ORDINANCE NO. 20-2003
An Ordinance concerning the construction by the Town of Plainfield, Indiana, of improvements and extensions to its waterworks and the issuance of revenue bonds to apply on the cost thereof; providing for the collection, segregation and distribution of the revenues of said works and the safeguarding of the interests of the owners of the revenue bonds; and other matters connected therewith, including the issuance of notes in anticipation of bonds, and repealing ordinances inconsistent herewith
WHEREAS, the Town of Plainfield, Indiana (the "Town") has heretofore established, constructed and financed a municipal waterworks and now owns and operates the waterworks pursuant to IC 8 1.5; and
WHEREAS, the Town Council of the Town (the "Town Council") now finds that said waterworks are in need of certain additions and improvements; that cost estimates, plans and specifications have been prepared and filed by the engineers employed by the Town for the construction of the additions and improvements, as more fully described on Exhibit A attached hereto (the "Project"), which plans and specifications have been or will be approved by the Town Council; and
WHEREAS, the Town has obtained engineers' estimates of the costs and construction bids for the construction of the Project; that on the basis of said construction bids and estimates, the total estimated cost of the Project, including incidental expenses, is in the amount of $5,870,000.00; and
WHEREAS, because the Town does not have sufficient funds on hand to defray the costs of such construction and incidental costs of undertaking a financing, said project expenditures must be financed by the issuance of revenue bonds under the provisions of I.C. 36-9-23-18 and, if necessary, bond anticipation notes (the "BANs"); and
WHEREAS, the Town Council finds that there is now one outstanding bond issue payable out of the revenues of the Town's waterworks, designated "Waterworks Revenue Bonds of 1996," authorized by Ordinance No. 19-96, adopted July 8, 1996, presently outstanding in the amount of Two Million Four Hundred Eighty Thousand Dollars ($2,480,000.00), issued under date of August 28, 1996, maturing annually over a period ending July 1, 2016, and bearing interest at various rates, depending upon the maturities (the "Prior Bonds"); and
WHEREAS, the bonds to be issued pursuant to this ordinance shall be issued in the aggregate principal amount of not to exceed Six Million One Hundred Sixty-Five Thousand Dollars ($6,165,000), designated as "Waterworks Revenue Bonds of 2003" and issued for the purpose of procuring funds to be applied on the cost of the Project, incidental expenses incurred in connection with the Project, costs associated with the issuance of the bonds, all as permitted by the Act (as hereinafter defined) (the "2003 Bonds"), and that the 2003 Bonds shall be parity bonds with an equal and pro rata charge upon the net revenues of the sewage works; and
WHEREAS, the Town Council desires to authorize the issuance of BANs hereunder, if necessary, payable solely from the proceeds of the 2003 Bonds, and to authorize the refunding of said BANs, if issued; and
WHEREAS, the 2003 Bonds will constitute a first charge against the Net Revenues (as hereinafter defined) of the waterworks and are to be issued subject to the provisions of the laws of the State of Indiana, including, without limitation, IC 8 1.5 as in effect on the date the bonds are issued (the "Act") and the terms and restrictions of this ordinance; and
WHEREAS, the Town Council now finds that all conditions precedent to the adoption of an ordinance authorizing the issuance of the 2003 Bonds on a parity with the Prior Bonds and, if necessary, the BANs have been complied with in accordance with the provisions of the Act;
NOW THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF PLAINFIELD THAT:
Sec. 1. Issuance of Bonds.
(a)
The Town, being the owner of and engaged in operating a waterworks supplying the Town, its inhabitants, and certain residents adjacent thereto with water for public and domestic use, now finds it necessary to construct additions and improvements to said waterworks. The Town shall proceed with the Project in accordance with the cost estimates and the plans and specifications heretofore prepared and filed by the consulting engineers employed by the Town, which cost estimates, plans and specifications are by reference made a part of this ordinance as fully as if the same were attached hereto and incorporated herein and two copies of which are now on file in the office of the Clerk Treasurer of the Town and are open for public inspection pursuant to IC 36 1 5 4. The cost of the Project shall not exceed the sum of $6,165,000, plus investment earnings on the 2003 Bond and BAN proceeds, without further authorization from the Town Council. The terms "waterworks," "works," and other like terms where used in this ordinance shall be construed to mean and include all structures and property of the Town's water utility. The Project shall be constructed in accordance with the plans and specifications heretofore mentioned, which plans and specifications are hereby approved. The Project shall be constructed and the 2003 Bonds herein authorized shall be issued pursuant to and in accordance with the Act.
(b)
The Town shall issue, if necessary, its BANs for the purpose of procuring interim financing to apply on the cost of the Project. The Town shall issue its BANs, in one or more series, in an aggregate amount not to exceed Six Million One Hundred Sixty-Five Thousand Dollars ($6,165,000) to be designated "Waterworks Bond Anticipation Notes." Said BANs shall be numbered consecutively from 1 upward, shall be in multiples of $1,000, shall be dated as of the date of delivery thereof, and shall bear interest at a rate not to exceed 5.0% per annum (the exact rate or rates to be determined through negotiations with the purchaser of the BANs) payable upon redemption or maturity. Said BANs shall be issued and sold at not less than 99.5% of their par value. The BANs will mature not more than five (5) years from the date the BANs are issued. The BANs are subject to renewal or extension at an interest rate or rates not to exceed 5.0% per annum (the exact rate or rates to be negotiated with the purchaser of the BANs). The term of the BANs and all renewal BANs may not exceed five years from the date of delivery of the initial BANs. The BANs shall be registered in the name of the purchasers thereof.
The BANs shall be issued pursuant to IC 5 1.5 8 6.1 if sold to the Indiana Bond Bank or pursuant to IC 5 1 14 5 if sold to a financial institution. The BANs shall be payable solely from the issuance of revenue bonds pursuant to and in the manner prescribed by the Act. The 2003 Bonds will be payable solely out of the Net Revenues (herein defined as gross revenues after deduction only for the payment of the reasonable expenses of operation, repair and maintenance) of the waterworks of the Town, including the existing works, the improvements and extensions to be acquired and constructed and all additions and improvements thereto and replacements thereof subsequently constructed or acquired.
(c)
The Town shall issue its "Waterworks Revenue Bonds of 2003," in an aggregate principal amount of $6,165,000 for the purpose of procuring funds to be applied to the costs of the Project, the payment of costs of issuance, and refunding the BANs, if issued.
The 2003 Bonds shall be issued in fully registered form in the denomination of Five Thousand Dollars ($5,000) each or integral multiples thereof, numbered consecutively from R 1 upward, dated as of the first day of the month in which they are sold or the date of delivery, if sold to the Indiana Bond Bank, and interest shall be payable semi annually on January 1 and July 1 in each year, beginning on January 1, 2004. Interest shall be calculated on the basis of twelve (12) thirty day months for a 360 day year. The 2003 Bonds shall be sold at a price not less than 98.5% of the face amount thereof, shall bear interest at a rate or rates not to exceed six and one-half percent (6.5%.) per annum (the exact rate or rates to be determined in accordance with Section 7 hereof or as negotiated with the Indiana Bond Bank) and shall be payable in lawful money of the United States of America, at the principal office of the Paying Agent (as hereinafter defined) and the 2003 Bonds shall mature serially in numerical order on July 1 of each year, over a period commencing not later than July 1, 2004 and ending not later than July 1, 2023, in any amount, all as specified by the Clerk-Treasurer and set forth in the Bonds. Notwithstanding anything in this Ordinance to the contrary, all or a portion of the 2003 Bonds may be issued as one or more term bonds, upon election of the successful bidder. Such term bonds shall have a stated maturity or maturities of July 1, 2004 through July 1, 2023 as determined by the successful bidder. The term bonds shall be subject to mandatory sinking fund redemption and final payment(s) at maturity at 100% of the principal amount thereof, plus accrued interest to the redemption daze, on dates and in the amounts consistent with the above schedule.
Sec. 2. Registrar and Paying Agent: Book Entry Provisions.
The Clerk Treasurer is hereby authorized to contract with a qualified financial institution to serve as Registrar and Paying Agent for the 2003 Bonds (the "Registrar" or the "Paying Agent"). The Registrar is hereby charged with the responsibility of authenticating the 2003 Bonds. The Clerk Treasurer is hereby authorized to enter into such agreements or understandings with the Registrar as will enable the institution to perform the services required of a registrar and paying agent. The Clerk Treasurer is further authorized to pay such fees as the Registrar may charge for the services it provides as Registrar and Paying Agent and such fees may be paid from the Waterworks Sinking Fund (described herein) as fiscal agency charges.
As to the BANs and the 2003 Bonds, if sold to the Indiana Bond Bank, the Clerk Treasurer will be designated the Registrar and Paying Agent and will be charged with the performance of all of the duties and responsibilities as Registrar and Paying Agent.
The principal of the 2003 Bonds and BANs shall be payable at the principal corporate trust office of the Paying Agent. All payments of interest on the 2003 Bonds shall be paid by check, mailed one business day prior to the interest payment date to the registered owners thereof as the names appear as of the fifteenth day of the month preceding the interest payment date and at the addresses as they appear on the registration books kept by the Registrar or at such other address as is provided to the Paying Agent in writing by such registered owner. If payment of principal or interest is made to a depository, payment shall be made by wire transfer on the payment date in same-day funds. If the payment date occurs on a date when financial institutions are not open for business, the wire transfer shall be made on the next succeeding business day. The Paying Agent shall be instructed to wire transfer payments by 1:00 p.m. (New York City time) so such payments are received at the depository by 2:30 p.m. (New York City time). All payments on the 2003 Bonds and BANs shall be made in lawful money of the United States of America, which on the date of such payment, shall be legal tender for the payment of public and private debts.
Each 2003 Bond shall be transferable or exchangeable only upon the books of the Town kept for that purpose at the principal corporate trust office of the Registrar by the registered owner in person, or by its attorney duly authorized in writing, upon surrender of such 2003 Bond together with a written instrument of transfer or exchange satisfactory to the Registrar duly executed by the registered owner, or its attorney duly authorized in writing, and thereupon a new fully registered bond or bonds in an authorized aggregate principal amount and of the same maturity, shall be executed and delivered in the name of the transferee or transferees or the registered owner, as the case may be, in exchange therefor. The costs of such transfer or exchange shall be borne by the Town, except for any tax or governmental charge required to be paid with respect to the exchange, which taxes or governmental charges are payable by the person requesting such transfer or exchange. The Town, the Registrar and the Paying Agent for the 2003 Bonds may treat and consider the person in whose name such bonds are registered as the absolute owner thereof for all purposes including for the purpose of receiving payment of, or on account of, the principal thereof and interest due thereon. The Registrar shall not be required to transfer or exchange any 2003 Bond during the period from the fifteenth day of any calendar month next preceding an interest payment date of such 2003 Bond to such interest payment date, nor to transfer or exchange any 2003 Bond after the publication of or mailing of notice calling such bond for redemption has been made, nor during a period of fifteen days next preceding publication of a notice of redemption of any 2003 Bonds.
The Registrar and Paying Agent may at any time resign as Registrar and Paying Agent upon giving 30 days' notice in writing to the Town and by first class mail to each registered owner of the 2003 Bonds then outstanding, and such resignation will take effect at the end of such 30 day period or upon the earlier appointment of a successor registrar and paying agent by the Town. Any such notice to the Town may be served personally or sent by certified mail, return receipt requested. The Registrar and Paying Agent may be removed at any time as Registrar and Paying Agent by the Town, in which event the Town may appoint a successor registrar and paying agent. The Town shall notify each registered owner of the 2003 Bonds then outstanding by first class mail of the removal of the Registrar and Paying Agent. Notices to the registered owners of the 2003 Bonds 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 books kept by the Registrar.
Upon the appointment of any successor registrar and paying agent by the Town the Clerk-Treasurer is authorized and directed to enter into such agreements and understandings with such successor registrar and paying agent as will enable the institution to perform the services required of a registrar and paying agent for the 2003 Bonds. The Clerk-Treasurer is further authorized to pay such fees as the successor registrar and paying agent may charge for the services it provides as registrar and paying agent and such fees may be paid from the Waterworks Sinking Fund. Any predecessor registrar and paying agent shall deliver all of the 2003 Bonds and any cash or investments in its possession with respect thereto, together with the registration books, to the successor registrar and paying agent.
As to the BANs, the Clerk-Treasurer shall serve as Registrar and Paying Agent and is hereby charged with the duties of Registrar and Paying Agent.
The Town has determined that it may be beneficial to the Town to have the 2003 Bonds held by a central depository system pursuant to an agreement between the Town and the Depository Trust Company, New York, New York ("Depository Trust Company") and have transfers of the 2003 Bonds effected by book-entry on the books of the central depository ("Book Entry System"). The 2003 Bonds may be initially issued in the form of a separate single authenticated fully registered Bond for the aggregate principal amount of each separate maturity of the 2003 Bonds. In such case, upon initial issuance, the ownership of such 2003 Bonds shall be registered in the register kept by the Registrar in the name of CEDE & CO., as nominee of the Depository Trust Company.
With respect to the 2003 Bonds registered in the register kept by the Registrar in the name of CEDE & CO., as nominee of the Depository Trust Company, the Town and the Paying Agent shall have no responsibility or obligation to any other holders or owners (including any beneficial owner ("Beneficial Owner")) of the 2003 Bonds with respect to (i) the accuracy of the records of the Depository Trust Company, CEDE & CO., or any Beneficial Owner with respect to ownership questions, (ii) the delivery to any bondholder (including any Beneficial Owner) or any other person, other than the Depository Trust Company, of any notice with respect to the 2003 Bonds including any notice of redemption, or (iii) the payment to any bondholder (including any Beneficial Owner) or any other person, other than the Depository Trust Company, of any amount with respect to the principal of, or premium, if any, or interest on the 2003 Bonds except as otherwise provided herein.
No person other than the Depository Trust Company shall receive an authenticated 2003 Bond evidencing an obligation of the Town to make payments of the principal of and premium, and if any, and interest on the 2003 Bonds pursuant to this ordinance. The Town and the Registrar and Paying Agent may treat as and deem the Depository Trust Company or CEDE & CO. to be the absolute bondholder of each of the 2003 Bonds for the purpose of (i) payment of the principal of and premium, if any, and interest on such 2003 Bonds, (ii) giving notices of redemption and other notices permitted to be given to bondholders with respect to such 2003 Bonds; (iii) registering transfers with respect to such 2003 Bonds; (iv) obtaining any consent or other action required or permitted to be taken of or by bondholders; (v) voting; and (vi) for all other purposes whatsoever. The Paying Agent shall pay all principal of and premium, if any, and interest on the 2003 Bonds only to or upon the order of the Depository Trust Company, and all such payments shall be valid and effective fully to satisfy and discharge the Town's and the Paying Agent's obligations with respect to principal of and premium, if any, and interest on the 2003 bonds to the extent of the sum or sums so paid. Upon delivery by the Depository Trust Company to the Town of written notice to the effect that the Depository Trust Company has determined to substitute a new nominee in place of CEDE & CO., and subject to the provisions herein with respect to consents, the words "CEDE & CO." in this ordinance shall refer to such new nominee of the Depository Trust Company. Notwithstanding any other provision hereof to the contrary, so long as any 2003 Bond is registered in the name of CEDE & CO., as nominee of the Depository Trust Company, all payments with respect to the principal of and premium, if any, and interest on such 2003 Bonds and all notices with respect to such 2003 Bonds shall be made and given, respectively, to the Depository Trust Company as provided in a representation letter to the Town to the Depository Trust Company.
Upon receipt by the Town of written notice from the Depository Trust Company to the effect that the Depository Trust Company is unable or unwilling to discharge its responsibilities and no substitute depository willing to undertake the functions of the Depository Trust Company hereunder can be found which is willing and able to undertake such functions upon reasonable and customary terms, then the 2003 Bonds shall no longer be restricted to being registered in the register of the Town kept by the Registrar in the name of CEDE & CO., as nominee of the Depository Trust Company, but may be registered in whatever name or names the bondholders transferring or exchanging the 2003 Bonds shall designate, in accordance with the provisions of this ordinance.
If the Town determines that it is in the best interest of the bondholders that they be able to obtain certificates for the fully registered 2003 Bonds, the Town may notify the Depository Trust Company and the Registrar, whereupon the Depository Trust Company will notify the Beneficial Owners of the availability through the Depository Trust Company of certificates for the 2003 Bonds. In such event, the Registrar shall prepare, authenticate, transfer and exchange certificates for the 2003 Bonds as requested by the Depository Trust Company and any Beneficial Owners in appropriate amounts, and whenever the Depository Trust Company requests the Town and the Registrar to do so, the Registrar and the Town will cooperate with the Depository Trust Company by taking appropriate action after reasonable notice (i) to make available one or more separate certificates evidencing the fully registered 2003 Bonds of any Beneficial Owner's Depository Trust Company account or (ii) to arrange for another securities depository to maintain custody of certificates for and evidencing the 2003 Bonds.
If the 2003 Bonds shall no longer be restricted to being registered in the name of the Depository Trust Company, the Registrar shall cause said 2003 Bonds to be printed in blank in such number as the Registrar shall determine to be necessary or customary; provided, however, that the Registrar shall not be required to have such 2003 Bonds printed until it shall have received from the Town indemnification for all costs and expenses associated with such printing.
In connection with any notice or other communication to be provided to bondholders by the Town or the Registrar with respect to any consent or other action to be taken by bondholders, the Town or the Registrar, as the case may be, shall establish a record date for such consent or other action and give the Depository Trust Company notice of such record date not less than fifteen (15) calendar days in advance of such record date to the extent possible.
So long as said 2003 Bonds are registered in the name of the Depository Trust Company or CEDE & CO. or any substitute nominee, the Town and the Registrar and Paying Agent shall be entitled to request and to rely upon a certificate or other written representation from the Beneficial Owners of the 2003 Bonds or from the Depository Trust Company on behalf of such Beneficial Owners stating the amount of their respective beneficial ownership interests in the 2003 Bonds and setting forth the consent, advice, direction, demand or vote of the Beneficial Owners as of a record date selected by the Registrar and the Depository Trust Company, to the same extent as if such consent, advice, direction, demand or vote were made by the bondholders for purposes of this ordinance and the Town and the Registrar and Paying Agent shall for such purposes treat the Beneficial Owners as the bondholders. Along with any such certificate or representation, the Registrar may request the Depository Trust Company to deliver, or cause to be delivered, to the Registrar a list of all Beneficial Owners of the 2003 Bonds, together with the dollar amount of each Beneficial Owner's interest in the 2003 Bonds and the current addresses of such Beneficial Owners.
Interest on such 2003 Bonds shall be payable from the interest payment date to which interest has been paid next preceding the authentication date of the 2003 Bonds unless the 2003 Bonds are authenticated after the fifteenth day of the month preceding an interest payment date and on or before such interest payment date in which case they shall bear interest from such interest payment date, or unless the 2003 Bonds are authenticated on or before the fifteenth day of the month preceding the first interest payment date, 2003in which case they shall bear interest from the original date of the 2003 Bonds until the principal shall be fully paid.
Sec. 3. Redemption of Bonds and BANs.
(a)
The BANs are prepayable by the Town in whole or in part, on any date upon seven days' notice to the owner of the BANs without any premium.
(b)
The 2003 Bonds are redeemable at the option of the Town on January 1, 2014, and on any date thereafter, on thirty (30) days' notice, in whole or in part, in the order of maturity determined by the Town and by lot within a maturity, at face value, without premium, plus in each case accrued interest to the date fixed for redemption.
Any 2003 Bonds issued as term bonds, upon election of the successful bidder, shall be subject to mandatory sinking fund redemption on July 1 at 100% of face value in accordance with the schedule set out above in Section 1. The Paying Agent shall credit against the mandatory sinking fund requirement for any term bonds, and corresponding mandatory redemption obligation, in the order determined by the Town, any term bonds maturing on the same date which have previously been redeemed (otherwise than as a result of a previous mandatory redemption requirement) or delivered to the Registrar for cancellation or purchased for cancellation by the Paying Agent and not theretofore applied as a credit against any redemption obligation. Each term bond maturing as a term bond so delivered or canceled shall be credited by the Paying Agent at 100% of the principal amount thereof against the mandatory sinking fund obligation on such mandatory sinking fund date, and any excess of such amount shall be credited on future redemption obligations, and the principal amount of the 2003 Bonds to be redeemed by operation of the mandatory sinking fund requirement shall be accordingly reduced; provided, however, the Paying Agent shall credit only such term bonds to the extent received on or before forty five (45) days preceding the applicable mandatory redemption date.
If less than an entire maturity is 2003called for redemption, the bonds to be called shall be selected by lot by the Registrar. Each Five Thousand Dollars ($5,000) principal amount shall be considered a separate bond for purposes of mandatory redemption. If some 2003 Bonds are to be redeemed by optional redemption and mandatory sinking fund redemption on the same date, the Registrar shall select by lot the 2003 Bonds for optional redemption before selecting the 2003 Bonds by lot for mandatory sinking fund redemption.
In either case, notice of such redemption shall be given at least thirty (30) days prior to the date fixed for redemption by mail unless the notice is waived by the registered owner of a 2003 Bond. Such notice shall be mailed to the address of the registered owners as shown on the registration records of the Town as of the date which is forty-five (45) days prior to such redemption date. The notice shall specify the date and place of redemption and sufficient identification of the 2003 Bonds called for redemption. The place of redemption shall be determined by the Town. Interest on the 2003 Bonds so called for redemption shall cease on the redemption date fixed in such notice if sufficient funds are available at the principal office of the Paying Agent to pay the redemption price on the date so named. Coincidentally with the payment of the redemption price, the 2003 Bonds so called for redemption shall be surrendered for cancellation.
Sec. 4. Execution and Negotiability.
Each of the 2003 Bonds and BANs shall be executed in the name of the Town by the manual or facsimile signature of the President of the Town Council and attested by the manual or facsimile signature of its Clerk-Treasurer, and the seal of the Town shall be affixed, imprinted or impressed to or on each of the 2003 Bonds and BANs manually, by facsimile or any other means; and these officials, by the execution of a Signature and No Litigation Certificate, shall adopt as and for their own proper signatures the facsimile signatures appearing on the 2003 Bonds and BANs. In case any officer whose signature or facsimile signature appears on the 2003 Bonds and BANs shall cease to be such officer before the delivery of the 2003 Bonds and BANs, the signature of such officer shall nevertheless be valid and sufficient for all purposes the same as if such officer had remained in office until such delivery. The 2003 Bonds shall also be authenticated by the manual signature of the Registrar and no 2003 Bond shall be valid or become obligatory for any purpose until the certificate of authentication thereon has been so executed.
The 2003 Bonds are payable from and secured by an irrevocable pledge of and constitute a charge upon all the Net Revenues (herein defined as gross revenues after deduction only for the payment of the reasonable expenses of operation, repair and maintenance) of the waterworks of the Town of Plainfield (including the existing works, the improvements and extensions herein authorized to be acquired and constructed, and all additions and improvements therein and replacements thereof subsequently constructed or acquired), on a parity with the payment of the Prior Bonds. The Town shall not be obligated to pay the 2003 Bonds or the interest thereon except from the Net Revenues of said works, and said 2003 Bonds shall not constitute an indebtedness of the Town within the meaning of the provisions and limitations of the constitution of the State of Indiana.
The 2003 Bonds and BANs shall have all of the qualities and incidents of negotiable instruments under the laws of the State of Indiana, subject to the provisions for registration herein.
Sec. 5. Form of 2003 Bonds.
The form and tenor of the 2003 Bonds shall be substantially as follows, all blanks to be filled in properly prior to delivery:
UNITED STATES OF AMERICA
STATE OF INDIANA COUNTY OF HENDRICKS
Interest Rate Maturity Date Original Date Authentication Date CUSIP
TOWN OF PLAINFIELD
WATERWORKS REVENUE BOND
OF 2003
REGISTERED OWNER:
PRINCIPAL SUM:
The Town of Plainfield, in Hendricks County, State of Indiana, for value received, hereby promises to pay to the Registered Owner named 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 (unless this bond be subject to and be called for redemption prior to maturity as hereinafter provided), and to pay interest hereon at the Interest Rate per annum stated 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 an interest payment 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 December 15, 2003, in which case it shall bear interest from the Original Date, until the principal is paid, which interest is payable semi annually on the first days of January and July in each year, beginning on January 1, 2004.
The principal of this bond is payable at the principal office of _________ __________ (the "Registrar" or "Paying Agent"), in the ______________ of ____________________, Indiana. All payments of interest on this bond shall be paid by check mailed or delivered one business day prior to the interest payment date to the registered owner hereof as of the fifteenth day of the month preceding such interest payment 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 writing by the registered owner. If payment of principal or interest is made to a depository, payment shall be made by wire transfer on the payment date in same-day funds. If the payment date occurs on a date when financial institutions are not open for business, the wire transfer shall be made on the next succeeding business day. The Paying Agent shall wire transfer payments by 1:00 p.m. (New York City time) so such payments are received at the depository by 2:30 p.m. (New York City time). All payments on the bond shall be made in lawful money of the United States of America which, on the dates of such payment, shall be legal tender for the payment of public and private debts. Interest shall be calculated on the basis of twelve (12) thirty day months for a 360 day year.
[The bonds shall be initially issued in Book Entry System (as defined in the Ordinance). The provisions of this bond and the Ordinance are subject in all respects to the provisions of the Letter of Representations between the Town and The Depository Trust Company, or any substitute agreement, effecting such Book Entry System.]
THE TOWN SHALL NOT BE OBLIGATED TO PAY THIS BOND OR THE INTEREST THEREON EXCEPT FROM THE HEREINAFTER DESCRIBED SPECIAL FUND, AND NEITHER THIS BOND NOR THE ISSUE OF WHICH IT IS A PART SHALL IN ANY RESPECT CONSTITUTE A CORPORATE INDEBTEDNESS OF THE TOWN WITHIN THE PROVISIONS AND LIMITATIONS OF THE CONSTITUTION OF THE STATE OF INDIANA.
The terms and provisions of this bond are continued on the reverse side hereof and such terms and provisions shall for all purposes have the same effect as though fully set forth at this place.
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. This 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 WHEREOF, the Town of Plainfield, in Hendricks County, Indiana, has caused this bond to be executed in its corporate name by the manual or facsimile signature of its Town Council President, its corporate seal to be hereunto affixed, imprinted or impressed by and means and attested manually or by facsimile by its Clerk Treasurer.
President, Town Council
[SEAL]
ATTEST:
Clerk-Treasurer
REGISTRAR'S CERTIFICATE OF AUTHENTICATION
This bond is one of the bonds described in the within mentioned Ordinance.
(To be printed on Reverse Side)
This bond is one of an authorized issue of bonds of the Town of Plainfield, of like date, tenor and effect, except as to rates of interest and dates of maturity; aggregating _________ Million ____________ Hundred _______________ Thousand Dollars ($______________); numbered consecutively from 1 up; issued for the purpose of providing funds to be applied on the cost of additions and improvements to the Town's waterworks, funding a reserve for the bonds [, refunding notes issued in anticipation of the bonds] and the costs of issuance incurred in connection with the bonds. This bond is issued pursuant to an ordinance adopted by the Town Council on the ___ day of _____________, 2003, as amended, entitled "An Ordinance concerning the construction by the Town of Plainfield, Indiana, of improvements and extensions to its waterworks and the issuance of revenue bonds to apply on the cost thereof; providing for the collection, segregation and distribution of the revenues of said works and the safeguarding of the interests of the owners of the revenue bonds; and other matters connected therewith, including the issuance of notes in anticipation of bonds, and repealing ordinances inconsistent herewith" (the "Ordinance"), and in accordance with the provisions of Indiana law, including without limitation Indiana Code 36-9-32, 8 1.5 and 5-1-11 as in effect on the date of delivery of the bonds (collectively hereinafter the "Act"), the proceeds of which bonds are to be applied solely to cost of said additions and improvements to the waterworks, funding a reserve for the bonds [,refunding notes in anticipation of bonds] and to pay incidental expenses incurred in connection therewith.
Pursuant to the provisions of the Act and the Ordinance, the principal of and interest on (a) this 2003 Bond and all other bonds of said issue, (b) certain now outstanding Waterworks Revenue Bonds in the amount of Two Million Four Hundred Eighty Thousand Dollars ($2,480,000.00), issued under date of August 28, 1996, and maturing serially on July 1 of the years 1997 to 2016 inclusive (the "Prior Bonds"), and (c) any bonds hereafter issued on a parity therewith, are payable solely from the Waterworks Sinking Fund created by Ordinance No. 19-96 (the "Sinking Fund") to be provided from the Net Revenues (defined as the gross revenues after deduction only for the payment of the reasonable expenses of operation, repair and maintenance), including the works authorized in the Ordinance and all additions and improvements thereto and replacements thereof subsequently constructed.
The Town of Plainfield irrevocably pledges the entire Net Revenues of the waterworks to the prompt payment of the principal of and interest on the Prior Bonds, the 2003 Bonds, of which this is one, and any bonds ranking on a parity therewith, to the extent necessary for that purpose, and covenants that it will cause to be fixed, maintained and collected such 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 waterworks and for the payment of the sums required to be paid into the Sinking Fund under the provisions of the Act and the Ordinance. If the Town or the proper officers thereof shall fail or refuse to so fix, maintain and collect such rates or charges, or 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, including the right to have a receiver appointed to administer the waterworks and to charge and collect rates sufficient to provide for the payment of this bond and the interest thereon.
The Town of Plainfield further covenants that it will set aside and pay into its Sinking Fund monthly, as available, or more often if necessary, a sufficient amount of the Net Revenues of the works for payment of (a) the interest on all bonds which by their terms are payable from the revenues of the waterworks, as such interest shall fall due, (b) the necessary fiscal agency charges for paying bonds and interest, (c) the principal of all bonds which by their terms are payable from the revenues of the waterworks, as such principal shall fall due, and (d) an additional amount as a margin of safety to create and maintain the debt service reserve required by the Ordinance. Such required payments shall constitute a first charge upon all the Net Revenues of the waterworks on a parity with the Prior Bonds.
The bonds of this issue are redeemable at the option of the Town on January 1, 2014, and on any date thereafter, on thirty (30) days' notice, in whole or in part, in the order of maturity as determined by the Town and by lot within a maturity, at face value, without premium, plus in each case accrued interest to the date fixed for redemption.
[The bonds maturing on July 1, _____ are subject to mandatory sinking fund redemption on July 1 in the years and in the amounts set forth below:
Year Amount
*Final Maturity
If less than an entire maturity is called for redemption, the bonds to be called shall be selected by lot by the Registrar. Each Five Thousand Dollars ($5,000) principal amount shall be considered a separate bond for purposes of optional [and mandatory] redemption. [If some bonds are to be redeemed by optional redemption and mandatory sinking fund redemption on the same date, the Registrar shall select by lot the bonds for optional redemption before selecting the bonds by lot for the mandatory sinking fund redemption.]
Notice of such redemption shall be mailed to the address of the registered owner as shown on the registration records of the Town, as of the date which is forty five (45) days prior to such redemption date, not less than thirty (30) days prior to the date fixed for redemption unless the notice is waived by the registered owner of this bond. The notice shall specify the date and place of redemption and sufficient identification of the bonds called for redemption. The place of redemption may be determined by the Town. 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 pay the redemption price on the date so named.
If this bond shall not be presented for payment or redemption on the date fixed therefor, the Town may deposit in trust with its depository bank, an amount sufficient to pay such bond or the redemption price, as the case may be, and thereafter the registered owner shall look only to the funds so deposited in trust with said bank for payment and the Town shall have no further obligation or liability in respect thereto.
This bond is transferable or exchangeable only upon the books of the Town kept for that purpose at the principal corporate trust office of the Registrar by the registered owner hereof in person, or by its attorney duly authorized in writing, upon surrender of this bond together with a written instrument of transfer or exchange satisfactory to the Registrar duly executed by the registered owner, or its attorney duly authorized in writing, and thereupon a new fully registered bond or bonds in an authorized aggregate principal amount and of the same maturity, shall be executed and delivered in the name of the transferee or transferees or to the registered owner, as the case may be, in exchange therefor. The Town, 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 due hereon.
This bond is subject to defeasance prior to redemption or payment as provided in the Ordinance referred to herein. THE OWNER OF THIS BOND, BY THE ACCEPTANCE HEREOF, HEREBY AGREES TO ALL THE TERMS AND PROVISIONS CONTAINED IN THE ORDINANCE. The Ordinance may be amended without the consent of the owners of the bonds as provided in the Ordinance if the Town Council determines, in its sole discretion, that the amendment shall not adversely affect the rights of any of the owners of the bonds.
The bonds maturing in any one year are issuable only in fully registered form in the denomination of $5,000 or any integral multiple thereof.
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto _________________________ this bond and all rights thereunder, and hereby irrevocably constitutes and appoints _________________________, attorney, to transfer the within bond in the books kept for the registration thereof with full power of substitution in the premises.
Dated:________________________
__________________________________ NOTICE: Signature(s) must be guaranteed by a member firm of the New York Stock Exchange or a commercial bank or trust company _______________________________ Registered Owner (NOTICE: The signature above must correspond with the name of the Registered Owner as it appears on the front of Bond in every particular without alteration or enlargement or any change whatsoever.
Sec. 6. Authorization for Preparing Bonds and BANs.
(a)
The Clerk Treasurer is hereby authorized and directed to have the 2003 Bonds and BANs prepared, and the President of the Town Council and Clerk Treasurer are hereby authorized and directed to execute and attest the 2003 Bonds and BANs in the form and manner herein provided. The Clerk Treasurer is hereby authorized and directed to deliver the 2003 Bonds and BANs to the purchasers thereof after sale made in accordance with the provisions of this ordinance, provided that at the time of said delivery the Clerk Treasurer shall collect the full amount which the respective purchasers have agreed to pay therefor, which amount shall not be less 99.5% of the face value of said BANs or not less than 98.5% of the face value of the 2003 Bonds. The Town is authorized to receive payment for the BANs in installments. The 2003 Bonds, when fully paid for and delivered to the purchaser, shall be the binding special revenue obligations of the Town, payable out of the Net Revenues of the waterworks to be set aside into the Waterworks Sinking Fund created in Section 13 hereof. The proper officers of the Town are hereby directed 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.
Sec. 7. Bond Sale.
Prior to the sale of the 2003 Bonds at public sale, the Clerk Treasurer shall cause to be published either (i) a notice of bond sale in The Hendricks County Flyer, a newspaper of general circulation published in Hendricks County, Indiana and which paper is circulated in the Town, two times, at least one week apart, with the first publication being made at least fifteen (15) days before the sale date and the second publication being made at least three (3) days before the sale date or (ii) a notice of intent to sell bonds in the newspaper listed above and in the Court & Commercial Record, all in accordance with IC 5 1 11 and IC 5 3 1. The notice shall also be posted at the Town Hall and the post office (bank if there is no post office) in accordance with IC 5 31. The notice of bond sale may also be published one time in the Court & Commercial Record and a notice or summary notice of bond sale may also be published in The Bond Buyer in New York, New York. The notice utilized shall state the character and amount of the 2003 Bonds, the maximum rate of interest thereon, the terms and conditions upon which bids will be received and the sale made, and such other information as the Clerk Treasurer, the financial advisor and attorneys employed by the Town shall deem advisable, and any summary notice may contain any information deemed so advisable. Said notice shall provide, among other things, that each bid shall be accompanied by a certified or cashier's check or a financial surety bond to guarantee performance on the part of the bidder. If a financial surety bond is used, it must be from an insurance company licensed to issue such bond in the State of Indiana, and such bond must be submitted to the Town prior to the opening of the bids. The financial surety bond must identify each bidder whose good faith deposit is guaranteed by such financial surety bond. If the 2003 Bonds are awarded to a bidder utilizing a financial surety bond, then that purchaser is required to submit to the Town a certified or cashier's check (or wire transfer such amount as instructed by the Town) not later than 3:30 p.m. (Plainfield time) on the next business day following the award. If such good faith deposit is not received by that time, the financial surety bond shall be drawn by the Town to satisfy the good faith deposit required. In the event the successful bidder shall fail or refuse to accept delivery of the 2003 Bonds and pay for the same as soon as the 2003 Bonds are ready for delivery, or at the time fixed in the notice of sale, then said check and the proceeds thereof shall be the property of the Town and shall be considered as its liquidated damages on account of such default. Said notice may also provide that bidders for the 2003 Bonds will be required to name the rate or rates of interest which the 2003 Bonds are to bear, not exceeding the maximum rates hereinbefore fixed, and that such interest rate or rates shall be in multiples of one eighth (1/8) or one twentieth (1/20) of one percent (1%). The rate bid on a maturity shall be equal to or greater than the rate bid on the immediately preceding maturity. No conditional bids or bid for less than 98.5% of the face value of the 2003 Bonds will be considered. The opinion of Dann Pecar Newman & Kleiman, P.C., bond counsel of Indianapolis, Indiana, approving the legality of the bonds will be furnished to the purchaser at the expense of the Town.
The bonds shall be awarded by the Clerk Treasurer to the best bidder who has submitted its bid in accordance with the terms of this ordinance and the notice of sale. The best bidder will be the one who offers the lowest net interest cost to the Town to be determined by computing the total interest on all of the bonds to their maturities, and adding thereto the discount bid, if any, and deducting therefrom the premium bid, if any. The right to reject any and all bids is hereby reserved. If an acceptable bid is not received on the date of sale, the sale may be continued from day to day thereafter without further advertisement for a period of thirty (30) days, during which time no bid which offers a higher net interest cost than the best bid received at the time of the advertised sale will be considered.
As an alternative to public sale, the Clerk Treasurer may negotiate the sale of said bonds to the Indiana Bond Bank at an interest rate or rates not to exceed the interest rates set forth in Section 1. The President of the Town Council and the Clerk Treasurer are hereby authorized to (i) submit an application to the Indiana Bond Bank, (ii) execute a Purchase Agreement with the Indiana Bond Bank with terms conforming to this ordinance and (iii) sell such 2003 Bonds upon such terms as are acceptable to the President of the Town Council and the Clerk Treasurer consistent with the terms of this ordinance.
The President and the Clerk Treasurer are also hereby authorized to execute a continuing disclosure agreement ("Continuing Disclosure Agreement"), which shall be dated the date of issuance and delivery of the 2003 Bonds, as it may be amended from time to time in accordance with the terms thereof. The Town covenants and agrees, to the extent permitted by law, that it will comply with and carry out all of the provisions of the Continuing Disclosure Agreement. Notwithstanding any other provision of this ordinance, failure of the Town to comply with the Continuing Disclosure Agreement shall not be considered an event of default hereunder. If the Town fails to comply with the Continuing Disclosure Agreement, the sole remedy available for such failure shall be for the specific performance of the Town's obligations under this section and the Continuing Disclosure Agreement and there shall be no remedies for money damages of any kind or in any amount; however, any bondholder or Beneficial Owner (as hereinafter defined) may take such actions as may be necessary and appropriate, including seeking mandate or specific performance by court order, to cause the Town to comply with its obligations under this paragraph. "Beneficial Owner" means any person which (a) has the power, directly or indirectly, to vote or consent with respect to, or to dispose of ownership of, any 2003 Bonds (including persons holding bonds through nominees, depositories or other intermediaries), or (b) is treated as the owner of any 2003 Bonds for Federal income tax purposes. The Town's failure to honor its covenant herein shall not constitute a breach or default under this ordinance pursuant to which the 2003 Bonds are issued or any other agreement to which the Town is a party.
Sec. 8. Financial Records and Accounts.
The Town 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 of the waterworks and all disbursements made therefrom and all transactions relating to the utility. There shall be furnished, upon request to any owner of the 2003 Bonds, the most recent audit report prepared by the State Board of Accounts setting out complete operating, income and financial statements of the utility, in reasonable detail. Such report shall be prepared and furnished in accordance with the Continuing Disclosure Agreement and shall be certified by the Clerk Treasurer. Copies of all such statements and reports shall be kept on file in the office of the Clerk-Treasurer. Any owner of the 2003 Bonds shall have the right, upon request, at all reasonable times to inspect the waterworks system and the records, accounts and data of the Town relating thereto.
Sec. 9. Construction Account.
The accrued interest and any premium received at the time of delivery of the 2003 Bonds shall be deposited in the Waterworks Sinking Fund and credited to the Bond and Interest Account thereof. Any 2003 Bond proceeds used to fund the Reserve Requirement (as such term is defined below) at the time of delivery of the 2003 Bonds shall be deposited in the Waterworks Sinking Fund and credited to the Debt Service Reserve Account thereof. The remaining proceeds from the sale of the 2003 Bonds, to the extent not used to refund the BANs, and the BAN proceeds, shall be deposited in a special account or accounts, separate and apart from other accounts of the Town, to be designated as "Town of Plainfield Waterworks Construction Account-2003" (the "Construction Account"). All moneys deposited to the credit of the Construction Account shall be deposited, held, secured or invested in investments in accordance with the laws of the State of Indiana relating to the depositing, holding, securing or investing of public funds. Any income or other accretions derived from any such investments shall become a part of the Construction Account. The funds in the Construction Account shall be expended only for the purpose of paying the costs of the Project, refunding the BANs, if issued, and for the incidental expenses incurred in connection with the Project or the issuance of the 2003 Bonds and BANs. The costs incurred for the legal services of Dann Pecar Newman & Kleiman, P.C., shall be considered as a part of the cost of the Project on account of which the 2003 Bonds and BANs are issued. Any balance or balances remaining unexpended in the Construction Account, after completion of the Project, which are not required to meet unpaid obligations incurred in connection with the same, shall, within sixty (60) days after completion of the Project, either be (i) deposited in the Waterworks Sinking Fund and used solely for the purposes of said Fund, or (ii) used for the same purpose or type of project for which the 2003 Bonds could have been issued, all in accordance with IC 5 1 13, as amended and supplemented.
Sec. 10. Pledge of Net Revenues.
The interest on and the principal of the Prior Bonds, the 2003 Bonds issued pursuant to the provisions of this ordinance, and any Parity Bonds hereafter issued, shall constitute a first charge on all the Net Revenues and such Net Revenues are hereby irrevocably pledged to the payment of the interest on and principal of such Parity Bonds, to the extent necessary for that purpose.
Sec. 11. Revenue Fund.
All revenues derived from the operation of the waterworks and from the collection of water rates and charges shall be deposited in the Revenue Fund, previously created by Ordinance No. 19-96, adopted July 8, 1996, and segregated and kept separate and apart from all other funds and accounts of the Town. The proper and reasonable expenses of operation, repair and maintenance of the works shall be paid from these revenues, as well as the principal and interest of all bonds and fiscal agency charges of registrars or paying agents and the costs of replacements, extensions, additions and improvements.
Sec. 12. Operation and Maintenance Fund.
An Operation and Maintenance Fund has been previously created by Ordinance No. 19-96, adopted July 8, 1996. On the last day of each calendar month, revenues of the waterworks shall be transferred from the Revenue Fund to the Operation and Maintenance Fund. The balance maintained in this Fund shall be sufficient to pay the expenses of operation, repair and maintenance for the then next succeeding two calendar months. The moneys credited to this Fund shall be used for the payment of the reasonable and proper operation, repair and maintenance expenses of the waterworks on a day to day basis, but none of the moneys in such Fund shall be used for depreciation, replacements, improvements, extensions or additions. Any moneys in excess of the expected expenses of operation, repair and maintenance for the next succeeding month in said Fund may be transferred to the Waterworks Sinking Fund if necessary to prevent a default in the payment of principal of or interest on the outstanding bonds of the waterworks.
Sec. 13. Waterworks Sinking Fund.
(a)
The Waterworks Sinking Fund (the "Waterworks Sinking Fund" or the "Sinking Fund") has been previously created by Ordinance No. 19-96, adopted July 8, 1995 and is hereby designated and constituted as the special fund for the payment of the principal of and interest on the 2003 Bonds, the BANs as well as the Prior Bonds, and those which may be authorized on a parity with the 2003 Bonds by any future Ordinance (the "Parity Bonds"), and the payment of any fiscal agency charges in connection with the payment of bonds. There shall be set aside and deposited in the Sinking Fund, as available, and as hereinafter provided, a sufficient amount of the Net Revenues of the waterworks to meet the requirements of the Bond and Interest Account and the Debt Service Reserve Account hereby created in the Sinking Fund. Such payments shall continue until the balances in the Bond and Interest Account and the Debt Service Reserve Account equal the principal of and interest on all of the then outstanding bonds of the waterworks to the final maturity.
The Waterworks Sinking Fund shall be divided for record-keeping purposes into two (2) separate accounts known as the "1996 Bonds Account" and the "2003 Bonds Account," however, monies in said fund may be commingled for the purpose of investment and earnings on said fund shall be allocable to each account therein pro rata in accordance with the outstanding principal amount of Prior Bonds and 2003 Bonds, respectively, provided, however, that any earnings on deposits made with respect to the Prior Bonds shall be allocable entirely to the 1996 Bonds Account.
The Waterworks Sinking Fund shall be continued until (i) all of the Prior Bonds, (ii) the 2003 Bonds issued under this Ordinance and (iii) all Parity Bonds, if any, are no longer deemed outstanding.
(b)
Bond and Interest Account. There shall be credited on the last day of each calendar month from the Revenue Fund to the Bond and Interest Account an amount of the Net Revenues equal to one-sixth (1/6) of the interest on all then outstanding bonds payable on the then next succeeding interest payment date and one twelfth (1/12) of the principal on all outstanding bonds payable on the then next succeeding principal payment date, until the amount of interest and principal payable on the then next succeeding interest and principal payment dates shall have been so credited. There shall similarly be credited to the account any amount necessary to pay the bank fiscal agency charges for paying principal and interest on outstanding bonds as the same become payable. The Town shall, from the sums deposited in the Sinking Fund and credited to the Bond and Interest Account, remit promptly to the registered owners or to the bank fiscal agency sufficient moneys to pay the interest and principal on the due dates thereof together with the amount of bank fiscal agency charges. To the extent necessary, the preceding fractions of 1/6 and 1/12 shall be adjusted for the first interest and principal payments such that the denominator is equal to the number of months remaining prior to such payments so that the full amount of such interest and principal payments will have been set aside prior to the dates of such payments.
(c)
Debt Service Reserve Account. The Debt Service Reserve Account has been previously created by Ordinance No. 19-96, adopted July 8, 1996. To create a reserve for the Prior Bonds and the 2003 Bonds, certain 2003 Bond proceeds or a combination of 2003 Bond proceeds and monthly deposits of Net Revenues shall be deposited in the Debt Service Reserve Account until the balance therein shall equal, but not exceed, the lesser of the (i) the maximum annual debt service on the Prior Bonds and the 2003 Bonds, (ii) 125% of average annual debt service on the Prior Bonds and the 2003 Bonds or (iii) 10% of the proceeds of the Prior Bonds and the 2003 Bonds (the "Reserve Requirement"). The monthly deposits shall be equal in amount and be sufficient to accumulate the Reserve Requirement within five (5) years from the date of delivery of the Prior Bonds and the 2003 Bonds. The Debt Service Reserve Account shall constitute the margin for safety and protection against default in the payment of principal of and interest on outstanding Prior Bonds and the 2003 Bonds, and the moneys in the Debt Service Reserve Account shall be used to pay current principal and interest on outstanding Prior Bonds and the 2003 Bonds to the extent that moneys in the Bond and Interest Account are insufficient for that purpose. Any deficiency in the balance maintained in the Debt Service Reserve Account shall be made up from the next available Net Revenues remaining after credits into the Bond and Interest Account. Any interest earnings that accumulate in excess of the Reserve Requirement shall be treated as revenues of the waterworks. The Reserve Requirement may also be funded in whole or in part at any time from available cash on hand and also may be satisfied with cash, a qualified Surety Bond or a confirmation thereof. To the extent that cash is held in the Debt Service Reserve Account, the cash shall be completely drawn down before any demand is made on the Surety Bond.
The Town Council has determined, based upon the advice of its financial advisor, that the Debt Service Reserve Account is reasonably required and that the Reserve Requirement is no larger than necessary to market the 2003 Bonds.
In addition, the Town covenants that, to the extent lawfully possible and necessary to preserve the federal tax exempt status of interest on the 2003 Bonds, it will comply with (i) the terms of any "tax certificate" which it may deliver concurrently with the issuance and delivery of the 2003 Bonds and (ii) any restrictions placed upon the use and investment of the proceeds of the 2003 Bonds by virtue of any federal laws enacted subsequent to the date of issuance and delivery of the bonds, but made retroactively to such date.
Sec. 14. Waterworks Improvement Fund.
After meeting the requirements of Sections 12 and 13, any excess Net Revenues shall be transferred or credited from the Revenue Fund to a fund created by Ordinance No. 19-96, adopted July 8, 1996, and designated the "Waterworks Improvement Fund," and said Fund shall be used for improvements, replacements, additions and extensions of the waterworks. Moneys in the Waterworks Improvement Fund shall be transferred to the Waterworks Sinking Fund if necessary to prevent a default in the payment of principal and interest on the then outstanding Prior Bonds and 2003 Bonds or, if necessary, to eliminate any deficiencies in credits to or minimum balance in the Debt Service Reserve Account of the Waterworks Sinking Fund, or may be transferred to the Operation and Maintenance Fund to meet unforeseen contingencies in the operation, repair and maintenance of the waterworks.
Sec. 15. Investments.
The Sinking Fund shall be deposited in and maintained as a separate account or accounts from all other accounts of the Town. The Operation and Maintenance Fund and the Waterworks Improvement Fund may be maintained in a single account, or accounts, but such account, or accounts shall likewise be maintained separate and apart from all other accounts of the Town and apart from the Sinking Fund account or accounts. All moneys deposited in the accounts shall be deposited, 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, Title 5, Article 13, as amended or supplemented, and in the event of such investment the income therefrom shall become a part of the funds invested and shall be used only as provided in this ordinance. The Town further covenants with the owners of the 2003 Bonds that it will not invest the proceeds from the sale of the 2003 Bonds in any manner that would cause the 2003 Bonds to be or become "arbitrage" bonds pursuant to the provisions of the Internal Revenue Code of 1986, as amended. In support of the foregoing covenant, the President of the Town Council and/or the Clerk Treasurer are hereby authorized to execute and deliver such agreements (including agreements to rebate to the United States of America excess investment earnings) and certifications as may be required to evidence compliance with Section 148 of the Internal Revenue Code of 1986, as amended, or successor provisions of the law, and any applicable regulations hereafter proposed or promulgated thereunder.
Sec. 16. Defeasance of the 2003 Bonds.
If, when the 2003 Bonds or a portion thereof shall have become due and payable in accordance with their terms or shall have been duly called for redemption or irrevocable instructions to call the 2003 Bonds or a portion thereof for redemption shall have been given, and the whole amount of the principal and the interest and the premium, if any, so due and payable upon all of the 2003 Bonds or a portion thereof then outstanding shall be paid; or (i) sufficient moneys or (ii) direct obligations of (including obligations issued or held in book entry form on the books of) the Department of the Treasury, the principal of and the interest on which when due 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 for the redemption, then and in that case the 2003 Bonds or any designated portion thereof issued hereunder shall no longer be deemed outstanding or entitled to the pledge of the Net Revenues of the Town's waterworks.
Sec. 17. Rate Covenant.
The Town shall establish, maintain and collect reasonable and just rates and charges for facilities and services afforded and rendered by said water utility, which shall to the extent permitted by law produce sufficient revenues at all times to pay all the legal and other necessary expenses incident to the operation of such utility, to include maintenance costs, operating charges, upkeep, repairs, interest charges on bonds or other obligations, to provide the sinking fund and debt service reserve for the liquidation of bonds or other evidences of indebtedness, to provide adequate funds to be used as working capital, as well as funds for making extensions, additions, and replacements, and also, for the payment of any taxes that may be assessed against such utility, it being the intent and purpose hereof that such charges shall produce an income sufficient to maintain such utility property in a sound physical and financial condition to render adequate and efficient service. So long as any of the Prior Bonds or 2003 Bonds herein authorized are outstanding, none of the facilities or services afforded or rendered by said system shall be furnished without a reasonable and just charge being made therefor. The Town shall pay like charges for any and all services rendered by said utility to the Town, and all such payments shall be deemed to be revenues of the utility. 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, and said requirements of the Sinking Fund. Such rates and charges will be established in amounts sufficient to provide Net Revenues in each fiscal year equal to at least 1.15 times the maximum annual debt service on the Prior Bonds, the outstanding 2003 Bonds and any Parity Bonds.
Sec. 18. Additional Bond Provisions.
(a)
All required payments into the Sinking Fund shall have been made in accordance with the provisions of this ordinance, and the interest on and principal of the Prior Bonds and the 2003 Bonds payable from the Net Revenues of the waterworks shall have been paid in accordance with their terms.
(b)
The Net Revenues of the waterworks in the fiscal year immediately preceding the issuance of any such Parity Bonds shall be not less than one hundred twenty-five percent (125%) of the maximum annual interest and principal requirements of the then outstanding Prior Bonds, the 2003 Bonds and the Parity Bonds proposed to be issued; or, prior to the issuance of the Parity Bonds the water rates and charges shall be increased sufficiently so that increased rates and charges applied to the previous years operations would have produced Net Revenues for said year equal to not less than one hundred twenty five percent (125%) of the maximum annual interest and principal requirements of the then outstanding Prior Bonds and the 2003 Bonds payable from the revenues of the waterworks, including the Parity Bonds proposed to be issued. If the Parity Bonds proposed to be issued are to refund outstanding 2003 Bonds, the Net Revenues test in this subsection shall be applied only to the maximum annual interest and principal requirements of the refunded 2003 Bonds.
For purposes of this subsection, the records of the waterworks shall be analyzed and all showings prepared by a certified public accountant employed by the Town for that purpose.
(c)
The interest on the Parity Bonds shall be payable semi annually on the first days of January and July and the principal on, or mandatory sinking fund redemptions for, the Parity Bonds shall be payable annually on the first day of July.
Sec. 19. Further Covenants of the Town; Maintenance, Insurance, Pledge Not To Encumber, Subordinate Indebtedness, and Contract with Bondholders.
(a)
All contracts let by the Town in connection with the construction of the Project shall be let after due advertisement as required by the laws of the State of Indiana, and all contractors shall be required to furnish surety bonds in an amount equal to 100% of the amount of such contracts, to insure the completion of said contracts in accordance with their terms, and such contractors shall also be required to carry such employers' liability and public liability insurance as are required under the laws of the State of Indiana in the case of public contracts, and shall be governed in all respects by the laws of the State of Indiana relating to public contracts.
(b)
The Project shall be constructed under plans and specifications approved by a competent engineer designated by the Town. All estimates for work done or material furnished shall first be checked by the engineer and approved by the Town.
(c)
So long as any of the 2003 Bonds or BANs are outstanding, the Town shall at all times maintain the waterworks system in good condition, and operate the same in an efficient manner and at a reasonable cost.
(d)
So long as any of the bonds or BANs are outstanding, the Town shall maintain insurance on the insurable parts of the system, of a kind and in an amount such as is usually carried by private corporations 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.
As an alternative to maintaining such insurance, the Town may maintain a self insurance program with catastrophic or similar coverage so long as such program meets the requirements of any applicable laws or regulations and is maintained in a manner consistent with programs maintained by similarly situated municipalities. All insurance or self insurance proceeds shall be used either in replacing or restoring the property destroyed or damaged, or shall be deposited in the Sinking Fund.
(e)
So long as any of the 2003 Bonds or BANs are outstanding, the Town shall not mortgage, pledge or otherwise encumber the property and plant of its waterworks system, or any part thereof, and shall not sell, lease or otherwise dispose of any part of the same, excepting only such machinery, equipment or other property as may be replaced, or shall no longer be necessary for use in connection with said utility.
(f)
Except as otherwise specifically provided in Section 18 of this ordinance, so long as any of the 2003 Bonds are outstanding, no additional bonds or other obligations pledging any portion of the revenues of the system shall be authorized, issued or executed by the Town, except such as shall be made junior and subordinate in all respects to the bonds, unless all of the bonds are redeemed or defeased coincidentally with the delivery of such additional bonds or other obligations.
(g)
The provisions of this ordinance shall constitute a contract by and between the Town and the owners of the 2003 Bonds and BANs herein authorized, all the terms of which shall be enforceable by any bondholder by any and all appropriate proceedings in law or in equity. After the issuance of the 2003 Bonds or BANs, this ordinance shall not be repealed, amended or modified in any respect which will adversely affect the rights or interests of the owners of the 2003 Bonds or BANs, nor shall the Town Council or any other body of the Town adopt any law, ordinance or resolution in any way adversely affecting the rights of the bondholders so long as any of the 2003 Bonds or BANs, or the interest thereon, remain outstanding or unpaid. Except in the case of changes described in Section 20 (a) (f), this ordinance may be amended, however, without the consent of the 2003 Bond owners, only if the Town Council determines, in its sole discretion, that such amendment would not adversely affect the owners of the 2003 Bonds or BANs.
(h)
The provisions of this ordinance shall be construed to create a trust in the proceeds of the sale of the 2003 Bonds and BANs herein authorized for the uses and purposes herein set forth, and the owners of the 2003 Bonds and BANs shall retain a lien on such proceeds until the same are applied in accordance with the provisions of this ordinance and of said governing Act. The provisions of this ordinance shall also be construed to create a trust in the Net Revenues herein directed to be set apart and paid into the Sinking Fund for the uses and purposes of that Fund as in this ordinance set forth. The owners of the 2003 Bonds shall have all the rights, remedies and privileges set forth under Indiana law in the event the Town shall fail or refuse to fix and collect sufficient rates and charges, or shall fail or refuse to operate and maintain said system and to apply properly the revenues derived from the operation thereof, or if there be a default in the payment of the interest on or principal of the 2003 Bonds.
Sec. 20. Amendments with Consent of Bondholders.
(a)
An extension of the maturity of the principal of or interest on, or any mandatory sinking fund redemption date for, any 2003 Bond issued pursuant to this ordinance; or
(b)
A reduction in the principal amount of any 2003 Bond or the redemption premium or the rate of interest thereon; or
(c)
The creation of a lien upon or a pledge of the revenues or Net Revenues of the waterworks ranking prior to the pledge thereof created by this ordinance; or
(d)
A preference or priority of any 2003 Bond issued pursuant to this ordinance over any other bond issued pursuant to the provisions of this ordinance; or
(e)
A reduction in the aggregate principal amount of the 2003 Bonds required for consent to such supplemental ordinance; or
(f)
A reduction in the Reserve Requirement.
If the owners of not less than sixty six and two thirds percent (66 2/3%) in aggregate principal amount of the 2003 Bonds outstanding at the time of adoption of such supplemental ordinance shall have consented to and approved the adoption thereof by written instrument to be maintained on file in the office of the Clerk Treasurer of the Town, no owner of any 2003 Bond issued pursuant to this ordinance shall have any right to object to the adoption of such supplemental ordinance or to object to any of the terms and provisions contained therein or the operation thereof, or in any manner to question the propriety of the adoption thereof, or to enjoin or restrain the Town 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 in accordance therewith, and the respective rights, duties and obligations under this ordinance of the Town and all owners of 2003 Bonds then outstanding, shall thereafter be determined, exercised and enforced 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 Town and of the owners of the 2003 Bonds authorized by this ordinance, and the terms and provisions of the 2003 Bonds and this ordinance, or any supplemental or amendatory ordinance, may be modified or altered in any respect with the consent of the Town and the consent of the owners of all the 2003 Bonds then outstanding.
Sec. 21. Tax Covenants.
(a)
No person or entity other than the Town or another state or local governmental unit will use proceeds of the 2003 Bonds and BANs or property financed by the 2003 Bond or BAN proceeds other than as a member of the general public. No person or entity other than the Town or another state or local governmental unit will own property financed by 2003 Bond or BAN proceeds or will have any actual or beneficial use of such property pursuant to a lease, management or incentive payment contract, arrangements such as take or pay or out put contracts or any other type of arrangement that differentiates that person's or entity's use of such property from use by the general public.
(b)
No portion of the principal of or interest on the 2003 Bonds or BANs is (under the terms of the 2003 Bonds, 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 from payments (whether or not to the Town) in respect of such property or borrowed money used or to be used for a private business use.
(c)
No 2003 Bond or BAN proceeds will be loaned to any person or entity other than another state or local governmental unit. No 2003 Bond or BAN proceeds will be transferred, directly or indirectly, or deemed transferred to a nongovernmental person in any manner that would in substance constitute a loan of the 2003 Bond or BAN proceeds.
(d)
The Town will not take action nor fail to take any action with respect to the 2003 Bonds or BANs that would result in the loss of the exclusion from gross income for federal tax purposes on the 2003 Bonds or BANs pursuant to Section 103 of the Code, nor will the Town act in any other manner which would adversely affect such exclusion, and it will not make any investment or do any other act or thing during the period that the BANs and 2003 Bonds are outstanding which would cause the BANs and 2003 Bonds to be "arbitrage bonds" within the meaning of Section 148 of the Code.
(e)
It shall not be an event of default under this ordinance if the interest on any 2003 Bond or BAN is not excludable from gross income for federal tax purposes or otherwise pursuant to any provision of the Code which is not currently in effect and in existence on the date of issuance of the 2003 Bonds or BANs, as the case may be.
(f)
(1)
The Town is a governmental unit with general taxing powers, which powers include the power to impose taxes of general applicability that, when collected, may be used for the general purposes of the Town;
(2)
The BANs and the 2003 Bonds are not private activity bonds as defined in Section 141 of the Code; and
(3)
At least 95% of the net proceeds of the BANs and 2003 Bonds will be used for local governmental activities of the Town or of a governmental unit, the jurisdiction of which is entirely within the jurisdiction of the Town.
(g)
The Town represents that the BANs and 2003 Bonds are not private activity bonds as defined in Section 141 of the Code
(h)
These covenants are based solely on current law in effect and in existence on the date of delivery of such bonds or BANs, as the case may be.
Sec. 22. Issuance of BANs.
(a)
The Town, having satisfied all the statutory requirements for the issuance of the 2003 Bonds, may elect to issue its BAN or BANs pursuant to a Bond Anticipation Note Purchase Agreement (the "BAN Purchase Agreement") to be entered into between the Town and the purchaser of the BANs. The Town Council hereby authorizes the issuance and execution of the BAN or BANs in lieu of initially issuing bonds to provide interim financing for the Project until permanent financing becomes available. It shall not be necessary for the Town to repeat the procedures for the issuance of the 2003 Bonds, as the procedures followed before the issuance of the BAN or BANs are for all purposes sufficient to authorize the issuance of the 2003 Bonds and the use of the proceeds to repay the BAN or BANs.
(b)
The President of the Town Council and the Clerk Treasurer are hereby authorized and directed to execute a BAN Purchase Agreement in such form or substance as they shall approve acting upon the advice of counsel. The President of the Town Council and the Clerk Treasurer may also take such other actions or deliver such other certificates as are necessary or desirable in connection with the issuance of the BANs or the 2003 Bonds and the other documents needed for the financing as they deem necessary or desirable in connection therewith.
Sec. 23. Noncompliance with Tax Covenants.
Notwithstanding any other provisions of this ordinance, the covenants and authorizations contained in this ordinance (the "Tax Sections") which are designed to preserve the exclusion of interest on the 2003 Bonds and BANs from gross income under federal law (the "Tax Exemption") need not be complied with if the Town receives an opinion of nationally recognized bond counsel that any Tax Section is unnecessary to preserve the Tax Exemption.
Sec. 24. Municipal Bond Insurance.
The Town reserves the right to enhance the marketability of the 2003 Bonds by obtaining a financial guaranty insurance policy (the "Policy") from a qualified municipal bond insurance company insuring the payment of principal of and interest on the 2003 Bonds when due.
Sec. 25. Conflicting Ordinances.
All ordinances and parts of ordinances in conflict herewith are hereby repealed, but none of the provisions of this ordinance shall be construed as adversely affecting the rights of holders of the Prior Bonds.
Sec. 26. Headings.
The headings or titles of the several sections shall be solely for convenience of reference and shall not affect the meaning, construction or effect of this ordinance.
Sec. 27. Effective Date.
This ordinance shall be in full force and effect from and after its passage.
Passed and adopted by the Town Council of the Town of Plainfield, Indiana this ____ day of _______________, 2003.
TOWN COUNCIL, TOWN OF PLAINFIELD
HENDRICKS COUNTY, INDIANA:
Robin G. Brandgard, President
Robert M. Ward
Kent McPhail
Bill Kirchoff
Dan P. Young
ATTEST:
Juliana M. Mitchell, Clerk Treasurer
EXHIBIT A
In accordance with the Town of Plainfield's Comprehensive Plan, as amended, in an effort to provide additional backup capacity for the current system and in response to an agreement to sell up to two million gallons of water per day to Indianapolis Water, the Town of Plainfield will be constructing a two million gallon per day water treatment facility and a seven hundred and fifty thousand gallon ground storage tank near the intersection of CR 650 East and CR 750 South. The new facility will be known as the Barker Water Plant. The method of treatment will be similar to the Town's existing plants at Swinford Park, Anderson Park and Franklin Park. New supply wells for the facility will be developed on adjacent property. In addition to the plant, wells and ground storage tank the project will include certain extensions and improvements to the existing water distribution system. Standby power will be provided to the new facility.