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HomeMy WebLinkAbout04-148.docMAY 11, 2004 04-148 RESOLUTION (CARRIED 7-0 LOST LAID OVER WITHDRAWN RESOLUTION AUTHORIZING THE ISSUANCE AND SALE OF UP TO $3,425,850 SEWERAGE SYSTEM REVENUE BONDS, SERIES 2004, AND PROVIDING FOR OTHER DETAILS AND COVENANTS WITH RESPECT THERETO WHEREAS, the City of Oshkosh, Winnebago County, Wisconsin (the "Municipality'l owns and operates a sewerage system (the "System'l which is operated for a public purpose as a public utility by the Municipality; and WHEREAS, Section 66.0621(1)(b) of the Wisconsin Statutes, as supplemented and amended, provides that a "public utility" means any revenue producing facility or enterprise owned by a municipality and operated for a public purpose; and WHEREAS, certain improvements to the System are necessary to meet the needs of the Municipality and the residents thereof, consisting of the construction of improvements to the sewerage treatment plant of the Municipality (the "Project'l, assigned Clean Water Fund Project No. 4130-05 by the State of Wisconsin Department of Natural Resources (the "DNR'I, as further described in the DNR approval letter for plans and specifications issued under Section 144.04 of the Wisconsin Statutes, as supplemented and amended, dated August 5, 2003, and assigned number 5-2003- 0734 (the "Project'l; and WHEREAS, under the provisions of Chapter 66 of the Wisconsin Statutes, as supplemented and amended, any Municipality may, by action of its Governing Body, provide for purchasing, acquiring, constructing, extending, adding to, improving, operating and managing a public utility from the proceeds of bonds, which bonds are to be payable only from the revenues received from any source by such utility, including all rentals and fees; and WHEREAS, the Municipality has previously authorized the issuance of $2,994,450 Sewerage System Revenue Bonds, Series 1993, $18,388,072 Sewerage System Revenue Bonds, Series 1995 and $3,568,112 Sewerage System Revenue Bonds, Series 1999 (the "Prior Bonds'l, pursuant to Resolution No. 93-115 adopted on April 1, 1993 (the "1993 Bond Resolution'l, Resolution No. 95-85 adopted on March 14, 1995 (the "1995 Bond Resolution'l and Resolution No. 99-289 adopted on July 13, 1999 (the "1999 Bond Resolution'l; and WHEREAS, Prior Bonds in the amount of $1,474,418.33, $11,518,722.22, and $2,539,816.33, respectively, are currently outstanding; and WHEREAS, the Municipality deems it to be necessary, desirable and in its best interest to authorize and sell additional sewerage system revenue bonds of the Municipality payable solely from the revenues of the System, pursuant to the provisions of Section 66.0621 of the Wisconsin Statutes, as supplemented and amended, and on a parity with the Prior Bonds, to pay a portion of the cost of the Project; and WHEREAS, Section 11 of the 1993 Bond Resolution permits the issuance of bonds on a parity with the Prior Bonds provided certain conditions are met and those conditions have been met with respect to the revenue bonds herein authorized; and WHEREAS, other than the Prior Bonds, no bonds or other obligations are now outstanding to which the revenues of the System are pledged; Now, THEREFORE, be it resolved by the City Council of the City of Oshkosh, Winnebago County, Wisconsin, that: Section 1. Definitions. In addition to the terms defined in the preambles hereto, the following terms shall have the following meanings in this Resolution unless the text expressly or by implication requires otherwise: (a) "Act" means Section66.0621 of the Wisconsin Statutes, as supplemented and amended; (b) "Bond Registrar" means the Municipal Treasurer who shall act as Bond Registrar and Paying Agent for the Bonds; (c) "Bond Year" means the twelve-month period ending on each May 1; (d) "Bonds" mean the $3,425,850 Sewerage System Revenue Bonds, Series 2004 of the Municipality, dated May 26, 2004, authorized to be issued by this Resolution; (e) "Current Expenses" mean the reasonable and necessary costs of operating, maintaining, administering and repairing the System, including salaries, wages, costs of materials and supplies, insurance and audits, but shall exclude debt service, tax equivalents, replacements, depreciation and capital expenditures; (f) "Debt Service Fund" means the Debt Service Fund of the Municipality, which shall be the "special redemption fund" as such term is defined in the Act and which was established pursuant to the 1993 Bond Resolution; (g) "Financial Assistance Agreement" means the Financial Assistance Agreement by and between the State of Wisconsin by the Department of Natural -2- Resources and the Department of Administration and the Municipality, dated as of May 26, 2004, substantially in the form attached hereto and incorporated herein by reference; (h) "Fiscal Year" means the twelve-month period ending on each December 31; (i) "Governing Body" means the City Council of the Municipality, or such other body as may hereafter be the chief legislative body of the Municipality; (j) "Municipal Treasurer" means the Treasurer of the Municipality who shall act as Bond Registrar and Paying Agent; (k) "Municipality" means the City of Oshkosh, Winnebago County, Wisconsin; (I) "Net Revenues" mean the gross earnings of the System after deduction of Current Expenses; gross earnings shall include earnings of the System derived from sewerage charges imposed by the Municipality, all payments to the Municipality under any wastewater treatment service agreements between the Municipality and any contract users of the System, and any other monies received from any source including all rentals and fees; (m) "Parity Bonds" mean bonds payable from the revenues of the System, other than the Bonds and the Prior Bonds, but issued on a parity and equality with the Bonds and the Prior Bonds pursuant to the restrictive provisions of Section 11 of this Resolution; (n) "Project" means the Project described in the preamble to this Resolution; all elements of the Project are to be owned and operated by the Municipality as part of the System as described in the preamble hereto; (o) "Record Date" means the close of business on the fifteenth day of the calendar month next preceding any principal or interest payment date; (p) "Replacement Fund" means the fund created by the Municipality for the purpose of providing a source of monies to be used for replacement of certain personal property of the System; and (q) "System" means the entire sewerage system of the Municipality, specifically including the Project and including all property of every nature now or hereafter owned by the Municipality for the collection, transmission, treatment and disposal of domestic and industrial sewage and waste, including all improvements and extensions thereto made by the Municipality while any of the Bonds, the Prior Bonds and the Parity Bonds remain outstanding, including all -3- real and personal property of every nature comprising part of or used or useful in connection with such sewerage system and including all appurtenances, contracts, leases, franchises, and other intangibles. Section 2. Authorization of the Bonds and the Financial Assistance Agreement. For the purpose of paying a portion of the cost of the Project (including legal, fiscal, engineering and other expenses), there shall be borrowed on the credit of the income and revenue of the System, on a parity with the Prior Bonds, up to the sum of $3,425,850, and fully registered revenue bonds of the Municipality are hereby authorized to be issued in evidence thereof and sold to the State of Wisconsin Clean Water Fund Program in accordance with the terms and conditions of the Financial Assistance Agreement, which is incorporated herein by this reference, and the City Manager and the Clerk of the Municipality are hereby authorized, by and on behalf of the Municipality, to execute the Financial Assistance Agreement. Section 3. Terms of the Bonds. The Bonds shall be designated "Sewerage System Revenue Bonds, Series 2004;" shall be dated May 26, 2004; shall be lettered R and numbered one and upward; shall bear interest at Two and Three Hundred Ninety- Six One-Thousandths percent (2.396%) per annum; shall be issued in denominations of $0.01 or any integral multiple thereof; and shall mature on the dates and in the amounts as set forth in Exhibit B to the Financial Assistance Agreement and Exhibit A attached to and made a part of this Resolution. Interest on the Bonds shall be payable commencing on November 1, 2004, and semiannually thereafter on May 1 and November 1 of each year. The Bonds shall not be subject to redemption prior to maturity, except as provided in the Financial Assistance Agreement. The schedule of maturities of the Bonds is found to be such that the amount of annual debt service payments is reasonable in accordance with prudent municipal utility practices. Section 4. Form, Execution, Registration and Payment of the Bonds. The Bonds shall be issued as registered obligations in substantially the form attached hereto as Exhibit A and incorporated herein by this reference. The Bonds shall be executed in the name of the Municipality by the manual signatures of the City Manager and the City Clerk of the Municipality, and the seal of the Municipality shall be impressed or imprinted thereon. The principal of, premium, if any, and interest on the Bonds shall be paid by the Municipal Treasurer, who is hereby appointed as the Municipality's Bond Registrar. Both the principal of and interest on the Bonds shall be payable in lawful money of the United States of America by the Bond Registrar. Payment of principal of the final maturity on the Bond will be payable upon presentation and surrender of the Bond to the Bond Registrar. Payment of principal of the Bond (except the final maturity) and each installment of interest shall be made to the registered owner of each Bond who -4- shall appear on the registration books of the Municipality, maintained by the Bond Registrar, on the Record Date and shall be paid by check or draft of the Municipality and mailed to such registered owner at his or its address as it appears on such registration books or at such other address as may be furnished in writing by such registered owner to the Bond Registrar. Section 5. Security for the Bonds. The Bonds, together with interest thereon, shall not constitute an indebtedness of the Municipality nor a charge against its general credit or taxing power within the meaning of any constitutional or statutory debt limitation or provision. The Bonds, together with interest thereon, shall be payable only out of the Debt Service Fund heretofore established, and shall be a valid claim of any owner thereof only against such Debt Service Fund and any other surplus revenues of the System pledged to such fund, all on a parity basis with the pledge thereof granted to the owners of the Prior Bonds. Sufficient revenues are hereby pledged to the Debt Service Fund, and shall be used for no other purpose than to pay the principal of, premium, if any, and interest on the Bonds, the Prior Bonds and any Parity Bonds as the same become due. Section 6. Funds and Accounts. In accordance with the Act, for the purpose of the application and proper allocation of the revenues of the System and to secure the payment of the principal of and interest on the Bonds, the Prior Bonds and any Parity Bonds, certain Funds of the System were created in the 1993 Bond Resolution, and are hereby continued, and shall be used solely for the following respective purposes: (a) The Revenue Fund, into which shall be deposited as received the entire gross earnings of the System, which money shall then be divided among the Operation and Maintenance Fund, the Debt Service Fund and the Surplus Fund in the amounts and in the manner set forth in Section 7 hereof and used for the purposes described below. (b) The Operation and Maintenance Fund, which shall be used for the payment of Current Expenses. (c) The Replacement Fund, into which revenues of the System shall be deposited periodically in amounts approved by the DNR and required to replace major System facilities originally funded by grants and loans (including loans evidenced by the Bonds, the Prior Bonds and any Parity Bonds) from the State of Wisconsin to the Municipality. (d) The Debt Service Fund which shall be used for the payment of the principal of, premium, if any, and interest on the Bonds, the Prior Bonds and any Parity Bonds as the same become due. (e) The Surplus Fund, which shall first be used whenever necessary to make deposits to the Debt Service Fund to pay the principal of, premium, if any, or interest on the Bonds, the Prior Bonds and any Parity Bonds when the Debt -5- Service Fund shall be insufficient for such purpose, and thereafter shall be disbursed as follows: (i) at any time, to remedy any deficiency in any of the Funds provided in this Section 6; and (ii) money thereafter remaining in the Surplus Fund at the end of any Fiscal Year may be transferred to any of the Funds or accounts continued herein or to reimburse the general fund of the Municipality for advances made by the Municipality to the System. Section 7. Application of Revenues. After the delivery of the Bonds, the entire gross earnings of the System shall be deposited as collected in the Revenue Fund, and shall be transferred monthly to the funds listed below in the following order of priority and in the manner set forth below: (a) to the Operation and Maintenance Fund, an amount equal to the estimated Current Expenses for such month and for the following month (after giving effect to available amounts in said Fund from prior deposits); (b) to the Replacement Fund, amounts consistent with the requirements and uses set out in Section 6(c) hereof; (c) to the Debt Service Fund, an amount equal to one-sixth (1/6) of the next installment of interest coming due on the Bonds, the Prior Bonds or any Parity Bonds then outstanding and an amount equal to one-twelfth (1/12) of the installment of principal of the Bonds, the Prior Bonds and any Parity Bonds coming due during such Bond Year (after giving affect to available amounts in said account from accrued interest, any premium or any other source), plus a pro rata amount equal to the interest on the Bond amounts outstanding from May 26, 2004, to November 1, 2004; and (d) the Surplus Fund, any amount remaining in the Revenue Fund after the monthly transfers required above have been completed. Transfers from the Revenue Fund to the Operation and Maintenance Fund, the Replacement Fund, the Debt Service Fund and the Surplus Fund shall be made monthly not later than the tenth day of each month, and such transfer shall be applicable to monies on deposit in the Revenue Fund as of the last day of the preceding month. Any other transfers and deposits to any fund required or permitted by subsections (a) through (d) of this Section, except transfers or deposits which are required to be made immediately or annually, shall be made on or before the tenth day of the month. Any transfer or deposit required to be made at the end of any Fiscal Year shall be made within sixty (60) days after the close of such Fiscal Year. If the tenth day of any month shall fall on a day other than a business day, such transfer or deposit shall be made on the next succeeding business day. It is the express intent and determination of the Governing Body that the amounts transferred from the Revenue Fund and deposited in the Debt Service Fund -6- shall be sufficient in any event to pay the interest on the Prior Bonds, the Bonds and any Parity Bonds as the same accrues and the principal thereof as the same matures. Section 8. Deposits and Investments. The Debt Service Fund shall be kept apart from monies in the other Funds and accounts and the same shall be used for no purpose other than the prompt payment of the principal of, premium, if any, and interest on the Bonds, the Prior Bonds and any Parity Bonds as the same become due and payable. All monies therein shall be deposited in special and segregated accounts in a public depository selected under Chapter34 of the Wisconsin Statutes, as supplemented and amended, and may be temporarily invested until needed in legal investments subject to the provisions of Section 66.0603(Im) of the Wisconsin Statutes, as supplemented and amended. The other funds herein created (except the Sewer System CWF Project Fund) may be combined in a single account in a public depository selected in the manner set forth above and may be temporarily invested until needed in legal investments subject to the provisions of 66.0603(Im) of the Wisconsin Statutes, as supplemented and amended. Section 9. Service to the Municipality. The reasonable cost and value of services rendered to the Municipality by the System by furnishing sewerage services for public purposes shall be charged against the Municipality, and shall, to the extent permitted by law, be paid in monthly installments as the service accrues, out of the current revenues of the Municipality collected or in the process of collection, exclusive of the revenues derived from the System; that is to say, out of the tax levy of the Municipality made by it to raise money to meet its necessary current expenses. The reasonable cost and value of such service to the Municipality in each year shall be equal to an amount which, together with other revenues of the System, will produce in each Bond Year Net Revenues equivalent to not less than the annual principal and interest requirements on the Prior Bonds, the Bonds and any Parity Bonds then outstanding times the greater of (i) 1.10, or (ii) the highest ongoing debt service coverage ratio required with respect to any other outstanding obligations payable from the revenues of the System. However, such payment out of the tax levy shall be subject to (a) approval of the Public Service Commission, or successors to its function, if applicable, (b) yearly appropriations therefor, and (c) applicable levy limitations, if any; but neither this Resolution nor such payment shall be construed as constituting an obligation of the Municipality to make any such appropriation over and above the reasonable cost and value of the services rendered to the Municipality and its inhabitants or to make any subsequent payment over and above such reasonable cost and value. Section 10. Operation of System; Municipality Covenants. It is covenanted and agreed by the Municipality with the owner or owners of the Bonds, and each of them, that the Municipality will perform all of the obligations as set forth in the Financial Assistance Agreement. Section 11. Additional Bonds. No bonds or obligations payable out of the revenues of the System may be issued in such manner as to enjoy priority over the _7_ Bonds and the Prior Bonds. Additional obligations may be issued if the lien on and pledge of revenues of the System are junior and are subordinated to that in favor of the Bonds and the Prior Bonds. Parity Bonds may be issued only under the following circumstances: (a) Additional Parity Bonds may be issued for the purpose of completing the Project and for the purpose of financing costs of the Project which are ineligible for payment under the State of Wisconsin Clean Water Fund Program. However, such additional Parity Bonds shall be in an aggregate amount not to exceed 20% of the face amount of the Bonds; or (b) Additional Parity Bonds may also be issued if all of the following conditions are met: (1) The Net Revenues of the System for the Fiscal Year immediately preceding the issuance of such additional bonds must have been in an amount at least equal to the greater of (i) 1.10 times the maximum annual interest and principal requirements on all Bonds, Prior Bonds and Parity Bonds outstanding payable from the revenues of the System, and on the Parity Bonds then to be issued, or (ii) if there are bonds outstanding payable from the revenues of the System whether or not on a parity with the Bonds, the debt service coverage ratio required with respect to those bonds as long as they remain outstanding. Should an increase in permanent rates and charges, including those made to the Municipality, be properly ordered and made effective during the Fiscal Year immediately prior to the issuance of such additional Parity Bonds or during that part of the Fiscal Year of issuance prior to such issuance, then Net Revenues for purposes of such computation shall include such additional revenues as an independent certified public accountant, consulting professional engineer or the Wisconsin Public Service Commission may certify would have accrued during the prior Fiscal Year had the new rates been in effect during that entire immediately prior Fiscal Year. (2) The payments required to be made into the Funds enumerated in Section 6 of this Resolution must have been made in full. (3) The additional Parity Bonds must have principal maturing on May 1 of each year and interest falling due on May 1 and November 1 of each year. (4) The proceeds of the additional Parity Bonds must be used only for the purpose of providing extensions or improvements to the System, or to refund obligations issued for such purpose. -8- Section 12. Sale of Bonds. The sale of the Bonds to the State of Wisconsin Clean Water Fund Program for the purchase price of up to $3,425,850, and at par, is ratified and confirmed; and the officers of the Municipality are hereby authorized and directed to do any and all acts, including executing the Financial Assistance Agreement and the Bonds as hereinabove provided, necessary to conclude delivery of the Bonds to said purchaser, as soon after adoption of this Resolution as is convenient. The purchase price for the Bonds shall be paid upon requisition therefor as provided in the Financial Assistance Agreement. Section 13. Application of Bond Proceeds; Investment; Arbitrage; Registered Form. The proceeds of the sale of the Bonds, less the expenses incurred in authorizing, issuing and delivering the Bonds, shall be deposited by the Municipality into a special fund designated as "Sewerage System CWF Project Fund." The Sewerage System CWF Project Fund shall be used solely for the purpose of paying the costs of the Project (including capitalized interest, if any, on the Bonds) and this Governing Body covenants and agrees that the portion of said principal proceeds shall be devoted to and used with due diligence as aforesaid and for the payment of all expenses incurred in issuing the Bonds, including legal, fiscal, accounting and printing costs, as more fully described in the preamble hereof and in the Financial Assistance Agreement. Moneys in the Sewer System CWF Project Fund shall be disbursed within three (3) business days of their receipt from the State of Wisconsin, and shall not be invested in any interest-bearing account. The Municipality recognizes that the purchasers and owners of the Bonds will have accepted them on, and paid therefor a price which reflects, the understanding that the interest thereon is exempt from Federal income taxation under laws in force at the time the Bonds shall have been delivered. In that connection the Municipality agrees that it shall take no action which may render the interest on any of the Bonds subject to Federal income taxation. The Mayor, the Manager, the Clerk or the Finance Director of the Municipality, or any of them, are hereby authorized to execute on behalf of the Municipality a certificate and agreement with respect to arbitrage (the "No Arbitrage Certificate') to assure the purchasers and owners of the Bonds that the proceeds of the Bonds are not expected to be used in a manner which would or might result in the Bonds being "arbitrage bonds" under Section 148 of the Internal Revenue Code of 1986, as amended (the "Code'), or the regulations of the United States Treasury Department with respect thereto currently in effect or proposed. Such No Arbitrage Certificate shall constitute a representation and certification of the Municipality, and no investment of Bond proceeds or of moneys accumulated to pay the Bonds herein authorized shall be made in violation of the expectations prescribed by the No Arbitrage Certificate. The Municipality further recognizes that the Code currently requires the Bonds to be issued and to remain in fully registered form in order that the interest thereon is exempt from Federal income taxation under laws in force at the time the Bonds are delivered. In this connection, the Municipality agrees that it will not take any action to -9- permit the Bonds to be issued in, or converted into, bearer or coupon form unless the Code is modified to permit such action. Section 14. Amendment to Resolution. After the issuance of any of the Bonds, no change or alteration of any kind in the provisions of this Resolution may be made until all of the Bonds, the Prior Bonds and any Parity Bonds have been paid in full as to both principal and interest, or discharged as herein provided, except: (a) the Municipality may, from time to time, amend this Resolution without the consent of any of the owners of the Bonds, but only to cure any ambiguity, administrative conflict, formal defect, or omission or procedural inconsistency of this Resolution; and (b) this Resolution may be amended, in any respect, with the written consent of the owners of not less than two-thirds (2/3) of the principal amount of the Bonds, the Prior Bonds and any Parity Bonds then outstanding, exclusive of Bonds, Prior Bonds and Parity Bonds held by the Municipality; provided, however, that no amendment shall permit any change in the pledge of revenues derived from the System or the maturity of any Bond, Prior Bond or Parity Bond issued hereunder, or a reduction in the rate of interest on any Bond, Prior Bond or Parity Bond, or in the amount of the principal obligation thereof, or in the amount of the redemption premium payable in the case of redemption thereof, or change the terms upon which the Bonds, Prior Bonds or Parity Bonds may be redeemed or make any other modification in the terms of the payment of such principal or interest without the written consent of the owner of each such Bond, Prior Bond or Parity Bond to which the change is applicable. Section 15. Defeasance. When all Bonds, Prior Bonds and Parity Bonds have been discharged, all pledges, covenants and other rights granted to the owners thereof by this Resolution shall cease. The Municipality may discharge all Bonds due on any date by irrevocably depositing in escrow with a suitable bank or trust company a sum of cash and/or bonds or securities issued or guaranteed as to principal and interest of the U.S. Government, or of a commission, board or other instrumentality of the U.S. Government, maturing on the dates and bearing interest at the rates required to provide funds sufficient to pay when due the interest to accrue on each of said Bonds to its maturity or, at the Municipality's option, if said Bond is prepayable to any prior date upon which it may be called for redemption, and to pay and redeem the principal amount of each such Bond at maturity, or at the Municipality's option, if said Bond is prepayable, at its earliest redemption date, with the premium required for such redemption, if any, provided that notice of the redemption of all prepayable Bonds on such date has been duly given or provided for. Section 16. Rebate Fund. The Municipality shall establish and maintain, so long as the Bonds, the Prior Bonds and any Parity Bonds are outstanding, a separate account to be known as the "Rebate Fund." The Rebate Fund is for the sole purpose of paying rebate to the United States of America, if any, on amounts of Bond proceeds held by the Municipality. The Municipality hereby covenants and agrees that it shall pay from the Rebate Fund the rebate amounts as determined herein to the United States of America. -]0- The Municipality may engage the services of accountants, attorneys or other consultants necessary to assist it in determining rebate amounts. The rebate amounts are equal to the sum of: (i) The excess of-- (a) the aggregate amounts earned from the date of issuance and delivery of the Bonds, the Prior Bonds and any Parity Bonds on all nonpurpose obligations in which gross proceeds of the Bonds, the Prior Bonds and any Parity Bonds have been invested (other than nonpurpose obligations attributable to an excess described herein) over (b) the aggregate amounts which would have been earned if the yield on such nonpurpose obligations (other than nonpurpose obligations attributable to an excess described herein) had been equal to the yield on the Bonds, the Prior Bonds and any Parity Bonds, plus (ii) any income attributable to the excess described in clause (i) above. The rebate amounts payable to the United States of America shall be determined on or prior to the end of the fifth (5th) Bond Year of the Bonds, the Prior Bonds or any Parity Bonds and the fifth (5th) anniversary of such date by the Municipality for each Bond Year during which the Bonds, the Prior Bonds and any Parity Bonds remain outstanding and upon retirement of the Bonds, the Prior Bonds and any Parity Bonds. Such rebate amounts shall be deposited in the Rebate Fund. The rebate amounts shall be paid to the United States of America in installments, as follows: (I) subject to clause (111) below, the first such installment shall be paid no later than thirty (30) days after the end of the fifth (5th) Bond Year of the Bonds, the Prior Bonds and any Parity Bonds; (11) subject to clause (111) below, an additional installment shall be paid on or prior to the last day of each additional installment payment period during which the Bonds, the Prior Bonds and any Parity Bonds remain outstanding. For purposes of this clause (11), an installment payment period shall commence on the last day on which a preceding installment of the rebate amount was required to be paid, and shall end on the day preceding the fifth (5th) anniversary of such payment date; (111) anything herein to the contrary notwithstanding, the last installment shall be paid no later than thirty (30) days after the Bonds, the Prior Bonds and any Parity Bonds have been retired; and (IV) each installment shall be in an amount which, when aggregated with the amount of any prior installments paid to the United States of America hereunder, will equal at least ninety percent (90%) of the total rebate amount payable to the United States of America hereunder as of the date such installment is paid; provided, however, that the last installment shall be in an amount equal to the entire remaining balance of the rebate amount payable to the United States of America under this Resolution. Amounts held in the Rebate Fund and the investment income therefrom are not pledged as security for the Bonds, the Prior Bonds and any Parity Bonds and may only be used to pay amounts to the United States of America. The Municipality shall maintain or cause to be maintained records of such determinations for each Bond Year until six (6) years after payment in full of the Bonds, the Prior Bonds and any Parity Bonds, and shall make such records available upon reasonable request therefor. The Municipality hereby agrees it will disburse all monies in the Rebate Fund to the United States of America at the times and in the manner set forth in the applicable income tax regulations. Section 17. Resolution a Contract. The provisions of this Resolution shall constitute a contract between the Municipality and the owner or owners of the Bonds, and after issuance of any of the Bonds no change or alteration of any kind in the provisions of this Resolution may be made, except as provided in Section 14 hereof, until all of the Bonds have been paid in full as to both principal and interest. The owner or owners of any of the Bonds shall have the right in addition to all other rights, by mandamus or other suit or action in any court of competent jurisdiction, to enforce such owner's or owners' rights against the Municipality, the Governing Body thereof, and any and all officers and agents thereof, including, but without limitation, the right to require the Municipality, its Governing Body and any other authorized body, to fix and collect rates and charges fully adequate to carry out all of the provisions and agreements contained in this Resolution. Section ~8. Reimbursement. With respect to the proceeds of the Bonds being used to reimburse the Municipality for Project costs paid sixty (60) days prior to September23, 2003, the Municipality, by the adoption of this Resolution by the Governing Body, hereby ratifies, approves and confirms the Declaration of Intention to Reimburse executed by the City Manager of the Municipality on September 23, 2003, which Declaration is responsive to Internal Revenue Service Regulations Section 1.103-18. Similar resolutions will be adopted with respect to any project proposed to be financed through the issuance of Parity Bonds, as permitted by Section 11 of this Resolution. Section ~9. Continuing Disclosure. The officers of the Municipality are hereby authorized and directed to provide to the State of Wisconsin Clean Water Fund -]2- Program such ongoing disclosure regarding the Municipality's financial conditions and other matters, at such times and in such manner as the State of Wisconsin Clean Water Fund Program may require in order to comply with the rules and regulations promulgated by the Securities and Exchange Commission under the Securities Exchange Act of 1934, as the same may be amended from time to time. Section 20. Conflicting Resolutions. All ordinances, resolutions, or orders, or parts thereof heretofore enacted, adopted or entered, in conflict with the provisions of this Resolution, the 1993 Bond Resolution, the 1995 Bond Resolution or the 1999 Bond Resolution are hereby repealed, and this Resolution shall be in effect from and after its passage. In case of any conflict between this Resolution and the 1993 Bond Resolution, the 1995 Bond Resolution or the 1999 Bond Resolution, the 1993 Bond Resolution, the 1995 Bond Resolution and the 1999 Bond Resolution shall control as long as the bonds authorized thereunder and bonds issued on a parity therewith are outstanding. Passed: May 11, 2004. Approved: May 11, 2004. Attest: /si Pamela R. Ubri,q City Clerk /s/Mark Harris Mayor -]3- EXHIBIT A (FORM OF BOND) REGISTERED NO. R-1 REGISTERED $3,425,850 UNITED STATES OF AMERICA STATE OF WISCONSIN COUNTY OF WINNEBAGO CITY OF OSHKOSH SEWERAGE SYSTEM REVENUE BOND, SERIES 2004 FINAL MATURITY DATE DATE OF ORIGINAL ISSUE May 1,2024 May 26,2004 REGISTERED OWNER: STATE OF WISCONSIN CLEAN WATER FUND PROGRAM KNOW ALL MEN BY THESE PRESENTS that the City of Oshkosh, Winnebago County, Wisconsin (the "Municipality'~ hereby acknowledges itself to owe and for value received promises to pay to the registered owner shown above, or registered assigns, solely from the fund hereinafter specified, the principal sum of an amount not to exceed Three Million Four Hundred Twenty-Five Thousand Eight Hundred Fifty Dollars ($3,425,850) (but only so much as shall have been drawn hereunder, as provided below) on May 1 of each year, commencing on May 1, 2005 until the final maturity date written above, together with interest thereon (but only on amounts as shall have been drawn hereunder, as provided below) from the dates the amounts are drawn hereunder or the most recent payment date to which interest has been paid, at the rate of 2.396% per annum, calculated on the basis of a 360-day year made up of twelve 30-day months, such interest being payable on the first days of May and November of each year, with the first interest being payable on November 1, 2004. The principal amount evidenced by this Bond may be drawn upon by the Municipality in accordance with the Financial Assistance Agreement entered by and between the Municipality and the State of Wisconsin by the Department of Natural Resources and the Department of Administration including capitalized interest transferred. The principal amounts so drawn shall be repaid in installments on May 1 of each year, commencing on May 1, 2005 in an amount equal to an amount which, when amortized over the remaining term of this Bond plus current payments of interest (but only on amounts drawn hereunder) at 2.396% per annum shall result in equal annual payments of the total of principal and the semiannual payments of interest. The State of Wisconsin Department of Administration shall record such draws and corresponding principal repayment schedule on a cumulative basis on the attached Exhibit A. Both principal and interest hereon are hereby made payable to the registered owner in lawful money of the United States of America. On the final maturity date, principal of this Bond shall be payable only upon presentation and surrender of this Bond at the office of the Municipal Treasurer. Principal hereof (except the final maturity) and interest hereon shall be payable by check or draft dated as of the applicable payment date and mailed from the office of the Municipal Treasurer to the person in whose name this Bond is registered at the close of business on the fifteenth day of the calendar month next preceding such interest payment date. The Bonds shall not be redeemable prior to their maturity, except with the consent of the registered owner. This Bond is transferable only upon the books of the Municipality kept for that purpose at the office of the Municipal Treasurer, by the registered owner in person or its duly authorized attorney, upon surrender of this Bond, together with a written instrument of transfer (which may be endorsed hereon) satisfactory to the Municipal Treasurer, duly executed by the registered owner or its duly authorized attorney. Thereupon a replacement Bond shall be issued to the transferee in exchange for this Bond. The Municipality may deem and treat the person in whose name this Bond is registered as the absolute owner hereof for the purpose of receiving payment of or on account of the principal or interest hereof and for all other purposes. This Bond is issuable solely as a negotiable, fully-registered bond, without coupons, and in denominations of $0.01 or any integral multiple thereof. This Bond is issued for the purpose of providing for the payment of the cost of constructing improvements to the Sewerage System of the Municipality, pursuant to Article XI, Section 3 of the Wisconsin Constitution, Section 66.0621 of the Wisconsin Statutes, as supplemented and amended, and a resolution adopted May 11, 2004, and entitled: "Resolution Authorizing the Issuance and Sale of Up to $3,425,850 Sewerage System Revenue Bonds, Series 2004, and Providing for Other Details and Covenants with Respect Thereto" (the "Resolution'l, and is payable only from the income and revenues derived from the operation of the Sewerage System of the Municipality (the "Utility'~. The Bonds are issued on a parity with $2,707,535.97 Sewerage System Revenue Bonds, Series 1993 (the "Series 1993 Bonds'l, $18,388,072 Sewerage System Revenue Bonds, Series 1995 (the "Series 1995 Bonds'~ and $3,568,112 Sewerage System Revenue Bonds, Series 1999 (the "Series 1999 Bonds'~ previously issued by the Municipality on behalf of the Utility and all bonds, if any, to be issued on a parity therewith, as provided in the Resolution. This Bond does not constitute an indebtedness of said Municipality or a charge against its general credit or taxing powers within the meaning of any constitutional or statutory debt limitation or provision. -2- It is hereby certified, recited and declared that all acts, conditions and things required to exist, happen, and be performed precedent to and in the issuance of this Bond have existed, have happened and have been performed in due time, form and manner as required by law; and that sufficient of the income and revenue to be received by the Municipality from the operation of its Utility has been pledged to and will be set aside into a special fund for the payment of the principal of, premium, if any, and interest on this Bond. IN WITNESS WHEREOF, the Municipality has caused this Bond to be signed by the signatures of its City Manager and City Clerk, and its official seal (or a true facsimile thereof) has been impressed (or imprinted) hereon, all as of the date of original issue specified above. CITY OF OSHKOSH, WINNEBAGO COUNTY, WISCONSIN [SEAL] By City Manager Attest: City Clerk -3- (FORM OF ASSIGNMENT) FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto (Please print or typewrite name and address, including zip code, of Assignee). Please insert Social Security or other identifying number of Assignee the within bond and all rights thereunder, hereby irrevocably constituting and appointing Attorney, to transfer said Bond on the books kept for the registration thereof with full power of substitution in the premises. Dated: NOTICE: Signature of Bondholder The signature to this assignment must correspond with the name as it appears upon the face of the within Bond in every particular, without alteration or enlargement or any change whatever. Signature(s) guaranteed by: -4- AMOUNT OF DISBURSEMENT EXHIBIT A TO BOND FORM $3,42S,8S0 CITY OF OSHKOSH, WISCONSIN SEWERAGE SYSTEM REVENUE BOND, SERIES 2004 DATE OF PRINCIPAL DISBURSEMENT BONDS REPAID PRINCIPAL BALANCE $ $ AUTHORIZED OFFICER -5- PRINCIPAL REPAYMENT SCHEDULE DATE AMOUNT May May May May May May May May May May May May May May May May May May May May 1 2005 1 2006 1 2007 1 2008 1 2009 1 2010 1 2011 1 2012 1 2013 1 2014 1 2015 1 2016 1 2017 1 2018 1 2019 1 2020 1 2021 1 2022 1 2023 1 2024 $135 138 142 145 148 152 156 159 163 167 171 175 180 184 188 193 197 2O2 2O7 212 521.97 769.08 093.98 498.56 984.70 554.38 209.58 952.36 784.82 709.10 727.41 842.00 055.17 369.30 786.79 310.12 941.83 684.51 540.83 513.51