HomeMy Public PortalAbout004-2019 - Bond Resolution - Refunding by Richmond Sanitary District of certain outstanding sanitary district revenue bonds. BOARD OF SANITARY COMMISSIONERS
RICHMOND SANITARY DISTRICT
BOND RESOLUTION NO. 4-2019
A resolution concerning the refunding by the Richmond Sanitary District of
certain outstanding sanitary district revenue bonds; authorizing the issuance of
sanitary district refunding revenue bonds for such purpose; providing for the
collection, segregation and distribution of the revenues of said works and certain
storm water revenues, the safeguarding of the interests of the owners of said
bonds, other matters connected therewith, and repealing resolutions inconsistent
herewith
WHEREAS, the Board of Sanitary Commissioners ("Board") of the Richmond Sanitary
District ("District") of the City of Richmond, Indiana ("City") finds that certain hereinafter
described outstanding bonds of the District should be refunded to obtain a reduction in interest
payments to effect a savings to the District;that the refunding of said outstanding bonds,together
with accrued interest thereon, if any, and including all costs related to the refunding cannot be
provided for out of funds of the District now on hand and the refunding should be accomplished
by the issuance of sanitary district revenue bonds of the District; and
WHEREAS, the Board finds that there are now outstanding bonds originally issued to
fmance the construction of improvements and additions to the District's sewage works and
payable out of the revenues therefrom designated: (i) "Sanitary District Bonds of 2009,
Series A," dated July 23, 2009 ("2009A Bonds"), originally issued in the amount of$1,536,000,
now outstanding in the amount of $968,000 and maturing annually over a period ending
January 1, 2030; (ii) "Sanitary District Bonds of 2009, Series B," dated September 16, 2009
("2009B Bonds"), originally issued in the amount of $10,940,000, now outstanding in the
amount of $7,160,000 and maturing annually over a period ending January 1, 2030; (iii)
"Sanitary District Bonds of 2012, Series A," dated December 13, 2012 ("2012A Bonds"),
originally issued in the amount of$14,800,000, now outstanding in the amount of$10,920,000
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and maturing annually over a period ending January 1, 2033; (iv) "Taxable Sanitary District
Bonds of 2012, Series B," dated December 13, 2012 ("2012B Bonds"), originally issued in the
amount of$826,125, now outstanding in the amount of$608,720 and maturing annually over a
period ending January 1, 2033; (v) "Sanitary District Refunding Bonds of 2015, Series B," dated
June 9, 2015 ("2015B Bonds"), originally issued in the amount of$6,820,000, now outstanding
in the amount of$6,390,000 and maturing annually over a period ending January 1, 2024; and
(vi) "Sanitary District Bonds of 2017, Series B," dated November 30, 2017 ("2017B Bonds"),
originally issued in the amount of$11,205,000, now outstanding in the amount of$11,100,000
and maturing annually over a period ending January 1, 2038, which 2009A Bonds, 2009B
Bonds, 2012A Bonds, 2012B Bonds, 2015B Bonds and 2017B Bonds constitute a first charge
upon the Net Revenues (as hereinafter defined) of the sewage works and which 2009A Bonds,
2009B Bonds, 2015B Bonds and 2017B Bonds constitute a first charge upon the hereinafter
defined Storm Water Revenues; and
WHEREAS, the 2009A Bonds, the 2012A Bonds, the 2012B Bonds, the 2015B Bonds
and the 2017B Bonds are hereinafter collectively referred to as the "Outstanding Bonds;" and
WHEREAS, the 2012A Bonds and the 2012B Bonds are hereinafter collectively referred
to as the "2012 Bonds;" and
WHEREAS, the 2009A Bonds, the 2015B Bonds and the 2017B Bonds are hereinafter
collectively referred to as the "Outstanding Storm Water Revenue Bonds;" and
WHEREAS, the Board finds that the 2009B Bonds (hereinafter, "Refunded Bonds")
should be refunded pursuant to the provisions of IC 5-1-5 to enable the District to obtain a
reduction in interest payments to effect a savings to the District; and
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WHEREAS, the District finds that there are insufficient funds on hand of the District to
apply to the cost of the refunding, and that it is necessary to issue its refunding sanitary district
revenue bonds in a maximum aggregate principal amount of$8,000,000 and to use the proceeds,
together with funds on hand, to refund the Refunded Bonds and to pay for all costs related to the
refunding; and
WHEREAS, the ordinances and resolutions authorizing the issuance of the Outstanding
Bonds permit the issuance of additional bonds ranking on a parity with the Outstanding Bonds if
certain conditions can be met, and the District finds that the finances of the sewage works will
enable the District to meet the conditions for the issuance of additional parity bonds, and that,
accordingly, the revenue bonds authorized by this resolution shall rank on a parity with the
Outstanding Bonds; and
WHEREAS, the bonds to be issued pursuant to this resolution will constitute: (i) a first
charge against the Net Revenues of the sewage works, on a parity with the Outstanding Bonds;
and (ii) a first charge against the Storm Water Revenues, on a parity with the Outstanding Storm
Water Revenue Bonds, and are to be issued subject to the provisions of IC 36-9-25 and IC 8-1.5-
5, as in effect on the date of issuance of the bonds authorized hereunder(collectively, "Act"), and
the terms and restrictions of this resolution; and
WHEREAS, the Board of Directors of the Department of Storm Water Management of
the Storm Water District of the City will pledge to the District a portion of its storm water
revenues pursuant to IC 8-1.5-5 ("Storm Water Revenues") for the payment of debt service on
the bonds as herein authorized, on a parity with the Outstanding Storm Water Revenue Bonds;
and
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WHEREAS, the Board has been advised that it may be cost efficient to purchase
municipal bond insurance and a debt service reserve surety for the bonds authorized herein; and
WHEREAS, the Board now finds that all conditions precedent to the adoption of a
resolution authorizing the issuance of said bonds have been complied with in accordance with
the provisions of the Act;
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF SANITARY
COMMISSIONERS OF THE RICHMOND SANITARY DISTRICT, THAT:
Section 1. Issuance of Refunding Bonds; Redemption of Refunded Bonds. (a) The
Board now finds it necessary to provide funds for refunding the Refunded Bonds to reduce
interest payments of the District thereby effecting a savings to the District as reported by the
District's municipal advisor, O.W. Krohn & Associates, LLP. The terms "sewage works,"
"sewage works system," "works," "system," and words of like import where used in this
resolution shall be construed to mean the Treatment Works, as defined in the Financial
Assistance Agreement dated as of November 12, 2012, the Financial Assistance Agreement,
dated as of November 30, 2017 and the Brownfield Loan Agreement, dated as of December 13,
2012 (collectively, "IFA Agreements"), entered into between the District and the Indiana Finance
Authority ("Authority"), and includes the existing sewage works system and all real estate and
equipment used in connection therewith and appurtenances thereto, and all extensions, additions
and improvements thereto and replacements thereof now or at any time hereafter constructed or
acquired.
(b) The District shall issue its bonds authorized herein in the aggregate principal
amount not to exceed Eight Million Dollars ($8,000,000) to be designated "Sanitary District
Refunding Bonds of ," to be completed with the year in which issued (hereinafter,
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"Refunding Bonds"),to procure funds with which to pay the costs of the refunding, and the costs
of issuance of the bonds, including premiums for bond insurance and a debt service reserve
surety, if necessary, in accordance with the Act.
The Refunding Bonds shall be issued and sold at a price not less than 99% of the par
value thereof; and issued in fully registered form in denominations of $5,000 or integral
multiples thereof, or as otherwise determined by the Controller with the advice of the District's
municipal advisor, numbered consecutively from 1 up, originally dated as of the date of delivery,
and shall bear interest at a rate or rates not exceeding"5.0% per annum (the exact rate or rates to
be determined through negotiation with the purchaser). Interest is payable semiannually on
January 1 and July 1 in each year, commencing on the first January 1 or the first July 1 following
the date of delivery of the Refunding Bonds, as determined by the Controller with the advice of
the District's municipal advisor. Principal shall be payable in lawful money of the United States
of America, at the principal office of the Paying Agent (as hereinafter defined) and such
Refunding Bonds shall mature annually on January 1 or be subject to mandatory sinking fund
redemption over a period ending no later than January 1, 2030. Such Refunding Bonds may
mature in amounts that produce as level debt service as practicable or maximize savings, taking
into account the annual debt service on the Outstanding Bonds.
Interest on the Refunding Bonds shall be calculated according to a 360-day calendar year
containing twelve 30-day months.
All or a portion of the Refunding 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
January 1 in the years as determined by the successful bidder, but in no event later than the final
serial maturity date of the Refunding Bonds as determined in the above paragraph. The term
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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 date, on principal
payment dates which are hereinafter determined in accordance with the above paragraph.
Section 2. Registrar and Paying Agent; Book Entry Provisions. The Mayor and
Controller are authorized, on behalf of the City, to select and appoint a qualified financial
institution to serve as Registrar and Paying Agent for the Refunding Bonds, which Registrar is
hereby charged with the responsibility of authenticating the Refunding Bonds ("Registrar" or
"Paying Agent"). The Controller is hereby authorized, on behalf of the Board, to enter into such
agreements or understandings with such institution as will enable the institution to perform the
services required of a Registrar and Paying Agent. The Controller is further authorized to pay
such fees as the institution may charge for the services it provides as Registrar' and Paying Agent,
and such fees may be paid from the Sewage Works Sinking Fund established to pay the principal
of and interest on the Refunding Bonds and fiscal agency charges. Upon agreement with the
purchaser of the Refunding Bonds, Controller may serve as Registrar and Paying Agent, and, in
that case, shall be charged with all duties of Registrar and Paying Agent under this resolution.
The principal of the Refunding Bonds shall be payable at the principal corporate trust
office of the Paying Agent. All payments of interest on the Refunding 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
("Record 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
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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 Refunding Bonds shall be made in any coin or
currency 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 Refunding Bond shall be transferable or exchangeable only upon the books of the
District 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
Refunding 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 Refunding Bond or Refunding 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 District 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
District and the Registrar and Paying Agent for the Refunding Bonds may treat and consider the
person in whose name such Refunding 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 and Paying Agent may at any time resign as Registrar and Paying Agent
upon giving thirty (30) days' notice in writing to the District and by first class mail to each
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registered owner of the Refunding Bonds then outstanding, and such resignation will take effect
at the end of such thirty (30) day period or upon the earlier appointment of a successor registrar
and paying agent by the District. Any such notice to the District may be served personally or
sent by registered mail. The Registrar and Paying Agent may be removed at any time as
Registrar and Paying Agent by the District, in which event the District may appoint a successor
registrar and paying agent. The District shall notify each registered owner of the Refunding
Bonds then outstanding by first class mail of the removal of the Registrar and Paying Agent.
Notices to the registered owners of the Refunding 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 District, the
Controller 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 Refunding Bonds. The Controller 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 Sewage
Works Sinking Fund continued in Section 11 hereof Any predecessor registrar and paying agent
shall deliver all of the Refunding Bonds and any cash or investments in its possession with
respect thereto,together with the registration books,to the successor registrar and paying agent.
Interest on any Refunding Bonds shall be payable from the interest payment date to
which interest has been paid next preceding the authentication date of the Refunding Bonds
unless the Refunding Bonds are authenticated after the Record Date and on or before such
interest payment date in which case they shall bear interest from such interest payment date, or
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unless the Refunding Bonds are authenticated on or before the Record Date preceding the first
interest payment date, in which case they shall bear interest from the original date until the
principal shall be fully paid.
The Board has determined that it may be beneficial to have the Refunding Bonds held by
a central depository system pursuant to an agreement between the Board and The Depository
Trust Company, New York, New York ("Depository Trust Company") and have transfers of the
Refunding Bonds effected by book-entry on the books of the central depository system ("Book
Entry System"). The Refunding 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 Refunding Bonds. In such case, upon initial issuance, the ownership of such Refunding
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 Refunding Bonds registered in the register kept by the Registrar in the
name of CEDE & CO., as nominee of the Depository Trust Company, the Board, the City and
the Paying Agent shall have no responsibility or obligation to any other holders or owners
(including any beneficial owner ("Beneficial Owner")) of the Refunding 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 Refunding 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 Refunding Bonds except as otherwise provided herein.
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No person other than the Depository Trust Company shall receive an authenticated
Refunding Bond evidencing an obligation of the Board to make payments of the principal of and
premium, if any, and interest on the Refunding Bonds pursuant to this resolution. The Board,the
City 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 Refunding Bonds for the purpose
of(i) payment of the principal of and premium, if any, and interest on such Refunding Bonds;
(ii) giving notices of redemption and other notices permitted to be given to bondholders with
respect to such Refunding Bonds; (iii) registering transfers with respect to such Refunding
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 Refunding 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 Board's, the City's and the Paying Agent's obligations with respect to
principal of and premium, if any, and interest on the Refunding Bonds to the extent of the sum or
sums so paid. Upon delivery by the Depository Trust Company to the Board 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 resolution shall refer to such new nominee of the Depository Trust
Company. Notwithstanding any other provision hereof to the contrary, so long as any Refunding
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 Refunding
Bonds and all notices with respect to such Refunding Bonds shall be made and given,
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respectively, to the Depository Trust Company as provided in a representation letter from the
Board to the Depository Trust Company.
Upon receipt by the Board 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 Refunding Bonds shall no longer be restricted to being registered
in the register of the Board 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 Refunding Bonds shall designate, in accordance with the
provisions of this resolution.
If the Board determines that it is in the best interest of the bondholders that they be able
to obtain certificates for the fully registered Refunding Bonds, the Board 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 Refunding Bonds. In such event, the Registrar shall prepare, authenticate,
transfer and exchange certificates for the bonds as requested by the Depository Trust Company
and any Beneficial Owners in appropriate amounts, and whenever the Depository Trust
Company requests the Board and the Registrar to do so, the Registrar and the Board 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
Refunding Bonds of any Beneficial Owner's Depository Trust Company account or (ii) to
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arrange for another securities depository to maintain custody of certificates for and evidencing
the Refunding Bonds.
If the Refunding Bonds shall no longer be restricted to being registered in the name of the
Depository Trust Company,the Registrar shall cause the Refunding 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 Refunding Bonds printed until it
shall have received from the Board 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 Board or the Registrar with respect to any consent or other action to be taken by bondholders,
the Board, the City 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 the Refunding Bonds are registered in the name of the Depository Trust
Company or CEDE & CO. or any substitute nominee, the Board, the City 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 Refunding Bonds or from the Depository Trust
Company on behalf of such Beneficial Owners stating the amount of their respective beneficial
ownership interests in the Refunding 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 resolution and the Board, the City and
the Registrar and Paying Agent shall for such purposes treat the Beneficial Owners as the
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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 Refunding Bonds, together with the dollar amount of each Beneficial
Owner's interest in the Refunding Bonds and the current addresses of such Beneficial Owners.
Section 3. Redemption of Bonds. (a) The Refunding Bonds are redeemable at the
option of the District, but no later than 10 years after the date of delivery, on thirty (30) days'
notice, in whole or in part, in the order of maturity as determined by the District and by lot
within a maturity, at face value, with no premium or with a premium to not to exceed 2.0%, plus
in each case accrued interest to the date fixed for redemption. The exact redemption features
shall be determined by the Controller with the advice of the District's municipal advisor, prior to
the sale of the Refunding Bonds.
(b) If any Refunding Bond is issued as a term bond, the Paying Agent shall credit
against the mandatory sinking fund requirement for the Refunding Bonds maturing as term
bonds, and corresponding mandatory redemption obligation, in the order determined by the
District, any Refunding Bonds maturing as term bonds 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 Refunding 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 Refunding Bonds to be redeemed by operation of the mandatory sinking
fund requirement shall be accordingly reduced; provided, however, the Paying Agent shall credit
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only such Refunding Bonds maturing as term bonds to the extent received on or before forty-five
(45) days preceding the applicable mandatory redemption date.
Each authorized denomination amount shall be considered a separate bond for purposes
of optional and mandatory redemption. If less than an entire maturity is called for redemption,
the Refunding Bonds to be called for redemption shall be selected by lot by the Registrar. If
some Refunding Bonds are to be redeemed by optional redemption and mandatory sinking fund
redemption on the same date, the Registrar shall select by lot the Refunding Bonds for optional
redemption before selecting the Refunding Bonds by lot for the mandatory sinking fund
redemption.
(c) In either case, notice of such redemption shall be given at least thirty(30) days for
any Refunding Bonds prior to the date fixed for redemption by mail unless the notice is waived
by the registered owner of a Refunding Bond. Such notice shall be mailed to the address of the
registered owners as shown on the registration records of the District as of the date which is
forty-five (45) days for any Refunding Bonds prior to such redemption date. The notice shall
specify the date and place of redemption and sufficient identification of the Refunding Bonds
called for redemption. The place of redemption shall be determined by the District. Interest on
the Refunding 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 Refunding Bonds so called for redemption shall be surrendered for cancellation.
Section 4. Execution of Bonds; Pledge of Net Revenues and Storm Water Revenues
to Bonds. The Refunding Bonds shall be signed in the name of the City by the manual or
facsimile signature of the Mayor, countersigned by the manual or facsimile signature of the
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Controller, and attested by the manual or facsimile signature of its Clerk, who shall affix the seal
of the City to each of the Refunding Bonds manually or shall have the seal imprinted or
impressed thereon by facsimile. These officials, by the signing of a Signature and No Litigation
Certificate, shall adopt as and for their own proper signatures their facsimile signatures appearing
on the Refunding Bonds. The Refunding Bonds must be authenticated by an authorized officer
of the Registrar.
The Refunding Bonds, and any bonds ranking on a parity therewith, as to both principal
and interest, shall be payable from and secured by an irrevocable pledge of and shall: (i)
constitute a first charge upon the Net Revenues of the sewage works of the District, on a parity
with the Outstanding Bonds, including all such net revenues from the existing works and all
additions and improvements thereto and replacements thereof subsequently constructed or
acquired, to be set aside into the Sewage Works Sinking Fund as herein provided; and (ii) from
and secured by an irrevocable pledge of, and shall constitute a first charge upon the Storm Water
Revenues, on a parity with the Outstanding Storm Water Revenue Bonds. The District shall not
be obligated to pay the Refunding Bonds or the interest thereon except from the Net Revenues of
said works and Storm Water Revenues, and the Refunding Bonds shall not constitute an
indebtedness or general obligation of the City within the meaning of the provisions and
limitations of the constitution of the State of Indiana, but shall constitute an indebtedness of the
District, as a special taxing district.
Section 5. Form of Refunding Bonds. The form and tenor of the Refunding Bonds
shall be substantially as follows, all blanks to be filled in properly and all necessary additions
and deletions to be made prior to delivery thereof:
[Unless this certificate is presented by an authorized representative of The Depository
Trust Company, a New York corporation("DTC"), to the City of Richmond, Indiana, or
its agent for registration of transfer, exchange, or payment, and any certificate issued is
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registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC (and any payment is made to Cede & Co. or to such
other entity as is requested by an authorized representative of DTC), ANY TRANSFER,
PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co.,
has an interest herein.]
NO.
UNITED STATES OF AMERICA
STATE OF INDIANA COUNTY OF WAYNE
CITY OF RICHMOND
SANITARY DISTRICT REFUNDING BOND OF
[MATURITY [INTEREST ORIGINAL AUTHENTICATION
DATE ] RATE ] DATE DATE ICUSIP1
REGISTERED OWNER:
PRINCIPAL SUM:
The City of Richmond ("City"), in Wayne County, State of Indiana, for and on behalf of
the Sanitary District of the City ("District) for value received, hereby promises to pay to the
Registered Owner (named above) or registered assigns, from the source and in the manner herein
provided,the Principal Sum set forth above on [the Maturity Date set forth above] OR [January 1
in the years and in the amounts as set forth on Exhibit A attached hereto] (unless this bond be
subject to and shall have been duly called for redemption and payment as provided for herein),
and to pay interest hereon at the Interest Rate per annum [stated above] [set forth on Exhibit A
attached hereto] 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 15, 20 , in which case it shall bear interest from the
Original Date until the principal is paid, which interest is payable semiannually on the first days
of January and July of each year, beginning on 1, 20 . Interest shall be calculated
according to a 360-day calendar year containing twelve 30-day months.
The principal of this bond is payable at the principal office of
("Registrar" or "Paying Agent"), in the of , . All payments
of interest on this bond shall be paid by check, mailed 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
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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 any coin or currency 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.
THIS BOND SHALL NOT CONSTITUTE AN INDEBTEDNESS OR GENERAL
OBLIGATION OF THE CITY WITHIN THE MEANING OF THE PROVISIONS AND
LIMITATIONS OF THE CONSTITUTION OF THE STATE OF INDIANA, BUT SHALL
CONSTITUTE AN INDEBTEDNESS OF THE DISTRICT, AS A SPECIAL TAXING
DISTRICT. THE DISTRICT SHALL NOT BE OBLIGATED TO PAY THIS BOND OR THE
INTEREST HEREON EXCEPT FROM THE SPECIAL FUND PROVIDED FROM THE
HEREINAFTER DEFINED NET REVENUES, ON A PARITY WITH THE OUTSTANDING
BONDS, AND STORM WATER REVENUES, ON A PARITY WITH THE OUTSTANDING
STORM WATER REVENUE BONDS (EACH AS DEFINED IN THE HEREINAFTER
DEFINED RESOLUTION).
This bond is [the only] one of an authorized issue of bonds of the District, acting in the
name of the City[, of like date, tenor and effect, except as to interest rates and dates of maturity],
in the total amount of Dollars ($ ) ('Bonds"), numbered
consecutively from 1 up, issued for the purpose of refunding certain 2009B Bonds (as defined in
the hereinafter defined Resolution), and to pay issuance expenses[, including premiums for
municipal bond insurance and a debt service reserve surety], which Bonds are authorized by a
resolution adopted by the Board of the District on the day of , 2019, entitled "A
resolution concerning the refunding by the Richmond Sanitary District of certain outstanding
sanitary district revenue bonds; authorizing the issuance of sanitary district refunding revenue
bonds for such purpose;providing for the collection, segregation and distribution of the revenues
of said works and certain storm water revenues, the safeguarding of the interests of the owners of
said bonds, other matters connected therewith, and repealing resolutions inconsistent herewith"
("Resolution"), and in strict compliance with the provisions of IC 36-9-25 and IC 5-1-5, as in
effect on the issue date of the Bonds (collectively, "Act").
Pursuant to the Resolution and the Escrow Agreement defined therein, the District has set
aside securities (purchased from proceeds of the bonds of this issue) and certain cash in a Trust
Account to provide payment of principal of and interest on the 2009B Bonds by the purchase of
obligations of the United States of America.
Pursuant to the provisions of the Act and the Resolution, the principal and interest of this
Bond and any bonds hereafter issued on a parity therewith, are payable solely from the Sewage
Works Sinking Fund (continued by the Resolution) to be provided from the Net Revenues
(defined as gross revenues, inclusive of System Development Charges (as defined in the
Resolution), after deduction only for the payment of the reasonable expenses of operation, repair
and maintenance) of the sewage works of the District and Storm Water Revenues (as defined in
the Resolution). The Bonds of this issue of which this Bond is a part are on a parity with the
Outstanding Bonds (as defined in the Resolution) and shall constitute a first charge on the Storm
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1\14628221.1
Water Revenues, on a parity with the Outstanding Storm Water Revenue Bonds (as defined in
the Resolution).
The District irrevocably pledges the entire Net Revenues of said sewage works and the
Storm Water Revenues to the prompt payment of the principal of and interest on the Bonds
authorized by the Resolution, of which this is one, and any bonds ranking on a parity therewith,
including the Outstanding Bonds as to the Net Revenues, and the Outstanding Storm Water
Revenue Bonds as to the Storm Water Revenues, to the extent necessary for that purpose, and
covenants that it will cause to be fixed, maintained and collected such rates and charges for
service rendered by said works as are sufficient in each year for the payment of the proper and
reasonable expenses of Operation and Maintenance (as defined in the IFA Agreements (as
defined in the Resolution)) of said works and for the payment of the sums required to be paid
into the Sinking Fund under the provisions of the Act and the Resolution. If the District or the
proper officers of the District 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 works and to charge and collect rates
sufficient to provide for the payment of this Bond and the interest hereon.
The District further covenants that it will set aside and pay into its Sewage Works
Sinking Fund a sufficient amount of the Net Revenues of said works and Storm Water Revenues
to meet: (a) the interest on all bonds which by their terms are payable from the revenues of the
sewage works, as such interest shall fall due; (b) the necessary fiscal agency charges for paying
the bonds and interest; (c) the principal of all bonds which by their terms are payable from the
revenues of the sewage works, as such principal shall fall due; and (d) an additional amount to
[create and] maintain the reserve required by the Resolution. Such required payments shall
constitute a first charge upon all the Net Revenues of said works, on a parity with the
Outstanding Bonds as to the Net Revenues, and on a parity with the Outstanding Storm Water
Revenue Bonds, as to the Storm Water Revenues.
The Bonds of this issue maturing on and after January 1, 20 , are redeemable at the
option of the District on 1, 20 , or any date thereafter, on thirty (30) days'notice,
in whole or in part, in the order of maturity as determined by the District and by lot within a
maturity, at face value, [with no premium], plus accrued interest to the date fixed for redemption.
[The Bonds maturing on January 1, are subject to mandatory sinking fund
redemption prior to maturity, at a redemption price equal to the principal amount thereof plus
accrued interest, on January 1 in the years and in the amounts set forth below:
20 Term Bond
Year Amount
*Final maturity]
Each Five Thousand Dollar ($5,000) principal amount shall be considered a separate
bond for purposes of optional [and mandatory] redemption. If less than an entire maturity is
- 18 -1\14628221.1
called for redemption, the Bonds to be called for redemption shall be selected by lot by the
Registrar. [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 District, 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 District. 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 District 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 District shall have no further
obligation or liability in respect thereto.
This Bond is transferable or exchangeable only upon the books of the District 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 the same aggregate principal amount and of the same maturity,
shall be executed and delivered in the name of the transferee or transferees or to the registered
owner, as the case may be, in exchange therefor. The District, the Registrar and any 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.
[The Bonds shall be initially issued in a Book Entry System (as defined in the
Resolution). The provisions of this Bond and of the Resolution are subject in all respects to the
provisions of the Letter of Representations between the District and The Depository Trust
Company, or any substitute agreement, effecting such Book Entry System.]
This Bond is subject to defeasance prior to redemption or payment as provided in the
Resolution referred to herein. THE OWNER OF THIS BOND, BY THE ACCEPTANCE
HEREOF, HEREBY AGREES TO ALL THE TERMS AND PROVISIONS CONTAINED IN
THE RESOLUTION. The Resolution may be amended without the consent of the owners of the
Bonds as provided in the Resolution.
The Bonds maturing in any one year are issuable only in fully registered form in the
denomination of[$100,000 and integral multiples of$5,000 thereafter] [$5,000 or any integral
multiple thereof] not exceeding the aggregate principal amount of the Bonds maturing in such
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1114628221.1
year. [The sale or transfer of this Bond in principal amounts of less than $100,000 is prohibited
other than through a primary offering.]
It is hereby certified and recited that all acts, conditions and things required to be done
precedent to and in the preparation and complete 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 Board of Sanitary Commissioners of the City of
Richmond, in Wayne County, Indiana, has caused this Bond to be executed in the name of the
City of Richmond for and on behalf of the Richmond Sanitary District of the City, by the manual
or facsimile signature of its Mayor, countersigned by the manual or facsimile signature of its
Controller, its corporate seal to be hereunto affixed, imprinted or impressed by any means and
attested manually or by facsimile by its Clerk.
CITY OF RICHMOND, INDIANA
[SEAL] By:
Mayor
Countersigned:
Controller
Attest:
Clerk
REGISTRAR'S CERTIFICATE OF AUTHENTICATION
It is hereby certified that this Bond is one of the Bonds described in the Resolution.
As Registrar
By:
Authorized Representative
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[STATEMENT OF INSURANCE]
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
, the within 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 NOTICE: The signature to this assignment
an eligible guarantor institution participating in must correspond with the name as it appears on
a Securities Transfer Association recognized the face of the within Bond in every particular,
signature guarantee program. without alteration or enlargement or any
change whatsoever.
[EXHIBIT A
[To be completed on a separate page]]
Section 6. Preparation and Sale of Refunding Bonds; Escrow Agreement; Official
Statement; Continuing Disclosure; Bond Insurance. (a) The Controller is hereby authorized and
directed to have the Refunding Bonds prepared, and the Mayor, the Controller and the Clerk are
hereby authorized and directed to execute the Refunding Bonds in the form and manner herein
provided. The Controller is hereby authorized to negotiate the sale of the Refunding Bonds to a
purchaser ("Purchaser") with the advice of the District's municipal advisor. Such sale may be
negotiated by the solicitation of bids by the District's municipal advisor. The Mayor and the
Controller are hereby authorized to execute a Bond Purchase Agreement or Bond Placement
Agreement("Purchase Agreement") and deliver the Refunding Bonds to the Purchaser so long as
their terms are consistent with this resolution. Such Purchase Agreement shall establish a final
principal amount, purchase price, interest rates, maturity schedule, optional redemption features,
and term bond mandatory redemptions, if any.
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1\14628221.1
(b) To the extent required, the Controller is hereby authorized to appoint a financial
institution to serve as escrow trustee ("Escrow Trustee") for the Refunding Bonds in accordance
with the terms of the Escrow Agreement between the District and the Escrow Trustee ("Escrow
Agreement"). The Mayor and the Controller are hereby authorized to complete, execute and
attest the same on behalf of the District so long as its provisions are consistent with this
resolution and the Purchase Agreement.
(c) The execution, by either the Mayor, the Controller, the Purchaser, the placement
agent, or the District's municipal advisor, of a subscription for United States Treasury
Obligations -- State and Local Government Series for investments of proceeds of the Refunding
Bonds to be held under the Escrow Agreement in a manner consistent with this resolution is
hereby approved.
(d) Distribution of an Official Statement (Preliminary and Final) prepared by O.W.
Krohn & Associates, LLP, on behalf of the District and the City, is hereby approved and the
Mayor or Controller are authorized and directed to execute the final Official Statement on behalf
of the District and the City in a form consistent with this resolution and the Purchase Agreement.
The Mayor or the Controller is hereby authorized to designate the Official Statement as "nearly
final" for purposes of Rule 15c2-12 promulgated by the Securities and Exchange Commission.
If the Refunding Bonds are not subject to the Rule, the District is authorized to receive a
sophisticated investment letter from the Purchaser to satisfy state and federal securities laws in
lieu of delivery of an Official Statement.
(e) If the Bonds are subject to the Rule, a Continuing Disclosure Undertaking
("Undertaking") for the Refunding Bonds is hereby authorized and approved by the Board, and
the Mayor and the Controller are hereby authorized and directed to complete, execute and attest
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1\14628221.1
the same on behalf of the District. Notwithstanding any other provisions of this resolution,
failure of the District to comply with the Undertaking shall not be considered an event of default
under the Refunding Bonds or this resolution.
(f) In the event the municipal advisor to the District certifies to the District that it
would be economically advantageous for the District to obtain a municipal bond insurance
policy, the District 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 debt service on the Refunding Bonds if
issued without municipal bond insurance and (b)the total debt service on the Refunding Bonds if
issued with municipal bond insurance, is greater than the cost of the premium on the municipal
bond insurance policy. If such an insurance policy is purchased, the Mayor and the Controller
are hereby authorized to execute and deliver all agreements with the provider of the insurance
policy to the extent necessary to comply with the terms of such insurance policy and the
commitment to issue such policy. Such agreements shall be deemed a part of this resolution for
all purposes and are hereby incorporated hereby by reference.
(g) The Refunding Bonds when fully paid for and delivered to the Purchaser, shall be
the binding special revenue obligations of the District, payable out of (i) the Net Revenues
(herein defined as gross revenues, inclusive of System Development Charges (as defined in the
resolution authorizing the 2017B Bonds), after deduction only for the payment of reasonable
expenses of operation, repair and maintenance) of the sewage works of the District, on a parity
with the Outstanding Bonds, and (ii) Storm Water Revenues, on a parity with the Outstanding
Storm Water Revenue Bonds to be set aside into the Sewage Works Sinking Fund continued in
Section 11. The proper officers of the District are hereby directed to sell the Refunding Bonds to
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1\14628221.1
the Purchaser, 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 resolution.
Section 7. Refunding of the Refunded Bonds and Costs of Issuance. Concurrently
with the delivery of the Refunding Bonds, the District shall acquire, with the proceeds of the
Refunding Bonds and cash on hand, direct obligations of, or obligations the principal and interest
on which are unconditionally guaranteed by, the United States of America ("Government
Obligations") to be used, together with certain cash from the proceeds of the Refunding Bonds
and cash on hand as set forth in the Escrow Agreement, to refund and legally defease all of the
Refunded Bonds, all as set forth in the Escrow Agreement. In order to refund the Refunded
Bonds, the Controller shall deposit Government Obligations and certain cash with the Escrow
Trustee under the Escrow Agreement in an amount sufficient to provide moneys for the payment
of the principal of and interest on the Refunded Bonds until the earliest date upon which the
Refunded Bonds may be called for redemption.
Costs of issuance of the Refunding Bonds not otherwise paid shall be paid from the
remaining proceeds by the District. When all the costs of issuance of the Refunding Bonds have
been paid, the District shall then transfer any amount then remaining from the proceeds of the
Refunding Bonds to the Sewage Works Sinking Fund as herein provided.
The District shall obtain a verification of an accountant as to the sufficiency of the funds
deposited in the Trust Account under the Escrow Agreement to accomplish the refunding and
legal defeasance of the Refunded Bonds.
Section 8. Accrued Interest. The accrued interest received at the time of delivery of
the Refunding Bonds, if any, shall be deposited in the Sewage Works Sinking Fund and used to
pay interest on the Refunding Bonds on the first interest payment date for the Refunding Bonds.
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1\14628221.1
Section 9. Revenue Fund. There is hereby continued a fund known as the Sewage
Works Revenue Fund ("Revenue Fund") into which there shall be deposited upon receipt, all
income and revenues of the sewage works. This fund shall be maintained separate and apart
from all other accounts of the District. No moneys derived from the revenues of the sewage
works shall be transferred to the General Fund of the District or be used for any purpose not
connected with the sewage works. No Storm Water Revenues shall be transferred to the General
Fund of the District. All moneys deposited in the Revenue Fund may be invested in accordance
with IC 5-13-9.
Section 10. Operation and Maintenance Fund. An Operation and Maintenance Fund
(commonly known as the "General Operation Fund" or the "O&M Fund") is hereby continued.
On the last day of each calendar month, a sufficient amount of moneys shall be transferred from
the Revenue Fund to the O&M Fund so that 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 sewage works 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 monies in the Fund in excess of the expected
expenses of operation, repair and maintenance for the next succeeding month may be transferred
to the Sewage Works Sinking Fund if necessary to prevent a default in the payment of principal
of or interest on the outstanding bonds of the District which are payable from the Net Revenues
of the sewage works.
Section 11. Sewage Works Sinking Fund. (a) There is hereby continued a sinking
fund for the payment of the principal of and interest on revenue bonds which by their terms are
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1\14628221.1
payable solely from the Net Revenues of the sewage works, or from Net Revenues of the sewage
works and Storm Water Revenues, and the payment of any fiscal agency charges in connection
with the payment of bonds and interest, which fund shall be designated the Sewage Works
Sinking Fund (commonly known as the "Loan Fund" or "Sinking Fund"); provided, however,
that the Storm Water Revenues shall only be used to pay principal and interest on the
Outstanding Storm Water Revenue Bonds and the Refunding Bonds. There shall be set aside
and deposited in the Sinking Fund, as available, and as provided below, a sufficient amount of
the Net Revenues of the sewage works (including any System Development Charges that are not
considered Net Revenues) and Storm Water Revenues to meet the requirements of the Bond and
Interest Account and of the Debt Service Reserve Account hereby continued 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 District which are payable solely from the Net Revenues of the sewage works or
from Net Revenues of the sewage works and Storm Water Revenues to their final maturity.
Storm Water Revenues shall only be used to pay principal and interest on the Outstanding Storm
Water Revenue Bonds and the Refunding Bonds.
(b) Bond and Interest Account. There shall be transferred on the first day of each
calendar month from the Revenue Fund, and credited to the Bond and Interest Account an
amount of the Net Revenues of said sewage works equal to at least one-sixth (1/6) of the interest
on the Refunding Bonds and the Outstanding Bonds on the then next succeeding interest
payment date and at least one-twelfth (1/12) of the principal of the Refunding Bonds and the
Outstanding Bonds on the then next succeeding principal payment date, until the amount of
interest and principal payable on the then next succeeding respective interest and principal
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1\14628221.1
payment dates shall have been so credited; provided that such fractional amounts shall be
appropriately increased to provide for the first interest and first principal payments. There shall
similarly be credited to the account any amount necessary to pay the bank fiscal agency charges
for paying interest on the Refunding Bonds and the Outstanding Bonds as the same become
payable. The District shall, from the sums deposited in the Sinking Fund and credited to the
Bond and Interest Account, remit promptly to the registered owner 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.
(i) There is hereby continued a subaccount of the Bond and Interest Account
designated as the "2009 Bond and Interest Subaccount" as created by the Amended and
Restated Bond Resolution No. 9, adopted on June 23, 2009 and continued by Resolution
No. 5-2015, adopted on March 10, 2015 and Resolution No. 12-2017, adopted on
September 26, 2017. There shall be deposited on the first day of each calendar month,
and credited to the 2009 Bond and Interest Subaccount: First, an amount of Net
Revenues, after taking into account the amount of Net Revenues deposited on such date
in the 2009 Bond and Interest Subaccount which is available for the payment of the
principal and interest due on the Outstanding Storm Water Revenue Bonds and the
Refunding Bonds; and Second, an amount of Storm Water Revenues, after taking into
account the amount of Net Revenues on deposit in the 2009 Bond and Interest
Subaccount and available for the payment of the principal and interest due on the
Outstanding Storm Water Revenue Bonds and the Refunding Bonds; which deposits shall
be equal to at least one-sixth (1/6) of the interest on the Outstanding Storm Water
Revenue Bonds and the Refunding Bonds on the then next succeeding interest payment
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date and at least one-twelfth (1/12) of the principal of the Outstanding Storm Water
Revenue Bonds and the Refunding Bonds due on the then next succeeding principal
payment date, until the amount of interest and principal payable on the then next
succeeding respective interest and principal payment dates shall have been so credited;
provided that such fractional amounts shall be appropriately increased to provide for the
first interest and first principal payments. There shall similarly be credited to the 2009
Bond and Interest Subaccount first, any amount of Net Revenues, after taking into
account the amount of Net Revenues deposited on such date in the Bond and Interest
Account, and second any amount of Storm Water Revenues, after taking into account the
amount of Net Revenues on deposit in the 2009 Bond and Interest Subaccount for such
purpose, necessary to pay the bank fiscal agency charges for paying interest on the
Outstanding Storm Water Revenue Bonds and the Refunding Bonds as the same become
payable. The District shall, from the sum of Net Revenues and the Storm Water
Revenues deposited and available in the 2009 Bond and Interest Subaccount, remit
promptly to the registered owner 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. Net Revenues and Storm Water Revenues deposited into the 2009 Bond
and Interest Subaccount shall be used solely for the payment of the principal and interest
due on the Outstanding Storm Water Revenue Bonds and the Refunding Bonds.
Notwithstanding any other provision of this resolution or the 2009 Resolution, the
District shall cause: (a) all available Storm Water Revenues to be used to fund the
requirements of the 2009 Bond and Interest Subaccount prior to the deposit of any Net
Revenues therein; and (b) the 2009 Bond and Interest Subaccount to be applied to the
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A14628221.1
payment of the Outstanding Storm Water Revenue Bonds and the Refunding Bonds prior
to the application of the parity rights and interest of the holders thereof in the Net
Revenues.
(c) Debt Service Reserve Accounts. There is hereby continued, within the Sinking
Fund,Debt Service Reserve Accounts as follows:
(i) There is hereby continued within the Sinking Fund, a Debt Service
Reserve Account for the 2012 Bonds ("2012 Reserve Account")to secure and provide for
the payment of the 2012 Bonds and any parity bonds issued in the future by the District
which are payable solely from Net Revenues of the sewage works and which rank on a
parity with the 2012 Bonds ("2012 Style Parity Bond"). Funds in the 2012 Reserve
Account are pledged to (and will be used solely for)the payment of principal and interest
requirements of the 2012 Bonds and any 2012 Style Parity Bonds issued in the future by
the District and shall not be available for the payment of principal and interest on the
2009A Bonds, the 2015B Bonds, the 2017B Bonds, the Refunding Bonds or any
hereinafter defined 2009 Style Parity Bonds.
(ii) There is hereby continued within the Sinking Fund, a Debt Service
Reserve Account for the Outstanding Storm Water Revenue Bonds ("2009 Reserve
Account") to secure and provide for the payment of the Outstanding Storm Water
Revenue Bonds, the Refunding Bonds and any parity bonds issued in the future by the
District which are payable from Net Revenues of the sewage works and from Storm
Water Revenues ("2009 Style Parity Bonds"). Upon the issuance of the Refunding
Bonds, the District may deposit funds on hand, Refunding Bond proceeds, or any
combination thereof, into the 2009 Reserve Account. If no deposit is made or if the
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R14628221.1
initial deposit does not cause the balance therein to equal the hereinafter defined 2009
Reserve Requirement, the District shall deposit, first, from Net Revenues on a parity
basis with any required deposits in the 2012 Reserve Account with regard to the pledge
of Net Revenues, and second, from Storm Water Revenues, into the 2009 Reserve
Account on the last day of each calendar month until the balance in the 2009 Reserve
Account equals but does not exceed the maximum annual debt service on the Outstanding
Storm Water Revenue Bonds, the Refunding Bonds and any additional 2009 Style Parity
Bonds ("2009 Reserve Requirement"). The combined monthly deposits of Net Revenues
and Storm Water Revenues shall be equal in amount and sufficient to accumulate the
2009 Reserve Requirement within five (5) years of the date of delivery of the Refunding
Bonds. Funds in the 2009 Reserve Account are pledged to (and will be used solely for)
the payment of the principal of and interest on the Outstanding Storm Water Revenue
Bonds, the Refunding Bonds and any hereafter issued 2009 Style Parity Bonds, and shall
not be available for the payment of the principal of and interest on the 2012 Bonds or
2012 Style Parity Bonds.
The District may fund all or a part of the 2009 Reserve Account with a debt service
reserve surety bond; provided, however, with the consent of the Authority so long as the 2009A
Bonds, the 2015B Bonds or the 2017B Bonds are outstanding and held by the Authority as part
of its SRF Program. The 2009 Reserve Account shall constitute the margin for safety and as
protection against default in the payment of principal of and interest on the Outstanding Storm
Water Revenue Bonds, the Refunding Bonds and any 2009 Style Parity Bonds, and moneys in
the 2009 Reserve Account shall be used to pay current principal and interest on the Outstanding
Storm Water Revenue Bonds, the Refunding Bonds and any 2009 Style Parity Bonds to the
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A14628221.1
extent that moneys in the 2009 Bond and Interest Subaccount are insufficient for that purpose.
Any deficiency in the balance maintained in the 2009 Reserve Account shall be promptly made
up from the next available Net Revenues on a parity basis with any required deposits in the 2012
Reserve Account with regard to the pledge of Net Revenues and Storm Water Revenues
remaining after credits into the 2009 Bond and Interest Subaccount. Any moneys in the 2009
Reserve Account in excess of the 2009 Reserve Requirement shall be transferred to the Sewage
Works Improvement Fund and in no event shall such excess moneys be held in the 2009 Reserve
Account.
Section 12. Sewage Works Improvement Fund. There is hereby continued a special
fund designated the "Sewage Works Improvement Fund" (commonly known as the
"Replacement Fund" or "Improvement Fund"). In the event all required payments into the O&M
Fund and the Sinking Fund have been met to date, any excess Net Revenues may be transferred
to the Improvement Fund for extensions, replacements, improvements and additions to the
works. No such transfer to the Improvement Fund shall be made, however, which will interfere •
with the requirements of the Sinking Fund or the accumulation of the required reserve therein.
All or any portion of the funds accumulated and reserved in the Improvement Fund shall
be transferred to the Sinking Fund, if necessary, to prevent a default in the payment of principal
of or interest on the bonds payable from the Sinking Fund or to eliminate any deficiencies in
credits to or minimum balance in the Reserve Account. Moneys in the Improvement Fund also
may be transferred to the O&M Fund to meet unforeseen contingencies in the operation, repair
and maintenance of the sewage works.
Section 13. Maintenance of Accounts; Investments. The Sinking Fund shall be
deposited in and maintained as a separate account or accounts from all other accounts of the
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District. The O&M Fund and the 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 District 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
resolution. Nothing in this section or elsewhere in this resolution shall be construed to require
that separate bank accounts be established and maintained for the Funds and Accounts continued
by this resolution.
Section 14. Maintenance of Books and Records. (a) The District shall keep proper
books of records and accounts, separate from all of its other records and accounts, in which
complete and correct entries shall be made showing all revenues collected from said works and
all disbursements made on account of the works, also all transactions relating to said works.
There shall be furnished, upon written request, to any owner of the Refunding Bonds, the most
recent audit report of the sewage works prepared by the State Board of Accounts. Copies of all
such statements and reports shall be kept on file in the office of the District. Any owner of the
Refunding Bonds then outstanding shall have the right at all reasonable times to inspect the
works and all records, accounts, statements, audits, reports and data of the District relating to the
sewage works. Such inspections may be made by representatives duly authorized by written
instrument.
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(b) So long as the 2009A Bonds, the 2012 Bonds, the 2015B Bonds and the 2017B
Bonds are held by the Authority, the District shall establish and maintain the books and other
financial records of the projects (including the establishment of a separate account or subaccount
for the projects) and the sewage works in accordance with (i) generally accepted governmental
accounting standards for utilities, on an accrual basis, as promulgated by the Government
Accounting Standards Board and (ii) the rules, regulations and guidance of the State Board of
Accounts.
Section 15. Rate Covenant. (a) The District covenants and agrees that it will establish
and maintain just and equitable rates and charges for the use of and the service rendered by the
sewage works, to be paid by the owner of each and every lot, parcel of real estate or building that
is connected with and uses the sewage works, or that in any way uses or is served by the sewage
works, at a level adequate to produce and maintain sufficient revenue (including user and other
charges, fees, income or revenues available to the District, including revenues that are pledged
hereunder), provided that System Development Charges shall be excluded, to the extent
permitted by law, when determining if such rates and charges are sufficient so long as the 2009A
Bonds,the 2012 Bonds and the 2017B Bonds are outstanding and owned by the Authority as part
of its SRF Program, to provide for the proper Operation and Maintenance (as defined in the IFA
Agreements) of the sewage works, to comply with and satisfy all covenants contained in this
resolution and the IFA Agreements and for the payment of the sums required to be paid into the
Sinking Fund by the Act and this resolution. Such rates and 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 and Maintenance of the sewage works and the
requirements of the Sinking Fund. The rates and charges so established shall apply to any and all
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use of such works by and service rendered to the District and the City, and shall be paid by the
District and the City, as the case may be, as the charges accrue.
(b) The Board of Directors of the Department of Storm Water Management of the
Storm Water District of the City shall by resolution establish, maintain and collect just and
equitable rates and charges for facilities and services afforded and rendered by said system,
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 storm water system, to
include maintenance costs, operating charges, upkeep, repairs, depreciation, interest charges, to
provide for payment of the sums to provide a sinking fund for the liquidation of bonds or other
obligations and to provide a debt service reserve for bonds or other obligations, including leases,
to provide adequate funds to be used as working capital, as well as funds for making extensions
and additions, and also, for the payment of any taxes that may be assessed against such storm
water system, it being the intent and purpose hereof that such charges shall produce an income
sufficient to maintain such storm water system property in a sound physical and financial
condition to render adequate and efficient service. So long as any of the 2009A Bonds, 2012
Bonds and 2017B Bonds are outstanding and owned by the Authority as part of its SRF Program,
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 City shall pay like charges for any and all
services rendered by said system to the City, and all such payments shall be deemed to be
revenues of the storm water system. 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 and maintenance and said requirements of the Sinking Fund.
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Section 16. Defeasance of Bonds. If, when any of the Refunding Bonds issued
hereunder 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 Refunding Bonds or any 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 Refunding Bonds or any
portion thereof and coupons 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 of the United States of America, the principal of and the interest on
which when due will provide sufficient moneys, 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 Refunding Bonds issued hereunder or any designated portion thereof shall no longer be
deemed outstanding or entitled to the pledge of the Storm Water Revenues or the Net Revenues
of the District's sewage works.
Section 17. Additional Bond Provisions. (A) Net Revenues. The District reserves the
right to authorize and issue additional bonds, payable out of the Net Revenues of its sewage
works, ranking on a parity with the Refunding Bonds, for the purpose of financing the cost of
future additions, extensions, replacements and improvements to the sewage works, or to refund
obligations, subject to the following conditions:
(a) All required payments into the Sinking Fund shall have been made in accordance
with the provisions of this resolution, and the interest on and principal of all bonds payable from
the Net Revenues of the sewage works shall have been paid in accordance with their terms. The
2009 Reserve Requirement related to the 2009 Reserve Account (and the reserve requirement
related to the 2012 Reserve Account) shall be satisfied for the additional bonds either at the time
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of delivery of the additional bonds or over a five year or shorter period, in a manner which is
commensurate with the requirements established in Section 11(c) of this resolution.
(b) The Net Revenues of the sewage works in the fiscal year immediately preceding
the issuance of any such bonds ranking on a parity with the Refunding Bonds shall be not less
than one hundred twenty-five percent (125%) of the maximum annual interest and principal
requirements of the then outstanding bonds payable from Net Revenues of the sewage works
(including any outstanding Refunding Bonds, Outstanding Bonds, 2009 Style Parity Bonds and
2012 Style Parity Bonds) and the additional bonds proposed to be issued; or, prior to the issuance
of the additional bonds, the sewage rates and charges shall be increased sufficiently so that said
increased rates and charges applied to the previous year's operations would have produced Net
Revenues for said period equal to not less than one hundred twenty-five percent (125%) of the
maximum annual interest and principal requirements of the then such outstanding bonds and the
additional bonds proposed to be issued.
For purposes of this subsection all showings shall be prepared by a certified public
accountant or nationally recognized firm of professionals experienced in analyzing financial
records of municipal utilities employed by the District for that purpose. In addition, for purposes
of this subsection with respect to any such bonds payable from the Net Revenues of the sewage
works hereafter issued, while any 2009A Bonds, 2012 Bonds and 2017B Bonds remain
outstanding and are owned by the Authority as part of the SRF Program, Net Revenues may not
include any revenues from the System Development Charges unless the Authority provides its
consent to include all or some portion of the System Development Charges as part of the Net
Revenues or otherwise consents to the issuance of such bonds without satisfying this subsection
(b).
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(c) The interest on any additional bonds shall be payable semiannually on the first
day of January and July and the principal on, or mandatory sinking fund redemption dates for,
the additional bonds shall be payable annually on January 1.
(d) For so long as the 2009A Bonds, the 2012 Bonds and the 2017B are outstanding
and owned by the Authority as part of its SRF Program, (i) the District obtains the consent of the
Authority, (ii) the District has faithfully performed and is in compliance with each of its
obligations, agreements and covenants contained in the Financial Assistance Agreement and this
resolution, and (iii) the District is in compliance with its National Pollutant Discharge
Elimination System permits, except for non-compliance for which purpose the additional bonds
are issued, including refunding bonds issued prior to, but part of, the overall plan to eliminate
such non-compliance.
(B) Storm Water Revenues. The Board reserves the right to authorize and issue (and
may only hereafter so authorize and issue) additional bonds payable out of(and secured in whole
or in part by a pledge of) Storm Water Revenues and ranking on a parity with the Outstanding
Storm Water Revenue Bonds and the Refunding Bonds for the purpose of financing the cost of
future extensions and additions to the sewage works, or to refund obligations, subject to the
following conditions:
(a) All required payments into the Sinking Fund shall have been made in accordance
with the provisions of this resolution, and the interest on and principal of (i) all outstanding
bonds payable from the Net Revenues of the sewage works and (ii) all outstanding bonds
payable from (and secured in whole or in part by a pledge of)the Storm Water Revenues ("Storm
Water Secured Bonds") including the Refunding Bonds shall have been paid in accordance with
their terms. The 2009 Reserve Requirement related to the 2009 Reserve Account (and the
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reserve requirement related to the 2012 Reserve Account) shall be satisfied for the additional
bonds either at the time of delivery of the additional bonds or over a five year or shorter period,
in a manner which is commensurate with the requirements established in Section 11(c) of this
resolution.
(b) The revenues of the Storm Water District for the fiscal year immediately
preceding the issuance of any Storm Water Secured Bonds ranking on a parity with the
Refunding Bonds authorized by this resolution shall not be less than one hundred twenty-five
percent (125%) of the maximum annual interest and principal requirements of the then Storm
Water Secured Bonds taking into account any Net Revenues actually applied to the payment of
any outstanding Storm Water Secured Bonds in the fiscal year immediately preceding the
issuance of any such proposed additional Storm Water Secured Bonds and the additional parity
Storm Water Secured Bonds proposed to be issued. For purposes of this subsection, the records
of the storm water system of the City's Storm Water District and the sewage works shall be
analyzed and all showings shall be prepared by a certified public accountant employed by the
Board for that purpose.
(c) The interest on the additional parity Storm Water Secured Bonds shall be payable
semiannually on the first day of January and July and the principal on, or mandatory sinking
fund redemption dates for, the additional parity Storm Water Secured Bonds shall be payable
annually on the first day of January.
(d) For so long as the 2009A Bonds, the 2012 Bonds and the 2017A Bonds are
outstanding and owned by the Authority as part of its SRF Program, (i) the District obtains the
consent of the Authority, (ii) the District has faithfully performed and is in compliance with each
of its obligations, agreement and covenants contained in the Financial Assistance Agreement and
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this resolution, and (iii) the District is in compliance with its National Pollutant Discharge
Elimination System permits, except for non-compliance for which purpose the additional Storm
Water Secured Bonds are issued, including refunding Storm Water Secured Bonds issued prior
to, but part of, the overall plan to eliminate such non-compliance.
Section 18. Further Covenants of the District; Maintenance, Insurance, Pledge Not to
Encumber, Subordinate Indebtedness, and Contract with Bondholders. For the purpose of
further safeguarding the interests of the holders of the Refunding Bonds, it is specifically
provided as follows:
(a) So long as the any of Refunding Bonds are outstanding, the District shall at all
times maintain its sewage works and storm water system in good condition and operate the same
in an efficient manner and at a reasonable cost.
(b) So long as any of the Refunding Bonds herein authorized are outstanding, the
District shall acquire and maintain insurance coverage acceptable to the Authority so long as the
2009A Bonds, the 2012 Bonds and the 2017B Bonds are outstanding and held by the Authority
as part of its SRF Program, including fidelity bonds, to protect the sewage works and its
operations. All insurance shall be placed with responsible insurance companies qualified to do
business under the laws of the State of Indiana. All insurance proceeds shall be used either in
replacing or restoring the property destroyed or damaged, or shall be deposited in the Sinking
Fund. All insurance proceeds shall be used in replacing or restoring the property destroyed or
damaged, for so long as the 2009A Bonds, the 2012 Bonds and the 2017B Bonds are owned by
the Authority as part of its SRF Program, unless the Authority consents to a different use of such
proceeds.
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(c) So long as any of the 2009A, the 2012 Bonds and the 2017B Bonds are
outstanding and owned by the Authority as part of its SRF Program, the District shall not sell,
transfer, lease or otherwise encumber the sewage works, or any portion thereof, or any interest
therein without the prior written consent of the Authority. So long as the 2009A,the 2012 Bonds
and the 2017B Bonds are outstanding and owned by the Authority as part of its SRF Program,
the District shall not mortgage, pledge or otherwise encumber the property and plant of its
sewage works system, or any part thereof, and shall not sell, lease or otherwise dispose of any
part thereof, except replace equipment which may become worn out or obsolete.
(d) So long as the 2009A Bonds, the 2012 Bonds and the 2017B Bonds are
outstanding and owned by the Authority as part of its SRF Program,the District shall not without
the prior written consent of the Authority (i) enter into any lease, contract or agreement or incur
any other liabilities in connection with the sewage works other than for normal operating
expenditures, or (ii)borrow any money(including without limitation any loan from other utilities
operated by the District) in connection with the sewage works.
(e) Except as hereinbefore provided in Section 17 hereof, so long as any of the
Refunding Bonds herein authorized are outstanding, no additional bonds or other obligations
pledging any portion of the revenues of said sewage works shall be authorized, executed, or
issued by the District except such as shall be made subordinate and junior in all respects to the
Refunding Bonds herein authorized, unless all of the Refunding Bonds herein authorized are
redeemed, retired or defeased pursuant to Section 16 hereof coincidentally with the delivery of
such additional bonds or other obligations.
(f) The District shall take all action or proceedings necessary and proper, to the
extent mandated by law, to require connection of all property where liquid, solid waste, sewage,
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night soil or industrial waste is produced with available sanitary sewers. The District shall,
insofar as possible, and to the extent mandated by law, cause all such sanitary sewers to be
connected with said sewage works.
(g) The provisions of this resolution shall constitute a contract by and between the
District and the owners of the Refunding Bonds herein authorized, and after the issuance of the
Refunding Bonds, this resolution shall not be repealed or amended in any respect which will
adversely affect the rights of the owners of the Refunding Bonds nor shall the Board adopt any
law, resolution or resolution which in any way adversely affects the rights of such owners so
long as any of the Refunding Bonds or the interest thereon remain unpaid. Except for the
changes set forth in Section 21(a)-(g), this resolution may be amended, however, without the
consent of Refunding Bond owners, if the Board determines, in its sole discretion, that such
amendment would not adversely affect the owners of the Refunding Bonds.
(h) The provisions of this resolution shall be construed to create a trust in the
proceeds of the sale of the Refunding Bonds herein authorized for the uses and purposes herein
set forth, and the owners of the Refunding Bonds shall retain a lien on such proceeds until the
same are applied in accordance with the provisions of this resolution and of the governing Act.
The provisions of this resolution shall also be construed to create a trust in the portion of the Net
Revenues herein directed to be set apart and paid into the Sinking Fund for the uses and purposes
of said fund as in this resolution set forth. The owners of the Refunding Bonds shall have all of
the rights, remedies and privileges set forth in the provisions of the governing Act hereinbefore
referred to, including the right to have a receiver appointed to administer said sewage works, in
the event the District shall fail or refuse to operate and maintain said system and to apply
properly the revenues derived from the operation thereof, or there be a default in the payment of
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the principal of or interest on any of the Refunding Bonds herein authorized or in the event of
default in respect to any of the provisions of this resolution or the governing Act.
(i) For purpose this Section 18, the term "lease" shall include any lease, contract, or •
other instrument conferring a right upon the District to use property in exchange for periodic
payments made from the revenues of the sewage works, whether the District desires to cause
such to be, or by its terms (or its intended effects) is to be, (i) payable as rent, (ii) booked as an
expense or an expenditure, or (iii) classified for accounting or other purposes as a capital lease,
financing lease, operating lease, non-appropriation leases, installment purchase agreement or
lease, or otherwise (including any combination thereof).
Section 19. Investment of Funds. (a) The Controller is hereby authorized to invest
moneys pursuant to the provisions of this resolution and IC 5-1-14-3 (subject to applicable
requirements of federal law to insure such yield is the then current market rate) to the extent
necessary or advisable to preserve the exclusion from gross income of interest on the Refunding
Bonds under federal law.
(b) The Controller shall keep 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 the resolution, the Controller is hereby authorized and directed to
employ consultants or attorneys from time to time to advise the District as to requirements of
federal law to preserve the tax exclusion. The Controller may pay any fees as operation
expenses of the sewage works.
Section 20. Tax Covenants. In order to preserve the exclusion of interest on the
Refunding Bonds from gross income for federal tax purposes under Section 103 of the Internal
Revenue Code of 1986 as existing on the date of issuance of the Refunding Bonds ("Code") and
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as an inducement to purchasers of the Refunding Bonds, the Board represents, covenants and
agrees that:
(a) Since the date of issuance of the Refunded Bonds and until the earlier of the last
date of the reasonably expected economic life of the project constructed by the District with
funds from the Refunded Bonds or the latest maturity date of the Refunding Bonds ("Combined
Measurement Period"), the sanitary district facilities will be available for use by members of the
general public. Use by a member of the general public means use by natural persons not
engaged in a trade or business. During the Combined Measurement Period, no person or entity
other than the District or another state or local governmental unit will use more than 10% of the
proceeds of the Refunding Bonds or property financed by the Refunding Bond proceeds other
than as a member of the general public. During the Combined Measurement Period, no person
or entity other than the District or another state or local governmental unit will own property
financed by Refunding Bond proceeds or will have any actual or beneficial use of such property
pursuant to a lease, a management, service or incentive payment contract, arrangements such as
take-or-pay or output contracts or any other type of arrangement that conveys other special legal
entitlements and differentiates that person's or entity's use of such property from use by the
general public, unless such uses in the aggregate relate to no more than 10% of the proceeds of
the Refunding Bonds. If the District enters into a management contract for the sanitary district
facilities, the terms of the contract will comply with IRS Revenue Procedure 2017-13, as it may
be amended, supplemented or superseded for time to time, so that the contract will not give rise
to private business use under the Code and the Regulations, unless such use in aggregate relates
to no more than 10%of the proceeds of the Refunding Bonds.
•
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(b) No more than 10% of the principal of or interest on the Refunding Bonds and the
Refunded Bonds over the Combined Measurement Period will be (under the terms of the
Refunding Bonds, the Refunded Bonds, this resolution 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 District) in respect of such property or borrowed
money used or to be used for a private business use.
(c) No more than 5% of the Refunding Bond proceeds or the Refunded Bonds
proceeds have been or will be loaned to any person or entity other than another state or local
governmental unit. No more than 5% of the Refunding Bond proceeds or the Refunded Bond
proceeds have been or 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
Refunding Bond proceeds or the Refunded Bond proceeds.
(d) The District reasonably expects, as of the date hereof, that the Refunding Bonds
will not meet either the private business use test described in paragraph (a) and (b) above or the
private loan test described in paragraph(c)above for the Combined Measurement Period.
(e) During the Combined Measurement Period, not more than 5% of the proceeds of
the Refunding Bonds or the Refunded Bonds will be attributable to private business use as
described in (a) and private security or payments described in (b) attributable to unrelated or
disproportionate private business use. For this purpose, the private business use test is applied
by taking into account only use that is not related to any government use of proceeds of the issue
(Unrelated Use) and use that is related but disproportionate to any governmental use of those
proceeds (Disproportionate Use).
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(f) The District will not take any action nor fail to take any action with respect to the
Refunding Bonds or the Refunded Bonds that would result in the loss of the exclusion from gross
income for federal tax purposes on the Refunding Bonds or the Refunded Bonds pursuant to
Section 103 of the Code, nor will the District act in any other manner which would adversely
affect such exclusion. The District covenants and agrees not to enter into any contracts or
arrangements which would cause the Refunding Bonds or the Refunded Bonds to be treated as
private activity bonds under Section 141 of the Code.
(g) It shall not be an event of default under this resolution if the interest on any
Refunding Bond 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 Refunding Bonds.
(h) The District represents that it will rebate, to the extent required by the Code, any
arbitrage profits to the United States of America in accordance with the Code.
Section 21. Amendments with Consent of Bondholders. Subject to the terms and
provisions contained in this Section and Section 18(g), and not otherwise, the owners of not less
than sixty-six and two-thirds percent (66 2/3%) in aggregate principal amount of the Refunding
Bonds issued pursuant to this resolution and then outstanding shall have the right, from time to
time, anything contained in this resolution to the contrary notwithstanding, to consent to and
approve the adoption by the District of such resolution or resolutions supplemental hereto as
shall be deemed necessary or desirable by the District for the purpose of modifying, altering,
amending, adding to or rescinding in any particular any of the terms or provisions contained in
this resolution, or in any supplemental resolution; provided, however that so long as the 2009A
Bonds, the 2012 Bonds and the 2017B Bonds are owned by the Authority as part of its SRF
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Program, the District shall obtain the prior written 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 on any Refunding
Bond issued pursuant to this resolution; or
(b) A reduction in the principal amount of any Refunding 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 of the sewage works
ranking prior to the pledge thereof created by this resolution; or
(d) A preference or priority of any Refunding Bond or Refunding Bonds issued
pursuant to this resolution over any other Refunding Bond or Refunding Bonds issued pursuant
to the provisions of this resolution; or
(e) A reduction in the aggregate principal amount of the Refunding Bonds required
for consent to such supplemental resolution; or
(f) A reduction in the 2009 Reserve Requirement; or
(g) The extension of mandatory sinking fund redemption dates, if any.
If the owners of not less than sixty-six and two-thirds percent (66 2/3%) in aggregate
principal amount of the Refunding Bonds outstanding at the time of adoption of such
supplemental resolution shall have consented to and approved the adoption thereof by written
instrument to be maintained on file in the office of the Board of the District, no owner of any
Refunding Bond issued pursuant to this resolution shall have any right to object to the adoption
of such supplemental resolution 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 District or its officers from adopting the same, or from taking any action
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pursuant to the provisions thereof. Upon the adoption of any supplemental resolution pursuant to
the provisions of this section, this resolution shall be, and shall be deemed, modified and
amended in accordance therewith, and the respective rights, duties and obligations under this
resolution of the District and all owners of Refunding Bonds issued pursuant to the provisions of
this resolution then outstanding, shall thereafter be determined exercised and enforced in
accordance with this resolution, subject in all respects to such modifications and amendments.
Notwithstanding anything contained in the foregoing provisions of this resolution, the rights and
obligations of the District and of the owners of the Refunding Bonds authorized by this
resolution, and the terms and provisions of the Refunding Bonds and this resolution, or any
supplemental resolution, may be modified or altered in any respect with the consent of the
District and the consent of the owners of all the Refunding Bonds issued pursuant to this
resolution then outstanding.
Section 22. Resolution to be Filed with Controller. The Secretary to the Board is
hereby directed to file a certified copy of this resolution with the Controller for preparation of the
Bonds.
Section 23. Tax Exemption. Notwithstanding any other provisions of this resolution,
the covenants and authorizations contained in this resolution ("Tax Sections") which are
designed to preserve the exclusion of interest on the Refunding Bonds from gross income under
federal law for any Refunding Bond issued as tax exempt bonds ("Tax Exemption") need not be
complied with if the District receives an opinion of nationally recognized bond counsel that any
Tax Section is unnecessary to preserve the Tax Exemption.
Section 24. Conflicting Resolutions. All resolutions and parts of resolutions in
conflict herewith are hereby repealed; provided, however, that this resolution shall not be
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construed as repealing or modifying in any respect any of the provisions of the resolutions
authorizing the Outstanding Bonds nor be construed as adversely affecting the rights of any of
the holders of the Outstanding Bonds.
Section 25. Effective Date. This resolution shall be in full force and effect from and
after its passage.
Adopted this 13th day of August, 2019.
BOARD OF SANITARY COMMISSIONERS
RICHMO SANITARY DISTRICT
Sue Miller President
an B�lshi t
Member
A ST:
Secretary 11
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