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HomeMy WebLinkAboutD-1950-09 Sewage Works Revenue Bond Sponsor Councrloi W Enc Seidensticker ORDINANCE D -1950 09 AN ORDINANCE OF THE COMMON COUNCIL OF THE CITY OF CARMEL, INDIANA CONCERNING THE CONSTRUCTION OF ADDITIONS AND IMPROVEMENTS ILO THE SEWAGE WORKS OF THE CITY OF CARMEL, INDIANA, AUTHORIZING THE ISSUANCE OF REVENUE BONDS FOR SUCH PURPOSE, ADDRESSING OTHER MATTERS CONNECTED THEREWITH, AND REPEALING ORDINANCES INCONSISTENT HEREWITH WHEREAS, the City of Cannel, Indiana (the City) has heretofore established, constructed and financed a municipal sewage works and now owns and operates said works pursuant to 1 C 36 -9 -23 as amended, and othei applicable laws (together the Act and WHEREAS the Common Council of the City (the `CounctP) now finds that certain improvements and extensions to said works are necessary and that plans, specifications and estimates have been prepared for and on behalf of the City for the construction of said improvements and extensions (as more fully set forth in Exhibit A attached hereto) (the Project' and WHEREAS, based upon the information provided to the City by the engineers for the Project, the estimated costs of the Pioject, including engineering, financial advisory and legal fees is in the estimated amount not to exceed Six Million Ninety four Thousand Dollars ($6,094 000) and WHEREAS, the City has obtained an Environmental Protection Agency State and Tribal Assistance Grant in the amount of Two Hundred Thousand Dollars ($200,000) to pay a portion of the cost of the Project, and WHEREAS the Council finds that beyond the foregoing source of Pioleet funding, there are not available sufficient funds of the works to expend on the P,rolect and that revenue bonds shall be issued Five Million Eight Hundred Ninety four Thousand Dollars ($5 894 000) to pay for costs of the Project, including incidental expenses and to refitnd any BANS which may be issued pursuant to this Oidinance and any othei interim borrowing related to the Project and WFIEREAS the Council finds that there are now outstanding bonds issued on account of the works and payable out of the revenues therefrom designated as City of Carmel, Indiana Sewage Works Revenue Bonds of 2005 dated September 1, 2005, now outstanding in the aggregate principal amount of $9 860 000 and'maturing annually over a period ending May 1 2026 (the Prior Bonds which were authorized by and issued pursuant to Ordinance'No D 17)4 -05, adopted by the Council on July 18, 2005 (the Outstanding Prior Bond Ordinance'), and WHEREAS the Prior Bonds constitute a first charge upon the Net Revenues (as hereinafter defined), and WHEREAS, the Outstanding Pnor Bond Ordinance provide that the City may authorize and issue additional bonds payable out of the Net Revenues ranking on a parity with the Pnoi Bonds for the purpose of financing the cost of future additions, extensions and improvements to the works or to refund obligations and WHEREAS, the conditions precedent to the issuance of additional revenue bonds set forth in the Outstanding Prior Bond Ordinance, as descnbed above, will be satisfied under this Ordinance for the issuance of such additional revenue bonds (the hereafter defined Project Bonds) on a panty with the Prior Bonds, and WHEREAS the Council now finds that it may be necessary to obtain interim financing by the issuance and sale of bond anticipation notes (`BANS and it desires to authorize the issuance of such notes hereunder if necessary, and WHEREAS, the City may enter into a Financial Assistance Agreement with the Indiana finance Authority "Authority") as part of its wastewater loan program established and existing pursuant to IC 4 4 -11 and IC 13 18 13 "SRF Program pertaining to the Project and the financing of the Project Financial Assistance Agreement if any bonds are sold to the Authonty as part of its SRF Program and WHEREAS, the City may riccept other forms of financial assistance, as and if available, from the SRI. Program, and WHEREAS, Section 1 150 -2 of the treasury Regulations on income Tax (the Reimbursement Reg:datrons') specifies conditions under which a reimbursement allocation may be treated as an expenditure of bond proceeds and the City intends by this ordinance to qualify amounts advanced by the City to the Project for reimbursement from proceeds of the BANs or the 2009 Project Bonds in accordance with the requirements of the Reimbursement Regulations and WHEREAS, the Council now finds that all conditions precedent to the adoption of an ordinance authonzrng the issuance of revenue bonds and bond anticipation notes have been complied with in accordance with the applicable provisions of the Act NOW, THEREFORE, BE IT ORDAINED by the Common Council of the City of Carmel Indiana, as follows SECTION 1 Project The City shall proceed with the Project for the construction and acquisition of said improvements and extensions The actions of the Board of Public Works of 1404477 Page 2 the City taken in connection with the Project are hereby approved ratified, and confirmed The Project shall be constructed pursuant to and in accordance with the Act The Project shall not be affected by the refunding of any BANs which may be issued pursuant to this Ordinance and any other interim borrowing related to the Project and the bonds herein authonzed shall be issued pursuant to and in accordance with the provisions of the Act The terms "works" and utility' and other like terms where used in this Ordinance shall be construed to mean and include all structures and propert) of the City's sewage works utility including items defined in the Act, and includes the sewage works and all enlargements, improvements, extensions and additions thereto and replacements thereof now or subsequently constructed or acquired, whether from the proceeds of the BANs and bonds herein authonzed or otherwise, provided that if the 2009 Projects or BANs are purchased pursuant to the terms of the financial Assistance Agreement (as hereinafter defined), such term shall mean the Treatment Works (as defined in the financial Assistance Agreement) SECTION 2 Authorization of Obliggtions (a) The City shall issue its "City of Carmel Indiana Sewage Works Revenue Bonds of 2009 [with the )ear and any series or other references added, revised or removed as appropriate] (the "2009 Project Bonds in one or more series in an original pnncipal amount not to exceed 1 ive Million Eight Hundred Ninety-four Thousand Dollars ($5,894,000), as negotiable fully registered bonds, for the purpose of procuring funds to be applied to the costs of the Project, including without limitation reimbursement of preliminary expenses related thereto and all incidental expenses Incurred in connection therewith (all of which are deemed to be a part of the Project) and the costs of selling and issuing the 2009 Project Bonds The 2009 Project Bonds shall rank on a parity with the Prior Bonds for all puiposes upon satisfaction of the conditions set forth in the Outstanding Pnor Bond Ordinance (b) The 2009 Project Bonds shall be issued in denominations of Five 1 housand Dollars ($5,000) (except for any 2009 Project Bonds sold to the Authorit) as part of the SRF Program, such denomination may be One Dollar ($1)) or any integral multiple thereof numbered consecutively from 1 upward, and dated as of the first day of the month in which they are sold or the date of delivery as evidenced by the execution thereof The 2009 Project Bonds shall bear Interest at a rate or rates not exceeding seven percent (7 per annum (the exact rate or rates to be determined by bidding or, if applicable negotiations) and interest shall be payable semiannually on May 1 and November 1 in each year, beginning no later than the second November 1st following their issuance Interest on the 2009 Project Bonds shall be calculated according to a 360 day calendar year containing twelve 30 day months The 2009 Project Bonds shall mature annually on May 1 of each year thereafter over a penod ending not later than May 1 of the twenty-fourth (24 %car following their issuance and in such 'imounts which will achieve as level debt service as practicable (either based solely on the 2009 Project Bonds of the combined debt service of the 2009 Project Bonds and the Pnor Bonds or for any 2009 Project Bonds sold to the Authority as part of the SRF' Program, in such amount as may meet the requirements of the SU Program as provided by the matunties set forth in the financial Assistance Agreement), and when considering authorized denominations and the initial principal matunty all as finally estimated determined and faced by the Mayor of the City (the 1404477 Page 3 "Erecuttvc) and the Clerk Treasurer of the City (the Fiscal Officer") with the advice of the City's financial adviser, as evidenced by delivery of their executcd Initial issuance pricing instructions given to the Registrar directing the authentication thereof The amount of 2009 Project Bonds issued shall be determined by the Executive and the Fiscal Offices (either acting individually or collectively the 'App oiling Official?), with the advise of the City's financial advisor after fixing the amount of the funds of the Utility if any now on hand to be ripplied to the cost of the Project (c) All or a portion of the 2009 Project Bonds may be aggregated into and issued as one of more term bonds The tern bonds will be subject to mandatory sinking fund redemption with sinking fund payments and final maturities corresponding to the serial maturities described above Sinking fund payments shall be applied to retire a portion of the term bonds as though it were a redemption of serial bonds, and if more than one term bond of any maturity is outstanding, redemption of such matunty shall be made by lot Sinking fund redemption payments shall be made in a pnncipal amount equal to such senal matunties, plus accrued interest to the redemption date but without premium or penalty For all purposes of this Ordinance such mandatory sinking fund redemption payments shall be deemed to be required payments of pnncipal which mature on the date of such sinking fund payments Appropnate changes shall be made in the definitive form of the 2009 Project Bonds relative to the form of the 2009 Project Bonds contained in this Ordinance to reflect any mandatory sinking fund redemption terms (d) The City has the authority to elect to issue rind the Council hereby authorizes the issuance and execution of, its bond anticipation note or notes B4Ns') if necessary, in heu of initially issuing all or a portion of 2009 Project Bonds to provide intenm construction financing for the Project until permanent financing becomes available or to qualify for financial assistance provided trom the SRF Program BANs may be issued to (i) the Indiana Bond Bank (the "Bond Bank pursuant to a Purchase Agreement Purchase Agreement') or the Authority pursuant to the financial Assistance Agreement or (u) a purchaser pursuant to Indiana Code 5 1 11 or as other permitted by law and approved by the Approving Officials If so determined by the Approving Officials, the City shall issue its BANs for the purpose of procuring interim financing to apply to the cost of the Project (e) The BAN or BANs shall be Issued in an aggregate amount not exceeding Five Million Eight I lundred Ninety four fhousand Dollars ($5 894 000), and shall be designated "City of Carmel, Indiana Sewage Works Bond Anticipation Note(s) of 2009' [with the yelr and any series or other references added, revised or removed as appropnate] Any such BAN or BANs shall have a maturity not exceeding five (5) years and shall be dated the first day of the month in which issued or sold of the date of delivery as determined by the Approving Officials with the advice of the City's financial adviser Any such BAN or BANs shall pay interest semiannually on May 1 and November 1 in each year beginning no later than either the next May 1 and November 1 following their isstrincc until matunty BAN Interest may be paid as capitalized Interest and after provision for payment of the Prior Bonds and any 2009 Project Bonds from the Net Revenues of the utility on a subordinate basis BAN interest shall be calculated according to a 360 -day calendar year containing twelve 30 -day months, or based on an actual 1404477 Page 4 days basis using a 365 -day year, as determined by the Approving Officials with the advice of the City's financial adviser Any such BAN or BANs shall bear Interest at a rate or rates not exceeding seven percent (7 per annum, or bear interest at a variable rate determined by reference to any available published index as selected by the Approving Officials prior to their issuance and may be sold at a discount not to exceed one percent (1 The BANS herein authonzed are payable from the proceeds of the 2009 Project Bonds and other legally available funds of the utility Any such BAN or BANs shall be subject to early redemption on or after any date selected by the Approving Officials prior to their issuance, upon se% en (7) days notice to the owner of such BAN without a premium The BANs may be issued in one or more series of BANs, or the City may receive payment on the BANs in installments, as determined by the Approving Officials Officer with the advice of the City's financial adviser poor to advertising or negotiating a sale of the BANs The BANs shall be in a customary form as approved by the Approving Officials (f) it shall not be necessary for the City to repeat the procedures for the Issuance of its 2009 Project Bonds, the procedures followed before the issuance of the BAN or BANs are for all purposes sufficient to authonze the issuance of the 2009 Project Bonds and the use of the proceeds to repay the BAN or BANs The City shall issue the 2009 Project Bonds described and authorized in this Ordinance to dischlrge Its obligations under the BAN or BANs at or before the matunty date of the BAN or BANs (g) As an alternative to public sale as hereinafter authorized or other private sale herein provided, the Approving Officials with the advice of the City's financial advisor may negotiate the sale of the 2009 Project Bonds and BANs to the Authonty at an Interest rate not exceeding the maximum ntc(s) herembefore fixed T he Approving Officials are hereby authonzed to (i) submit an application to the SRF Program both as deemed appropnate by any such officials, (n) negotiate the terms of and execute and deliver a Financial Assistance Agreement between the City and the Authority pursuant to Indiana Code 13 18 -13 On a form substantially similar to that attached hereto as Exhibit B, but with such changes in form or substance as such officers or officials may approve as conclusively evidenced by their signature theieof)(the "financial Assistance Agreement"), or both as deemed appropnate by such officers or officials and (iii) sell, execute and deliver the 2009 Project Bonds and BANs, upon such terms as are acceptable to such officers or officials and consistent with the terms of this Ordinance The City may receive payment for the 2009 Project Bonds and BANs in installments With respect to any 2009 Project Bonds sold to the Authority as part of the SRF Program, to the extent that (a) the total principal amount of the 2009 Project Bonds is not paid by the purchaser or drawn down by the City or (b) proceeds remain in the Project Fund and are not applied to the Project (or any modifications or additions thereto approved by the Indiana Department of Environmental Management and the Authority) as of the date no additional amounts m iy be drawn under the Financial Assistance Agreement, the remaining Bond maturities shall be reduced in a manner that will effect as level debt service as practicable for such remaining matunties and in a manner consistent with how the initial maturities were fixed, provided however such shall in any case be consistent with the financial Assistance Agreement 1404477 Page 5 Notwithstanding anything contained herein the City may accept any other forms of financial assistance 'is and if available from the SRF Program (including without limitation (1) any forgivable loans grants or other assistance whether available as an alternative to any Bond related provision otherwise provided for herein of as a supplement or addition thereto and (2) one or more series or combination of senes of 2009 Project Bonds and/or BANs) If required by the SRI' Program to be eligible for such financial assistance, one or mole of the series of the 2009 Project Bonds or BANs issued hereunder may be issued on a basis such that the payment of the principal of or interest on (or both) such senes of 2009 Project Bonds is jumoi and subordinate to the payment of the principal of and Interest on other series of 2009 Pioject Bonds issued hereunder (and/or any other revenue 2009 Project Bonds secured by a pledge of Net Revenue whether now outstanding or hereafter issued), all as provided by the terms of such series of 2009 Project Bonds as modified pursuant to this authorization Such financial assistance if any, shall be as provided in the financial Assistance Agreement and the 2009 Project Bonds of each series of 2009 Project Bonds and the BANs of each series of BANs issued hereunder (including any modification made pursuant to the authonzation in this paragraph to the form of Bond otherwise contained heron) SECTION 3 Pledge of Net Revenues, Payment of Prmcrnal'ind Interest The 2009 Project Bonds, and any bonds ranking on a pant) therewith as to pnncipal, premium if any and Interest, shall be payable solely from and are hereby secured by an irrevocable pledge of and shall constitute a charge upon all the net revenues (defined as gross revenues of the works after deduction only for the payment of the reasonable expenses of operation, repair and maintenance) of the works (the 'NU Revenues'), on a parity with the Prior Bonds for all purposes 1 he City shall not be obligated to pay the 2009 Project Bonds, any BANs or the interest thereon except from the Net Revenues, and the 2009 Project Bonds and any BANs shall not constitute an indebtedness of the City within the meaning of the provisions and limitations of the constitution of the State of Indiana All payments of interest on the 2009 Project Bonds shall be paid by check mailed one business day prior to the interest payment date to the registered owners thereof as of the fifteenth (15th) day of the month preceding the interest payment date (the Record Date') at the addresses as they appevi on the registration and transfer books of the City kept for that purpose by the Registrar (the Regis►ra►ion Record") or at such other address as is provided to the Paying Agent in writing by such registered owner Each registered owner of $1 000,000 or more in principal amount of the 2009 Project Bonds shall be entitled to receive interest payments by wire transfer by providing wntten wire instructions to the Paying Agent before the Record Date for any payment All pi incipal payments and premium payments if any on the 2009 Project Bonds shall be made upon surrender thereof at the principal office of the Paying Agent, in any 13 S coin or currency which on the date of such payment shall be legal tender for the payment of public and pnvate debts, or In the case of a registered owner of $1 000 000 of more in pnncipal amount of the 2009 Project Bonds, by wire transfer on the due date upon written direction of such owner provided at Least fifteen (15) days prior to the maturity date or redemption date If the 2009 Project Bonds or BANs are purchased by the Authority as part of the SRF Program the pnncipal of and inteiest on the 2009 Project Bonds or BANs shall be paid by wire transfer to such financial institution if and as directed by the Authonty as of the due date of such payment or if 1404477 Page 6 such due date is a day when financial institutions are not open for business, on the business day immediately after such due date So long as the Authonty is the owner of the 2009 Project Bonds or BANs, such 2009 Project Bonds oi BANs shall be presented for payment as directed by the Authority interest on the 2009 Project Bonds or BANs sold to the Authonty shall be paid from the dates of payment for the 2009 Project Bonds or BANs interest on 2009 Project Bonds shall be payable from the interest payment date to which interest has been paid next preceding the authentication date thereof unless such 2009 Project Bonds are authenticated after the Record Date for an interest payment date and on or before such interest payrnent date in which case they shall bear interest from such interest payment date, or unless authenticated on or before the Record Date for the first interest payment date in which case they shall bear interest from the original date until the principal shall be fully paid SECTION 4 Transfer and Exchingc of Bonds and BANs Each 2009 Project Bond or BAN shall be transferable or exchangeable only upon the Registration Record by the registered owner thereof in writing or by the registered owners attorney duly authorized in writing, upon surrender of such 2009 Project Bond or BAN together with a wntten instrument of transfer or exchange satisfactory to the Registrar duly executed by the registered owner or such attorney and thereupon a new fully registered 2009 Project Bond or Bonds oi BAN or BANs, in the same aggregate principal amount and of the same matunty shall be executed and delivered in the names of the transferee or transferees or the registered owner, as the case may be, in exchange therefor The costs of such transfer or exchange shall be bome by the City except for any tax or governmental charge required to be paid with respect to the transfer or exchange which taxes or governmental charges are payable by the person requesting such transfer or exchange The City the Registrar and the Paying Agent may treat and consider the persons in whose names such 2009 Project Bonds or BANs are registered as the absolute owners thereof for all purposes including for the purpose of receiving payment of or on account of, the piincipal thereof and interest and premium if any due thereon In the event any 2009 Project Bond or BAN is mutilated, lost, stolen or destroyed the City may execute and the Registrar may authenticate a new bond of like date, maturity and denomination as that mutilated lost stolen or destroyed which new bond shall be marked in a mvinner to distinguish it from the 2009 Project Bond or BAN for which it was issued, provided that in the case of any mutilated 2009 Project Bond or BAN, such mutilated bond shall first be surrendered to the Registrar and in the case of any lost, stolen or destroyed bond there shall be first furnished to the Registrar evidence of such loss theft or destruction satisfactory to the Fiscal Officer and the Registrar, together with indemnity satisfactory to there In the event any such 2009 Project Bond or BAN shall have matured instead of issuing a duplicate bond, the City and the Registrar may, upon recei%ing indemnity satisfactory to them pay the same without surrender thereof The City and the Registrar may charge the owner of such 2009 Project Bond or BAN with their reasonable fees and expenses in this connection Any 2009 Project Bond or BAN issued pursuant to this paragraph shall be deemed an original substitute contractual obligation of the City whether or not the lost stolen or destroyed 2009 Project Bond or BAN shall be found at 1404477 Page 7 any time, and shall be entitled to all the benefits of this Ordinance, equally and proportionately with any and all other 2009 Project Bonds or BANs issued hereunder SECTION 5 Registrar and Paving Agent The Fiscal Officer is hereby authorized to serve as, or to appoint a qualified financial institution to serve as, Registrar and Paying Agent for the 2009 Project Bonds and any BANs (together with any successor, the Registrar or "Paying Agent') The Registrar is hereby charged with the responsibility of authenticating the 2009 Project Bonds and any BANs and shall keep and maintain the Registration Record at its office The fiscal Officer is hereby authorized to enter into such agreements or understandings with any such institution as will enable the institution to perform the services required of a Registrar and Paying Agent The Fiscal Officer is further authonzed to pa} such fees that the institution may charge for the seiices it provides as Registrar and Paying Agent and such fees may be rud from the Sinking fund established to pay the principal of and interest on the 2009 Project Bonds and any BANs as fiscal agency charges The Registrar and Paying Agent may at any time resign as Registrar and Paying Agent by giving thirty (30) days wntten notice to the City and by first -class mail to each registered owner of the 2009 Project Bonds and any BANs 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 Paying Agent by the City Such notice to the City ma) be served personally or sent by first -class or registered mail The Registrar and Paying Agent may be removed at an 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 notify each registered owner of the 2009 Project Bonds and any BANs then outstanding of the removal of the Registrar and Paying Agent Notices to the registered owners of the 2009 Protect Bonds and any BANs shall be deemed to be given when mailed by first -class mail to the addresses of such registered owners as they appear on the Registration Record Any predecessor Registrar and Paving Agent shall deliver all the 2009 Project Bonds and any BANS, cash and investments related thereto in its possession and the Registration Record to the successor Registrar and Paying Agent SECTION 6 Terms of Redemption 1 he 2009 Project Bonds mar be made redeemable at the option of the City (a) on thirty (30) days' notice in whole or in part in any order of maturities selected by the City for any 2009 Project Bonds not purchased by the Authonty as part of the SRI Program and (b) on sixty (60) days' notice in whole 01 in part, in inverse order of niatunties for an 2009 Project Bonds purchased by the Authority as part of the SRF Program, and in each case by lot within a matunty on dates and with premiums, if any and other terms as determined by the Approving Officials with the advice of the City's financial adviser, as er idenced by delivery of the executed initial issue of the 2009 Project Bonds to the Registrar for authentication Such determination shall be made and fix separately fol each series of 2009 Project Bonds issued Notice of redemption shall be mailed by first class mail to the address of each registered owner of a 2009 Project Bond to be redeemed as shown on the Registration Record not more than (a) sixty (60) days and not Tess than thirty (30) days prior to the date fixed for redemption for any 2009 Project Bonds not purchased by the Authonty as part of the SRI Program and (b) 1404477 Page 8 ninety (90) days and not less than sixty (60) days prior to the date fixed for redemption foi any 2009 Project Bonds purchased by the Authority as part of the SRF Program and m each case except to the cxtent such redemption notice is waived by owners of the 2009 Project Bonds redeemed provided, however that failure to give such notice by mailing, or any defect therein, with respect to any 2009 Project Bond shall not affect the validity of any proceedings for the redemption of any other 2009 Project Bonds The notice shall specify the date and place of redemption, the redemption pnce and 1iny applicable CUSiP numbers of the 2009 Project Bonds called for redemption The place of redemption may be determined by the City Interest on the 2009 Protect Bonds so called for redemption shall cease 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 date so named, and thereafter, such 2009 Project Bonds shall no longer be protected by this Ordinance and shall not be deemed to be outstanding hereunder and the holders thereof shall have the right only to receive the redemption price All 2009 Project Bonds which have been redeemed shall be canceled and shall not be reissued provided, however, that one or more new registered bonds shall be issued for the unredeemed portion of any 2009 Project Bond without charge to the holder thereof No later than the date fixed for redemption funds shall be deposited with the Paying Agent or another paying agent to pay, and such agent is hereby authonzed and directed to apply such funds to the payment of, the 2009 Project Bonds or portions thereof called for redemption, including accrued interest thereon to the redemption date No payment shall be made upon any 2009 Project Bond or portion thereof called for redemption until such 2009 Project Bond shall have been delivered for payment or cancellation or the Registrar shall have received the items required by this Ordinance with respect to any mutilated lost, stolen or destroyed bond SECTION 7 Execution and Negotiabilth The 2009 Project Bonds and any BANs shall be signed in the name of the City by the manual or facsimile signature of the Executive, and attested by the manual or facsimile signature of the Fiscal Officer, who also shall affix the seal of the City manually or shall have the seal impnntcd or impressed thereon by facsimile or other means In case any officer IA hose signature or facsimile signature appears thereon shall cease to be such officer before the delivery of the 2009 Project Bonds and any BANs, such signature shall nevertheless be valid and sufficient foi all purposes as if such officer had remained in office until such delivery The 2009 Project Bonds and any BANs shall also be authenticated by the manual signature ot the Registrar, and no 2009 Project Bond or BAN shall be valid or become obligatory for any purpose until the certificate of authentication thereon has been so executed The 2009 Project Bonds and any BANs shall have all ot the qualities and incidents of negotiable instruments under the laws ot the Srite of Indiana, subject to the provisions for registration herein SECTION 8 Authorization for Book Entry System The 2009 Protect Bonds and any BANs may in compliance with all applicable laws initially be issued and held in book -entry 1404477 Page 9 form on the books of the central depository system The Depository (rust Company, its successors, or any successor central depository system appointed by the City from time to time (the Clear ing Agency without physical distribution of bonds to the purchasers The following provisions of this Section apply in such event One definitisc 2009 Project Bond or BAN of each maturity shall be delivered to the Cleanng Agency (or its agent) and held in its custody i'he City and Registrar may, in connection herewith do or perform or cause to be done or performed any acts or things not adverse to the rights of the holders of the 2009 Project Bonds and any BANs as are necessary 01 appropriate to accomplish or recognize such book -entry form 2009 Project Bonds and any BANs During any time that the 2009 Project Bonds and any BANs are held in book entry form on the books of a Clearing Agency, (1) any such 2009 Project Bond or BAN may be registered upon Registration Record in the name of such Cleanng Agency or any nominee thereof, including Cede R. Co (2) the Clearing Agency in whose name such 2009 Project Bond or BAN 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 2009 Project Bond or BAN for all purposes of this Ordinance including, without limitation the receiving of payment of the pnncipal of and interest and premium, if any on such 2009 Project Bond or BAN the receiving of notice and the giving of consent, (3) neither the City not 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 Secunties Exchange Act of 1934, as amended, of such Cleanng Agency, or any person on behalf of which, or otherwise in respect of which any such participant holds any interest in any 2009 Project Bond or BAN including, without limitation any responsibility or obligation hereunder to maintain accurate records of any interest in any 2009 Project Bond or BAN or any responsibility or obligation heieunder with respect to the receiving of payment of principal of or interest or premium if any on any 2009 Project Bond or BAN the receiving of notice or the giving of consent, and (4) the Cleanng Agency is not required to present any 2009 Project Bond or BAN called for partial redemption ti any, 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 If either the City receives notice from the Cleanng Agency which is currently the registered owner of the 2009 Project Bonds and any BANs to the effect that such Clearing Agency is unable or unwilling to discharge its responsibility as a Clearing Agency for the 2009 Project Bonds and any BANs or the City elects to discontinue its use of such Clearing Agency as a Clearing Agency for the 2009 Project Bonds and any BANs then the City and the 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 2009 Project Bonds and any BANs, as are necessary or appropnate to discontinue use of such Clearing Agency as a Cleanng Agency for the 2009 Project Bonds and any BANs and to transfer the ownership of each of the 2009 Project Bonds and any BANs to such person or persons including any other Clearing Agency as the holder of the 2009 Project Bonds and any BANs may direct in accordance with this Ordinance Any expenses of such discontinuance and transfer including expenses of printing new certificates to evidence the 2009 Project Bonds and any BANs, shall be paid by the City 1404477 Page 10 I During any time that the 2009 Project Bonds and any BANs are held in book -entry form on the books of a Cleanng Agency the Registrar 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 owner of the 2009 Project Bonds and any BANs as of a record date selected by the Registrar for purposes of determining whether the consent, advice direction or demand of a registered owner of a 2009 Project Bond or BAN has been obtained the Registrar shall be entitled to treat the beneficial owners of the 2009 Project Bonds and any BANs as the bondholders and any consent request, direction approval objection or othcr instrument of such beneficial owner may be obtained m the fashion described in this Ordinance During any time that the 2009 Project Bonds and any BANs are held in book entry form on the books of a Clearing Agency, the Approving Officials and /or the Registrar are authorized to execute and deliver a Letter of Representations agreement with the Clearing Agency or a Blanket Issuer Letter of Representations and the provisions of any such Letter of Representations or any successor agreement shall control on the matters set forth therein The Registrar, by accepting the duties of Registrar under this Ordinance, agrees that it will (i) undertake the duties of agent required thereby and that those duties to be undertaken by either the agent or the City shall be the responsibility of the Registrar, and (ii) comply with all requirements of the Clearing Agency including without limitation same day funds settlement payment procedures further, during any time that the 2009 Project Bonds and any BANs are held in book entry form, the provisions of Section 8 of this Ordinance shall control over conflicting provisions in anv other section of this Ordinance SECTION 9 Form of the 2009 Protect Bonds The form and tenor of the 2009 Project Bonds shall be substantially as follows (with such additions deletions and modification as the Approving Officials may authorize, 'is conclustnely evidenced by their signatures thereon), with all blanks to be filled in properly pnor to delivery thereof UNITED STATES OF AMERICA STATE OF INDIANA COUNTY or i IAMB TON CITY OF CARMEL, INDIANA SEWAGE WORKS REVENUE BOND or 2009 BAs follows f sold pursuant to a Financial Assistance Agreement Maturity Interest Original Authentication Date Rate Date Date Registered Owner Indiana Finance Authority 1404477 Page 11 Principal Sum The City of Carmel in Hamilton County, State of Indiana (the "City' for value received hereby promises to pay to the Registered Owner set forth above or registered assigns solely out of the special revenue fund hereinafter referred to, the Principal Sum set forth above on the Maturity Date set forth above or so much thereof as may be advanced from time to time and be outstanding as evidenced by the records of the registered owner making payment for this Bond, or its assigns on May 1 in the years and in the amounts as set forth on Exhibit A attached hereto (unless this bond be subject to and be called for redemption prior to maturity as hereafter provided), and to pay interest hereon until the Pnncipal Sum shall be fully paid at the interest Rate per annum set forth above from the interest payment date to which interest has been paid next preceding the Authentication Date of this bond unless this bond is authenticated after the fifteenth day of the month preceding the interest payment date (the "Record Date and on or before such Interest payment date in which case it shall bear interest from such interest payment date, or unless this bond is authenticated on or before 15, 200_, in which case it shall bear interest from the Original Date, which interest is payable semiannually on May 1 and November 1 of each year, beginning on 1 200_ interest shall be calculated on the basis of a 360 -day year comprised of twelve 30 -day months The principal of and premium, if any, on this bond is payable at the pnncipal office of The Bank of New York Mellon Trust Company, N A (the "Registrar" or "Paying Agent in Indianapolis Indiana All payments of interest on this bond shall be paid by check or draft mailed or delivered one business day prior to the Interest payment date to the registered owner hereof at the address as it appears on the registration books kept by the Registrar or at such other address as is provided to the Paying Agent in writing by the registered owner Notwithstanding the foregoing to the contrary, if payment of this Bond is made to the Indiana Finance Authority under the terms of the Financial Assistance Agreement, all payments of principal and interest hereon shall be made by wire transfer for deposit to a financial institution as directed by the Indiana Finance Authonty as of the due date or if such due date is a day when financial institutions are not open for business on the business day immediately after such duc date to the registered owner hereof at the address ss rt appears on the registration books kept by the Registrar or at such other address as is provided to the Paying Agent in wnting by the registered owner [As follows if not sold pursuant to a Financial Assistance Agreement Interest Maturity Original Authentication Rate Date Date Date CUSiP R- REGISTERED OWNER PRINCIPAL SUM 1404477 Page 12 The City of Carmel in Hamilton County State of Indiana (the "City for value received hereby promises to pay to the Registered Owner set forth above or registered assigns solely out of the special revenue fund hereinafter referred to, the Pnncipal Sum set forth above on the Maturity Date set forth above (unless this bond be subject to and be called for redemption pnor to matunty as hereafter provided), and to pay interest hereon until the Principal Sum shall be fully paid at the interest Rate per annum set forth above trom the interest payment date to sshich interest has been paid next preceding the Authentication Date of this bond unless this bond is authenticated after the fifteenth day of the month preceding the interest payment date (the "Record Date and on or before such interest payment date in which case 0 shall bear interest from such interest payment date or unless this bond is authenticated on or before 15, 200_ in which case it shall bear interest from the Original Date which interest is payable semiannually on May 1 and November 1 of each year beginning on 1, 200_ Interest shall be calculated on the basis of a 360 day car comprised of tvielve 30 day months The principal of and premium if any on this bond are payable at the principal office of [the Clerk- Treasurer of the City of Carmell[the pnncipal office of the financial institution so appointed] (the Registrar' or Paying Agent') in Indiana All payments of interest on this bond shall be paid by check mailed one business day pnor to the interest payment date to the Registered Owner as of the Record Date at the address as it appears on the registration books kept by the Registrar or at such other address as is provided to the Paying Agent in wilting by the Registered Owner Each Registered Owner of $1,000,000 or mole in principal amount of bonds shall be entitled to receive interest payments by wire transfer by providing wntten wire instructions to the Paying Agent betore the Record Date for any payment All payments of pnncipal of and premium if any, on this bond shall be made upon surrender thereof at the pnncipal office of the Paying Agent, in any U S coin or currency which on the date of such payment shall be legal tender toi the payment of public and pnvate debts, or in the case of a Registered Owner of $1 000,000 or more in principal amount of the Bonds by wire transfer on the due date upon written direction of such owner provided at least fifteen (15) days pnor to the maturity date or redemption date 1 The City shall not be obligated to pay this Bond or the interest hereon except fiom the hereinafter described special fund and neither this Bond nor the issue of which n is a part shall in any respect constitute a corporate indebtedness of the City within the provisions and limitations of the constitution of the State of Indiana This bond is one of an authorized issue of bonds of the City of Carmel of Hamilton County, Indiana, of like date tenor and effect, except as to denomination numbenng, sates of interest, redemption terms and dates ot maturity aggregating Dollis numbered consecutively fiom 1 upward (the Bonds issued for the purpose of providing funds to be applied for construction and acquisition of certain improvements to the sewage works (the Pioject'), and to pay incidental expenses and costs of issuance of the Bonds fhis bond is issued pursuant to an ordinance adopted b) the Common Council ot said City on the day of 2009 entitled An Ordinance of the Common Council of the City of Carmel, Indiana Concerning the Construction of Additions and improvements to the Sewage Works of the City of Carmel 1404477 Page 13 Indiana, Authorizing the Issuance of Revenue Bonds for Such Purpose Addressing other Matteis Connected Therewith, -ind Repealing Ordinances Inconsistent I Ierewith' (the "Ordinance and in accordance with the provisions of Indiana law, including without limitation Indiana Code 36 9 -23, and other applicable laws as amended (the "Act all as more particularly described in the Ordinance The owner of this bond, by the acceptance hereof agrees to all the terms and provisions contained in the Ordinance and the Act Pursuant to the provisions of the Act and the Ordinance the principal of and interest on this bond and all other bonds of said Issue and an bonds hereafter issued on a parity therewith are payable solely from the Sinking Fund (the "Sinking Ftind maintained under the Ordinance to be provided from the Net Revenues (defined as the gross revenues of the works remaining after the payment of the reasonable expenses of operation repair and maintenance) of the works, including all additions and improvements thereto and replacements thereof subsequently constructed or acquired on a basis that is on a parity with the Prior Bonds (as hereinafter defined) for all purposes [As follows rf sold pursuant to a 1'inancml Assistance Agreement Reference is hereby made to the Financial Assistance Agreement (the "Financial Assistance Agreement between the City and the Indiana Finance Authonty as to certain terms and covenants pertaining to the sewage works project and this Bond The City Irrevocably pledges the entire Net Revenues of the works to the prompt payment of the pnncipal of and Interest on the Bonds on parity with the payment of the principal of and interest on the City of Carmel Indiana Sewage Works Revenue Bonds of 2005 (the Prior Bonds as authorized by the Outstanding Prior Bond Ordinance (as defined in the Ordinance) and any hereafter issued bonds ranking on a parity therewith, to the extent necessary for such purposes, and covenants that it will establish proper rates and charges for services rendered by the utility as ale sufficient in each year provide for the proper Operation and Maintenance (as defined in the Financial Assistance Agreement) of the Utility and for the payment of the sums required to be paid into the Sinking Fund by the Act and the Ordinance If the City or the proper officers thereof shall fail or refuse to so fix and collect such rates or charges or if there be a default in the payment of the interest on or pnncipal of this bond the owner of this bond shall have all of the nghts and remedies provided for in the Act I 4 follows if not sold pursuant to a Financial Assistance Agreement The City irrevocably pledges the entire Net Revenues of the works to the prompt payment of the pnncipal of and interest on the Bonds on parity with the payment of the principal of and interest on the City of Camel Indiana Sewage Works Revenue Bonds of 2005 (the `Prior Bonds as authorized by the Outstanding Prior Bond Ordinance (as defined in the Ordinance) and and hereafter issued bonds ranking on a panty therewith, to the extent necessary for such purposes and covenants that It will establish proper rates and charges for services rendered by the utility as are sufficient in each year for the payment of the proper and reasonable expenses of operation, repair and maintenance of the works and for the payment of the sums required to be 1404477 Page 14 paid into the Sinking Fund under the provisions of the Act and the Ordinance if the City or the proper officers thereof shall Tall or refuse to so fix and collect such rates or charges 01 if there be a default in the payment of the interest on or principal of this bond, the owner of this bond shall have all of the rights and remedies provided for in the Act The City covenants that for so long as the Bonds and any bonds issued on a parity therewith remain outstanding it will set aside and pay into the Sinking Fund a sufficient amount of the Net Revenues for the payment of (a) the pnncipal of and interest on all bonds which by their terms are payable from the Net Revenues, as such pnncipal and interest shall fall due, (b) the necessary fiscal agency charges for paying bonds and (c) an additional amount as a margin of safety to accumulate and maintain the reserve required by the Ordinance Such required payments shall constitute a first charge upon all the Net Revenues Reference is made to the Ordinance for a more complete statement of the revenues from which and conditions undei which this bond is payable a statement of the conditions on which obligations may hereafter be issued on panty with this bond, the manner in which the Ordinance may be amended and the general covenants and provisions pursuant to which this bond has been issued ]As follows If sold pursuant to a Fu►ancial Assistance Agreement t he bonds of this issue matunng on and after are redeemable at the option of the City on or any date thereafter, on (60) days notice, in whole or in part, in inverse order of maturities and by lot within a maturity at 100% of face value together with the following premiums 2% if redeemed on or thereafter before 1% if redeemed on or thereafter before 0% if redeemed on or thereafter prior to maturity, plus accrued interest to the date fixed for redemption Each minimum authorized denomination in principal amount shall be considered a separate bond for purposes of partial redemption Notice of such redemption shall be mailed by first class mail not more than ninety (90) days and not less than (60) days prior to the date fixed for redemption to the address of the registered owner of each bond to be redeemed as shown on the registration record of the City except to the extent such redemption notice is waived b) owners of the bond or bonds redeemed provided however, that failure to give such notice by mailing or any defect therein, with respect to any bond shall not affect the validity of an) proceedings for the redemption of an other bonds The notice shall specify the date and place of redemption the redemption pnce and any applicable CUSIP numbers of the bonds called for redemption The place of redemption may be determined by the City Interest on the bonds so called for redemption shall cease on the redemption date fixed in such notice if sufficient funds are available at the place of redemption to 1404477 Page 15 pay the redemption price on the date so named and thereafter such bonds shall no longer be protected by the Ordinance and shall not be deemed to be outstanding thereunder 1 [As follows rf not sold pursuant to a Financial Assrstmrce Agreement The bonds of this issue maturing on and after are redeemable at the option of the City on or any date thereafter on thirty (30) days' notice, in whole or in part in any order of maturities selected by the City and by lot within a maturity, at 100% of face value, together with the following premiums if redeemed on or thereafter before if redeemed on or thereafter before if redeemed on or thereafter prior to maturity, plus accrued Interest to the date fixed for redemption Each minimum authorized denomination in principal amount shall be considered a separate bond for purposes of partial redemption Notice of such redemption shall be mailed by first -class mail not more than sixty (60) days and not less than thirty (30) days prior to the date fixed for redemption to the address of the registered owner of each bond to be redeemed as shown on the registration record of the City except to the extent such redemption notice is waived by os ■ners of the bond or bonds redeemed provided, however that failure to give such notice by mailing, or any defect therein with respect to any bond shall not affect the validity of any proceedings for the redemption of any other bonds The notice shall specify the date and place of redemption, the redemption price and any applicable CUSIP numbers of the bonds called for redemption The place of redemption may be determined by the City Interest on the bonds so called for redemption shall cease on the redemption date fixed in such notice if sufficient funds arc available at the place of redemption to pay the redemption price on the date so named and thereafter such bonds shall no longer be protected by the Ordinance and shall not be deemed to be outstanding thereunder This bond is subject to defeasance prior to payment or redemption as provided in the Ordinance If this bond shall not be presented for payment or redemption on the date fixed therefor the City may deposit in trust with the Paying Agent or another paying agent, an amount sufficient to pay such bond or the redemption pnce as the case mad bc, and thereafter the Registered Owner shall look only to the funds so deposited in trust for payment and the City shall have no further obligation or liability in respect thereto This bond is transferable or exchangeable only upon the registration record kept for that purpose at the office of the Registrar by the Registered Owner in person or by his attorney duly authorized in writing upon surrender of this bond together with a written instrument of transfer 1404477 Page 16 or exchange satisfactory to the Registrar duly executed by the Registered Owner or such attorney 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 transteree or transferees or the Registered Owner, as the case may be in exchange therefor This bond may be tiansferred 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 City, the Registrar, the Paying Agent and any other registrar or 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 interest and premium if any due hereon [As follows if sold pursuant to a Financial Assistance Agreement fhe bonds matunng on any maturity date are issuable only in the denomination of $1 00 or any integral multiple thereof [As follows if not sold pursuant to a Financial Assistance Agreement The bonds matunng on any maturity date are issuable only in the denomination of $5 000 or any integral multiple thereof A Continuing Disclosure Contract from the City to each registered owner or holder of any bond dated as of the date of initial issuance of the Bonds (the "Contract') has been executed by the City, a copy of which is available from the City and the terms of which are incorporated herein by this reference The Contract contains certain promises of the City to each registered owner or holder of any bond including a promise to provide certain continuing disclosure By its payment for and acceptance of this bond, the registered owner or holder of this bond assents to the Contract and to the exchange of such payment and acceptance for such promises it is hereby certified and recited that all acts, conditions and things required to be done precedent to and in the execution issuance and delivery of this bond have been done and performed in regular and due form as provided by law Flits bond shall not be valid or become obligatory for any purpose until the certificate of authentication hereon shall have been executed by an authorized representative of the Registrar iN WITNESS WiiEREOF, the City of Carmel, in Hamilton County, Indiana has caused this bond to be executed in its corporate name by the manual or facsimile signature of its Mayor, its corporate seal to be hereunto affixed, imprinted or impressed by any means and attested manually or by facsimile by its Clerk Treasuier CITY or CARMEL INDIANA By 1404477 Page 17 Mayor (SEAL) ATTEST Clerk Treasurer REGISTRAR'S CERTITICA it OT AUTHENTICAT iON It is hereby certified that this bond is one of the bonds described in the within mentioned Ordinance duly authenticated by the Registrar as Registrar By Authonzed Representative The following abbreviations, when used in the inscription of the face of this bond, shall be construed as through they were wntten out in full according to applicable laws or regulations TEN COM as tenants in common i'EN ENT as tenants by the entireties JT TEN as joint tenants with right of survivorship and not as tenants in common UNIT TRAM MIN ACT Custodian (Cust) (Minor) under Uniform Transfer to Minors Act of (State) Additional abbreviations may also be used although not in the above list 1404477 Page 18 ASSIGNMENT FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto (Please Pnnt or f)pewnte Name and Address and Social Secunty or Other Identifying Number) pnncipal amount (must be a multiple of minimum denomination permitted the Ordinance) of the «ithin bond and all nghts thereunder, and hereby irrevocably constitutes 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 NOTICE The Signature to this assignment must correspond with the name 'is it appears on the face of the within bond in every particular, without alteration or enlargement or any change whatsoever Signature Guaranteed NOTICE Signature(s) must be guaranteed by an eligible guarantor institution participating in a Secunties fransfcr Association recognized signature guarantee program [As follows If sold pursuant to a Faianual Assistance Agreement EXHIBIT A Date* Amount Date* Amount Pursuant to the Financial Assistance Agreement the final maturity of this Bond may occur pnor to those set forth above in order that the final matunty of this Bond not exceed 20 years from Substantial Completion of Construction (as defined in the financial Assistance Agreement)] SECTION 10 Sale of Bonds (a) The 2009 Project Bonds shall be sold in a competitive sale negotiated to the Authority for purchase under the SRF Program or negotiated to the Bond Bank pursuant to I C 5 1 5 as determined by the Approving Officials Unless sold to the Authority as part of the SRF Program or to the Bond Bank pursuant to 1 C 5 1 5, the Fiscal Officer shall cause to be published either (i) a notice of sale once each week for two consecutive weeks in accordance with 1 C §5 3 1 2 in which case the date fixed for the sale shall not be earlier than fifteen (15) days after the 1404477 Page 19 first of such publications and not earlier than three (3) days -after the second of such publications, or (n) a notice of intent to sell bonds once each week for two weeks in accordance with 1 C §5 -1 11 2 and I C §5 -3 -1 4 and in a newspaper of general circulation published in the State capital in which case bids may not be received more than ninety (90) days after the first of such publications Said sale notice shall state the time and place of sale, the purpose for which the 2009 Project Bonds ate being issued the total amount thereof the amount and date of each maturity the maximum rate or rates of interest thereon their denominations the time and place of p'iyment, the terms and conditions upon which bids will be received and the sale made and such other Information as is required by law or as the fiscal Officer shall deem necessary If sold by competitive sale all bids for the 2009 Project Bonds shall be sealed and shall be presented to the Fiscal Officer in accord with the temps set forth in the sale notice or in lieu thereof, by an electronic medium the Fiscal Officer determines to provide safeguards comparable to such sealed bids so presented Bidders for the 2009 Project Bonds shall be required to name the rate o] rates of interest which the 2009 Project Bonds are to bear, which shall be the same for all 2009 Project Bonds matunng on the same date not exceeding seven percent (7 per annum and such interest rate or rates shall be in multiples of one hundredth of one percent The Fiscal Officer shall award the 2009 Project Bonds to the bidder who offers the lowest interest cost, to be determined by computing the total interest on all the 2009 Project Bonds to their maturities and deducting therefrom the premium bid if an or adding thereto the amount of the discount if any No bid for less than ninety eight and one half percent (98 5 of the par value of the 2009 Project Bonds plus accrued interest, shall be considered The Fiscal Officer may require that all bids be accompanied by certified or cashier's checks payable to the order of the City or a surety bond (upon being notified as to being the winning bidder) in an amount not to exceed one percent of the aggregate principal amount of the 2009 Project Bonds as a guaranty of the performance of said bid should it be accepted In the event no satisfactory bids are received on the day named in the sale notice the sale may be continued from day to day thereafter for a period of thirty (30) days without readvertisement provided, however that if said sale is continued no bid shall bt. accepted which offers an interest cost which is equal to of highei than the best bid received at the time fixed for sale in the bond sale notice The fiscal Office] shall have full right to reject any and all bids After the 2009 Project Bonds have been properly sold and executed the Fisc'il Officer shall receive from the purchaser's payment for the 2009 Project Bonds and shall provide for deli ery of the 2009 Project Bonds to the purchasers (b) The 2009 Project Bonds as and to the extent paid for and delivered to the purchaser shall be the binding special revenue obligations of the City, payable out of the Net Revenues The proper officers of the City are hereby directed to sell the 2009 Project Bonds to the put chaser to draw all proper and necessary warrants, and to do whatever acts and things which may be necessary to carry out the provisions of this Ordinance (c) The Approving Officials each are hereby authorized to deem final an official statement with respect to the 2009 Project Bonds as of its date, in accordance with the provisions of Rule 15c2 -12 of the U S Securities and Exchange Commission as amended (the "SEC Rule') 1404477 Page 20 subject to completion as permitted by the SEC Rule and the City further authorizes the distribution of the deemed final official statement, and the execution, delivery and distribution of such document as further modified and amended with the approval of the Approving Officials in the form of a final official statement in order to assist any underwriter of the 2009 Project Bonds in complying with paragraph (b)(5) of the SEC Rule by undertaking to make available appropnate disclosure about the City and the 2009 Project Bonds to participants in the municipal securities market, the City hereby covenants, agrees and undertakes, in accordance with the SEC Rule unless excluded from the applicability of the SEC Rule or otherwise exempted from the provisions of paragraph (b)(5) of the SEC Rule that it will comply with and carry out all of the provisions of the continuing disclosure contract "Continuing disclosure contract shall mean the continuing disclosure contract executed by the City and dated the date of issuance of the 2009 Project Bonds, as originally executed and as it may be amended from time to time in accordance with the terms thereof fhe execution and delivery by the City of the continuing disclosure contract, and the performance by the City of its obligations thereunder by or through any employee or agent of the City, are hereby approved and the City shall comply with and carry out the terms thereof (d) The Fiscal Officer is hereby authorized and directed to obtain a legal opinion as to the validity of the 2009 Project Bonds from Bingham McHale LI P and to furnish such opinion to the purchasers of the 2009 Protect Bonds or may (but need not) cause a copy of said legal opinion to be printed on each 2009 Project Bond The cost of such opinion shall be paid out of the proceeds of the 2009 Project Bonds (e) In connection with the sale of the 2009 Project Bonds, the Approving Officials each are authorized to take such actions and to execute and deliver such agreements and instruments as they deem advisable to obtain a rating and/or to obtain bond insurance for the 2009 Protect Bonds and the taking of such actions and the execution and delivery of such agreements and instruments are hereby approved (0 in connection with the sale of the BANs the Approving Officials each are authorized to take all or a part of' the same authorized actions, and to execute and deliver the agreements and instruments as they deem advisable with respect to the BANs to the same extent as if the foregoing provisions of this Section applicable to the 2009 Project Bonds were applied to the sale of the BANs provided they shall not be required to take each and even such act as would relate to the 2009 Project Bonds unless by law It is required with respect to the BANS 1404477 Page 21 SECTION 11 Use of Proceeds Any accrued interest received at the time of delivery of the 2009 Project Bonds or BANs (and if deemed by the Approving Officials to be in excess of Project needs any premium) shall be deposited in the Sinking Fund (as hereafter defined) and applied to payments on the 2009 Project Bonds and any BANs on the first interest payment date The remaining proceeds from the sale of the 2009 Project Bonds and any BANs, shall be deposited in a fund of the utility hereby created and designated as City of Carmel, Indiana 2009 Sewage Works Bond Project Fund" (the `Project Fund') or directly applied to the payment of costs of the Project as contemplated by the financial Assistance Agreement The proceeds deposited in the Project Fund, together with ill investment earnings thereon, shall be expended only for the purpose of paying the costs of the Protect, refunding the BANs if issued and the costs of selling and issuing the 2009 Protect Bonds and any BANs, including the premium for any bond insurance obtained for the 2009 Project Bonds 1 he City hereby declares that it reasonably expects to reimburse the City's advances to the Protect from proceeds of any BANs 01 the 2009 Project Bonds, as anticipated by this Ordinance, and such declaration shall be deemed one within the meaning of tilt. Reimbursement Regulations Any balance remaining in the Project Fund after the completion of the Project which is not required to meet unpaid obligations incurred in connection therewith and on account of the sale and issuance of the 2009 Project Bonds shall be (a) paid into the Sinking Fund (to be part of the hereinafter referenced Pnncipal and interest Amount) or (b) used for the same purpose or type of project for which the 2009 Project Bonds were originally issued all in accordance with 1 C 5 1 -13, as amended or as otherwise permitted by law SECTION 12 Revenue Fund There is hereby continued a fund of the utility designated as the Revenue Fund (the "Revenue Fund) into which there shall be deposited upon receipt all revenues of the works for application as set forth below Nothing in this Ordinance shall require the City to keep such revenues in such a fund so long as the City is able to account for all such revenue and have it available for the funding of the funds and Accounts of the works as set forth below on a regular consistently applied monthly cycle The orderly allocation of revenues of the works may be processed on combined billing basis with other utilities of the City provided that the cycle is complete by the end of the month next following the receipt of any payment made in respect of the works Other than as provided by Section 15 herein no moneys denved from the revenues of the sewage works shall be transfened to the general fund of the City or be used for any purpose not connected with the sewage works SECTION 13 Operation and Maintenance Fund There is hereby continued an operating fund of the utility designated as the Operation and Maintenance 1 and (the `Operation and Maintenance fund) There shall be transfened from the Revenue Fund and credited to the Operation and Maintenance Fund on the last day of each calendar month, a sufficient amount to meet the expenses of operation repair and maintenance for at least the then next succeeding two calendar months, provided however that the amount credited to the Operation and Maintenance 1404477 Page 22 Fund may only exceed the estimated expenses of operation, repair and maintenance for the then next succeeding two calendar months after meeting the requirements of the Sinking Fund The moneys credited to this Fund shall be used for the payment of the reasonable and proper operation, repair and maintenance expenscs of the works on a day to -day basis, but none of the moneys in the Operation and Maintenance Fund shall be used for depreciation replacements improvements extensions of additions Any balance in Operation and Maintenance Fund in excess of the expected expenses of operation repair and maintenance for the next succeeding month may be transferred to the Sinking Fund if necessary to prevent a default in the payment of pnncipal of or interest on the outstanding bonds of the works SECTION 14 Sinking Fund There is hereby continued a fund of the utility designated as the Sinking Fund (the `Sinking Fund') to be used for the payment of the pnncipal of and interest on bonds which by their terms are payable from the Net Revenues and the payment of any fiscal agency charges in connection with such payment All deposits into the Sinking Fund shall be tracked allocated and applied either as part of a Pnncipal and interest Amount or Debt Service Reserve Amount, each of which are pledged and to be applied tor the purposes set forth below The Principal and Interest Amount and the Debt Service Reserve Amount need not be separated into different accounts, but may be held as separate accounts if such is from time to time determined by the utility be cons anent to track, allocate and apply monies held in the Sinking Fund as part of the Principal and interest Amount and Debt Service Reserve Amount as set forth below (a) Pnncipal and Interest Amount There shall be transferred on the last day of each calendar month, from the Revenue Fund and credited to the Sinking Fund, which shall be part of the Principal and Interest Amount an amount equal to the sum of at least one twelfth (1/12) of the pnncipal and at least one sixth (1/6) of the interest on all then outstanding bonds payable from Net Revenues on the next succeeding principal and interest payment dates (except in the instance of the first principal and interest payment dates next succeeding the issuance of the 2009 Project Bonds, an appropnately greater percentage as would result in such equal monthly transfers equaling the required payments) until the amount available therein shall equal the pnncipal payable dunng the next succeeding twelve (12) calendar months and the interest payable during the net succeeding six (6) calendar months There shall similarly be credited to the account any amount necessary to pay when due the bank fiscal agency charges for paying principal of and interest on the bonds as the same become payable The City shall from the sums deposited in the Sinking Fund and held as part of the Pnncipal and Inteiest Amount remit promptly to the registered owner or to the bank fiscal agency sufficient moneys to pay the pnncipal and interest on the due dates thereof together with the amount of bank fiscal agency charges (b) Debt Service Reserve Amount There shall be transferrcd, on the last day of each calendar month following the issuance of the 2009 Project Bonds, after making any required transfer to the Sinking Fund held as part of the Principal and Interest Amount from Revenue Fund and credited to the Sinking Fund which shall be part of the Debt Service Reserve Amount an amount to constitute an appropriate reserve to facilitate the marketing of the 2009 Project Bonds which monthly deposits shall be in an amount sufficient to build the balance in the 1404477 Page 23 Sinking Fund constituting part of the Debt Service Reserve Amount (after consideration of any transfers made pursuant to the next following sentence) to an amount equal to such required reserve within no more than five (5) years on a level monthly basis (after accounting for earnings thereon), which reserve amount shall not exceed the hereinafter Reserve Requirement The Fiscal Officer, with the advice of the City's financial adviser, may transfer an amount of the funds of the utility now on hand in full or partial satisfaction of the Reserve Requirement After the issuance of the 2009 Protect Bonds, the City shall maintain the balance in the Sinking Fund constituting pail of the Debt Service Reserve Amount in an amount equal to the Reserve Requirement, subject to the provisions of this Ordinance or any ordinance authonzing parity bonds which allows the Reserve Requirement to be accumulated over time For these purposes Reserve Requirement means the least of ten percent (10 of the proceeds of the 2009 Project Bonds and any bonds ranlung on a panty therewith (including the outstanding Prior Bonds), the maximum annual debt service on the 2009 Project Bonds and such panty bonds (including the outstanding Prior Bonds) or lb% of the average annual debt service on the 2009 Project Bonds or such panty bonds (including the outstanding Prior Bonds), provided however that so long as any of the 2009 Project Bonds are owned by the Authority as part of the SRF Program the Reserve Requirement shall mean the maximum annual debt service on the 2009 Project Bonds and any parity bonds (including the outstanding Prior Bonds) All money designated as part of the Debt Service Reserve Amount shall be used and reallocated to the Principal and Interest Amount, in the event of and to the extent of any deficiency in the Sinking Fund constituting part of the Pnncipal and interest Amount with respect to the payments then due on the 2009 Pioject Bonds and any such parity bonds, or to make the final payments on such bonds when the Sinking Fund constituting part of the Debt Service Reserve Amount, together with other funds available for such purpose, is sufficient to make all remaining payments thereon to final maturity Anv amount designated as the Debt Service Reserve Amount in excess of the Reserve Requirement shall be reallocated from time to time and at least as frequently as annually to the Principal and 'Interest Amount Any deficiency in the balance required to be held in the Sinking Fund constituting part of the Debt Service Reserve Amount shall be promptly made up from the next available Net Revenues after credits to the Sinking Fund constituting part of the Principal and Interest Amount Notwithstanding the foregoing, the Fiscal Officer, with the advice of the City's Financial Adviser and bond counsel may enable the City to satisfy all or any part of its obligation to maintain the Sinking Fund constituting part of the Debt Service Reserve Amount equal to the Reserve Requirement by depositing a Reserve Fund Credit Facility in the Sinking Fund and allocating it as part of the Debt Service Reserve Amount A "Reserve Fund Credit Facility is hereby defined as a letter of credit liquidity facility, insurance policy or comparable instrument furnished by a bank insurance company, financial institution or other entity puisuant to a reimbursement agreement or similar instrument between such entity and the City, for the purpose of satisfying in whole or in part the City's obligation to maintain the Reserve Requirement, provided that the Reserve Fund Credit Facility must be issued by a provider (a) that is rated in one of the two highest rating category by Standard Poor s Corpormon and Moody's investors Service at the time of the issuance of such Reserve Fund Credit Facility and (b) if the 2009 1404477 Page 24 Project Bonds or BANS are purchased by the Authonty as part of the SRF Program such provider shall be acceptable to the Authonty (c) In the event the Debt Service Reserve Amount applicable any senes of 2009 Project Bonds or any bonds ranking on a panty therewith (including the outstanding Pnoi Bonds) is met by a Reserve Fund Credit Facility and such facility is not available to pay the principal of and interest on all such outstanding bonds payable from Net Revenues, then (i) the bonds so secured by such a Reserve Fund Credit Facility shall only be secured by (and payable from) such allocable portion of the Debt Service Reserve Amount attributable to such bonds as if such Reserve Fund Credit Facility were held in a separate reserve -recount from portion of the Debt Seiice Reserve Amount applicable to remainder of the bonds (ti) any required deposits (including as a result of any deficiency in the balance required to be held) in the Sinkutg'Fund constituting part of the Debt Service Reserve Amount shall be allocated to such separate reserves on a prorata, panty basis to meet such allocable portion of the Debt Service Reserve Amount attributable to such bonds and (m) any cash allocated to a separate reserve shall be applied to pay the principal of and interest on the outstanding bonds secured by it before a draw is made to snake such a payment from a Reserve Fund Credit Facility that is also held in the same reserve (d) If the 2009 Project Bonds or BANs are purchased by the Authority as part of the SRF Program and to the extent iequired by the SRF Program, the Sinking Fund and the Project Fund may be held by a financial institution acceptable to the SRI' Program pursuant to terms acceptable to the SRF Program If the Sinking Fund and the accounts therein are so held in trust, the City shall transfer the monthly required amounts of Net Revenues to the Sinking Fund accordance with this Section 14 and the financial institution holding such funds in trust shall be instructed to pay the required payments in accordance with the payment schedules for the City s outstanding 2009 Project Bonds The Council hereby authorizes the Appioving Officials to execute and deliver an agreement with a financial mstitution to reflect this trust arrangement for the Sinking Fund and Project Fund The financial institution selected to serve in this role may also serve as Registrar and Paying Agent the 2009 Project Bonds or the Prior Bonds of the City SECTION 15 improvement Fund After meeting the requirements of the Operation and Maintenance Fund and the Sinking Fund any excess revenues may be tiansferred from the Revenue Fund and credited to the special utility fund, to be expended in making good depreciation in the works and new construction, hereby continued the `Improvement Fund (the "Improvement Fund) Said Fund shall be also used for (a) replacements improvements extensions and additions to the works or other purposes related to the utility permitted by this Ordinance and applicable law, and (b) any other lawful purpose (including without limitation and subject to applicable law payments in lieu of property taxes to the City) provided that if any of the 2009 Project Bonds ale owned by the Authontv as part of the SRF Program unless otherwise approved by the pnor wi itten consent of the Authority such uses and transfers pursuant to clause (b) (including payments in lien of taxes and any transfeis to the General Fund of the City) shall only be made (i) no more frequently than semiannually on May 2 and November 2 and (n) if all monthly deposits iequired by this Ordinance are cunent and held as of such dates in the Operation and Maintenance Fund and the Sinking Fund Moneys in the Improvement Fund shall be transferred to the Sinking Fund if necessary to prevent a default in the payment of principal of 1404477 Page 25 and interest on the then outstanding bonds of the works ,or may be transferred to the Operation and Maintenance Fund to meet unforeseen contingencies in the operation repair and maintenance of the works SECTION 16 Investment of Funds The funds and accounts described herein shall be accounted for separate and apart from each other and from all other funds and accounts of the City All moneys deposited in the funds and accounts shall be depositr held and secured as public funds in accordance with the public depository laws of the State of Indiana provided that moneys therein may be invested in obligations in accordance with the applicable laws including particularly Indiana Code 5 13 -9 Indiana Code fl 4 -11 and Indiana Code 13- 18 -13) or as hereafter supplemented and amended, and in the event ot such investment the income therefrom shall become a part of the funds invested and shall be used only as provided in this Ordinance The Fiscal Officer is hereby authorized pursuant to Indiana Code n 1 14 3 to invest moneys pursuant to the pro% isions of this Ordinance (subject to applicable requirements of federal law to ensure such yield is then cufrent market rate) to the extent necessaiy or advisable to preserve the exclusion from gloss income of interest on the 2009 Bonds under federal law The Fiscal Officer shall kr.ep full and accurate records of investment earnings and income from moneys held in the funds and accounts created or.referenced herein In order to comply with the provisions of this Ordinance, the Fiscal Officer is hereby authorized and directed to employ consultants or attorneys from time to time to advise the City as to requirements of federal law to preserve the tax exclusion The Fiscal Officer may pay an fees as operation expenses of the utility SECTION 17 Furmaal Records and Accounts The City shall keep proper records and books of account separate From all of its other records,and accounts, in which complete and correct entries shall be made showing all revenues received on account of the operation ot the utility and all disbursements made therefrom and all transactions relating to the utility The City shall maintain on file the audited financial statements of the City prepared by the State Board of Accounts There shall be furnished, upon written request, to any owner of the 2009 Project Bonds and any BANs the most recent copy of the audited financial statements of the City prepared by the State Board of Accounts Copies of all such statements and reports shall be kept on file in the office of the Fiscal Officer If the 2009 Project Bonds or BANs are sold to the Authority as part of the SRI Program the City shall establish and maintain the books and other financial records of the Project (including the establishment ot a separate account or subaccount for the Protect) and the Utility in accordance with (i) generally accepted governmental accounting standards for utilities on an accrual basis as piomulgated by the Government Accounting Standards Board and (n) the rules regulations and guidance of the State Board of Accounts SECTION 18 Rate Covtnant (a) The City covenants and agrees that by ordinance of the Council it will establish and maintain just and equitable rates and chaiges tor the use of and the service rendered by the works to be paid by the owner of each and every' lot parcel of real 1404477 Pnge 26 estate or building that is connected with and uses said works by or through any part of the utility, or that in any way uses or is served by such works that such rates or charges shall be sufficient in each year for the payment of the proper and reasonable expenses of operation repair and maintenance of the works, and for the payment of the sums required to be paid into the Sinking Fund by the Act and this Ordinance Such rates or charges shall if necessary be changed and readjusted from time to time so that the revenues therefrom shall always be sufficient to meet the expenses of operation, repair and maintenance of the works and the requirements of the Sinking Fund Ile rates or charges so established shall apply to any and all use of such works by and service rendered to the City and all departments thereof, and shall be paid by the City or the various departments thereof as the charges accrue (b)This subsection (b) shall apply in lieu of the provision of subsection (a) above with respect to 2009 Project Bonds owned by the Authonty as part of the SRF Program The Ca) covenants and agrees that by ordinance ofathe Council it will establish and maintain just and equitable rates and charges foi the use of and the service rendered by the works to be paid by the owner of each and every lot, parcel of real estate or building that is connected with and uses said works by or through any part of the utility or that in any way uses or is served by such works that such rates or charges shall be sufficient in each year provide for the proper Operation and Maintenance (as defined in the Financial Assistance Agreement) of the Utility and for the payment of the sums required to be paid into the,Sinking fund by the Act and this Ordinance Such tates or charges shall 11 necessary, be changed and readjusted from time to time so that the revenues therefrom shall always be sufficient to meet the expenses of operation, repair and raintenance of the works and the requirements of the Sinking Fund '1 he rates or charges so established shall apply to any and all use of such works by and service rendered to the City and all departments thereof and sliall be paid by the City or the various departments thereof as the charges accrue SECTION 19 Defeasance lf, whcn the 2009 Pioject Bonds and any BkNs or a portion thereof shall have become due and payable in accordance with then terms or shall have been duly called for redemption or irrevocable instructions to call the 2009 Project Bonds and any BANs or a portion thereof for redemption shall have been given, and the whole amount of the principal premium if any and the interest so due and payable upon such 2009 Pioject Bonds and any BANs or any portion thereof then outstanding shall be paid or (0 sufficient moneys or (n) direct obhgations of or obligations the principal of and interest on which are unconditionally guaranteed by the United States of America, the pnncipal of and the interest on which when duc will provide sufficient moneys for such purpose, shall be held in trust for such purpose, and provision shall also be made for paying all fees and expenses foi the redemption then ind in that case the 2009 Project Bonds and any BANs issued hereunder or any designated portion thereof shall no longer be deemed outstanding or entitled to the,pledge of the Net Revenues of the works 1404477 Page 27 SECTION 20 Additional Obligations The City reserves the nght to authonze and issue additional BANs at any time ranking on a panty with the BANs The City reserves the right to authorize and issue additional bonds payable out of the Net Revenues ranking on a parity with the 2009 Project Bonds for the purpose of financing the cost of future additions, extensions and improvements to the works or to providektor a complete or partial refunding of obligations subject to the following conditions precedent (a) The, interest on and principal ot all bonds payable from the Net Revenues shall have been paid to date in accordance with the terms thereof provided this condition shall lie satisfied if any required amount is to be provided from the proceeds of such additional bonds or other funds (b) The balance in the Sinking Fund constituting part of the Debt Service Reserve Amount shall be equal to the amount required herein provided, this condition shall be satisfied if any required amount is to be provided from the proceeds of such additional bonds or other funds either (i) at the time of then issuance or (ii) by monthly deposits in an amount sufficient to build the balance in the Sinking Fund constituting part of the Debt Service Reserve Amount to an amount equal to the Reserve Requirement within no more than five (5) years after such additional bonds ate issued, on a level monthly basis (after accounting for earnings theieon) (c) The Net Revenues in the fiscal year immediately preceding the issuance of any such bonds ranking on a parity with the 2009 Project Bonds (provided within the 90 day penod following the end of such preceding fiscal year, if such years accounting records are not final as of the sale date of the additional bonds the fiscal year pieceding such year may be used in lieu of the immediately preceding fiscal year) shall be not less than one hundred twenty -five percent (125%) of the annual principal and Interest requirements of the then outstanding panty bonds (including the 2009 Project Bonds) and the additional parity bonds proposed to be issued for each respective year during the term of such outstanding panty bonds and the proposed additional bonds, or prior to the issuance of the additional bonds the rates and charges shall be increased sufficiently so that said increased rates and charges 'tpphed to the previous fiscal year's operations (provided within the 90 day penod following the end of such preceding fiscal yea!, if such year's accounting records are not final as of the sale date ot the additional bonds the fiscal year preceding such year may be used in lieu of the immediately preceding fiscal yeai) would have produced Net Revenues for said year equal to not less than one hundred twenty five percent (125 of such annual pnneipal and interest requirements for each respective year during the term of such outstanding panty bonds and the proposed additional bonds For purposes of this subsection, the records of the works shall be analyzed and all showings shall be prepared by a certified public accountant employed by the City for that purpose 1404477 Page 28 (d) The pnncipal of said additional pant) bonds shall be payable on May 1 and the interest shall be payable on May 1 and November 1 during the periods such piincipal and interest are payable (e) If the 2d09 Project Bonds are owned by the Authority as part of the SRF Program (i) the City obtains the consent of the Authority, (u) the City has faithfully performed and is compliance with each of its obligations agreements and covenants contained in the financial Assistance Agreement and this Ordinance and (ut) the City is in compliance with its National Pollutant Dischaige Elimination System permits except for non- compliance for which purpose the 2009 Project Bonds are issued including refunding 2009 Project Bonds issued prior to but part of the overall plan to eliminate such non compliance SECTION 21 Further Covenants of the City For the purpose of further safeguarding the interests of the owners of the 2009 Project Bonds and any BANs it is hereby specifically provided as follows (a) The City shall at all times maintain the works in good condition and operate the same in an efficient manner and at a reasonable cost (b) If the 2009 Project Bonds are sold to the Authority els part of the SRi' Pi gram the City shall acquire and maintain insurance coverage as tequired by the Authonty including fidelity 2009 Project Bonds to protect the Utility and its operations Provided that if the City is not so directed by the Authonty so long as any of the 2009 Project Bonds or BANs ale outstanding, the City shall maintain insurance on the insurable parts of the woiks, of a kind and in an amount such as would normally be earned by private entities engaged in a similar type of business All insurance shall be placed with responsible insurance companies qualified to do business under the laws of the State of Indiana Insurance proceeds and condemnation awards shall be used in replacing or repairing the property destroyed or damaged, provided, that if the 2009 Project Bonds are sold to Authonty as part of the SRF Program the Authontv must consent to a different use of such pi oceeds or awards (c) So long as any of the 2009 Project Bonds and any BANs are outstanding, the City shall not mortgage pledge or otherwise encumber the works, 01 any part thereof, and shall not sell lease or otherwise dispose of any pan oPthe same excepting only such machinery equipment or othei property as may be replaced or shall no longer be necessary for use in connection with said utility, provided that if such outstanding BANs or 2009 Project Bonds are sold to the Authonty as part of the SRF Program such exception shall only apply if the Authority consents (d) if the BANS or the 2009 Project Bonds are sold to the Authority as part of the SRI' Program, the City shall not borrow any money, enter into any contract or 1404477 Page 29 agreement or Incur any other liabilities in connection with the Utility other than for normal operating expenditures, without the prior written consent of the Authority if such undertaking would Involve, conunit of use the revenues of the Utility (e) Except as otherwise specifically provided in Section 20 or this Ordinance so long as any of the 2009 Project Bonds and any BANs aie outstanding, no additional bonds or other obligations pledging any portion of the revenues of the works shall be Issued by the City except such as shall be,made junior and subordinate in all respects to the 2009 Project Bonds, unless all of the 2009 Project Bonds are defeased redeemed or Iettred coincidentally with the delivery of such additional bonds or other obligations (f) The City shall take all action or proceedings necessary and proper to require connection of all property where liquid and solid "waste, sewage night soul or tndustiial waste is pioduced with available sanitary semis the City shall Insofar as possible, cause all such sanitary sewers to be connected with the utility or'otherwise cause an equivalent availability charged to be enforced against such property Notwithstanding the foregoing to the contrary the City shall not be required to enforce this subsection (e) so long as sufficient payments into the Sinking fund shall have been made to meet the monthly transfer requirements of Section 14, and the interest on and principal of all bonds payable from the revenues of the works shall have been paid to date in accordance with the terms thereof (g) The provisions of this Ordinance shall constitute a contract by and between the City and the owneis of the 2009 Project Bonds and any BANs all the terms of which shall be enforceable by any such owner by any and all appropriate proceedings in law or in equity After the issuance of the 2009 Project Bonds and any BANS and so long as any of the principal thereof or interest or premium, if any thereon iemains unpaid except as expressly provided herein, this Ordinance shall not be repealed or amended to any respect which will adversely affect the rights of such owners nor shall the Council oi any other body of the City adopt any law, ordinance oi resolution which in any way adversely affects the nghts of such owners Except in the case of changes described in Section 22(a) through (f) hereof, this Ordinance may be amended however, without the consent of bond owners, if the Council determines, in its sole discretion that such amendment would not adversely affect the owners of the 2009 Project Bonds or BANs, provided, however, that if the 2009 Project Bonds or BANs are sold to the Authority as pact of the SRF Program, the City shall also obtain the prior written consent of the Authority (h) The provisions of this Ordinance shall be construed to create 9 trust in the proceeds of the sale of the 2009 Project Bonds and any BANs for the uses and purposes herein set forth and the owneis of the 2009 Project Bonds and any BANs shall retain a lien on such proceeds until the same are applred'in accordance with the provisions of this Ordinance and the Act The provisions of this Ordinance shall also be construed to create 1 trust in the Net Revenues herein 1404477 Page °30 directed to be set apart and paid into the Sinking Fund for the uses and purposes of that hind as set forth in this Ordinance The owners of the 2009 Project Bonds and any BANs shall h ive all the rights remedies and privileges set forth in the Act including the right to have a receiver appointed to adminrstei the utility in the event the City shall fall ei refuse to fix and collect sufficient rates and charges for those purposes, or shall fail or refuse to operate and maintain said utility and to apply properly the revenues denved from the operation thereof or if these be a default in the payment of the Interest on or principal of the 2009 Project Bonds or any BANs (t) None of the provisions of this Ordinance shall be construed as rejuiimg the expenditure of any funds of the City denved fiom any sources other than the proceeds of the 2009 Project Bonds and any BANs and the operation of the utility SECTION.22 Amendments With Consent of Bondholders Subject to the tetras and provisions contained in this section and Sections 21 and 23 the owners of not less than sixty -six and two -thuds percent (66 2/3%) in aggregate principal amount of the 2009 Project Bonds and any BANs then outstanding shall have the nght from time to tone to consent to and approve the adoption by the Council of such ordinance or ordinances supplemental hereto as shall be deemed necessary or desirable by the City for the purpose of amending in any particulai any of the terms or provisions contained in this Ordinance of in any supplemental Ordinance provided however that if the 2009 Project Bonds or BANS are sold to the Authoi sty as part of the SRL' Program the City shall obtain the pnor wntten consent of the Authority and provided, further, that nothing herein contained shall permit or be construed as permitting (a) An extension of the maturity of the principal of or interest or premium if any, on or any mandatory sinking fund redemption date for, or an advancement of the earliest redemption date on any 2009 Piojcct Bond or BAN without the consent of the holder of each 2009 Project Bond or BAN so affected or (b) A teduction in the principal amount of any 2009 Project Bond or BAN or the redemption premium or the rate or interest thereon or a change in the monetary medium in which such amounts are payable without the consent of the holder of each 2009 Project Bond or BAN so affected or (c) Fite creation of a lien upon or a pledge of the Net Revenues tanking prior to the pledge thereof created by this Ordinance without the consent of the holdei s of all 2009 Project Bonds then outstanding or (d) A preference or prionty of any 2009 Project Bond or BAN over any other 2009 Project Bond or BAN, without the consent of the holders of all 2009 Project Bonds and any BANs then outstanding, or 1404477 Page 31 (e) A reduction in the aggregate principal amount of the 2009 Pioject Bonds and any BANs required for consent to such supplemental oidmance without the consent of the holders of all 2009 Project Bonds and any BANS then outstanding, or (f) A reduction in the Reserve Requirement If the City shall desire to obtain any such consent, it shall cause the Registrar to mail a notice postage prepaid, to the addresses appearing on the Registration Record 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 for inspection by all owners of the 2009 Protect Bonds and any B ANs The Registrar shall not however, be subject to any liability to any owners of the 2009 Project Bonds and any BANs by reason of its failure to mail such notice, and any such failure shall not affect the validity of such supplemental ordinance when consented to and approved as herein provided Whene.er at any time within one year after the date of the mailing of such notice the City shall receive any instrument or instruments purporting to be executed by the owners of the 2009 Project Bonds and any BANs of not less than sixty six and two thirds per cent (66 -2/3 in aggregate pnncipal amount of the 2009 Project Bonds and anv BANs then outstanding which instrument or instruments shall refer to the proposed supplemental ordinance described in such nonce, 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 fife with the Registrar, thereupon, but not otherwise the City may adopt such supplemental ordinance in substantially such form, without liability or responsibility to any owners of the 2009 Project Bonds and any BANs whether or not such owners shall have consented thereto No owner of any 2009 Protect Bond or BAN shall have any right to object to the adoption of such supplemental ordinance of to object to any of theiterms and provisions contained therein or the operation theieof or in any manner to question the piopriety of the adoption thereof 01 to enjoin or restrain the Council from adopting the same or from taking any action pursuant to the provisions thereof Upon the adoption of any supplemental ordinance pursuant to the provisions of this section, this Ordinance shall be and shall be deemed, modified and amended m accordance therewith, and the respective rights, duties and obligations under this Ordinance of the City and all owners of the 2009 Project Bonds and any BANs then outstanding shall thereafter be detemnned exercised and enfoiced in accordance with this Ordinance subject in all respects to such modifications and amendments Notwithstanding anything contained in the foregoing provisions of this Ordinance, the rights and obligations of the,City and of the owners of the 2009 Project Bonds and any BANs and the tenns,and provisions of the 2009 Pioject Bonds and any BANs and this Ordinance, or any supplemental ordinance, may be modified or amended in any respect with the consent of the City and the consent of the owners of all the 2009 Project Bonds and any BANs then outstandmg 1404477 Page 32 SECTION 23 Amendments Without Consent of Bondholders The Council may from time to time and at any time and without notice to or consent of the owners of the 2009 Pioject Bonds and any BANs adopt such ordinances supplemental hereto as shall not be inconsistent with the terms and provisions hereof (which supplemental ordinances shall thereafter form a part hereof) (a) To cute any ambiguity or formal defect or omission in this Ordinance or in any supplemental ordinance (b) To grant to or confer upon the owners of' the 2009 Project Bonds and any BANs any additional rights, remedies, powers, authority or security that may lawfully be granted to or conferred upon the owners of the 2009 Project Bonds and any BANs (c) To procure a rating on the 2009 Project Bonds and any BANs from a nationally recognized securities rating agency designated in such supplemental ordinance ifisuch supplemental ordinance will not adversely affect the owners of the 2009 Project Bonds and any BANs, (d) To obtain of maintain bond insurance or a Reserve Fund Credit Facility with respect to the 2009 Prolect,Bonds (e) To provide for the refunding or advance refunding of the 2009 Project Bonds (f) To provide for the issuance of additional bonds or BANs as provided in Section 20 hereof or (g) To make any other change which in the determination of the Council in its sole discretion, does not in an) way adversely affect the rights of such owners of the 2009 Pioject Bonds and any BANs, Provided however, that if the 2009 Project Bonds of BANs are sold to the Authority as part of the SRF Program the City shall obtain the pnor written consent of the Authority to the foregoing SECTION 24 Tax Matters In order to preserve the e■clusion of interest on the 2009 Project Bonds and any BANs from gross Income for federal income tax purposes and as an inducement to purchasers of the 2009 Project Bonds and any BANs the City represents, covenants and agrees that (a) No person or entity, other than the City or another state or local governmental unit will use proceeds of the 2009 Project Bonds and any BANs or property financed by the 2009 Project Bond or BAN proceeds other than as a member of the general public No person or entity other than the City of another 1404477 Page 33 state or local governmental unit will own property financed by 2009 Project Bond oi BAN proceeds 01 will have actual or beneficial use ofdsuch property pursuant to a lease, a management of incentive payment contract an arrangement such as take or -pay or output contract or any other type of arrangement that differentiates that person's or entity's use of such property fiom the use by the public at large (b) No portion of the principal of or interest on the 2009 Project Bonds and any BANs is (under the terms of the 2009 Project Bonds and any BANs this Ordinance or any underlying arrangement) directly or indirectly secured by an interest in property used or to be used for any private business use or payments in respect of any private business use or payments in respect of such property or to be derived fiom payments (whether or not to the City) in iespect•of such piopeity or borrowed money used to be used tor a pnvate business use (c) No 2009 Project Bond oi BAN proceeds will be loaned to any entity or person other than a state or local governmental unit No 2009 Project Bond or BAN proceeds will be transferred, directly or indirectly, or deemed transferred to a non governmental person in any manner that would in substance constitute a loan of the 2009 Project Bond or BAN proceeds (d) 1 he City will not take any action or fail to take any action with respect to the 2009 Project Bonds and any BANS that would result in the Toss of the exclusion from gross income for federal income tax purposes of interest on the 2009 Project Bonds and any BANs pursuant to Section 103 of the internal Revenue Codc of 1986 as amended (the Code and the regulations thereunder as applicable to the 2009 Project Bonds and any BANs, including without limitation the taking of such ruction as rs.necessary to rebate or cause to be rebated arbitrage profits on 2009 Project Bond or BAN proceeds or other monies treated as 2009 Project Bond or BAN proceeds to the federal government as provided in Section 148 of the Code and will set aside such monies which may be paid from investment income on funds and accounts notwithstanding anything else to the contrary herein in trust for such purposes (e) The City will file an information report on Form 8038 -G with the Internal Revenue Service as required by Section 149 of the Code (f) The City will not make any investment or do any other act or thing during the penod that an) 2009 Project Bond or BAN is outstanding hereunder which would cause any 2009 Project Bond or BAN to be an a; brtrage bond' within the meaning of Section 148 of the Code and the regulations thereunder as applicable to the 2009 Project Bonds and any BANs (g) It shall not be an event of default under this Ordinance if the interest on any 2009 Project Bonds or BANs is not excludable fiom gross income for federal tax purposes or otherwise pursuantto any provision of the Code which 1404477 Page 34 is not currently in effect and in existence on the date of issuance of the 2009 Project Bonds and any BANs respectively These covenants are based solely on current law in effect and m existence.on the date of delivery of the 2009 Project Bonds and any BANs respectively Notwithstanding any other provisions of this Ordinance the foregoing covenants and authorizations (the Tax Sections which are designed to preserve the exclusion of interest on the 2009 Project Bonds and any BANs from gross income under federal law (the `Tax Exemption') need not be complied with to the extent the Ctty receives an opinion of nationally recognized bond counsel that compliance with such Tax Section is unnecessary to preserve the 1 ax Exemption Section 25 Additional Authority (a) Ilse Approving Officials, of either of them is hereby authorized and directed to do and perform all acts and execute in the name of the City all such instruments documents papers or certificates which are necessary desirable of appropriate to carry out the transactions contemplated by this Ordtnance in such forms as the Approving Officials executing the same shall deem proper to be conclusively evidenced by the execution thereof Any provision of this Ordinance authorizing the Approving Officials to act shall mean erthet of' them individually rather than collectively is so authorized and any action taken and agreement or undertaking executed in the name of the City by them in furtherance of the same shall be deemed a proper use of such authority and will be conclusively evidenced by their execution of any agicement or undertaking, or by their taking of any such authorized action (b) In the event the Approving Officials with the advice of the financial adviser to the City certifies to the City that it would be economically advantageous for the Cit3 to obtain a mumcipal bond insurance policy for any of the 2009 Pioject Bonds issued hereunder, the City hereby authorizes the purchase of such an insurance policy The acquisition of' a_municipal bond insurance policy is hereby deemed economically advantageous in the event the difference between the present value cost of (a) the total debt service on the 2009 Ptolect Bonds if issued without municipal bond insurance and (b) the total debt service on the 2009 Project Bonds if issued with municipal bond insurance is greater than the cost of the premium on the municipal bond insurance policy The City also authorizes the purchase of a debt sei vice reserve surety bond based upon the advice of the City s financial adviser If such an insurance policy or surety bond is purchased the Approving Officials is hereby authorized to execute and deliver all agreements with the provider of the policy or surety bond, as the case may be, to the extent necessary to comply with the terms of such insurance policy surety bond and the commitments to issue such policy oi surety bond as the case may be SECTION 26 Non Business Das If the date of making any payment or the last date for performance of -my act or the exercising of any right as provided in this Ordinance, shall be a legal holiday or a day on which banking institutions in the City 0i Lhe jurisdiction in which the Registiar or Paying Agent is located die typically closed such payment may be made or act pertortned or right exercised on the next succeeding day not a legal holiday oi a day on which such banking institunons are typically closed with the same force and effect as if done on the 1104477 Page 3) nominal date provided m this Ordinance, and no Interest shall accrue for the period after such nominal date SECTION 27 No Conflict The Council hereby finds and determines that the adoption of this Ordinance and the issuance of the 2009 Project Bonds and any BANs Is in compliance with the Outstanding Prior Bond Ordinance The Outstanding Pnor Bond Ordinance shall remain in full foist and effect except as modified herein The Council determines then to the extent this Ordinance modifies or amends the Outstanding Prior Bond Ordinance there Is no adverse effect to the holders of the Prior Bonds All ordinances and resolutions and parts thereof in conflict, are to the extent of such conflict hereby repealed None of the provisions of this Ordinance shall be construed to adversely affect the rights of the owners df the Pnor Bonds SECTION 28 Severability If any section paragraph or provision of this Oidinance bhall be held to be Invalid or unenfofceable for any reason the invalidity or unenfoiceability of such section, paragraph or provision shall not affect any of the remaining provisions of this Ordinance SECTION 29 Intel uretation Unless the context or laws clearly require otherwise ielerences herein to statutes or other laws include the same as modified supplemented or superseded from time to time The headings or titles of the several sections shall be solely for convenience of ieference and shall not affect the meaning construction or effect of this Ordinance SECTION 30 Estinntes of the Rates and Charges The estimates of the rates and charges of the utility are set torah in Ordinance D -1951 09 `Rate Ordinance introduced before the Common Council do the same date as this Ordinance and anticipated to be adopted on or niter the date of this Ordinance, which Rate Oi dinance Is incorpoiated herein by reference SECTION 31 Effectiveness This Ordinance shall be in full force and effect fiom and after its passage and signing by the Executive THE REMAINDER OF TIIISTAGE INTENTIONALLY LEFT BLANK] 1404477 Page 36 PASSED by the Common Council of the City of Cannel Indiana this 1 7 day of 2009 by a vote of ayes and nays COMMON COUNCIL FOR THE CITY OF CARMEL r ,A`wi�� Ai Pr idtngOfftcer io•-.• Gn h- w W Eric Seide �eker President empore Ke Rider 9V 1--- J V Accetturo Richard L Sharp Al onald E Carter u yder A 1s Diana L Cordray IAMC Cle- (Treasurer Presented by me to the Mayor of the City of Carmel Indiana this i of 2009 at ID fl AM al. .........a Diana L Cordray IAMC ClerI asurer 1404417 Page 37 Appioved by me Mayor of the City of Carmel Indiana this 1 a y of OLlt 2009, 3 AM /b AM 111 4�4 mes Biamard, Mayor ATTEST ES J Diana L Cordray IAMC Clerk /treasurer Piepared by Bryan J Collins, Attorney At Law, BINGTIAM WHALE LLP 2700 Market Tower 10 West Market Street Indianapolis IN 46204 1404477 Page 38