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HomeMy WebLinkAbout05-100.doc APRIL 12, 200505-100RESOLUTION (CARRIED__7-0____ LOST______ LAID OVER _______ WITHDRAWN _______) PURPOSE:AUTHORIZE ISSUANCE & SALE OF $4,820,000 STORM WATER UTILITY REVENUE BONDS, SERIES 2005-C INITIATED BY:FINANCE DEPARTMENT W, the City of Oshkosh, Winnebago County, Wisconsin (the “Municipality”) HEREAS has established a storm water utility (the “Utility”) by resolution duly adopted by the City Council of the Municipality on November 26, 2002, which System is a separate revenue producing enterprise of the Municipality; and W, pursuant to the Constitution and the laws of the State of Wisconsin, and HEREAS particularly Section 66.0621, Wisconsin Statutes, as supplemented and amended, Wisconsin cities conducting a revenue producing facility or enterprise are permitted to issue revenue bonds to finance the purchase, acquisition, construction, extension, addition, improvement, conduct, control, operation and management of such a revenue producing facility or enterprise having a maturity not in excess of forty (40) years; and W, Section 66.0621(1)(b), Wisconsin Statutes, as supplemented and HEREAS amended, provides that a “public utility” means any revenue producing facility or enterprise owned by a municipality and operated for public purpose or undertaken by a municipality, as defined in Section 67.04(1)(b), Wisconsin Statutes, as supplemented and amended; and W, pursuant to the Constitution and the laws of the State of Wisconsin, and HEREAS particularly Section 66.0621, Wisconsin Statutes, as supplemented and amended, the Municipality has now determined that it is necessary and desirable to issue its revenue bonds to finance the construction of improvements to the Utility (the “Project”); and W, no other bonds or obligations will be outstanding and secured by a pledge HEREAS of the Revenues (as hereinafter defined); and W, notice of the sale of bonds for such purposes was published on April 4, HEREAS 2005, in The Bond Buyer; and, W, pursuant to the advertisement aforesaid, sealed bids were received for the HEREAS purchase of said bonds in said amount until 10:30 A.M., C.S.T., on April 12, 2005, and are as follows: NBTIR AME OF IDDERRUE NTEREST ATE UBS Financial Services Inc.4.435595 ABN AMRO Financial Services, Inc.4.453156 Robert W. Baird & Company4.489114 Incorporated ; and W, the bid of UBS Financial Services Inc. of Chicago, Illinois, and associates HEREAS at a price of $4,749,546.60, plus accrued interest to the date of delivery, was the best bid submitted, which bid is as follows: (Here Insert or Attach a True Copy of the Winning Bid) N, T, BIR by the City Council of the City of Oshkosh, OWHEREFOREE T ESOLVED Winnebago County, Wisconsin, as follows: Section 1.Definitions. In addition to those terms defined in the preamble hereto and in the body of this Resolution, the following terms shall have the following meanings in this Resolution, unless the text expressly or by necessary implication requires otherwise: (a)“Bond” or “Bonds” shall mean one or more of the Series 2005-C Bonds and any one or more of the Parity Bonds; (b)“Bond Register” shall mean the books of the Municipality kept by the Bond Registrar to evidence the registration and transfer of the Series 2005-C Bonds. (c)“Bond Registrar” shall mean U.S. Bank National Association, Milwaukee, Wisconsin, or a successor designated as Bond Registrar hereunder, the same being the fiscal agent of the Municipality and paying agent for the Series 2005-C Bonds. (d)“Business Day” shall mean any day which is not a Saturday, a Sunday or a day on which: (i) banks in the State of Wisconsin are authorized by law or executive order to be closed, (ii) the Federal Reserved System is closed, (iii) the designated office of the Bond Registrar or the Paying Agent are authorized by law or executive order to be closed, or (iv) the offices of the Municipality are closed for the purpose of conducting the business of the Municipality. (e)“Construction Fund” shall mean the fund created in Section 19 hereof into which the proceeds of the Series 2005-C Bonds and any Parity Bonds issued to purchase, acquire, construct, extend, add to, improve, conduct, control, operate or manage the Utility shall be deposited. (f)“Debt Service Reserve Requirement” shall mean an amount equal to the Maximum Annual Debt Service payable on the Bonds in any Fiscal Year (or such greater amount as the Municipality may determine from time to time). (g)“Fiscal Year” shall mean the twelve (12) month period beginning on January 1 of each year and ending on December 31 of the same year. (h)“Maximum Annual Debt Service” shall mean, at any time, the maximum amount required to be deposited in the then current or any succeeding Fiscal Year into the Interest and Principal Account for the payment of the principal of and interest on the Bonds, as provided in this Resolution; (i)“Municipality” shall mean the City of Oshkosh, Winnebago County, Wisconsin, and any successor to the duties or functions of the Municipality; (j)“Net Revenues” shall mean the Revenues after deduction of the Operation and Maintenance Expenses. (k)“Operation and Maintenance Expenses” shall mean salaries, wages, cost of material and supplies, including routine repairs and renewals, management fees paid to third parties, insurance and such other reasonable current expenses as shall be determined in accordance with generally accepted accounting principles, but excluding the costs of depreciable capital equipment, capital improvements, depreciation, debt service, debt service reserves (including repayments with respect thereto), special assessments or payments of or in lieu of property taxes. (l)“Original Purchaser” shall mean the purchaser or purchasers of the Series 2005-C Bonds from the Municipality pursuant to Section 18 of this Resolution. (m)“Parity Bonds” shall mean Bonds payable from the Revenues of the Utility, other than the Series 2005-C Bonds, issued on a parity with the Series 2005-C Bonds pursuant to the restrictive provisions of Section 15 of this Resolution. (n)“Paying Agent” shall mean U.S. Bank National Association, Milwaukee, Wisconsin, and its successors or assigns. (o)“Project” shall mean the improvements to be constructed to the Utility and financed with the proceeds of the Series 2005-C Bonds. (p)“Registered Owner” or “owner” or “holder” shall mean the person, firm, corporation, trust or partnership in the name of which a Bond is registered on the Bond Register of the Municipality. (q)“Resolution” shall mean this resolution authorizing the issuance of the Series 2005-C Bonds and providing for the issuance of Parity Bonds. (r)“Revenues” shall mean all rates, fees, charges and other income, including interest income, received by the Utility from all sources (other than investment income from the Construction Fund), but expressly excluding income from the sale of property of the Utility (except as otherwise provided herein), collections of insurance awards or condemnation proceeds, special assessments and other contributions in aid of construction, if any. (s)“Series 2005-C Bonds” means the $4,820,000 aggregate principal amount of Storm Water Utility Revenue Bonds, Series 2005-C of the Municipality, authorized to be issued by this Resolution. (t)“Utility” shall mean the storm water facilities of the Municipality, except as otherwise herein provided, including all real and personal property of every nature now or hereafter owned by the Municipality and designated by the Municipality as being for storm water purposes, including all improvements thereto and extensions thereof, located within or outside of the Municipality, while any of the Bonds remain outstanding, including all appurtenances, contracts, leases, franchises and other intangibles. Section 2.Determinations. (a) The Utility is hereby determined to be a “public utility” for purposes of issuing revenue bonds pursuant to, and shall be operated in accordance with the provisions of, Section 66.0621, Wisconsin Statutes, as supplemented and amended, and this Resolution. (b)All Revenues are hereby determined to be “revenues” of the Utility while any of the Bonds remain outstanding. (c)The Revenues are hereby pledged for the purpose of paying the principal of, premium, if any, and interest on the Bonds, operating and maintaining the Utility and funding the other funds and accounts established under this Resolution. (d)The schedule of maturities of the Series 2005-C Bonds set out below is such that the Series 2005-C Bonds mature in a fashion attractive to potential investors and in accordance with prudent utility system management. (e)The aggregate principal amount of the Series 2005-C Bonds, which shall encompass sums sufficient to provide for the costs hereinbelow mentioned, is necessary to finance the Project and to pay the costs of issuance of the Series 2005-C Bonds. Section 3.Purpose and Terms of Series 2005-C Bonds. It is hereby determined that for the purpose of paying the cost of financing the Project, and paying the legal, fiscal, accounting, printing and other expenses in connection with the issuance of the Series 2005-C Bonds, it is necessary and desirable that the fully registered Series 2005-C Bonds of the Municipality in the aggregate principal amount of $4,820,000 shall be issued. The Series 2005-C Bonds shall be designated “Storm Water Utility Revenue Bonds, Series 2005-C,” shall be dated May 1, 2005, and shall also bear the date of authentication thereof by the Bond Registrar, shall be issued in fully registered form, shall be issued in denominations of $5,000 or any integral multiple thereof (but no single Series 2005-C Bond shall represent principal maturing on more than one date), and shall be lettered R and numbered consecutively from 1 and upward. The Series 2005-C Bonds shall mature on May 1 of each of the years, except as the provisions hereinafter set forth with respect to redemption prior to maturity may become applicable, and shall bear interest at the rates per annum, as follows: I NTEREST YAR EARMOUNTATE 2006$170,0003.50 % 2007175,0003.50 2008180,0003.50 2009185,0003.50 2010190,0003.50 2011195,0003.50 2012200,0004.00 2013210,0004.00 2014220,0004.00 2015225,0004.00 2016235,0004.125 2017245,0004.15 2018255,0004.20 2019265,0004.25 2020280,0004.35 2021290,0004.40 2022305,0004.50 2023315,0004.50 2024330,0004.50 2025350,0004.625 Section 4.Book-Entry. The Municipality and/or the Bond Registrar may enter into an agreement with a securities depository registered under Section 17A of the Securities Exchange Act of 1934, as amended, including without limitation The Depository Trust Company, which is the record owner of the Bonds, to establish procedures with respect to the Series 2005-C Bonds owned by such depository. Such agreement may impose additional requirements on the Bond Registrar with respect to the Series 2005-C Bonds. Section 5.Interest; Payment Provisions. The Series 2005-C Bonds shall bear interest from the later of their dated date or from the most recent interest payment date to which interest has been paid or duly provided for, at the above stated rates per annum, calculated on the basis of a 360-day year of twelve 30-day months, and shall be payable on November 1, 2005, and semiannually thereafter on May 1 and November 1 of each year. Interest on each Series 2005-C Bond shall be paid on the due date by check or draft of the Paying Agent in lawful money of the United States of America to the registered owner in whose name such Series 2005-C Bond is registered at the close of business on the fifteenth (15th) day of the calendar month immediately preceding the interest payment date (the “Record Date”). The principal of the Series 2005-C Bonds shall be payable in lawful money of the United States of America at the designated office of the Paying Agent in Milwaukee, Wisconsin, upon presentation and surrender of the Series 2005-C Bond. Notwithstanding the foregoing, the principal of and premium, if any, and interest on any Series 2005-C Bond shall be payable by wire transfer in immediately available funds to such wire transfer address within the continental United States of America as shall be requested by any owner of the Series 2005-C Bonds in an aggregate principal amount of at least $1,000,000, if such owner shall have requested payment by such method in writing, and shall have provided the Paying Agent with an account number and other necessary information for such purpose by the applicable Record Date; provided, that the payment of the principal of and premium, if any, on each Series 2005-C Bond shall be made only upon presentation and surrender of such Series 2005-C Bond at the designated office of the Paying Agent in Milwaukee, Wisconsin. Section 6.Prior Redemption of Series 2005-C Bonds. The Series 2005-C Bonds coming due on and after May 1, 2016, shall be subject to redemption prior to maturity at the option of the Municipality, from any available funds, in whole or in part, on May 1, 2015, and on any date thereafter, and if in part in such order as the Municipality may determine and, if less than a single maturity is redeemed, in integral multiples of $5,000, selected by lot by the Bond Registrar as hereinafter provided, at a redemption price of 100% of the principal amount thereof being redeemed, plus accrued interest to the date fixed for redemption. Section 7.Redemption Procedure. For redemptions at the option of the Municipality, the Municipality shall, at least forty-five (45) days prior to the date fixed for redemption (unless a shorter time period shall be satisfactory to the Bond Registrar), notify the Bond Registrar of such date fixed for redemption and of the principal amount of the Series 2005-C Bonds to be redeemed. For purposes of any redemption of less than all of the Series 2005-C Bonds of a single maturity, if the Series 2005-C Bonds are not held by a single registered owner, the particular Series 2005-C Bonds or portions of Series 2005-C Bonds to be redeemed shall be selected by such method as the Bond Registrar shall deem fair and appropriate, and which shall provide for the selection for redemption of Series 2005-C Bonds or portions thereof in principal amounts of $5,000 and integral multiples thereof. The Bond Registrar shall promptly notify the Municipality in writing of the Series 2005-C Bonds or portions of Series 2005-C Bonds selected for redemption and, in the case of any Series 2005-C Bond selected for partial redemption, the principal amount thereof to be redeemed. Unless waived by the registered owner of the Series 2005-C Bonds to be redeemed, official notice of any such redemption shall be given by the Bond Registrar on behalf of the Municipality by mailing the redemption notice by first class mail not less than thirty (30) days prior to the date fixed for redemption to each registered owner of the Series 2005-C Bond or Series 2005-C Bonds to be redeemed at the address shown on the Bond Register or at such other address as is furnished in writing by such registered owner to the Bond Registrar. Failure to give such notice by mailing to any owner of any Series 2005-C Bond, or any defect therein, shall not affect the validity of any proceedings for the redemption of any other Series 2005-C Bonds. All official notices of redemption shall include the name of the Series 2005-C Bonds to be redeemed and include at least the information as follows: (1)the dated fixed for redemption; (2)the redemption price; (3)if less than all of the Series 2005-C Bonds of a single maturity are to be redeemed, the identification, including CUSIP numbers (and, in the case of partial redemption of any Series 2005-C Bonds, the respective principal amounts) of the Series 2005-C Bonds to be redeemed; (4)a statement that on the date fixed for redemption the redemption price will become due and payable upon each such Series 2005-C Bond or portion thereof called for redemption and that interest thereon shall cease to accrue from and after said date; and (5)the place where such Series 2005-C Bonds are to be surrendered for payment of the redemption price, which place of payment shall be the principal corporate trust office of the Bond Registrar. Prior to any dated fixed for redemption, the Municipality shall have on deposit with the Bond Registrar an amount of money sufficient to pay the redemption price of all the Series 2005-C Bonds or portions of Series 2005-C Bonds which are to be redeemed on that date. With respect to an optional redemption of any Series 2005-C Bonds, unless moneys sufficient to pay the principal of and interest on the Series 2005-C Bonds to be redeemed shall have been received by the Paying Agent prior to the giving of such notice of redemption, such notice may, at the option of the Municipality, state that said redemption shall be conditional upon the receipt of such moneys by the Registrar on or prior to the date fixed for redemption. If such moneys are not received, such notice shall be of no force and effect, the Municipality shall not redeem such Series 2005-C Bonds and the Bond Registrar shall give notice, in the same manner in which the notice of redemption was given, that such moneys were not so received and that such Series 2005-C Bonds will not be redeemed. Notice of redemption having been given as aforesaid, the Series 2005-C Bonds or portions of Series 2005-C Bonds so to be redeemed shall, on the date fixed for redemption, become due and payable at the redemption price therein specified, and from and after such date (unless the Municipality shall default in the payment of the redemption price), such Series 2005-C Bonds or portions of Series 2005-C Bonds shall cease to bear interest. Neither the failure to mail such redemption notice, nor any defect in any notice so mailed, to any particular registered owner, shall affect the sufficiency of such notice with respect to the other Series 2005-C Bonds to be redeemed. Notice having been properly given, failure of a registered owner to receive such notice shall not be deemed to invalidate, limit or delay the effect of the notice or redemption action described in the notice. Such notice may be waived in writing by the registered owner entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by registered owners shall be filed with the Bond Registrar, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver. Upon surrender of such Series 2005-C Bonds for redemption in accordance with said notice, such Series 2005-C Bonds shall be paid by the Bond Registrar at the redemption price. The procedure for the payment of the interest due on or prior to the date fixed for redemption shall be as herein provided for the payment of interest otherwise due. Upon surrender for any partial redemption of any Series 2005-C Bond, there shall be prepared for the registered owner a new Series 2005-C Bond or Series 2005-C Bonds of like tenor, of authorized denominations, of the same maturity and bearing the same rate of interest in the amount of the unpaid principal. If any Series 2005-C Bond or portion of a Series 2005-C Bond called for redemption shall not be so paid upon surrender thereof for redemption, the principal shall, until paid or duly provided for, bear interest from the date fixed for redemption at the rate borne by the Series 2005-C Bond or portion of a Series 2005-C Bond so called for redemption. All Series 2005-C Bonds which have been redeemed shall be cancelled and destroyed by the Bond Registrar, and shall not be reissued. In addition to the foregoing notice, further notice of redemption (the “Additional Redemption Notice”) shall be given by the Bond Registrar on behalf of the Municipality as set out below, but no defect in said Additional Redemption Notice nor any failure to give all or any portion of such Additional Redemption Notice shall in any manner invalidate, limit or delay the redemption action if notice thereof is given as above prescribed. Each Additional Redemption Notice given hereunder shall contain the information required above for an official notice of redemption plus (i) the CUSIP numbers of all Series 2005-C Bonds being redeemed; (ii) the date of issuance of the Series 2005-C Bonds as originally issued; (iii) the rate of interest borne by each Series 2005-C Bond being redeemed; (iv) the maturity date of each Series 2005-C Bond being redeemed; and (v) any other descriptive information needed to identify accurately the Series 2005-C Bonds being redeemed. Each Additional Redemption Notice shall be sent at least thirty-five (35) days before the date fixed for redemption by registered or certified mail, postage prepaid, or overnight delivery service to all registered securities depositories then in the business of holding substantial amounts of obligations of the types comprising the Series 2005-C Bonds (including The Depository Trust Company of New York, New York) and to at least two (2) national information services, chosen in the discretion of the Bond Registrar, that disseminate notice of redemption of obligations such as the Series 2005-C Bonds. Each such further notice may be published one time in a financial newspaper or journal which regularly carries notices of redemption of other obligations similar to the Series 2005-C Bonds, such publication to be made at least thirty (30) days prior to the date fixed for redemption. Upon the payment of the redemption price of the Series 2005-C Bonds being redeemed, each check or other transfer of funds issued for such purpose shall bear the CUSIP number identifying, by issue and maturity, the Series 2005-C Bonds being redeemed with the proceeds of such check or other transfer. Section 8.Execution; Authentication. The Series 2005-C Bonds shall be executed on behalf of the Municipality with the manual or facsimile signature of its City Manager and attested with the manual or facsimile signature of its City Clerk, and shall have impressed or imprinted thereon the official seal of the Municipality or a facsimile thereof. In case any officer whose signature shall appear on any Series 2005-C Bond shall cease to be such officer before the delivery of such Series 2005-C Bond, such signature shall nevertheless be valid and sufficient for all purposes, the same as if such officer had remained in office until delivery. All Series 2005-C Bonds shall have thereon a certificate of authentication substantially in the form hereinafter set forth duly executed by the Bond Registrar as authenticating agent of the Municipality and showing the date of authentication. No Series 2005-C Bond shall be valid or obligatory for any purpose or be entitled to any security or benefit under this Resolution unless and until such certificate of authentication shall have been duly executed by the Bond Registrar by manual signature, and such certificate of authentication upon any such Series 2005-C Bond shall be conclusive evidence that such Series 2005-C Bond has been authenticated and delivered under this Resolution. The certificate of authentication on any Series 2005-C Bond shall be deemed to have been duly executed if signed by an authorized officer of the Bond Registrar, but it shall not be necessary that the same officer sign the certificate of authentication on all of the Series 2005-C Bonds issued under this Resolution. Section 9.Registration of Series 2005-C Bonds; Persons Treated as Owners. The Municipality shall cause the Bond Register for the registration and for the transfer of the Series 2005-C Bonds as provided in this Resolution to be kept at the designated office of the Bond Registrar, which is hereby constituted and appointed the registrar and paying agent of the Municipality, and the Bond Registrar shall agree to so act. The Municipality is authorized to prepare, and the Bond Registrar shall keep custody of, multiple Series 2005-C Bond blanks executed by the Municipality for use in the transfer and exchange of the Series 2005-C Bonds. Upon surrender for transfer of any Series 2005-C Bond at the designated office of the Bond Registrar, duly endorsed by, or accompanied by a written instrument or instruments of transfer in form satisfactory to the Bond Registrar and duly executed by, the Registered Owner or his attorney duly authorized in writing, the Municipality shall execute and the Bond Registrar shall authenticate, date and deliver in the name of the transferee or transferees a new fully registered Series 2005-C Bond or Series 2005-C Bonds of the same series, maturity and interest rate of authorized denominations, for a like aggregate principal amount. Any fully registered Series 2005-C Bond or Series 2005-C Bonds may be exchanged at said office of the Bond Registrar for a like aggregate principal amount of Series 2005-C Bonds of the same series, maturity and interest rate of other authorized denominations. The execution by the Municipality of any fully registered Series 2005-C Bond shall constitute full and due authorization of such Series 2005-C Bond, and the Bond Registrar shall thereby be authorized to authenticate, date and deliver such Series 2005-C Bond; provided, however, that the aggregate principal amount of outstanding Series 2005-C Bonds of each maturity authenticated by the Bond Registrar shall not exceed the authorized aggregate principal amount of Series 2005-C Bonds for such maturity, less previous retirements. The Bond Registrar may transfer or exchange, but shall not be required to transfer or exchange, any Series 2005-C Bond during the period of fifteen (15) days next preceding any interest payment date on the Series 2005-C Bonds, nor to transfer or exchange any Series 2005-C Bond after notice calling such Series 2005-C Bond for redemption prior to maturity has been mailed nor during the period of fifteen (15) days next preceding the mailing of a notice of the redemption of any Series 2005-C Bonds. The person in whose name any Series 2005-C Bond shall be registered shall be deemed and regarded as the absolute owner thereof for all purposes, and the payment of the principal of, premium, if any, or interest on any Series 2005-C Bond shall be made only to or upon the order of the registered owner thereof or his legal representative. All such payments shall be valid and effectual to satisfy and discharge the liability upon such Series 2005-C Bond to the extent of the sum or sums so paid. No service charge shall be made for any transfer or exchange of the Series 2005-C Bonds, but the Municipality or the Bond Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of the Series 2005-C Bonds, except in the case of the issuance of a Series 2005-C Bond or Series 2005-C Bonds for the unredeemed portion of a Series 2005-C Bond surrendered for redemption. Section 10.Bonds Payable Solely from Revenues. The Bonds, together with the premium, if any, interest thereon, shall be special, limited obligations of the Municipality, payable only out of Revenues deposited into the Special Redemption Fund hereinafter created, and shall be a valid claim of the owners thereof only against the Special Redemption Fund and from the Revenues pledged to the Special Redemption Fund, and sufficient Revenues are hereby pledged to the Special Redemption Fund, and shall be used for no purpose other than to pay the principal of, premium, if any, and interest on the Bonds as the same fall due. Section 11.Form of Series 2005-C Bonds. The Series 2005-C Bonds, the certificate of authentication to be endorsed thereon and the form of assignment are all to be in substantially the following forms with necessary and appropriate variations, omissions and insertions as permitted or required by this Resolution: (Form of Series 2005-C Bond - Front Side) RR EGISTEREDEGISTERED N. R-_____$________ O USA NITED TATES OF MERICA SW TATE OF ISCONSIN CW OUNTY OF INNEBAGO CO ITY OF SHKOSH SWURB, TORM ATER TILITY EVENUE OND S2005-C ERIES See Reverse Side for Additional Provisions InterestMaturityDated Rate: ____%Date: May 1, _____Date: May 1, 2005CUSIP No.________ Registered Owner: Principal Amount: KAMTP: That the City of Oshkosh in the County of NOW LL EN BY HESE RESENTS Winnebago and the State of Wisconsin (the “Municipality”) hereby acknowledges itself to owe and for value received, promises to pay to the Registered Owner identified above, or registered assigns as hereinafter provided, on the Maturity Date identified above, except as the provisions hereinafter set forth with respect to redemption prior to maturity become applicable hereto, solely from the revenues hereinafter identified, the Principal Amount identified above and, from the same source, to pay interest (computed on the basis of a 360-day year of twelve 30-day months) on such Principal Amount from the date of this Bond or from the most recent interest payment date to which interest has been paid, at the Interest Rate per annum identified above, payable on May 1 and November 1 of each year, commencing on November 1, 2005, until said Principal Amount is paid or duly provided for. The principal of this Bond is payable in lawful money of the United States of America upon presentation of this Bond at the designated office of U.S. Bank National Association, Milwaukee, Wisconsin, as bond registrar and paying agent (the “Bond Registrar” and the “Paying Agent”). Payment of the installments of interest hereon shall be made to the Registered Owner hereof shown on the registration books of the Municipality maintained by the Bond Registrar at the close of business on the fifteenth (15th) day of the calendar month immediately preceding the applicable interest payment date (the “Record Date”), and shall be paid by check or draft of the Paying Agent mailed to the address of such Registered Owner as it appears on such registration books or at such other address furnished in writing by such Registered Owner to the Bond Registrar; provided, however, that the principal of, premium, if any, and interest on this Bond are payable by wire transfer to any owner of the Series 2005-C Bonds (as hereinafter defined) in an aggregate principal amount of at least $1,000,000, if such owner shall have requested payment by such method in writing, and shall have provided the Paying Agent with an account number and other necessary information for such purpose on or before the applicable Record Date. Reference is hereby made to the further provisions of this Bond set forth on the reverse hereof and such further provisions shall for all purposes have the same effect as if set forth at this place. 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 form, time and manner as required by law, and that sufficient of the Revenues have 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. This Bond shall not be valid or become obligatory for any purpose until the certificate of authentication hereon shall have been signed by the Bond Registrar. IWW the City of Oshkosh, Winnebago County, Wisconsin, by its City N ITNESS HEREOF Council, has caused this Bond to be signed by its City Manager with his or her manual or facsimile signature, and by its City Clerk with her manual or facsimile signature, and the official seal of said City to be impressed or imprinted hereon, all as of the Dated Date identified above. City Manager [S] EAL Attest: By___________________________________ City Clerk Date of Authentication: __________________ C ERTIFICATE OF A UTHENTICATION This Bond is one of the Series 2005-C Bonds described in the within mentioned Resolution, and is one of the Storm Water Utility Revenue Bonds, Series 2005-C of the City of Oshkosh, Winnebago County, Wisconsin. U.S. BNA, ANK ATIONAL SSOCIATION as Bond Registrar By _________________________________ Authorized Officer [Form of Series 2005-C Bond - Reverse Side] CO, WC, W ITY OF SHKOSHINNEBAGO OUNTYISCONSIN SWURB, S2005-C TORM ATER TILITY EVENUE ONDERIES This Bond is one of an authorized issue of Storm Water Utility Revenue Bonds, Series 2005-C, aggregating the principal amount of $4,820,000 (the “Series 2005-C Bonds”), and has been issued under Section 66.0621, Wisconsin Statutes, as supplemented and amended (the “Act”), for the purpose of paying a portion of the cost of financing certain improvements to the storm water facilities of the Municipality (the “Utility”), and is payable only from the revenues to be derived from the operation of the storm water utility of the Municipality (the “Utility”), which revenues have been set aside as a special fund for that purpose and identified as the “Special Redemption Fund.” This Bond is issued pursuant to the Act and a resolution adopted by the City Council of the Municipality on April 12, 2005 (the “Bond Resolution”), is payable solely from the Special Redemption Fund, and does not constitute an indebtedness of the Municipality within the meaning of any constitutional or statutory limitation or provision. Under the Bond Resolution, additional bonds may be issued by the Issuer on a parity with the Series 2005-C Bonds (the “Parity Bonds”) and, together with the Series 2005-C Bonds, the “Bonds”) having a lien on said revenues equal to the lien with respect to the Series 2005-C Bonds, and rank pari passu with the Series 2005-C Bonds. Reference is hereby made to the Bond Resolution for a more complete statement of the revenues from which and conditions under which this Bond is payable, a statement of the conditions on which obligations may hereafter be issued on a parity with this Bond, the general covenants and provisions pursuant to which this Bond has been issued, and the manner in which the Bond Resolution may be modified. This Bond is transferable by the Registered Owner hereof in person or by his attorney duly authorized in writing at the designated office of the Bond Registrar in Milwaukee, Wisconsin, but only in the manner, subject to the limitations and upon payment of the charges provided in the Bond Resolution, and upon surrender and cancellation of this Bond. Upon such transfer a new Series 2005-C Bond or Series 2005-C Bonds of authorized denominations of the same series, maturity and interest rate, and for the same aggregate principal amount will be issued to the transferee in exchange for this Bond. The Series 2005-C Bonds of the issue of which this Bond is one are issued in fully registered form in the denomination of $5,000 each or any integral multiple thereof. This Bond may be exchanged at the designated office of the Bond Registrar for a like aggregate principal amount of Series 2005-C Bonds of the same series, maturity and interest rate of other authorized denominations, upon the terms set forth in the Bond Resolution. The Municipality and the Bond Registrar may deem and treat the Registered Owner hereof as the absolute owner hereof for the purpose of receiving payment of or on account of the principal hereof and interest due hereon and for all other purposes, and neither the Municipality nor the Bond Registrar shall be affected by any notice to the contrary. The Series 2005-C Bonds of the issue of which this Bond is one maturing on and after May 1, 2016, are subject to redemption prior to maturity at the option of the Municipality, from any available funds, as a whole or in part, on May 1, 2015, and on any date thereafter, and if in part in such order of maturity as the Municipality may determine, and if less than an entire maturity is redeemed, in integral multiples of $5,000, selected by the Bond Registrar, as provided in the Bond Resolution, in such manner as it shall deem fair and appropriate, at the redemption price of 100% of the principal amount thereof being redeemed, plus accrued interest to the date fixed for redemption. The Series 2005-C Bonds are also subject to extraordinary optional redemption by the Municipality, from the proceeds of the sale of the Utility, together with all other Bonds then outstanding, as a whole, on any date, at a redemption price equal to 100% of the principal amount thereof being redeemed, plus accrued interest to the date fixed for redemption. Notice of any intended redemption shall be sent by first class mail, postage prepaid, not less than thirty (30) days prior to the date fixed for redemption to the registered owner of each Series 2005-C Bond to be redeemed (in whole or in part) at the address shown on the registration books of the Municipality maintained by the Bond Registrar or at such other address as is furnished in writing by such registered owner to the Bond Registrar. Such notice of redemption may be conditional as provided in the Bond Resolution. When so called for redemption, this Bond, or the portion hereof being so called for redemption, will cease to bear interest on the specified redemption date, provided funds for redemption are on deposit at the place of payment on that date, and shall not be deemed to be outstanding. (FA) ORM OF SSIGNMENT The following abbreviations, when used in the inscription on the face of the within Bond, shall be construed as though they were written out in full according to applicable laws or regulations: TC-as tenants in commonUG/TMA- EN OMNIF IFTRANS IN CT _______Custodian ________ (Cust) (Minor) TE-as tenants by the entiretyUnder Uniform EN NT Gifts/Transfers to Minors JT-as joint tenants with rightAct_____________________ T EN of survivorship and not (State) as tenants in common Additional abbreviations may also be used though not listed above. FVR, the undersigned sells, assigns and transfers unto OR ALUE ECEIVED _________________________________________________________________________ _________________________________________________________________________ (Name and Address of Assignee) the within Bond and does hereby irrevocably constitute and appoint ________________, or its successor as Bond Registrar, to transfer said Bond on the books kept for registration thereof with full power of substitution in the premises. Dated: _____________________________________________________ N:The signature to this assignment must correspond with the name of the registered OTICE owner as it appears upon the face of the within Bond in every particular, without alteration or enlargement or any change whatever. Signature guaranteed: ________________________________ N:Signature(s) must be guaranteed by a member firm of the New York Stock OTICE Exchange or a commercial bank or trust company. Section 12.Creation of Funds and Accounts. (a) For the purpose of the allocation and proper application of the Revenues of the System and to secure the payment of the principal of, premium, if any, and interest on the Bonds, certain funds and accounts of the System are hereby created and shall be used solely for the following respective purposes: (a)the Storm Water Utility Revenue Fund (the “Revenue Fund”), into which the Revenues of the Utility shall be deposited, as received; (b)the Storm Water Utility Operation and Maintenance Fund (the “Operation and Maintenance Fund”), which shall be used for the payment of the Operation and Maintenance Expenses. Balances in the Operation and Maintenance Fund shall also be used whenever necessary for the payment of the principal of, premium, if any, and interest on the Bonds at any time when there shall be insufficient money for such purposes in the Special Redemption Fund. (c)the Storm Water Utility Special Redemption Fund (the “Special Redemption Fund”) which shall be divided into two accounts to be known as the “Interest and Principal Account” and the “Reserve Account”: (i)the Interest and Principal Account, which shall be considered a sinking fund, shall be used solely for the purpose of paying the principal of, premium, if any, and interest on the Bonds at maturity or upon mandatory sinking fund redemption, if any, in accordance with the provisions of this Resolution. (ii)the Reserve Account, which shall be used for the purpose of paying the principal of, premium, if any, or interest on the Bonds, at maturity or upon mandatory sinking fund redemption, if any, at any time when there shall be insufficient money for such purpose in the Interest and Principal Account. (d)the Storm Water Utility Renewal and Replacement Fund (the “Renewal and Replacement Fund”), which shall be used in the following manner and order of priority to pay: (i)the construction or acquisition of renewals, replacements and improvements to the Utility, the costs of extraordinary maintenance, necessary repairs and replacements and expansion for which no other moneys of the Utility are available in order that the Utility at all times is able to serve the needs of the Municipality; (ii)the principal of, premium, if any, and interest on the Bonds in the event other legally available moneys of the Utility are insufficient therefor; (iii)maintenance of the required balance in the Reserve Account; and (iv)extraordinary casualty claims against the Utility; (v)the Operation and Maintenance Expenses of the Utility. (e)the Storm Water Utility Surplus Fund (“Surplus Fund”) to which all moneys remaining in the Revenue Fund after the monthly requirements hereinafter set forth have been satisfied may be deposited. Moneys in the Surplus Fund shall be applied in the following order of priority for: (i)the elimination at any time of any deficiency in the funds and accounts listed above; (ii)the payment of subordinated debt (in which case appropriate sub- accounts shall be created in the Surplus Fund for the payment of principal, premium, if any, interest and debt service reserves); (iii)payments to the Municipality in lieu of the payment of property taxes; (iv)the transfer of additional amounts to any of the accounts listed above; (v)solely at the option of the Municipality, the purchase of Bonds in the open market at a price not exceeding the then applicable redemption price of such Bonds; and (vi)transfer to any other fund or account of the Municipality to be applied to any lawful corporate purpose. (b)Uninvested money in the Revenue Fund and the various funds and accounts hereinabove created may be kept as demand deposits with such bank or banks as may be designated from time to time by the Municipality as public depositories under the laws of the State of Wisconsin. The Special Redemption Fund shall be deposited in a separate bank account, but the other funds and accounts herein created may be combined in a single bank account with the Revenue Fund. All of said deposits shall be secured to the fullest extent required by any appropriate resolution adopted by the City Council of the Municipality or permitted by the laws of the State of Wisconsin. Deposits in excess of the amount insured by the Federal Deposit Insurance Corporation shall be secured by a surety bond written by a solvent surety or by pledge of direct obligations of the United States of America. Money in the Revenue Fund, the Operation and Maintenance Fund, the Special Redemption Fund, the Renewal and Replacement Fund and the Surplus Fund shall be invested, to the extent permitted by Wisconsin law, only in (i) direct obligations of the United States of America, (ii) obligations guaranteed as to principal or interest by the United States of America, (iii) the Wisconsin local government pooled investment fund, or (iv) any other investment permitted by the laws of the State of Wisconsin. All of such investments shall mature at such time or times as it is determined that funds will be needed to make the payments and deposits required by this Resolution or to provide for the current expenses of operating and maintaining the Utility, but in no event not later than five (5) years from the date of such investment. All income from investments of moneys in the Reserve Account shall be retained in the Reserve Account until the balance on deposit therein is equal to the Debt Service Reserve Requirement, as hereinafter provided. All income from investments of money in all other funds and accounts and from investments of the Reserve Account after the balance therein is equal to the Debt Service Reserve Requirement, shall be deposited in the Revenue Fund. Investment income earned on the funds and accounts created herein shall be included in the Revenues of the Utility. Investments in all funds and accounts shall be liquidated at any time when it shall be necessary to do so to provide money for any of the purposes for which such funds and accounts were created. Section 13.Application of Revenue. From and after the delivery of the Series 2005-C Bonds and while any of the Bonds shall be outstanding or until there shall be on deposit in the Special Redemption Fund, or there has been deposited in an irrevocable trust, an amount sufficient to provide for the payment of the principal of all such outstanding Bonds, premium, if any, and interest thereon to maturity or the date fixed for redemption, the Revenues of the Utility shall be deposited as collected in the Revenue Fund, and applied only for the purposes set out in this Resolution. Transfers from the Revenue Fund to the various funds and accounts herein created shall be made in the order of the funds and accounts listed in Section 12 hereof on or before the twentieth (20th) day of each calendar month or, if the twentieth (20th) day of the calendar month shall not be a Business Day, then on the next succeeding Business Day, and such transfers shall be determined with respect to money on deposit in the Revenue Fund as of the last day of the preceding month. It is the express intent and determination of the City Council of the Municipality that the amount of money to be deposited in the Special Redemption Fund shall in all events be sufficient to pay the interest on the Bonds as the same accrues and to retire the Bonds at maturity or upon redemption prior to maturity, and to provide the monthly amounts payable into the various accounts created in this Resolution. Moneys deposited in the various accounts herein created shall be applied only as follows: (a)Operation and Maintenance Fund (i)There shall be transferred each calendar month, commencing in June, 2005, to the Operation and Maintenance Fund a sum equal to one- twelfth (1/12) of the amount budgeted or estimated to be the expenses of operating and maintaining the Utility for the current fiscal year. Any balance of the amount transferred monthly to the Operation and Maintenance Fund remaining unspent on the last Business Day of the calendar month and determined not to be needed may be credited against the amount otherwise required to be deposited to the Operation and Maintenance Fund on such day. (ii)Amounts in the Surplus Fund may be transferred to the Operation and Maintenance Fund at any time if the amounts therein are insufficient to permit the payment of the Operation and Maintenance Expenses in the current month. (iii)Money in the Operation and Maintenance Fund not immediately required for current Operations and Maintenance Expenses shall be used to remedy any deficiency in the Special Redemption Fund. (b)Special Redemption Fund (i)There shall be transferred to the Special Redemption Fund the amounts necessary to provide for the payment of the interest on and principal of the Bonds as the same becomes due and to create a Reserve Account as required by this or any subsequent Resolution. On the date of issuance of the Series 2005-C Bonds, the Issuer shall deposit $30,686.36 from available funds in the Interest and Principal Account. Commencing in June, 2005, and in each calendar month thereafter, an amount equal to one-sixth (1/6) of the next installment of interest on the Bonds then outstanding until the full amount of such installments shall be on deposit in the Interest and Principal Account, plus an amount equal to one-sixth of the next installment of interest on the Bonds then outstanding, shall be deposited into the Interest and Principal Account. Commencing in June, 2005, and in each calendar month thereafter, an amount equal to one-twelfth (1/12) of the installment of principal of the Bonds coming due by reason of maturity or mandatory sinking fund redemption on the May 1 next succeeding, shall be deposited in the Interest and Principal Account until the full amount of such installments, plus an amount equal to one-twelfth of the immediately following installment of principal of the Bonds then outstanding shall be on deposit in the Interest and Principal Account. To the extent that Bonds are to be called pursuant to mandatory sinking fund payments on May 1 of any year, such payments shall be considered installments of principal for which moneys in the Special Redemption Fund shall be applied monthly and annually as herein provided. Five (5) business days (or such other number of business days as shall be agreed upon between the Municipality and the Paying Agent) prior to each semi-annual interest payment date there shall be transferred to the Paying Agent from the Interest and Principal Account or the Reserve Account an amount sufficient to pay all principal of, premium, if any, and interest on the Bonds coming due on the next interest payment date. Amounts transferred to the Paying Agent shall be invested by the Paying Agent for the account of the Municipality. (ii)Upon the delivery of the Series 2005-C Bonds there shall be deposited to the Reserve Account from the proceeds of the Series 2005-C Bonds the sum of the Debt Service Reserve Requirement. In the event the amount on deposit in the Reserve Account is less than the Debt Service Reserve Requirement, the next available money in the Revenue Fund shall be used to make monthly transfers to the Reserve Account equal to at least one- twelfth (1/12) of the difference between the amount on deposit in the Reserve Account and the Debt Service Reserve Requirement. The Debt Service Reserve Requirement may be satisfied in whole or in part with an insurance policy, Letter of Credit or other credit enhancement device, in which event any payments to reimburse the provider of the insurance policy, Letter of Credit or other credit enhancement device shall be paid from moneys that otherwise would have been deposited in the Reserve Fund. Investments on deposit in the Reserve Account shall be valued at the amortized cost thereof, exclusive of accrued interest thereon. No moneys shall be withdrawn from the Reserve Account, except for the purposes of this Section 13(b), unless the amount on deposit therein is in excess of the Debt Service Reserve Requirement for the Bonds then outstanding. Whenever there is on deposit in the Reserve Account an amount in excess of the Debt Service Reserve Requirement, the amount of such excess shall be deposited in the Revenue Fund and used for the purposes thereof, unless such income and earnings are required to satisfy the Debt Service Reserve Requirement. (c)Renewal and Replacement Fund (i)At or before the beginning of each Fiscal Year, commencing with Fiscal Year 2005, the Finance Director of the Municipality shall recommend an amount to be budgeted for the ensuing Fiscal Year as an amount necessary to be used for the purposes for which the Renewal and Replacement Fund was established, which budgeted amount will take into account any balances then remaining in the Renewal and Replacement Fund at the beginning of such Fiscal Year. Such budgeted amount may increase or differ from year to year. (ii)From the Revenue Fund there shall be deposited in the Renewal and Replacement Fund each month an amount which, together with amounts on deposit therein will aggregate over the course of such Fiscal Year the amount budgeted annually, as aforesaid. (d)Surplus Fund. Amounts on deposit in the Surplus Fund may be used for the purposes set forth in Section 12(e) of this Resolution. Section 14.Covenants Regarding Operation of the Utility. The Municipality hereby covenants and agrees with each and every owner of the Bonds, as follows: (a)The Municipality will faithfully and punctually perform all duties with reference to the Utility required by the Constitution and the laws of the State of Wisconsin, and will continue collecting and charging appropriate rates for the use of the System, all in amounts sufficient to provide for the segregation of the Revenues of the Utility and the application thereof to the respective funds and accounts hereinabove created. (b)The Municipality will not sell, lease or in any manner dispose of the Utility, including without limitation any part thereof or any additions, extensions or improvements that may be made thereto, until all of the Bonds shall have been paid in full, both principal and interest, or until provision shall have been made for the payment of the Bonds and the premium, if any, and the interest thereon in full in accordance with the provisions of Sections 2 and 23 hereof; provided, however, that the Utility may be transferred as a whole to another municipal agency or public body, if permitted by Wisconsin law, provided, that the transferee shall covenant to continue paying all Bonds payable from the Revenues of the Utility as it exists on the date of such transfer, and provided further, that an independent engineer or independent certified public accountant or both working together shall demonstrate to the Municipality not less than sixty (60) days prior to such transfer that the Net Revenues available in the ensuing two Fiscal Years are estimated to cover Maximum Annual Debt Service not less than 1.20 times in each of such Fiscal Years. Notwithstanding the foregoing provision, the Municipality shall have the right to sell, lease or otherwise dispose of any property of the Utility found by the Municipality not to be necessary or not to be useful in the operation of the Utility. The proceeds received from the sale, lease or disposal of said property may be used to purchase Bonds on the open market or by request for tenders at a price not to exceed the then applicable redemption price, if any, therefore or to redeem Bonds which are redeemable in advance of maturity and, to the extent not so used, shall be paid into the Renewal and Replacement Fund, but such deposits shall not reduce the amount otherwise required to be deposited therein. Notwithstanding the foregoing provisions, the Municipality may sell, lease or otherwise dispose of the Utility as a whole, provided, that the proceeds of such sale or disposition, together with any other available moneys, are sufficient to pay the principal of premium, if any, and interest on all of the Bonds when due or upon extraordinary optional redemption prior to maturity, in which case the proceeds of such sale shall become Revenues, and shall not be used for any other purpose until the principal of, premium, if any, and interest on all of the Bonds shall have been paid or duly provided for as aforesaid. (c)The Municipality will operate and maintain the Utility in good condition, and will charge and collect such lawfully established rates and charges for the service rendered by the Utility, so that the Revenues of the Utility will be sufficient to make the payments into the funds and accounts created by this Resolution and to provide for the retirement of the Bonds and the payment of the premium, if any, the interest thereon as the same become due and which shall be sufficient to produce annual Net Revenues in each Fiscal Year which, in the aggregate, will amount to 1.20 times Maximum Annual Debt Service, and will promptly take all requisite actions necessary to fulfill any covenant of this Resolution. (d)The Municipality will prepare annual budgets for the Utility taking into account the rates then in effect and estimates of income based thereon and estimating Operation and Maintenance Expenses of the Utility for each Fiscal Year. Such budgets will be modified as needed to reflect rate charges as well as anticipated changes in expenses. (e)The Municipality will keep proper books and accounts separate from all other records of the Municipality relative to the Utility, and will cause such books and accounts to be audited annually not later than one hundred eighty (180) days after the close of each Fiscal Year by a recognized independent firm of certified public accountants, and will make available to the owners of at least ten percent (10%) in aggregate principal amount of the Bonds then outstanding, the latest balance sheet and the profit and loss statement of the Utility as certified by such accountants. A summary of such audit shall be mailed to any owner of at least ten percent (10%) in aggregate principal amount of the Bonds then outstanding, requesting the same. The owner of at least ten percent (10%) in aggregate principal amount of the Bonds then outstanding shall have at all reasonable times the right to inspect the Utility and the records, accounts and data relating thereto. Each such audit, in addition to whatever matters may be thought proper by said accountants to be included therein, shall include the following: (i)a statement in detail of the Revenues and expenditures of the Utility for the Fiscal Year; (ii)a statement of the Net Revenues as herein defined for such Fiscal Year; (iii)a balance sheet as of the end of such Fiscal Year; and (iv)a table indicating the annual principal maturities, semiannual interest payments and total annual debt service requirements of all Bonds and subordinated debt outstanding on the last day of each fiscal year. (f)The Municipality will carry, for the benefit of the owners of the Bonds, insurance of a kind and in such amounts as would usually be carried by private companies or other public bodies engaged in operating a similar utility. Such insurance policies may have deductible amounts or self-insurance clauses in commercially reasonable amounts which, at the date hereof, are determined to be $5,000,000 per occurrence. In addition, the Municipality may elect to self-insure with respect to property damage or liability for bodily injury or other casualties as permitted by Wisconsin law. All money received for losses under any of such insurance policies, except public liability, shall be used in repairing the damage or in replacing the property destroyed, but in the event that the Municipality shall find it inadvisable to repair such damage or replace such property, and that the operation of the Utility shall not have been impaired thereby, such money may be used to purchase Bonds on the open market or by request for tenders at a price not to exceed the next applicable redemption price, if any, therefore or to redeem Bonds which by their terms are redeemable in advance of maturity and, to the extent not so used, shall be deposited in the Renewal and Replacement Fund, in which event such payments shall not reduce the amounts otherwise required to be deposited therein. (g)The Municipality will grant no franchise for the operation of another storm water system within the Municipality. (h)The reasonable cost and value of any use of the Utility by the Municipality, if any, shall be charged against the Municipality, and shall be by it paid as the use occurs, out of the current revenues of the Municipality collected or in the process of collection, exclusive of the Revenues derived from the Utility, and out of the tax levy of the Municipality made by it to raise money to meet its necessary current expenses; provided, that, for purposes of this Resolution, and subject to annual appropriation, the value of such service to the Municipality shall be deemed to be the difference, if any, between the Revenues and the amount necessary to pay the principal of and interest on the Bonds and to replenish any deficiency in the Reserve Account. Such compensation for such service rendered to the Municipality shall be considered a portion of the Revenues. Section 15.Parity Bonds. The Municipality will issue no other bonds or obligations of any kind or nature payable from or enjoying a lien on the Revenues or the properties of the Utility having a priority over the Series 2005-C Bonds. Bonds may hereafter be issued on a parity with the Series 2005-C Bonds if all of the following conditions shall be met, but not otherwise: (i)The Net Revenues (adjusted as hereinafter provided) of the Utility for the last completed Fiscal Year must have been at least equal to 1.20 times Maximum Annual Debt Service (determined at the maximum rate which may be borne by variable rate bonds) on all Bonds then outstanding and the Parity Bonds then to be issued; provided, however, that if prior to the authorization of such Parity Bonds the Municipality shall have adopted and put into effect a revised schedule of fees for the use of the Utility then the Net Revenues of the Utility for the last completed Fiscal Year which, in the written opinion of an independent consulting engineer or certified public accountant employed for that purpose, would have resulted from such rates had they been in effect for such period, may be used in lieu of the actual Net Revenues for the last completed Fiscal Year. (ii)The payments required to be made into the various funds and accounts provided in Sections 12 and 13 of this Resolution, together with any required balances, must be certified as current by the Finance Director of the Municipality; (iii)The Parity Bonds must be payable as to principal on May 1 of each year in which principal falls due and as to interest on May 1 and November 1 of each year, and the rate of interest borne by the Parity Bonds may be fixed or variable; (iv)The proceeds of the Parity Bonds must be used solely to refund Bonds or for purchasing, acquiring, constructing, extending, adding to, improving, conducting, controlling, operating or managing the Utility; and (v)There shall be on deposit in the Reserve Account the Debt Service Reserve Requirement on the Bonds then outstanding and the Parity Bonds then being issued. Section 16.Equality of Lien. All of the Bonds, regardless of the installment of which they are a part and regardless of the dates of their issuance or delivery shall be secured equally by a pledge of the Special Redemption Fund and the Revenues allocated to such fund. Section 17.Modification of Resolution. The owners of two-thirds in aggregate principal amount of the Bonds at any time outstanding (not including in any case any Bonds which may then be held or owned by or for the account of the Municipality shall have the right from time to time to consent to and approve the adoption by the City Council of the Municipality of a resolution or resolutions modifying or amending any of the terms or provisions contained in this Resolution; provided, however, that this Resolution may not be so modified or amended in such manner as to: (a)make any change in the maturity of any Bonds; (b)make any change in the rate of interest borne by any Bonds; (c)reduce the amount of the principal or redemption premium payable on any Bonds; (d)modify the terms of payment of the principal of or interest or premium, if any, on, any Bonds, or impose any conditions with respect to such payment; (e)materially affect the rights of the owners of less than all of such Bonds then outstanding; (f)reduce the percentage of the aggregate principal amount of Bonds, the consent of the owners of which is required to effect a further modification. Whenever the Municipality shall propose to amend or modify this Resolution under the provisions of this Section, it shall cause notice of the proposed amendment or modification to be filed with the Original Purchaser, the owners of all of the Bonds then outstanding and the Paying Agent. Such notice shall briefly set forth the nature of the proposed amendment or modification, and shall state that a copy of the proposed amendatory resolution is on file in the office of the City Clerk of the Municipality for public inspection. Whenever at any time within one (1) year from the date of the filing of said notice there shall be filed with the City Clerk of the Municipality an instrument or instruments executed by the owners of at least two-thirds in aggregate principal amount of the Bonds then outstanding, which instrument or instruments shall refer to the proposed amendatory resolution described in said notice, and shall specifically consent to and approve the adoption thereof, thereupon, but not otherwise, the City Council of the Municipality may adopt such amendatory resolution and such resolution shall become effective. If the owners of at least two-thirds in aggregate principal amount of the Bonds then outstanding, at the time of the adoption of such amendatory resolution, or the predecessors in title of such owners, shall have consented to and approved the adoption thereof as herein provided, no owner of any Bond, whether or not such owner shall have consented to or shall have revoked any consent as in this Section provided, shall have any right or interest to object to the adoption of such amendatory resolution or to object to any of the terms or provisions therein contained or to the operation thereof or to enjoin or restrain the Municipality from taking any action pursuant to the provisions thereof. Any consent given by the owner of a Bond pursuant to the provisions of this Section shall be irrevocable for a period of one (1) year from its date, and shall be conclusive and binding upon all future owners of the same Bond during such period. Such consent may be revoked at any time after one (1) year from its date by the owner who gave such consent or by a successor in title by filing notice of such revocation with the City Clerk of the Municipality, but such revocation shall not be effective if the owners of two-thirds in aggregate principal amount of the Bonds then outstanding shall have, prior to the attempted revocation, consented to and approved the amendatory resolution referred to in such revocation. The fact and date of the execution of any instrument under the provisions of this Section may be proved by the certificate of any officer in any jurisdiction, who by the laws thereof is authorized to take acknowledgments of deeds within such jurisdiction, that the person signing such instrument acknowledged before him the execution thereof, or may be proved by an affidavit of a witness to such execution sworn to before such officer. The amount and number of the Bonds held by any person executing such instrument and the date of his owning the same may be proved by an affidavit by such person or by a certificate executed by any responsible bank or trust company showing that on the date therein mentioned such person had on deposit with such bank or trust company the Bonds described in such certificate. Notwithstanding any other provision of this Resolution, this Resolution may be amended without the consent of the owners of the Bonds in order to provide for the addition of real or personal property to the Utility. Section 18.Sale of Series 2005-C Bonds. The sale of the Series 2005-C Bonds to UBS Financial Services Inc. of Chicago, Illinois, the Original Purchaser, at a purchase price of $4,749,546.60, plus accrued interest to the date of delivery, is hereby confirmed. Upon preparation of the Series 2005-C Bonds in definitive form, the City Treasurer of the Municipality shall deliver the same to the Bond Registrar for authentication, after which the Series 2005-C Bonds shall be delivered to the Original Purchaser through the facilities of The Depository Trust Company in exchange for such purchase price. Section 19.Disposition of Series 2005-C Bond Proceeds; Construction Fund; Investment; Arbitrage; Registered Form. (a) The proceeds from the sale of the Series 2005-C Bonds shall be disbursed as follows, and not otherwise: (i)Accrued interest, if any, on the Series 2005-C Bonds shall be deposited in the Interest and Principal Account of the Special Redemption Fund. (ii)An amount equal to the Debt Service Reserve Requirement for the Series 2005-C Bonds shall be deposited in the Reserve Account of the Special Redemption Fund. (iii)The balance the principal proceeds of the Series 2005-C Bonds shall be deposited in a Construction Fund hereby created to be held in a bank selected by the Municipality, to be drawn upon for the purpose of paying the costs of the Project and the costs of issuance of the Series 2005-C Bonds. Moneys on deposit in the Construction Fund shall be invested as provided in Section 12(b) of this Resolution. Investment earnings shall remain in the Construction Fund until completion of the Project. (iv)The principal proceeds from the sale of the Series 2005-C Bonds shall be used only for the purposes aforesaid, and the City Council of the Municipality hereby 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 Series 2005-C Bonds, including legal, fiscal, accounting, underwriting, advertising and printing costs. (v)Moneys remaining in the Construction Fund upon completion of the Project or any project undertaken in the future and funded through insurance proceeds, condemnation proceeds or Parity Bonds shall be transferred to the Interest and Principal Account and used to redeem Bonds and Parity Bonds prior to maturity. The Municipality recognizes that the purchasers and owners of the Series 2005-C Bonds will have accepted them on, and paid therefor a price which reflects, the understanding that the interest thereon is excludible from Federal gross income of the owners thereof under laws in force at the time the Series 2005-C Bonds shall have been delivered. In this connection, the Municipality agrees that it shall take no action which may render the interest on any of the Series 2005-C Bonds includible in Federal gross income of the owners thereof and that the principal proceeds of the sale of the Series 2005-C Bonds shall be devoted to and used with due diligence for the purposes for which the Series 2005-C Bonds are hereby authorized to be issued. The Municipality agrees that, to the extent possible under state law, it will comply with whatever Federal law is adopted in the future which applies to the Series 2005-C Bonds and affects the tax-exempt status of the interest on the Series 2005-C Bonds. (b)The City Manager, the City Clerk, the City Treasurer/Finance Director, or any of them, are hereby authorized to execute on behalf of the Municipality a Tax Exemption Certificate and Agreement to assure the purchasers and owners of the Series 2005-C Bonds that the proceeds of the Series 2005-C Bonds are not expected to be used in a manner which would or might result in the Series 2005-C Bonds being “reimbursement bonds” issued in contravention of Section 1.103-18 of the United States Treasury Department Regulations (the “Regulations”) or “arbitrage bonds” under Section 148 of the Code or the Regulations currently in effect or proposed. Such Tax Exemption Certificate and Agreement shall constitute a representation, certification and covenant of the Municipality, and shall be incorporated herein by reference, and no use or investment of Bond proceeds or of moneys accumulated to pay the 2005-C Bonds herein authorized shall be made in violation of the expectations prescribed by said Tax Exemption Certificate and Agreement. Such Tax Exemption Certificate and Agreement shall constitute an agreement of the Municipality to follow certain covenants which may require the Municipality to take certain actions (including the payment of certain amounts to the United States Treasury) or which may prohibit certain actions (including the establishment of certain funds) under certain conditions as specified in such Tax Exemption Certificate and Agreement. The Municipality further recognizes that Section 149(a) of the Code requires the Series 2005-C Bonds to be issued and to remain in fully registered form in order that the interest thereon is excludible from Federal gross income of the owners thereof under laws in force at the time the Series 2005-C Bonds are delivered. In this connection, the Municipality agrees that it will not take any action to permit the Series 2005-C Bonds to be issued in, or converted into, bearer or coupon form. Section 20.Resolution a Contract; Remedies of Owners of Bonds. The provisions of this Resolution shall constitute a contract between the Municipality and the owner or owners of the Bonds, and 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 said Bonds shall have been paid in full as to both principal and interest, except as provided in Section 18 hereof, relating to amendments and modification. The 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 his or their rights against the Municipality, the City Council thereof, and any and all officers and agents thereof, including, but without limitation, the right to require the Municipality, its City Council 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, and for the appointment of a receiver for the Utility in the event of a default of the payment of the principal of, premium, if any, or interest on the Bonds. Section 21.List of Bondholders. The Bond Registrar shall maintain a list of the names and addresses of the owners of all Bonds and upon any transfer shall add the name and address of the new owner and eliminate the name and address of the transferor owner. Section 22.Duties of Bond Registrar. The City Manager of the Municipality is authorized to execute and the City Clerk of the Municipality is authorized to attest the Bond Registrar’s standard form of agreement between the Municipality and the Bond Registrar with respect to the obligations and duties of the Bond Registrar hereunder which shall include the following duties: (a)to act as Bond Registrar, authenticating agent, paying agent and transfer agent as provided herein; (b)to maintain a list of the owners of the Bonds as set forth herein and to furnish such list to the Municipality upon request, but otherwise to keep such list confidential; (c)to give notice of the redemption of Bonds as may be provided in any resolution authorizing a specific issue of Bonds. (d)to cancel and destroy Bonds which have been paid at maturity or upon earlier redemption or submitted for exchange or transfer; (e)to furnish the Municipality at least annually a certificate of destruction with respect to Bonds cancelled and destroyed; and (f)to furnish the Municipality at least annually an audit confirmation of Bonds paid, Bonds outstanding and payments made with respect to interest on the Bonds. Section 23.Defeasance. All Bonds and the interest accrued thereon shall be deemed to be paid within the meaning of this Section when payment of the principal of and premium, if any, on such Bonds, plus interest thereon to the due date thereof (whether such due date be by reason of maturity or upon redemption prior to maturity as provided in this Resolution, or otherwise), either (i) shall have been made or caused to be made in accordance with the terms of the Bonds and this Resolution, or (ii) shall have been provided by irrevocably depositing with the Paying Agent or a trustee or escrow agent, in trust and irrevocably setting aside exclusively for such payment, (1) moneys sufficient to make such payment, or (2) direct obligations of the United States of America or other obligations the timely payment of the principal of and interest on are unconditionally guaranteed by the full faith and credit of the United States of America, which are not callable prior to their maturity and which mature and bear interest, without reinvestment, in such amounts and on such dates as will provide sufficient moneys to make such payment, and all necessary and proper fees, compensation and expenses of the Paying Agent or such trustee or escrow agent shall have been paid or the payment thereof provided for. At such time as Bonds shall be deemed to be paid hereunder, as aforesaid, they shall no longer be secured by or entitled to the benefits of this Resolution, except for the purposes of any such payment from such moneys or obligations. It is expressly provided that fewer than all of the Bonds outstanding may be defeased at any time or from time to time and that fewer than all of the Bonds of a single maturity may be defeased. Section 24.Severability of Invalid Provisions. If any section, paragraph or provision of this Resolution shall be held to be invalid or unenforceable for any reason, the invalidity or unenforceability of such section, paragraph or provision shall not affect any of the remaining provisions of this Resolution. Section 25.Conflicting Resolutions Superceded. All other ordinances, resolutions or orders, or parts thereof, heretofore enacted, adopted or entered, in conflict with the provisions of this Resolution shall be and the same are hereby superseded to the extent of such conflict, and this Resolution shall be in effect from and after its passage. Adopted: April 12, 2005 Adopted: April 12, 2005 Recorded: April 12, 2005 A: TTEST /s/ Pamela R. Ubrig______ /s/ Mark L. Harris______ City ClerkMayor