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HomeMy WebLinkAboutD-1594-02 $10.4 ml Bond IssueSponsor: Council President Wilson ORDINANCE NO. D-1594-02 AS AMENDED AN ORDINANCE OF THE CITY OF CARMEL, INDIANA, AUTHORIZING THE ISSUANCE AND SALE OF COUNTY OPTION INCOME TAX REVENUE BONDS OF THE CITY OF CARMEL, INDIANA, TO PROCURE FUNDS TO BE APPLIED TO THE COSTS OF THE ACQUISITION, CONSTRUCTION, INSTALLATION AND EQUIPPING OF FACILITIES TO CONTAIN THE OPERATION AND OFFICES OF THE STREET DEPARTMENT OF THE CITY AND A MOTOR VEHICLE FLEET MAINTENANCE AREA FOR CITY VEHICLES GENERALLY; THREE SALT STORAGE FACILITIES FOR SUCH STREET DEPARTMENT, AND CERTAIN ROAD AND STREET IMPROVEMENTS IN THE CITY, TOGETHER WITH COSTS AND EXPENSES INCIDENTAL THERETO, INCLUDING COSTS AND EXPENSES IN CONNECTION WITH THE ISSUANCE OF THE BONDS. WHEREAS, the Hamilton County Income Tax Council has previously adopted an ordinance imposing the county option income tax (the "COIT") on taxpayers of Hamilton County, Indiana, pursuant to Indiana Code 6-3.5-6, as amended (the "Act"); and WHEREAS, the Act provides that revenue derived from the imposition of the COlT shall be distributed to the County monthly on the first day of each month and further distributed in accordance with the Act to the civil taxing units in the County, including the City of Carmel, Indiana (the "City") (the City's distributive share of each such monthly distribution is hereinafter referred to as the "Monthly Distribution"); and WHEREAS, the Board of Public Works and Safety (the "Board") of the City has filed with the Common Council of the City (the "Common Council") its Resolution and its Estimate and Request showing the costs of financing the acquisition, construction, installation and equipping of (a) facilities to contain the operation and offices of the Street Department of the City (the "Street Department") and a motor vehicle fleet maintenance area for City vehicles generally; (b) three salt storage facilities for the Street Department; and (c) road and street improvements with respect to (i) the Old Town southwest quadrant; (ii) the intersection of 106th Street and Gray Road; (iii) the intersection of 136th Street and Gray Road (consisting of the installation of a stop light and costs related thereto); (iv) the intersections on Spring Mill Road and 131st Street and 136th Street; (v) Gray Road improvements (crest removal at 140th Street, i.e., the crest or hill currently located between the entrances to ValleybrookJWedgewood and Woodfield subdivisions, and at 1 l0th Street); and (vi) Carmel Drive (from Rangeline Road to 3rd Avenue, including a signal at 3rd Avenue, and including a sidewalk or multi-use path from the intersection of 3rd Avenue and Carmel Drive to the Monon Trail) (collectively, the "Project"), finding a need for the issuance of bonds to finance the costs of the Project, presenting the form of a bond ordinance and additional appropriation ordinance, and recommending the issuance of bonds of the City for such purpose to the Common Council; and WHEREAS, the aggregate cost of the Project requested by the Board and described above, along with costs and expenses incidental thereto, including the costs of issuance of bonds therefor, is in an estimated amount of at least Ten Million Four Hundred Fifty Thousand Dollars ($10,450,000); and WHEREAS, the Project and the financing by the City of the Project, together with costs and expenses incidental thereto, are necessary and are authorized by the Act and Indiana Code 36-9-2, as amended, and will be of general benefit to the City and its citizens; and WHEREAS, the City does not have sufficient funds available or provided for in the existing budgets or tax levies that may be applied to the cost of the Project, together with -2- INIMAN1 588666v6 costs and expenses incidental thereto, making it necessary to authorize the issuance of COlT revenue bonds of the City; and WHEREAS, pursuant to Ordinance No. D-1302-97, adopted by the Common Council on July 7, 1997 (the "COIT Ordinance"), the City has previously pledged and assigned a portion of the City's Monthly Distributions of COlT revenues for the payment of any bond, note, warrant or other evidence of indebtedness, any lease or other obligation (any bond, note, warrant or other evidence of indebtedness, any lease or other obligation, individually, an "Obligation" and collectively, the "Obligations") identified by ordinance of the Common Council as an obligation secured by the COIT Ordinance (any Obligation so identified as an obligation secured by the COIT Ordinance, individually, a "Secured Obligation" and, collectively, the "Secured Obligations"), on a parity basis if certain conditions are satisfied; and WHEREAS, the currently outstanding Secured Obligations entitled to the pledge and assignment of the Monthly Distributions of COIT revenues under the COIT Ordinance on a parity basis consist of (i) that certain Lease Agreement dated as of July 8, 1997, as amended (the "1997 Lease"), between the City of Carmel Redevelopment Authority (the "Redevelopment Authority") and the City of Carmel Redevelopment Commission (the "Redevelopment Commission") securing certain bonds of the Redevelopment Authority designated "City of Carmel Redevelopment Authority County Option Income Tax Lease Rental Revenue Bonds of 1997," dated August 1, 1997, outstanding on the date hereof in the amount of Twenty-Eight Million One Hundred Forty-Five Thousand Dollars ($28,145,000), bearing interest at various rates and maturing in various amounts semiannually on January 1 and July 1 in the years 2003 to 2018, inclusive; and (ii) the bonds of the Redevelopment District of the City, designated as the "City of Carmel, Indiana, Redevelopment District Taxable County Option Income Tax Revenue INIMAN 1 588666v6 Bonds of 1998 (City Center Redevelopment Project)," dated April 1, 1998, outstanding on the date hereof in the amount of Nine Million Four Hundred Ninety Thousand Dollars ($9,490,000), beating interest at various rates and maturing in various amounts semiannually on June 15 and December 15 in the years 2003 to 2018, inclusive; and WHEREAS, the COIT Ordinance permits additional pledges and assignments of the Monthly Distributions of COIT revenues under the COIT Ordinance ranking on a parity with the outstanding Secured Obligations, so long as certain conditions are met, which conditions will be met upon the issuance of the hereinafter-defined Bonds; and WHEREAS, the Common Council of the City now finds that all conditions precedent to the adoption of an ordinance authorizing the issuance of COIT revenue bonds as Secured Obligations, on a parity with the outstanding Secured Obligations, to provide the necessary funds to be applied to the cost of the Project, along with costs and expenses incidental thereto, including the costs of issuance of bonds therefor, have been complied with in accordance with the provisions of the COIT Ordinance, the Act and all other provisions of the Indiana Code relating to the issuance of such bonds; NOW, THEREFORE, BE IT ORDAINED BY THE COMMON COUNCIL OF THE CITY OF CARMEL, INDIANA, as follows: SECTION 1. The City is hereby authorized to make a loan in the principal amount not to exceed Ten Million Four Hundred Fifty Thousand Dollars ($10,450,000), for the purpose of providing funds to be applied to the costs of the Project, together with expenses incurred in connection therewith (including capitalized interest, if any, as recommended by the City's financial advisor), including the costs of the issuance of bonds. Changes to the Project shall be subject to an agreement as set forth in Exhibit A attached hereto. The amounts allocated -4- INIMAN1 588666v6 to each component of the Project, and the projected start date for each, is set forth in Exhibit B attached hereto. SECTION 2. In order to procure this loan, the City is hereby authorized and directed to have prepared and to issue and sell negotiable COIT revenue bonds of the City, to be designated as "City of Carmel, Indiana, County Option Income Tax Revenue Bonds, Series 2002" in an aggregate principal amount not to exceed Ten Million Four Hundred Fifty Thousand Dollars ($10,450,000) (the "Bonds"). The Bonds shall be payable solely from COIT revenues deposited into the Sinking Fund (as hereinafter defined), subject to the parity claim of the outstanding Secured Obligations. None of the provisions of this Ordinance shall be construed to impair the rights of the holders of the outstanding Secured Obligations. The Mayor of the City (the "Mayor") is authorized to employ the firm of H. J. Umbaugh & Associates, Indianapolis, Indiana (the "Financial Advisor"), to perform any and all computations necessary to conftrm the preliminary evidence and findings demonstrating compliance with the conditions set forth in the COIT Ordinance for the issuance of the Bonds as Secured Obligations on a parity with the outstanding Secured Obligations. The City shall not issue the Bonds without first having received a certificate from the Financial Advisor in form and substance satisfactory to the Mayor and to the effect that the Bonds constitute Secured Obligations under the COlT Ordinance. Provided that such certiftcate is delivered, the Common Council hereby identifies each of the Bonds as an obligation secured by the COlT Ordinance. The Bonds shall be issued in fully registered form in the denominations of Five Thousand Dollars ($5,000) or an integral multiple thereof not exceeding the aggregate principal amount of Bonds maturing on any maturity date. The Bonds shall be numbered consecutively from 02R-1 upwards and shall bear interest at a rate or rates not exceeding eight percent (8%) -5- INIMAN 1 588666v6 per annum (the exact rate or rates to be determined by bidding). Interest on the Bonds shall be payable semiannually on June 15 and December 15 of each year, commencing no earlier than June 15, 2003 (each an "Interest Payment Date"), with the first Interest Payment Date to be determined based upon the advice of the Financial Advisor and reflected in the Clerk-Treasurer's Certificate (as hereinafter defined) pursuant to Section 23 hereof. Interest shall be calculated on the basis of twelve (12) thirty (30)-day months for a three hundred sixty (360)-day year. The Bonds shall mature serially semiannually on June 15 and December 15, commencing no earlier than June 15, 2003, and ending not later than December 15, 2024, on the dates and in the principal amounts set forth in the Clerk-Treasurer's Certificate pursuant to Section 23 hereof based upon the advice of the Financial Advisor. SECTION 3. A registrar and paying agent for the Bonds (respectively, the "Registrar" and the "Paying Agent" and, in both such capacities, the "Registrar and Paying Agent") shall be appointed by the Clerk-Treasurer of the City (the "Clerk-Treasurer") as specified in the Clerk-Treasurer's Certificate. The Registrar and Paying Agent is hereby charged with the performance of all duties and responsibilities customarily associated with the position of the Registrar and Paying Agent, including without limitation the authentication of the Bonds. The Mayor and the Clerk-Treasurer are hereby authorized and directed to enter into such agreements or understandings with the appointed Registrar and Paying Agent as will enable and facilitate the performance of its duties and responsibilities, and are authorized and directed to pay such fees as the Registrar and Paying Agent may reasonably charge for its services in such capacities, with such fees to be paid from available funds of the City. The principal of and premium, if any, on the Bonds shall be payable at the principal corporate trust office of the Registrar and Paying Agent. Interest on the Bonds shall be -6- INIMAN 1 588666v6 paid by check or draft mailed or delivered one (1) day prior to each Interest Payment Date to the registered owner thereof at the address as it appears on the registration books kept by the Registrar and Paying Agent as of the last day of the month immediately preceding the Interest Payment Date or at such other address as is provided to the Registrar and Paying Agent in writing by such registered owner. Notwithstanding anything in this Ordinance to the contrary, so long as The Depository Trust Company, New York, New York ("DTC"), or its nominee, or any successor thereto, is the registered owner of the Bonds, the principal of and premium, if any, and interest on the Bonds will be paid directly to DTC by wire transfer in same day funds by the Registrar and Paying Agent. All payments on the Bonds shall be made in any coin or currency of the United States of America which, on the dates of such payments, shall be legal tender for the payment of public and private debts. The Bonds may, in compliance with all applicable laws, be issued and held in book-entry form on the books of DTC, its successors, or any successor central depository system appointed by the City from time to time (the "Clearing Agency"). The City and Registrar may, in connection therewith, do or perform or cause to be done or performed any acts or things not adverse to the rights of the holders of the Bonds, as are necessary or appropriate to accomplish or recognize such book-entry form Bonds. During any time that the Bonds are held in book-entry form on the books of a Clearing Agency (1) any such Bond may be registered upon the books kept by the Registrar in the name of such Cleating Agency, or any nominee thereof, including CEDE & Co., as nominee of DTC; (2) the Clearing Agency in whose name such Bond is so registered shall be, and the City and the Registrar and Paying Agent may deem and treat such Clearing Agency as, the absolute owner and holder of such Bond for all purposes of this Ordinance, including, without -7- INIMANI 588666v6 limitation, the receiving of payment of the principal of, premium, if any, on and interest on such Bond, the receiving of notice and giving of consent; (3) neither the City nor the Registrar or Paying Agent shall have any responsibility or obligation hereunder to any direct or indirect participant, within the meaning of Section 17A of the Securities Exchange Act of 1934, as amended, of such Cleating Agency, or any person on behalf of which, or otherwise in respect of which, any such participant holds any interest in any Bond, including, without limitation, any responsibility or obligation hereunder to maintain accurate records of any interest in any Bond or any responsibility or obligation hereunder with respect to the receiving of payment of principal, premium, if any, or interest on any Bonds, the receiving of notice or the giving of consent; (4) the Clearing Agency is not required to present any Bond called for partial redemption prior to receiving payment so long as the Registrar and Paying Agent and the Clearing Agency have agreed to the method for noting such partial redemption; and (5) payment of the principal of and premium, if any, and interest on any Bond shall be made by wire transfer in same day funds. If either (i) the City receives notice from the Cleating Agency which is currently the registered owner of the Bonds to the effect that such Clearing Agency is unable or unwilling to discharge its responsibility as a Clearing Agency for such Bonds or (ii)the City elects to discontinue its use of such Cleating Agency as a Clearing Agency for such Bonds, then the City and Registrar and Paying Agent each shall do or perform or cause to be done or performed all acts or things, not adverse to the rights of the holders of the Bonds, as are necessary or appropriate to discontinue use of such Clearing Agency as a Clearing Agency for the Bonds and to transfer the ownership of each of the Bonds to such person or persons, including any other Clearing Agency, as the holder of the Bonds may direct in accordance with this Ordinance. Any -8- INIMAN I 588666v6 expenses of such discontinuance and transfer, including expenses of printing new certificates to evidence the Bonds, shall be paid by the City. During any time that the Bonds are held in book-entry form on the books of a Clearing Agency, the Registrar and Paying Agent shall be entitled to request and rely upon a certificate or other written representation from the Clearing Agency or any participant or indirect participant with respect to the identity of any beneficial owners of such Bonds as of a record date selected by the Registrar and Paying Agent. For purposes of determining whether the consent, advice, direction or demand of a registered owner of the Bond has been obtained, the Registrar or Paying Agent shall be entitled to treat the beneficial owners of the Bonds as the Bondholders. During any time that the Bonds are held in book-entry form on the books of a Clearing Agency, the Mayor and the Clerk-Treasurer, and each of them, is authorized to enter into a Blanket Letter of Representations agreement with the Cleating Agency, and the provisions of any such Blanket Letter of Representations or any successor agreement shall control on the matters set forth herein. The Registrar and Paying Agent may at any time resign as Registrar and Paying Agent by giving thirty (30) days' written notice to the City and by first-class mail to each registered owner of Bonds then outstanding, and such resignation will take effect at the end of such thirty (30) days or upon the earlier appointment of a successor Registrar and Pay/ng Agent by the City. Such notice to the City may be served personally or be sent by registered mail. The Registrar and Paying Agent may be removed at any time as Registrar and Paying Agent by the City, in which event the City may appoint a successor Registrar and Paying Agent. The City shall cause each registered owner of Bonds then outstanding to be notified by first-class mail of the removal of the Registrar and Paying Agent. Notices to registered owners of Bonds shall be -9- [NIMAN1 588666v6 deemed to be given when mailed by first-class mail to the addresses of such registered owners as they appear on the registration books kept by the Registrar and Paying Agent. Any predecessor Registrar and Paying Agent shall deliver all of the Bonds and cash in its possession with respect thereto, together with the registration books, to the successor Registrar and Paying Agent. The Mayor and the Clerk-Treasurer are hereby authorized to act on behalf of the City with regard to any of the aforementioned actions of the City relating to the resignation or removal of the Registrar and Paying Agent and appointment of a successor Registrar and Paying Agent. In addition, the Mayor and the Clerk-Treasurer are hereby authorized and directed, on behalf of the City, to enter into such agreements or understandings with any subsequent Registrar and Paying Agent as will enable it to perform the services required of it. Any such subsequent Registrar and Paying Agent shall be paid for its services out of available funds of the City. SECTION 4. The Bonds shall bear an original date which shall be the first or fifteenth day of the calendar month in which the Bonds are to be delivered (as reflected in the Clerk-Treasurer's Certificate based upon the advice of the Financial Advisor), and each Bond shall also bear the date of its authentication. Any Bond authenticated on or before last day of the month preceding the first Interest Payment Date, shall pay interest from its original date. Any Bond authenticated thereafter shall pay interest from the Interest Payment Date next preceding the date of authentication of such Bond unless the Bond is authenticated after the last day of the month preceding an Interest Payment Date and on or before such Interest Payment Date, in which case interest thereon shall be paid from such Interest Payment Date. SECTION 5. (a) At the option of the successful bidder for the Bonds, all or a portion of the Bonds may be aggregated into one or more term bonds payable from mandatory -10- INIMAN1 588666v6 sinking fund redemption payments (the "Term Bonds") required to be made as set forth below. The Term Bonds shall have a stated maturity or maturities of June 15 or December 15 of the years 2003 through the final maturity of the Bonds, as shall be set forth in the certificate of the Clerk-Treasurer with respect to the award of the Bonds (the "Award Certificate"). In the event that the successful bidder opts to aggregate certain Bonds into Term Bonds, such Term Bonds shall be subject to mandatory sinking fund redemption prior to maturity at a redemption price equal to 100% of the principal amount thereof, plus accrued interest to the redemption date, but without premium, on June 15 and December 15 of each year and in the principal amount set forth in the Award Certificate. The Registrar shall credit against any mandatory sinking fund redemption requirement for a Term Bond of a particular maturity, any Bonds of such maturity purchased for cancellation by the City and cancelled by the Registrar and not theretofore applied as a credit against any mandatory sinking fund redemption requirement. Each Bond so purchased shall be credited by the Registrar at 100% of the principal amount thereof against the mandatory sinking fund redemption requirements for the applicable Term Bond in inverse order of mandatory sinking fund redemption (or final maturity) dates, and the principal amount of such Term Bond to be redeemed on such mandatory sinking fund redemption dates by operation of the mandatory sinking fund requirements shall be reduced accordingly. The Registrar shall determine by lot (treating each $5,000 principal amount of each Bond as a separate Bond for such purpose) the Bonds within a Term Bond of a particular maturity to be redeemed pursuant to mandatory sinking fund redemption requirements on June 15 and December 15 of each year. -ll- INIMAN I 588666v6 Notice of any such mandatory sinking fund redemption shall be given in the same manner as notice of optional redemption is required to be given pursuant to this Section 5 of this Ordinance. If Bonds are to be redeemed by optional redemption and mandatory sinking fund redemption on the same date, the Registrar shall select by lot the Bonds for optional redemption before selecting the Bonds by lot for the mandatory sinking fund redemption. In the event any of the Bonds are issued as Term Bonds, the form of Bond set forth in Section 8 of this Ordinance shall be modified accordingly. Any reference to payment or maturity of principal on Bonds shall be deemed to include payment of scheduled mandatory sinking fund redemption payments described in this Section 5(a). (b) Based upon the advice of the Financial Advisor, the Bonds maturing on or after such dates as reflected in the Clerk-Treasurer's Certificate prior to the sale of the Bonds shall be subject to redemption at the option of the City, in whole or in part, upon thirty (30) days' written notice to the registered owner or owners of Bonds to be redeemed, on such dates as are set forth in the Clerk-Treasurer's Certificate based upon the advice of the Financial Advisor prior to the sale of the Bonds (but in no event prior to December 15, 2009), in amounts and maturities determined by the City and by lot within any such maturity or maturities, at a redemption price of one hundred percent (100%) of the principal amotmt thereof with a premium of not greater than two percent (2%) as set forth in the Clerk-Treasurer's Certificate based upon the advice of the Financial Advisor prior to the sale of the Bonds, plus accrued interest to the redemption date. Notice of such redemption shall be sent by certified or registered mail at least thirty (30) days and not more than sixty (60) days prior to the scheduled redemption date to each of the registered owners of the Bonds called for redemption (tmless waived by any such -12- INIMAN1 588666v6 registered owner) at the address shown on the registration books of the Registrar. The notice shall specify the date and place of redemption, and the registration numbers of the Bonds called for redemption. The place of redemption may be at the principal corporate trust office of the Registrar or as otherwise determined by the City. Interest on the Bonds so called for redemption shall cease to accrue on the redemption date fixed in such notice, if sufficient funds are available at the place of redemption to pay the redemption price on the redemption date. In addition to the foregoing notice, the City may also direct that further notice of redemption of the Bonds be given, including without limitation and at the option of the City, notice described in paragraph (i) below given by the Registrar to the parties described in paragraphs (ii) and (iii) below. No defect in any such further notice and no failure to give all or any portion of any such further notice shall in any manner defeat the effectiveness of any call for redemption of Bonds so long as notice thereof is mailed as prescribed above. (i) If so directed by the City, each further notice of redemption given hereunder shall contain the information required above for an official notice of redemption plus (1) the CUSIP numbers of all Bonds being redeemed; (2) the date of issue of the Bonds as originally issued; (3) the rate of interest borne by each Bond being redeemed; (4) the maturity date of each Bond being redeemed; and (5) any other descriptive information needed to identify accurately the Bonds being redeemed. (ii) If so directed by the City, each further notice of redemption shall be sent at least thirty-five (35) days before the redemption date by registered or certified mail or overnight delivery service to all registered securities depositories then in the business of holding substantial amounts of obligations of types -13- INIMAN1588666v6 comprising the Bonds and to one or more national information services that disseminate notices of redemption of obligations such as the Bonds. (iii) If so directed by the City, each such further notice shall be published one time in The Bond Buyer of New York, New York or, if the Registrar believes such publication is impractical or unlikely to reach a substantial number of the holders of the Bonds, in some other financial newspaper or journal which regularly carries notices of redemption of other obligations similar to the Bonds, such publication to be made at least thirty (30) days prior to the date fixed for redemption. Upon the payment of the redemption price of the Bonds being redeemed and if so directed by the City, each check or other transfer of funds issued for such purpose shall bear the CUSIP number identifying, by issue and maturity, the Bonds being redeemed with the proceeds of such check or other transfer. Notice of redemption having been given as aforesaid, the Bonds or portions of Bonds so to be redeemed shall, on the redemption date, become due and payable at the redemption price therein specified, and from and after such date (unless the City shall default in the payment of the redemption price) such Bonds or portions of Bonds shall cease to bear interest. Upon surrender of such Bonds for redemption in accordance with said notice, such Bonds shall be paid by the Registrar at the redemption price. Installments of interest due on or prior to the redemption date shall be payable as herein provided for payment of interest. Upon surrender for any partial redemption of any Bond, there shall be prepared for the registered owner a new Bond or Bonds in the amount of the unpaid principal. All Bonds which have been redeemed shall be cancelled and destroyed by the Registrar and shall not be reissued. -14- INIMAN1588666v6 SECTION 6. Each Bond shall be transferable or exchangeable only upon the books of the City kept for that purpoSe at the principal office of the Registrar and Paying Agent, by the registered owner thereof in person, or by his attorney duly authorized in writing, upon surrender of such Bond, together with a written instrument of transfer or exchange satisfactory to the Registrar and Paying Agent duly executed by the registered owner or his attorney duly authorized in writing, and thereupon a new fully registered Bond or Bonds in the same aggregate principal amount and of the same maturity shall be executed and delivered in the name of the transferee or transferees or the registered owner, as the case may be, in exchange therefor. The Bonds may be transferred or exchanged without cost to the registered owner, except for any tax or governmental charge required to be paid with respect to the transfer or exchange. The Registrar and Paying Agent shall not be obligated to make any exchange or transfer of Bonds during the period of fifteen days immediately preceding an Interest Payment Date or to make any exchange or transfer of a Bond after notice calling such Bond has been mailed. The person in whose name any Bond shall be registered shall be deemed and regarded as the absolute owner thereof for all purposes, and payment of the principal, premium or interest on any Bond shall be made duly to or upon the order of the registered owner thereof or his legal representative. All such payments shall be valid and effectual to satisfy and discharge the liability upon such Bond to the extent of the sum or sums so paid. No service charge shall be made for any transfer or exchange of Bonds, but the City or the Registrar and Paying Agent may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Bonds except in the case of the issuance of a Bond or Bonds for the unredeemed portion of a Bond surrendered for redemption. -15- INIMAN 1 588666v6 In the event any Bond is mutilated, lost, stolen or destroyed, the City may execute and the Registrar and Paying Agent may authenticate a new Bond of like date, maturity and denomination as the mutilated, lost, stolen or destroyed Bond, which new Bond shall be marked in a manner to distinguish it from the Bond for which it was issued; provided, that in the case of any mutilated Bond, such mutilated Bond shall first be surrendered to the City and the Registrar and Paying Agent, and in the case of any lost, stolen or destroyed Bond, there shall be first furnished to the City and the Registrar and Paying Agent evidence of such loss, theft or destruction satisfactory to the City and the Registrar and Paying Agent, together with indemnity satisfactory to them. In the event any such lost, stolen or destroyed Bond shall have matured or been called for redemption, instead of causing to be issued a duplicate Bond, the City and the Registrar and Paying Agent may, upon receiving indemnity satisfactory to them, pay the same without surrender thereof. The City and the Registrar and Paying Agent may charge the owner of such Bond with their reasonable fees and expenses in cormection with the above. Every substitute Bond issued by reason of any Bond being lost, stolen or destroyed shall, with respect to such Bond, constitute a substitute contractual obligation of the City, whether or not the lost, stolen or destroyed Bond shall be found at any time, and shall be entitled to all the benefits of this Ordinance, equally and proportionately with any and all other Bonds duly issued hereunder. In the event that any Bond is not presented for payment or redemption on the date established therefor, the City may deposit in trust with the Paying Agent an amount sufficient to pay such Bond or the redemption price thereof, as appropriate, and thereafter the owner of such Bond shall look only to the funds so deposited in trust with the Paying Agent for payment and the City shall have no further obligation or liability with respect thereto. -16- INIMAN I 588666v6 SECTION 7. The Bonds shall be executed in the name of the City by the manual or facsimile signature of the Mayor and attested by the manual or facsimile signature of the Clerk-Treasurer, who shall cause the official seal of the City to be impressed or a facsimile thereof to be printed or otherwise reproduced on each of the Bonds. In the event that any officer whose signature appears on any Bond shall cease to be such officer for any reason before the delivery of such Bond, such signature shall nevertheless be valid and sufficient for all purposes, the same as if such officer had been in such office at the time of delivery. Subject to the provisions for registration set forth in this Ordinance, the Bonds shall be negotiable under the laws of the State of Indiana. The Bonds shall be authenticated with the manual signature of a duly authorized representative of the Registrar and Paying Agent, and no Bond shall be valid or obligatory for any purpose until the certificate of authentication on such Bond shall have been so executed. SECTION 8. The form and tenor of the Bonds shall be substantially as follows (all blanks to be properly completed prior to the preparation of the Bonds): -17- INIMAN1 588666v6 [Form of Face of Bond] UNITED STATES OF AMERICA State of Indiana County of Hamilton No. 02R- $ City of Carmel, Indiana County Option Income Tax Revenue Bond, Series 2002 INTEREST MATURITY ORIGINAL AUTHENTICATION RATE DATE DATE DATE CUSIP REGISTERED OWNER: PRINCIPAL SUM: The City of Carmel, in Hamilton County, Indiana (the "City"), for value received, hereby promises to pay to the Registered Owner specified above, or registered assigns, upon surrender hereof, solely out of the special revenue fund hereinafter referred to, the Principal Amount stated above on the Maturity Date specified above (unless this bond be subject to and be called for redemption prior to maturity as hereinafter provided), and to pay interest thereon until the Principal Amount is paid upon redemption or at maturity, at the Interest Rate per annum specified above and from the interest payment date to which interest has been paid or duly provided for next preceding the Date of Authentication of this bond as shown above (except if this bond is authenticated after the last day of the month immediately preceding an interest payment date and the interest payment date, it shall bear interest from such interest payment date and except if this bond is authenticated on or before , 200, it shall bear interest from the Original Date specified above), with such interest payable semiannually on June 15 and December 15 of each year, commencing ,200__. The principal of and premium, if any, on this bond is payable at the principal corporate trust office of ., in the City of ., Indiana, or of any successor registrar and paying agent appointed under the Ordinance hereinatter mentioned (the "Registrar and Paying Agent"). Interest hereon will be paid by cash or draft mailed or delivered one (1) day prior to each interest payment date by the Registrar and Paying Agent to the Registered Owner hereof at the address as it appears on the registration books of the Registrar and Paying Agent as of the last day of the month immediately preceding the applicable interest payment date or at such other address as is furnished to the Registrar and Paying Agent in writing by such Registered Owner. Notwithstanding anything in this bond to the contrary, so long as The Depository Trust Company, New York, New York ("DTC"), or its nominee, or any successor thereto, is the registered owner of the Bonds, the principal of and premium, if any, and interest on the Bonds will be paid directly to DTC by wire transfer in same day funds by the Registrar and Paying Agent. All payments on this bond shall be made in any coin or currency of the United States of America which, on the dates of such payments, shall be legal tender for the payment of public and private debts. The Bonds shall initially be issued and held in book-entry form on the books of DTC, its successors or any successor central depository system appointed by the City from time to time. The City and the Registrar and Paying Agent may, in connection therewith, do or perform or cause to be done or performed any acts or things, not adverse to the rights of the holders of the Bonds, as are necessary or appropriate to accomplish or recognize such book-entry form Bonds. This bond and the other bonds of this issue, together with the interest payable hereon and thereon, is payable solely from and secured by an irrevocable pledge of and constitutes a fncst charge upon all of the county option income tax revenues distributed to the City pursuant to Indiana Code 6-3.5-6, and the laws amendatory -18- IN iMAN 1588666v6 thereof and supplemental thereto (the "Act"), deposited into the Sinking Fund (as hereiratfier described), subject to the parity claim of the Outstanding Secured Obligations (as hereinafter defined). The City is not and shall not be obligated to pay the principal of or interest on this bond except from such Sinking Fund, and this bond does not and shall not constitute an indebtedness of the City within the meaning of the provisions and limitations of the constitution of the State of Indiana. The City and the Registrar and Paying Agent may deem and treat the Registered Owner hereof as the absolute owner hereof for the purpose of receiving payment of or on account of principal hereof and the premium, if any, and interest due hereon and for all other purposes, and neither the City nor the Registrar and Paying Agent shall be affected by any notice to the contrary. This bond shall not be valid or become obligatory for any purpose until the certificate of authentication hereon shall have been duly executed by a duly authorized representative of the Registrar and Paying Agent. THE TERMS AND PROVISIONS OF THIS BOND ARE CONTINUED ON THE REVERSE SIDE HEREOF AND SUCH CONTINUED TERMS AND PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS THOUGH FULLY SET FORTH ON THE FRONT SIDE OF THIS BOND AT THIS PLACE. The City hereby certifies, recites and declares that all acts, conditions and things required to be done precedent to and in the preparation, execution, issuance and delivery of this bond have been done and performed in regular and due form as provided by law. IN WITNESS WHEREOF, the City of Carmel, in Hamilton County, State of Indiana, by ordinance of its Common Council, has caused this bond to be executed in its corporate name and on its behalf by the manual or facsimile signature of its duly elected, qualified and acting Mayor and attested by the manual or facsimile signature of its duly elected, qualified and acting Clerk-Treasurer, who has caused the official corporate seal of the City to be impressed or a facsimile thereof to be printed or otherwise reproduced hereon, all as of the Original Date shown above. CITY OF CARMEL, iNDIANA By: Mayor (SEAL) ATTEST: Clerk-Treasurer CERTIFICATE OF AUTHENTICATION This bond is one of the City of Carmel, Indiana, County Option Income Tax Revenue Bonds, Series 2002, issued and delivered pursuant to the provision of the within-mentioned ordinance. as Registrar and Paying Agent By: Authorized Representative [Reverse of Bond] -19- INIMAN 1 588666v6 This bond is one of an authorized issue of bonds of the City, of like date, tenor and effect, except as to numbering, interest rates and dates of maturity, in the total amount of Dollars ($ .), numbered consecutively from 02R-1 upwards, issued for the purpose of providing funds to pay the cost of the acquisition, construction, installation and equipping of (i) facilities to contain the operation and offices of the Street Department of the City (the "Street Department") and a motor vehicle fleet maintenance area for City vehicles generally; (ii) three salt storage facilities for the Street Department; and (iii) certain road and street improvements, and all expenses necessarily incurred in connection with the issuance of such bonds, as authorized by an ordinance adopted by the Common Council of the City on ,2002, entitled "an Ordinance of the City of Carmel, Indiana, authorizing the issuance and sale of county option income tax revenue bonds of the City of Carmel, Indiana, to procure funds to be applied to the costs of the acquisition, construction, installation and equipping of facilities to contain the operation and offices of the street department of the City and a motor vehicle fleet maintenance area for City vehicles generally; three salt storage facilities for such street department, and certain road and street improvements in the City, together with costs and expenses incidental thereto, including costs and expenses in connection with the issuance of the bonds" (the "Ordinance") and the Indiana Code. This bond is issuable only in fully registered form in the denomination of $5,000 or any integral multiple thereof not exceeding the aggregate principal amount of the bonds of this issue maturing in any one year. Pursuant to the provisions of the Ordinance, the principal of and interest on this bond and all other bonds of this issue are payable solely from the Sinking Fund (heretofore created by the Ordinance) provided from county option income tax revenues distributed to the City pursuant to the Act, subject to the parity claim of the Outstanding Secured Obligations. This bond does not and shall not constitute an indebtedness of the City within the meaning of the provisions and limitations of the constitution of the State of Indiana, and the City is not and shall not be obligated to pay this bond or the interest thereon except from Sinking Fund provided from such county option income tax revenues. The City irrevocably pledges all county option income tax revenues deposited into the Sinking Fund to the prompt payment of the principal of and interest on the bonds authorized and issued pursuant to the Ordinance, including this bond, subject to the parity claim of the Outstanding Secured Obligations on such revenues. Pursuant to and in accordance with Ordinance No. D-1302-97, adopted by the Common Council of the City on July 7, 1997 (the "COIT Ordinance"), the pledge of county option income tax revenues to the payment of the bonds of this issue is on a parity with a pledge by the City of county option income tax revenues received or to be received by the City from the City's distributive share of the county option income tax pursuant to the Act to the payment of (i) certain lease rentals under a Lease Agreement, dated as of July 8, 1997, between the City of Carmel Redevelopment Authority (the "Redevelopment Authority") and the City of Carmel Redevelopment comrmssion, as amended, securing certain bonds of the Redevelopment Authority designated "City of Carmel Redevelopment Authority County Option Income Tax Lease Rental Revenue Bonds of 1997," dated August 1, 1997, outstanding on the date hereof in the amount of Twenty-Eight Million One Hundred Forty-Five Thousand Dollars ($28,145,000), bearing interest at various rates and maturing in various amounts semiaimually on January 1 and July I in the years 2003 to 2018, inclusive; and (ii) debt service associated with the bonds of the Redevelopment District of the City, designated as the "City of Carmel, Indiana, Redevelopment District Taxable County Option Income Tax Revenue Bonds of 1998 (City Center Redevelopment Project)," dated April 1, 1998, outstanding on the date hereof in the amount of Nine Million Four Hundred Ninety Thousand Dollars ($9,490,000), bearing interest at various rates and maturing in various amounts semiannually on June 15 and December 15 in the years 2003 to 2018, inclusive (collectively, the "Outstanding Secured Obligations"). Upon satisfaction of the conditions set forth in the COIT Ordinance and the Ordinance, the City may from time to time by ordinance identify any bond, note, warrant or other evidence of indebtedness, any lease or any other obligations, whether issued by the City, the Redevelopment comrmssion or any other person or entity, as a Secured Obligation (as defined in the Ordinance) on a parity with the bonds of this issue. The City covenants that it will set aside and pay into the Sinking Fund a sufficient amount of the county option income tax revenues to meet (a) the interest on all bonds payable from such fund as such interest shall fall due, (b) the necessary fiscal agency charges for paying the principal of and interest on all bonds, and (c) the principal of all bonds payable from such fund as such principal shall fall due. -20- INIMANI 588666v6 The bonds of this issue maturing on or after 20 , are subject to redemption prior to maturity, at the option of the City, in whole or in part, on _, 20 , or at any time thereafter, in principal amounts and maturities selected by the City, and by lot within any such maturity or maturities by the Registrar and Paying Agent, at 100% of face value, together with the following premiums: % if redeemed on ,20_ , or -- thereafter on or before ,20_ ; % if redeemed on ., 20_ , or -- thereafter on or before ,20 plus accrued interest to the date of redemption. Notice of such redemption shall be sent by registered or certified mail to the Registered Owner of this bond not less than thirty (30) days and not more than sixty (60) days prior to the date fixed for redemption, unless such notice is waived by the Registered Owner. The place of redemption may be determined by the City. Interest on bonds so called for redemption shall cease to accrue on the redemption date fixed in such notice, so long as sufficient funds are available at the place of redemption to pay the redemption price on the redemption date or when presented for payment. If this bond shall not be presented for payment or redemption on the date fixed therefor, the City may deposit in trust with the Registrar and Paying Agent an amount sufficient to pay such bond or the redemption price, as appropriate, and thereafter the Registered Owner shall look only to the funds so deposited in trust with the Registrar and Paying Agent for payment, and the City shall have no further obligation or liability with respect thereto. Subject to the provisions of the Ordinance regarding the registration of such bonds, this bond and all other bonds of the issue of which this bond is a part are fully negotiable insmunents under the laws of the State of Indiana. This bond is transferable or exchangeable only upon the books of the City kept for that purpose at the principal office of the Registrar and Paying Agent by the Registered Owner hereof in person, or by his attorney duly authorized in writing, upon surrender of this bond, together with a written instrument of transfer or exchange sahsfactory to the Registrar and Paying Agent duly executed by the Registered Owner or his attorney duly authorized in writing, and thereupon a new fully registered bond or bonds in the same aggregate principal amount and of the same maturity shall be executed and delivered in the name of the transferee or transferees or to the Registered Owner, as the case may be, in exchange therefor. This bond may be transferred or exchanged without cost to the Registered Owner, except for any tax or governmental charge required to be paid with respect to the transfer or exchange. The Registrar and Paying Agent shall not be obligated to make any exchange or transfer of this bond (i) during the fifteen (15) days immediately preceding an interest payment date on this bond or (ii) after the mailing of any notice calling this bond for redemption. The City and the Registrar and Paying Agent for this bond may treat and consider the person in whose name this bond is registered as the absolute owner hereof for all purposes, including for the purpose of receiving payment of, or on account of, the principal hereof and the premium, if any, and interest due hereon. In the event this bond is mutilated, lost, stolen or destroyed, the City may cause to be executed and the Registrar and Paying Agent may authenticate a new bond of like date, maturity and denomination as this bond, which new bond shall be marked in a mariner to distinguish it from this bond; provided, that in the case of this bond being mutilated, this bond shall first be surrendered to the Registrar and Paying Agent, and in the case of this bond being lost, stolen or destroyed, there shall first be furnished to the Registrar and Paying Agent evidence of such loss, theft or destruction satisfactory to the City and the Registrar and Paying Agent, together with indemnity satisfactory to them. In the event that this bond, being lost, stolen or destroyed, shall have matured or been called for redemption, instead of causing to be issued a duplicate bond, the City and the Registrar and Paying Agent may, upon receiving indemnity satisfactory to them, pay this bond without surrender hereof. In such event, the City and the Registrar and Paying Agent may charge the owner of this bond with their reasonable fees and expenses in connection with the above. Every substitute bond issued by reason of this bond being lost, stolen or destroyed shall, with respect to this bond, constitute a substitute contractual obligation of the City, whether or not this bond, being -21- INIMAN1 588666v6 lost, stolen or destroyed shall be found at any time, and shall be entitled to all the benefits of the Ordinance, equally and proportionately with any and all other bonds duly issued thereunder. In the manner provided in the Ordinance, the Ordinance and the rights and obligations of the City and of the owners of the bonds of this issue may (with certain exceptions as stated in the Ordinance) be modified or amended with the consent of the owners of at least sixty percent (60%) in aggregate principal amount of outstanding bonds of this issue exclusive of bonds, if any, owned by the City. Additional bonds ranking on a parity with the bonds authorized by the Ordinance and other bonds, junior to the bonds authorized by the Ordinance, can be issued in accordance with the terms of the Ordinance. The bonds authorized and issued pursuant to the Ordinance, including this bond, are subject to defeasance prior to redemption or payment as provided in the Ordinance, and the owner of this bond, by the acceptance hereof, hereby agrees to all the terms and provisions contained in the Ordinance. ASSIGNMENT FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto (insert name and address) the within bond and all rights thereunder, and hereby irrevocably conshtutes and appoints attorney to transfer the within bond on the books kept for the registration thereof with full power of substitution in the premises. Dated: Signature Guarantee: NOTICE: The signature to this assignment must correspond with the name as it appears on the face of the within bond in every particular, without alteration or enlargement or any change whatsoever. Notice: Signature(s) must be guaranteed by an eligible guarantor institution participating in a Securities Transfer Association recognized signature guarantee program. (End of Bond Form) SECTION 9. Prior to the sale of the Bonds, the Clerk-Treasurer shall cause to be published a notice of intent to sell two times at least one week apart in the Noblesville Ledger and the Court & Commercial Record. The notice of such sale or a summary thereof may also be published in The Bond Buyer, a financial journal published in the City and State of New York or in any other publications, in the discretion of the Clerk-Treasurer. The notice must state that any -22- INIMAN 1 588666v6 person interested in submitting a bid for the Bonds may furnish in writing, at the address set forth in the notice, the person's name, address, and telephone number, and that any such person may also furnish a telex number. The notice must also state: (1) the amount of the Bonds to be offered; (2) the denominations; (3) the dates of maturity; (4) the maximum rate or rates of interest; (5) the place of sale; and (6) the time within which the name, address and telephone number must be furnished, which must not be less than seven days after the last publication of the notice. Each person so registered shall be notified of the date and time bids will be received not less than twenty-four (24) hours before the date and time of sale. The notification shall be made by telephone at the number furnished by the person, and by telex if the person fumishes a telex number. Such notice may also include such other information as the Clerk-Treasurer shall deem necessary. Such notice shall provide, among other things, that each bid shall be accompanied by a certified or cashier's check or a financial surety bond from an insurance company in the amount of one percent (1%) of the principal amount of the Bonds to guarantee performance on the part of the bidder; that if the Bonds are awarded to a bidder who has submitted a financial surety bond to the City, then such bidder must submit the required amount of the good faith deposit to the City in the form of a certified or cashier's check (or a wire transfer consisting of immediately available funds to the City as instructed by the City) not later than 3:00 p.m. (local time) on the next business day following the award by the City; that if such check or wire transfer is not received by that time, the financial surety bond may be drawn upon by the City to satisfy the deposit requirements; and that in the event the successful bidder shall fail or refuse to accept delivery of and pay for the Bonds as soon as the Bonds are ready for delivery, or at the time fixed in the notice of intent to sell bonds, then such check and the -23- INIMANI 588666v6 proceeds thereof shall become the property of the City and shall be considered as the City's liquidated damages on account of such default. All bids for Bonds shall be sealed and shall be presented to the Clerk-Treasurer at the Clerk-Treasurer's office, or such other place as designated by the Clerk-Treasurer, and the Clerk-Treasurer shall continue to receive all bids offered until the hour fixed for the sale of the Bonds, at which time and place the Clerk-Treasurer or her designee shall open and consider each bid. Bidders for the Bonds shall be required to name the rate or rates of interest which the Bonds are to bear, not exceeding eight percent (8%) per annum. Such interest rate or rates shall be in multiples of one-eighth (1/8) or one-twentieth (1/20) of one percent (1%). Bids specifying more than one interest rate shall also specify the amount and maturities of the Bonds bearing each rate, and all Bonds maturing on the same date shall bear the same rate of interest. The interest rate on Bonds of a given maturity must be at least as great as the interest rate on Bonds of any earlier maturity. Subject to the provisions set forth below, the Clerk-Treasurer shall award the Bonds to the bidder offering the lowest net interest cost to the City, to be determined by computing the total interest on all of the Bonds from the date thereof to their maturities and deducting therefrom the premium bid, if any, or adding thereto the amount of any discount. No bid for less than ninety-eight percent (98.0%) of the par value of the Bonds (or such higher percentage of the par value of the Bonds as the Clerk-Treasurer, with the advice of the Financial Advisor, shall determine prior to the publication of the notice of intent to sell), plus accrued interest at the rate or rates named to the date of delivery, will be considered. The Clerk-Treasurer shall have full right to reject any and all bids. In the event no acceptable bid is received at the time fixed for the sale of the Bonds, the Clerk-Treasurer shall be authorized to continue to receive bids from day to day thereafter for a period not to exceed thirty (30) days, without readvertising, pursuant to -24- INIMAN1 588666v6 Indiana law. During the continuation of the sale, no bid shall be accepted which offers an interest cost which is equal to or higher than the best bid received at the time originally fixed for the sale of the Bonds in the bond sale notice. The Clerk-Treasurer is hereby authorized to determine, in her discretion, to sell the Bonds pursuant to the general provisions of Indiana Code 5-1-11 (rather than Section 2(b) thereof), and in the event of such a determination, those portions of this Section 9 which conflict with such provisions shall be deemed inapplicable. Prior to the delivery of the Bonds, the Clerk-Treasurer (i) shall be authorized to investigate and to obtain municipal bond insurance, other forms of credit enhancement, and/or credit ratings on the Bonds and (ii) shall obtain a legal opinion as to the validity of the Bonds from Baker & Daniels, Indianapolis, Indiana, bond counsel for the City, and such opinion shall be furnished to the purchasers of the Bonds at the expense of the City. The costs of obtaining any such municipal bond insurance, other credit enhancement, and/or credit ratings, together with bond counsel's fee in preparing and delivering such opinion and in the performance of related services in connection with the issuance, sale and delivery of the Bonds, shall be considered as a part of the cost of issuance of the Bonds and shall be paid out of the proceeds of the sale of the Bonds. SECTION 10. The Mayor is hereby authorized to execute the Bonds with his manual or facsimile signature and the Clerk-Treasurer is hereby authorized and directed to have such Bonds prepared and is further authorized and directed to attest the Bonds with her manual or facsimile signature and to affix or cause to be affixed the seal of the City or a facsimile thereof to the Bonds. After the Bonds have been properly executed, the Bonds shall be delivered to the purchaser or purchasers in the manner provided by law. -25- INIMAN1 588666v6 SECTION 11. The Common Council hereby requests, authorizes and directs the Mayor and the Clerk-Treasurer, and each of them, for and on behalf of the City, to prepare, execute and deliver any and all other instruments, letters, certificates, agreements and documents as are determined to be necessary or appropriate to consummate the transactions contemplated by this Ordinance, and such determination shall be conclusively evidenced by the execution thereof. The instruments, letters, certificates, agreements, and documents, including the Bonds, necessary or appropriate to consummate the transactions contemplated by this Ordinance shall, upon execution, as contemplated herein, constitute the valid and binding obligations or representations and warranties of the City, the full performance and satisfaction of which by the City is hereby authorized and directed. SECTION 12. The Bonds, when fully paid for and delivered to the purchaser or purchasers, and any bonds hereafter issued on a parity therewith, as to both principal and interest, shall be valid and binding special revenue obligations of the City, on a parity with the payment obligations to be made pursuant to the outstanding Secured Obligations, payable solely out of the COIT revenues distributed to the City pursuant to the Act deposited and set aside into the Sinking Fund, as hereinafter provided, and the proceeds derived from the sale of the Bonds shall be and are hereby set aside for application by the City solely to the payment of the costs of the Project, together with costs and expenses incidental thereto, including costs and expenses in connection with the issuance of the Bonds, as provided herein. SECTION 13. The COlT revenues distributed to the City pursuant to the Act shall be used and applied by the City only as provided in the COlT Ordinance, this Ordinance and in strict accordance with the provisions of the Act. All of such revenues to be applied to Obligations shall be segregated and kept in special accounts separate and apart from all other ~26- INIMAN I 588666v6 funds of the City and shall be used and applied in payment of Obligations which by their terms are payable from such revenues. The County Option Income Tax Fund is hereby created and is hereby designated and constituted as the fund for the payment of the interest on and principal of the Bonds. Said fund shall be continued until all of the Bonds have been paid. The "County Option Income Tax Fund" shall consist of (i)a Bond Principal and Interest Account (which account shall be referred to as the "Sinking Fund" and which account the City hereby covenants and agrees to cause to be kept and maintained so long as needed for the purposes set forth herein), and (ii) an Excess Account. All of the COIT revenues distributed to the City pursuant to the Act, upon the contemporaneous satisfaction of the parity claims of the outstanding Secured Obligations, shall be set aside in the following accounts in the following order of priority and to the extent indicated below: (1) Bond Principal and Interest Account; and (2) Excess Account. (a) Bond Principal and Interest Account. As soon as possible upon receipt by the City of its monthly COIT revenue distribution (each, a "Distribution"), but in any event not later than the last day of each month, there shall be set aside and paid into the Bond Principal and Interest Account, upon the contemporaneous satisfaction of the parity claims of the outstanding Secured Obligations, a sufficient amount for the payment of (a) the interest on all Bonds as such interest shall fall due, (b) the necessary fiscal agency charges for paying the principal of and interest on all Bonds, and (c) the principal of all Bonds as such principal shall fall due. The monthly payments into the Bond Principal and Interest Account shall be in an amount equal to at least one-sixth (1/6) of the amount required for such payments on the next Interest Payment Date (provided that such fractional amount shall be appropriately modified to provide for the first -27- INIMAN 1 588666v6 principal and first interest payments and to take into consideration the deposit of proceeds of the Bonds constituting capitalized interest, if any) and shall continue until such time as the Bond Principal and Interest Account shall contain an amount sufficient to pay all of the Bonds then outstanding, together with the interest thereon to the dates of maturity thereof. (b) Excess Account. Any remaining COlT revenues distributed to the City pursuant to the Act after satisfaction of the parity claims of the outstanding Secured Obligations and the required deposit into the Bond Principal and Interest Account shall be deemed excess funds and shall be deposited in the Ex~ess Account for appropriation and use as permitted by law. In the event of any deficiency at any time in the Bond Principal and Interest Account for the purposes of paying the interest on or principal of the Bonds, funds may be withdrawn from the Excess Account for deposit into said Bond Principal and Interest Account in the amount of such deficiency. SECTION 14. Any accrued interest and premium received at the time of the delivery of the Bonds shall be deposited into the Bond Principal and Interest Account. The remaining proceeds from the sale of the Bonds (excepting any amount to be deposited in the Bond Principal and Interest Account constituting capitalized interest, which amount shall be certified by the Clerk-Treasurer in the Award Certificate based upon the advice of the Financial Advisor) shall be deposited in a special fund to be designated as the "2002 City of Carmel COIT Project Construction Fund" (the "2002 COlT Construction Fund"). Such fund shall be deposited with a legally qualified depository or depositories for funds of the City as provided by law and shall be segregated and kept separate and apart from all other funds of the City and may be invested as permitted by law. The money in the 2002 COlT Construction Fund shall be expended only for the purpose of paying the costs of the Project together with costs and expenses -28- INIMAN 1 588666v6 in connection with the issuance of the Bonds. Any balances in the 2002 COIT Construction Fund after the completion of the Project which are not required to meet unpaid obligations incurred in connection with the acquisition, construction, installation and equipping of the Project together with costs and expenses in connection with the issuance of the Bonds, shall either be deposited into the Bond Principal and Interest Account of the County Option Income Tax Fund and used for the purposes of that account as provided for herein, or be used as otherwise provided by law. SECTION 15. The provisions of this Ordinance shall be construed to create a trust in the proceeds of the sale of the Bonds for the uses and purposes herein set forth, and the registered owners of the Bonds shall retain a lien on such proceeds until the same are applied in accordance with the provisions of this Ordinance. The provisions of this Ordinance shall also be construed to create a trust in the COIT revenues distributed to the City pursuant to the Act herein directed to be set apart and paid into the Sinking Fund for purposes of said fund as in this Ordinance set forth. SECTION 16. If, when the Bonds or a portion thereof shall have become due and payable in accordance with their terms and the whole amount of the principal of and premium, if any, and interest so due and payable upon on all of the Bonds or a portion thereof then outstanding shall be paid; or (i) sufficient moneys, or (ii) direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the United States of America, the principal of and the interest on which when due will provide sufficient moneys for such purpose, or (iii) time certificates of deposit fully secured as to both principal and interest by obligations of the kind described in (ii) above of a bank or banks, the principal of and interest on which when due will provide sufficient moneys for such purpose, shall be held in trust for such -29- INIMAN1588666v6 purpose, then and in such event the Bonds or such portion thereof shall no longer be deemed outstanding or entitled to the pledge of COIT revenues distributed to the City pursuant to the Act deposited into the Sinking Fund. SECTION 17. In order to preserve the excludability from gross income of interest on the Bonds under federal law, the City represents, covenants and agrees that, to the extent necessary to preserve such excludability: (a) No person or entity or any combination thereof, other than the City or any other governmental unit ("Governmental Unit") within the meaning of Section 141 (b)(6) and Section 150(a)(2) of the Internal Revenue Code of 1986, as amended, and as in effect on the date of delivery of the Bonds (the "Code"), will use more than ten pement (10%) of the proceeds of the Bonds or property financed by such proceeds other than as a member of the general public. No person or entity or any combination thereof other than the City or any other Governmental Unit will own property financed by more than ten percent (10%) of the proceeds of the Bonds or will have actual or beneficial use of more than ten percent (10%) of such property pursuant to a lease, a management or incentive payment contract, an arrangement such as a take-or-pay or other type of output contract or any other type of arrangement that differentiates that person's or entity's use of such property from the use of such property by the public at large, except pursuant to a management or similar contract which satisfies the requirements of IRS Revenue Procedure 97-13; (b) No Bond proceeds will be lent to any entity or person. No Bond proceeds will be transferred directly or indirectly transferred or deemed -30- INIMAN1 588666v6 transferred to a person other than a Governmental Unit in a fashion that would in substance constitute a loan of such Bond proceeds; (c) The City will not take any action or fail to take any action with respect to the Bonds that would result in the loss of the excludability from gross income for federal income tax purposes of interest on the Bonds pursuant to Section 103(a) of the Code, and the Common Council will not act in any manner or permit any actions by officers or officials of the City that would adversely affect such excludability. The City further covenants that it will keep full, complete and accurate records of all investment income and other earnings on the amounts held in the funds and accounts created or referred to in this Ordinance and will not make any investment or do any other act or thing during the pehod that any Bond is outstanding hereunder which would cause any Bond to be an "arbitrage bond" within the meaning of Section 148 of the Code and regulations applicable thereto as in effect on the date of delivery of the Bonds. The City shall comply with the arbitrage rebate requirements under Section 148 of the Code to the extent applicable; (d) All officers, employees and agents of the City are hereby authorized and directed to provide certifications of facts and estimates that are material to the reasonable expectations of the City as of the date that the Bonds are issued, and to make covenants on behalf of the City evidencing the City's commitments made herein. In particular, any and all appropriate officers, employees and agents of the City are authorized to certify and/or enter into covenants for the City regarding (i) the facts and circumstances and reasonable -31- INIMAN1 588666v6 expectations of the City on the date that the Bonds are issued and (ii) the representations and covenants made herein by the City regarding the amount and use of the proceeds of the Bonds; and (e) The Clerk-Treasurer is hereby authorized and directed to employ consultants and attorneys from time to time to advise the City with respect to the requirements under federal law for the continuing preservation of the excludability of interest on the Bonds from gross income for purposes of federal income taxation. SECTION 18. Notwithstanding any other provisions of this Ordinance, any of the covenants and authorizations contained in this Ordinance (the "Tax Sections") which are designed to preserve the excludability of interest on the Bonds from gross income for purposes of federal income taxation (the "Tax Exemption") need not be complied with if the City receives an opinion of nationally recognized bond counsel that compliance with such Tax Section is unnecessary to preserve the Tax Exemption. SECTION 19. The Common Council may, without the consent of, or notice to, any of the owners of the Bonds, adopt a supplemental ordinance for any one or more of the following purposes: To cure any ambiguity or formal defect or omission in this (a) Ordinance; (b) To grant to or confer upon the owners of the Bonds any additional benefits, rights, remedies, powers, authority or security that may lawfully be granted to or conferred upon the owners of the Bonds, or to make any change -32- INIMANI 588666v6 which, in the judgment of the City, is not to the prejudice of the owners of the Bonds; (c) To modify, amend or supplement this Ordinance to permit the qualification of the Bonds for sale under the securities laws of the United States of America or of any of the states of the United States of America; (d) To provide for the refunding or advance refunding of the Bonds; (e) To procure a rating on the Bonds from a nationally recognized securities rating agency designated in such supplemental ordinance, if such supplemental ordinance will not adversely affect the owners of the Bonds; and (f) Any other purpose which, in the judgment of the City, does not adversely impact the interests of the owners of the Bonds. SECTION 20. This Ordinance, and the rights and obligations of the City and the owners of the Bonds may be modified or amended at any time by supplemental ordinances adopted by the Common Council with the consent of the owners of the Bonds holding at least sixty percent (60%) in aggregate principal amount of the outstanding Bonds (exclusive of Bonds, if any, owned by the City); provided, however, that no such modification or amendment shall, without the express consent of the owners of the Bonds affected, reduce the principal amount of any Bond, reduce the interest rate payable thereon, advance the earliest redemption date, extend its maturity or the times for paying interest thereon, permit a privilege or priority of any Bond or Bonds over any other Bond or Bonds, create a lien securing any Bonds other than a lien ratably securing all of the Bonds outstanding, or change the monetary medium in which principal and interest are payable, nor shall any such modification or amendment reduce the percentage of consent required for amendment or modification to this Ordinance. -33- [NIMANI 588666v6 Any act done pursuant to a modification or amendment so consented to shall be binding upon all the owners of the Bonds and shall not be deemed an infringement of any of the provisions of this Ordinance or of the Indiana Code, and may be done and performed as fully and freely as if expressly permitted by the terms of this Ordinance, and after such consent relating to such specified matters has been given, no owner shall have any right or interest to object to such action or in any manner to question the propriety thereof or to enjoin or restrain the Common Council or any officer thereof from taking any action pursuant thereto. If the Common Council shall desire to obtain any such consent, it shall cause the Registrar and Paying Agent to mail a notice, postage prepaid, to the respective owners of the Bonds at their addresses appearing on the registration books held by the Registrar and Paying Agent. Such notice shall briefly set forth the nature of the proposed supplemental ordinance and shall state that a copy thereof is on file at the office of the Registrar and Paying Agent for inspection by all owners of the Bonds. The Registrar and Paying Agent shall not, however, be subject to any liability to any owners of the Bonds by reason of its failure to mail the notice described in this Section 20, and any such failure shall not affect the validity of such supplemental ordinance when consented to and approved as provided in this Section 20. Whenever at any time within one year after the date of the mailing of such notice, the Common Council shall receive an instrument or instruments purporting to be executed by the owners of the Bonds of not less than sixty percent (60%) in aggregate principal amount of the Bonds then outstanding (exclusive of Bonds, if any, owned by the City), which instrument or instruments shall refer to the proposed supplemental ordinance described in such notice, and shall specifically consent to and approve the adoption thereof in substantially the form of the copy thereof referred to in such notice as on file with the Registrar and Paying Agent, thereupon, -34- INIMAN 1 588666v6 but not otherwise, the City may adopt such supplemental ordinance in substantially such form, without liability or responsibility to any owners of the Bonds, whether or not such owner shall have consented thereto. Upon the adoption of any supplemental ordinance pursuant to the provisions of this Section 20, this Ordinance shall be, and be deemed to be, modified and amended in accordance therewith, and the respective rights, duties and obligations under this Ordinance shall thereafter be determined, exercised and enforced hereunder, subject in all respects to such modifications and amendments. SECTION 21. All of the COIT revenues distributed to the City pursuant to the Act deposited into the Sinking Fund shall be and are hereby irrevocably pledged to the payment of the principal of and interest on the Bonds and any additional Secured Obligations constituting bonds payable from the Sinking Fund hereafter issued on a parity therewith. SECTION 22. The City, acting through its Common Council, may not identify any obligation, other than the outstanding Secured Obligations and the Bonds, as an obligation secured by the COlT Ordinance unless: (a) All interest, principal, rental and other amounts payable under the then outstanding Secured Obligations due on or before such identification have been paid in accordance with their terms. (b) There is delivered to or for the benefit of each obligee under each then outstanding Secured Obligation a report or certificate prepared by an independent certified public accountant or independent financial advisor to the effect that either: (i) the sum of the Monthly Distributions in the calendar year immediately preceding the calendar year in which such Obligation is so identified was not less than one hundred -35- INIMAN1588666v6 twenty-five percent (125%) of the maximum interest, principal, rental or other amounts payable under such Obligation and any other then outstanding Secured Obligations in any future calendar year; or (ii) the sum of the Monthly Distributions in the calendar year immediately succeeding the calendar year in which such Obligation is so identified are projected to be equal to at least one hundred twenty-five pement (125%) of the maximum interest, principal, rental or other amounts payable under such Obligation and any other then outstanding Secured Obligations in any future calendar year. (c) The interest, principal, rental or other amount payable under such Obligation is payable on June 15 and December 15 in the years in which such Obligation is outstanding. SECTION 23. The Clerk-Treasurer shall, prior to the sale of the Bonds, set forth in a certificate (the "Clerk-Treasurer's Certificate") the first interest and principal payment dates, the principal amounts and maturities of the Bonds, the percentage of par at which the Bonds shall be sold and any other matters required by this Ordinance to be provided in the Clerk-Treasurer's Certificate. The Bonds shall be offered and sold pursuant to an Official Statement with respect to the Bonds (the "Official Statement"), to be made available and distributed in such manner, at such times, for such periods and in such number of copies as may be required pursuant to Rule 15c2-12 promulgated by the United States Securities and Exchange Commission (the "Rule") and any and all applicable rules and regulations of the Municipal Securities Rulemaking Board. The Common Council hereby authorizes the Mayor (a)to authorize and approve a Preliminary Official Statement, as the same may be appropriately confirmed, modified and amended for distribution as the Preliminary Official Statement of the -36- INIMAN1 588666v6 City; (b) on behalf of the City, to designate the Preliminary Official Statement a "final" Official Statement with respect to the Bonds, subject to completion as permitted by and otherwise pursuant to the Rule; and (c) to authorize and approve the Preliminary Official Statement to be placed into final form and to enter into such agreements or arrangements as may be necessary or advisable in order to provide for the distribution of a sufficient number of copies of the Official Statement under the Rule. The Mayor is further authorized to execute an agreement in connection with the offering of the Bonds in accordance with the Rule by which the City agrees to undertake such continuing disclosure obligations as may be required under the Rule. The Clerk-Treasurer is hereby authorized and directed to have the Bonds prepared, and the Mayor and the Clerk-Treasurer are hereby authorized and directed to execute or cause the execution of the Bonds in the form and manner substantially hereinbefore provided. Temporary Bonds in typed or mimeographed form may be delivered to the original purchaser thereof pending preparation of the definitive Bonds. SECTION 24. The Bonds, if issued in an aggregate principal mount of less than $10,000,000, are hereby designated as "qualified tax-exempt obligations" for purposes of Paragraph (3) of Section 265(b) of the Code, and any or all officials, officers, members, employees and agents of the City are hereby authorized to execute on behalf of the City any documents necessary or appropriate to evidence further such designation. The reasonably anticipated amount of "tax exempt obligations" (as such term is used in Section 265(b) of the Code) (other than obligations described in Section 265(b)(3)(c)(ii) of the Code) which will be issued by or on behalf of the City and subordinate entities during the calendar year 2002, in the event the Bonds are issued in an aggregate principal amount of less than $10,000,000, does not exceed $10,000,000. The Clerk-Treasurer may revoke the foregoing designation of the Bonds as -37- INIMAN1 588666v6 "qualified tax-exempt obligations," if necessary, prior to the sale thereof in the Clerk-Treasurer's Certificate. SECTION 25. In the event that any date established for the payment of principal of or interest on the Bonds shall be in the city of such payment a Saturday, Sunday or a legal holiday or other day on which banking institutions are authorized by law to close, then any such payment of principal or interest may be made on the next succeeding business day with the same force and effect as if made on the established date. SECTION 26. If any section, paragraph or provision of this Ordinance shall be held to be invalid or unenforceable for any reason, the invalidity or unenforceability of such section, paragraph or provision shall not affect any of the remaining provisions of this Ordinance. SECTION 27. This Ordinance shall be in full force and effect from and upon compliance with the procedures required by law, and all ordinances in conflict herewith are hereby repealed to the extent of such conflict, provided that nothing in this Ordinance shall be construed to affect the provisions of the COIT Ordinance. -38- INIMAN1 588666v6 PASSED by the Common Council of the City of Carmel, Indiana, this day of~, 2002 by a vote of ,fi' ayes and / nays. COMMON COUNCIL OF THE CITY OF CARMEL Officer f'~ ,- V~aayne Wi~s'on, ~.[[sidelht Pro Tempore Luci Snyder ATTEST: Diana L. Cor~aXyT~, ~lerk-~reas~er ~t t9 Presented by me to the Mayor of the City of Carmel, Indiana, on this/,.,/~2j.)~ day of ?c~ ~ .FoL. ,2002, atc~.'tO o'clock O_.m. Diana L. Cord~ay,kaLff~C, Cl'erk-Tr'easurer' Approved by me, Mayor of the City of Cannel, Indiana, this of -5~//. , 2002, at~st o'clock ~,m. Jar~s Brainard, Mayor ATTEST: Diana L. Cordr~y,)¢dglC, ~lerl[-Tr~astlrer ' Prepared by Thomas A. Pitman, Baker & Daniels, 600 East 96th Street, Suite 600, Indianapolis, Indiana 46240, 317-569-4649. -39- INIMAN 1 588666v6 EXHIBIT A MATTERS RELATING TO PROJECT CHANGES Prior to the issuance of the Bonds, the Common Council, the Mayor and the Board of Public Works shall enter into an agreement containing substantially the following terms: Section 1. Contract Approvals. From and after the date hereof, the Board of Public Works shall approve all agreements or contracts, and change orders to any such agreements or contracts or to agreements or contracts entered into prior to the date hereof, for the expenditure of Proceeds (singly or together hereafter referred to as "contracts" or "change orders"), and shall conduct all bid proceedings, if required by applicable law, with respect thereto. Section 2. Expenditures. From and after the date hereof, the Board of Public Works shall not enter into and execute any contract nor award any bid for a co~rtract, or issue any change order, which contemplates or involves any Expenditure (as hereinafter defined), unless such contract (including any award of a bid for a contract) or change order is approved by the Board of Public Works and the Council in accordance with Section 3 hereof. Section 3. Approval. After the Board of Public Works approves any proposed contract (including any proposed award of a bid for a contract) or proposed change order for any Expenditure, the Board of Public Works shall deliver written notice of its approval of such proposed contract (or proposed award of bid) or proposed change order to the Clerk-Treasurer, together with instructions to deliver a copy of such notice to each member of the Council by the close of business on the business day after the Board of Public Works' delivery of such notice to the Clerk-Treasurer. If the Board of Public Works so delivers such notice and instructions, the Council shall be deemed to have approved such contract (or award of bid) or change order at the close of business on the fifth business day after the date by which the Clerk-Treasurer was so instructed by the Board of Public Works to deliver a copy of such notice to each member of the Council (the "Effective Date"), unless: (a) by the close of business on the Effective Date, any member of the Council who disputes in writing such proposed contract (or proposed award of bid) or proposed change order requests the Clerk-Treasurer to place such dispute on the agenda for the next meeting of the Council; and (b) at such meeting, the Council disapproves such proposed contract (or proposed award of bid) or proposed change order by a vote of a majority of the elected members of the Council. Subsequent to contract or change order approval, each claim constituting an Expenditure (as defined below but regardless of amount) shall be processed in accordance with the regular claim docket process through the office of the Clerk-Treasurer. Section 4. Definitions. For purposes of this Agreement, each of the following terms shall have the meaning assigned to it by this Section 4: (a) "Expenditure" means any payment or other disposition of any Proceeds, excluding: (i) any payment of principal of or premium, if any, or interest on the Bonds, (ii) any payment of architectural, engineering, accounting, financial advisory, legal or INIMAN 1 588666v6 other professional services, (iii) any payment of any costs of issuance of the Bonds, (iv) any investment of any Proceeds in any interest-beating instruments, or (v) any payment(s) or other disposition(s), whether individually or in the aggregate if the contracted matter for which payment(s) or disposition(s) is/are being made is completed in one or more steps or is part of a set or series of related contracted matters with a single person or vendor, of any Proceeds in an amount less than $75,000. (b) "Proceeds" means any amounts received by the City from its original issuance and sale of the Bonds, and any interest earnings thereon. Section 5. Amendments. This Agreement may be amended or terminated only by the written agreement of all the parties hereto. Section 6. Governing Law. This Agreement and the rights and obligations hereunder shall be governed by and construed and enforced in accordance with the internal laws of the State of Indiana, without reference to any choice of, law principles. Section 7. Severability. If any portion of this Agreement is held or deemed to be, or is, invalid, illegal, inoperable or unenforceable, the validity, legality, operability and enforceability of the remaining portions of this Agreement shall not be affected, and this Agreement shall be construed as of it did not contain such invalid, illegal, inoperable or unenforceable portion. Section 8. Interpretation. The use herein of the singular shall be construed to include the plural, and vice versa. Unless otherwise indicated, the words "hereof," "herein," "hereby" and "hereunder," and words of similar import, refer to this Agreement as a whole and not to any particular section, subsection, clause or other portion of this Agreement. Section 9. Captions. The captions appearing in this Agreement are included herein for convenience of reference only, and shall not be deemed to define, limit or extend the scope or intent of any rights or obligations under this Agreement. A-2 INIMANI 588666v6 EXHIBIT B PROJECT ALLOCATIONS AND PROJECTED START DATES* Bond Proceed Projected Proiect: .Allocation: Start Date*: Street Department/Fleet Maintenance Facilities: $6,000,000 11/01/02 Old Town Southwest Quadrant Improvements: $ 900,000 3/15/03 106th Street & Gray Road Intersection Improvements: $ 375,000 11/01/02 136th Street & Gray Road Intersection Improvements (consisting of installation of stop light and costs related thereto): $ 375,000 11/01/02 Springmill Road Intersection Improvements (131st and 136th Streets): $ 550,000 11/01/02 Carmel Drive Improvements (Rangeline Road to rd rd 3 Avenue Including Signal at 3 Ave. and Including Sidewalk or Multi-Use Path from the Intersection of 3rd Avenue and Carmel Drive to the Monon Trail: $ 900,000 7/01/03 Gray Road Improvements (Crest Removal at 140th Street, i.e., the crest or hill currently located between the entrances to Valleybrook/Wedgewood and Woodfield subdivisions, and at 110th Street): $ 500,000 3/15/03 Reimbursement of Land Costs to Carmel Utilities: Costs of Issuance of the Bonds (Including Underwriter's Discount): $ 550,000 within thirty days of closing $ 3O0,000 N/A *Projected start dates are subject to certain cimumstances, including weather, the receipt of acceptable bids for projects, the need to conduct common construction wage hearings, the workload of the City Engineer, the advisability of road closures at particular times for safety or other reasons, right-of-way acquisition delays, and other circumstances beyond the control of the City. INIMAN1 588666v6 B-1