as an election to tender such Bonds for purchase on _________________ (insert the date of tender, which must be a permitted tender date pursuant to the terms of the Bonds) (the "Tender Date"), in accordance with Section 7(a) of Ordinance __-2006 (the "Bond Ordinance") adopted by the City Council of the City of Columbus, Ohio (the "Municipality").
The undersigned hereby agrees to deliver the above-described Bonds to ________ (the "Tender Agent") at _____________, _________, Ohio, _____, Attn __________ at or prior to 11:30 a.m., Eastern Time, on the Tender Date and acknowledges that: (a) failure to so deliver such Bonds will result in Bonds owned by the undersigned selected by the Bond Registrar, identified in the Bond Ordinance, by lot in such manner as it shall determine, being deemed to have been tendered as required by the Bond Ordinance; (b) that following such tender or deemed tender no further interest will accrue on such Bonds; and (c) such Bonds will no longer be deemed to be outstanding Bonds following the Tender Date.
The undersigned hereby sells, assigns and transfers to, or upon the order of, the Tender Agent all right, title and interest in and to all Bonds that are being tendered hereby and appoints the Tender Agent the true and lawful agent and attorney-in-fact of the undersigned with respect to such Bonds with full power of substitution to (a) transfer ownership of such Bonds on the account books maintained by the Bond Registrar together, in any such case, with all accompanying evidences of transfer and authenticity to or upon the order of the Tender Agent upon receipt by the Tender Agent, as the undersigned's agent, of the purchase price, (b) present such Bonds for transfer on the books of the Municipality, and (c) receive all benefits and otherwise exercise all rights of beneficial ownership of such Bonds.
SIGN HERE
_____________________________________
______________________________________
Signature(s) of Bondholder(s)
Dated: _______________, 20____
(Must be signed by Bondholder(s) exactly as name(s) appears on Bonds or on a security position listing or by person authorized to become Bondholder by certificates and documents transmitted herewith. If signature is by trustee, executor, administrator, guardian, attorney-in-fact, officer of corporation or others acting in a fiduciary or representative capacity, please set forth full title).
Name(s)
(Please Print)
Capacity
Address
(Including Zip Code)
(Area Code and Tel. No.)
(Tax Identification Number)