AMENDED AND RESTATED ORDINANCE NO. 2022-17

AMENDED AND RESTATED ORDINANCE NO. 2022-17
An Amended and Restated Ordinance of the Town of Churubusco authorizing the restructuring and reissuance by the Town of its outstanding Sewage Works Revenue Bonds, Series 2006, and authorizing the issuance of sewage works revenue bonds for the purpose of providing funds to pay the cost of certain additions, extensions and improvements to the municipal sewage works of said Town, providing for the safeguarding of the interests of the owners of said bonds, other matters connected therewith, including the issuance of notes in anticipation of bonds, and repealing ordinances inconsistent herewith
WHEREAS, the Town Council (“Town Council”) of the Town of Churubusco, Indiana (“Town”) adopted Ordinance No. 2021-05, on April 7, 2021, as further amended by Ordinance No. 2022-12 on September 7, 2022 (collectively, “Original Ordinance”), which Ordinance approved: (i) the refunding of the 2006 Bonds (as defined in the Ordinance); (ii) the description of the Project (as defined in the Ordinance), as described in further detail in Exhibit A attached thereto and incorporated therein; (iii) the costs associated with the Project in an amount not too exceed $15,000,000; (iv) increase the authorized not to exceed amount of the BANs and Bonds; (v) add certain necessary additional improvements, additions and extensions to the Project; (vi) permit the sale of the Bonds and BANs to the Authority (as hereinafter defined) as a part of its IFA Program (as hereinafter defined); and (vii) the issuance and delivery of BANs and Bonds (each as described in the Ordinance) in an aggregate principal amount not to exceed $15,000,000; and
WHEREAS, the Town Council now seeks to amend and restate the Original Ordinance in its entirety to: (i) increase the authorized not to exceed amount of the BANs and Bonds; and (ii) remove references to refunding of the 2006 Bonds and to authorize the Interest Rate Adjustment on the 2006 Bonds (each as defined herein) and the reissuance of the 2006 Bonds via the issuance of the Replacement 2006 Bonds (as defined herein) (as hereinafter defined);
NOW, THEREFORE, the Original Ordinance is hereby amended and restated to provide in its entirety hereafter as follows, namely:
WHEREAS, the Town has heretofore established, constructed and financed a municipal sewage works and now owns and operates the sewage works pursuant to IC 36-9-23, and other applicable laws, including without limitation IC 5-1-5, each as in effect on the date of delivery of the bonds issued pursuant to the terms of this Ordinance (collectively, the “Act”); and
WHEREAS, the Town Council now finds that certain improvements, additions and extensions to said works are necessary; and that plans, specifications and estimates have been or will be prepared and filed by the engineers employed by the Town for the construction of said improvements and extensions, as more fully described on Exhibit A attached hereto (“Project”), which plans and specifications have been or will be approved by the Town Council and by all governmental authorities having jurisdiction, including, particularly, the Indiana Department of Environmental Management; and
WHEREAS, the Town Council finds that there are now outstanding bonds originally issued to finance the construction of improvements and additions to the sewage works and payable out of the revenues therefrom designated as “Sewage Works Revenue Bonds, Series 2006,” originally dated July 31, 2006 (“2006 Bonds”), now outstanding in the amount of $298,000, and maturing annually over a period ending January 1, 2027; which 2006 Bonds constitute a first charge upon the Net Revenues (as hereinafter defined) of the sewage works; and
WHEREAS, other than the 2006 Bonds, the Town has no outstanding bonds payable from the Net Revenues of the sewage works, and
WHEREAS, the 2006 Bonds were sold through the IFA Program with the Authority as the registered owner of the 2006 Bonds; and
WHEREAS, in connection with the issuance of the Bonds authorized hereunder, if sold to the Authority as part of its IFA Program, the City shall execute and exchange replacement 2006 Bonds (“Replacement 2006 Bonds”) for the current outstanding 2006 Bonds, that modify the terms of the outstanding 2006 Bonds to reflect a reduction of the stated interest rate per annum from three and seven tenths percent (3.70%) to a new interest rate of 0% that will generate approximately $19,700 in savings on the overall debt service on the outstanding 2006 Bonds (“Interest Rate Adjustment”); and
WHEREAS, the ordinance authorizing the issuance of the 2006 Bonds permits the issuance of additional bonds ranking on a parity with the 2006 Bonds provided that certain conditions can be met, and the Town finds that the finances of said sewage works will enable the Town to meet the conditions for the issuance of additional parity bonds and that, accordingly, the revenue bonds authorized herein and to be issued pursuant to this ordinance will constitute a first charge against the Net Revenues of the sewage works, on a parity with the 2006 Bonds (as modified by the Replacement 2006 Bonds), and are to be issued subject to the provisions of the Act, and the terms and restrictions of this ordinance; and
WHEREAS, the Town has obtained engineer’s estimates of the costs of the construction of the Project and has advertised for and received bids for the Project, which bids will be subject to the Town’s determination to construct the Project and subject to the Town obtaining funds to pay for the Project; that on the basis of said estimates, the estimated cost of the Project, including estimated incidental expenses, is in the maximum amount not to exceed of $18,000,000; and
WHEREAS, the Town Council finds that it is necessary to authorize the financing of the Project and the Interest Rate Adjustment by the issuance of sewage works revenue bonds, in one or more series, in an aggregate principal amount not to exceed $18,000,000, and, if necessary, bond anticipation notes (“BANs”); and
WHEREAS, the Town may enter into a Financial Assistance Agreement, Funding Agreement, Grant Agreement and/or Financial Aid Agreement (collectively, the “Financial Assistance Agreement”) with the Indiana Finance Authority (“Authority”) as part of its wastewater loan program, supplemental drinking water and wastewater assistance program, water infrastructure assistance program and/or water infrastructure grant program established and existing pursuant to IC 5 1.2-1 through IC 5-1.2-4, IC 5-1.2-10, IC 5-1.2-11, IC 5-1.2-14 and/or IC 5-1.2-14.5 (collectively, the “IFA Program”), pertaining to the Project and the financing of the Project and the Interest Rate Adjustment, if the bonds are sold to the IFA Program; and
WHEREAS, the Town understands that for the Project to be permitted to be financed under the IFA Program, the Town must (a) agree to own, operate and maintain the sewage works and the Project for their useful life and (b) represent and warrant to the Authority that the Town has no intent to sell, transfer or lease the sewage works or the Project for their useful life; and
WHEREAS, the Town may accept other forms of financial assistance, as and if available, from the IFA Program; and
WHEREAS, the bonds to be issued pursuant to this ordinance will constitute a first charge against the Net Revenues of the sewage works, on a parity with the Replacement 2006 Bonds, and are to be issued subject to the provisions of the Act and the terms and restrictions of this ordinance; and
WHEREAS, the Town desires to authorize the issuance of BANs hereunder, if necessary, in one or more series to finance the aforementioned costs of the Project, and to authorize the refunding of the BANs, if issued; and
WHEREAS, the Town Council has been advised that it may be cost efficient to purchase municipal bond insurance and a debt service reserve surety for all or a portion of the bonds authorized herein; and
WHEREAS, the Town Council now finds that all conditions precedent to the adoption of an ordinance authorizing the issuance of revenue bonds and BANs have been complied with in accordance with the provisions of the Act;
NOW THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF CHURUBUSCO, INDIANA, THAT:
Section 1. Project and Interest Rate Adjustment. (a) The Town shall proceed with the construction of the Project in accordance with the cost estimates and the plans and specifications heretofore prepared and filed or to be prepared and filed by the consulting engineers employed by the Town, which cost estimates and all plans and specifications are by reference made a part of this ordinance as fully as if the same were attached hereto and incorporated herein and two (2) copies of which are now on file or shall be placed on file in the office of the Clerk-Treasurer of the Town (“Clerk-Treasurer”) and are open for public inspection pursuant to IC 36-1-5-4. The cost of construction of the Project shall not exceed the sum of $18,000,000, plus investment earnings on the bond and BAN proceeds, without further authorization from this Council. The terms “sewage works,” “sewage works system,” “system,” “works,” and other like terms where used in this ordinance shall be construed to mean the Treatment Works, as defined in the Financial Assistance Agreement and includes all structures and property of the Town’s existing sewage works system and all real estate and equipment used in connection therewith and appurtenances thereto, and all extensions, additions and improvements thereto and replacements thereof now or at any time hereafter constructed or acquired, and all other items as defined in IC 36-9-1-8, as amended. The Project, which is hereby approved, shall be constructed in accordance with the preliminary plans and specifications heretofore mentioned, which preliminary plans and specifications are hereby approved. The Project shall be constructed and the BANs and bonds herein authorized shall be issued pursuant to and in accordance with the Act.
(b) In the event the Bonds (as defined herein) or BANs are purchased by the Authority as part of the IFA Program, on behalf of the Town, the Town Council hereby (i) agrees to own, operate and maintain the sewage works and the Project for their useful life and (ii) represents and warrants to the Authority that the Town has no intent to sell, transfer or lease the sewage works or the Project for their useful life.
(c) The Town hereby declares its official intent to complete the Project; to reimburse certain costs of completing the Project with proceeds of debt to be incurred by the Town, and to issue debt not exceeding $18,000,000 in aggregate principal amount for purposes of paying and reimbursing costs of the Project.
(d) The Town shall proceed with the Interest Rate Adjustment, as directed by the Authority. To evidence the Interest Rate Adjustment, the Town authorizes the execution and delivery of the Replacement 2006 Bonds. The revised and final principal and interest payment schedule of the Replacement 2006 Bonds shall be set forth in the Financial Assistance Agreement. The Town Council hereby authorizes the Town Council President and the Clerk-Treasurer to take all actions necessary and to execute all documents, certificates, instruments, and agreements, needed in connection with the Interest Rate Adjustment and the Financial Assistance Agreement. The 2006 Bonds shall include the modifications resulting from the Replacement 2006 Bonds and, for purposes of this ordinance, the term 2006 Bonds shall be construed to mean the “2006 Bonds,” as modified by the Replacement 2006 Bonds.
Section 2. Issuance of Bonds and BANs. (a) The Town shall issue, if necessary, its BANs for the purpose of procuring interim financing to apply to the cost of the Project and paying cost of issuance. The Town shall issue its BANs, in one or more series, in an aggregate principal amount not to exceed Eighteen Million Dollars ($18,000,000) to be designated “Sewage Works Bond Anticipation Notes of ______” (to be completed with the year in which issued and the appropriate series designation, if any). The BANs shall be sold at a price not less than ninety-nine percent (99%) of their par value or at a price not less than one hundred percent (100%) of their par value if sold to the Authority as part of the IFA Program, shall be numbered consecutively from 1 upward, shall be in denominations of One Thousand Dollars ($1,000) or integral multiples thereof, or, if sold to the Authority as part of the IFA Program, in denominations of One Dollar ($1) or integral multiples thereof, as designated in the hereinafter defined Note Purchase Agreement for the BANs, or if the BANs are sold to any other purchaser as a draw instrument. The BANS shall be dated as of the date of delivery thereof and shall bear interest at a rate not to exceed five-percent (5.0%) per annum (the exact rate or rates to be determined through bidding or negotiation with the purchaser of the BANs) payable upon maturity or upon redemption. The BANs will mature no later than five (5) years after their date of delivery. The BANs are subject to renewal or extension at an interest rate or rates not to exceed five percent (5%) per annum (the exact rate or rates to be determined through negotiation with the purchaser of the BANs). The term of the BANs and all renewal BANs may not exceed five (5) years from the date of delivery of the initial BANs. The BANs shall be registered in the name of the purchasers thereof. Payment on the BANs may be made in installments. Interest shall be payable semiannually on January 1 and July 1 commencing on the first January 1 or the first July 1 after the date of issuance of the BANs as determined by the Clerk-Treasurer, with the advice of Baker Tilly Municipal Advisors, LLC (“Municipal Advisor”), and upon maturity or redemption.
The BANs shall be issued pursuant to IC 5-1.5-8-6.1 if sold to the Indiana Bond Bank, pursuant to IC 5-1.2-1 through IC 5-1.2-4 and IC 5-1.2-10, IC 5-1.2-11 and/or IC 5-1.2-14 if sold to the Authority, or pursuant to IC 5-1-14-5 if sold to a financial institution or any other purchaser. The principal of and interest on the BANs shall be payable from the issuance of revenue bonds pursuant to and in the manner prescribed by the Act. Interest on the BANs may also be payable from capitalized interest and Net Revenues of the sewage works, provided, however, any pledge of Net Revenues will be junior and subordinate to the 2006 Bonds, the bonds issued under this ordinance and any bonds issued in the future which are secured with a pledge of Net Revenues. If any interest on the BANs to be paid from Net Revenues is to occur on a date other than January 1 or July 1, by reason of maturity or redemption, such payment may only occur if all of the principal and interest on all then outstanding bonds of the sewage works of the Town due on the next succeeding principal and interest payment date is fully accumulated in the Bond and Interest Account (as defined herein) of the Sinking Fund (as defined herein). The revenue bonds will be payable solely out of and constitute a first charge against the Net Revenues (herein defined as gross revenues, inclusive of System Development Charges (as hereafter defined), after deduction only for the payment of the reasonable expenses of operation, repair and maintenance, excluding transfers for payment in lieu of property taxes (“PILOTs”)) of the sewage works of the Town, on a parity with the 2006 Bonds. For purposes of this ordinance, “System Development Charges” shall mean the proceeds and balances from any non-recurring charges such as tap fees, subsequent connector fees, capacity or contribution fees, and other similar one-time charges that are available for deposit under this ordinance; provided, however, that any System Development Charges that are enacted under IC 36-9-23-29, shall be considered as Net Revenues of the sewage works.
(b) The Town is hereby authorized to issue its sewage works revenue bonds, in one or more series, to be designated as “Sewage Works Revenue Bonds of ______” (to be completed with the year in which issued and the appropriate series designation, if any); if the Town, with the advice of its Municipal Advisor, determines that it is necessary to issue its bonds in more than one series, the bonds shall be designated “Sewage Works Revenue Bonds of _______,” to be completed with the year in which issued and series designation, as applicable (hereinafter referred to collectively as the “Bonds”), in an aggregate principal amount not to exceed $18,000,000 for the purpose of procuring funds to be applied on the cost of the Project, the payment of costs of issuance, refunding the BANs, if issued, and all other costs related to the Project, including premiums for municipal bond insurance and a debt service reserve surety, if necessary.
Each series of Bonds shall be sold at a price not less than par value if sold to the Authority as part of its IFA Program or not less than ninety-nine percent (99%) of the par value thereof if sold to any other purchaser, shall be issued in the denomination of One Dollar ($1) or integral multiples thereof if sold to the Authority as part of its IFA Program, or in denominations of Five Thousand Dollars ($5,000) each or integral multiples thereof of sold to any other purchaser, numbered consecutively from 1 upward, dated as of the first day of the month in which they are issued or sold or as of the date of delivery, as determined by the Clerk-Treasurer with the advice of the Town’s Municipal Advisor, provided that if sold to the Authority as part of its IFA Program, the Bonds shall be dated the date of delivery. The Bonds shall bear interest at a rate or rates not exceeding five percent (5.0%) per annum (the exact rate or rates to be determined through negotiation with the Authority, through its IFA Program or as determined by bidding). Interest on the Bonds is payable semiannually on January 1 and July 1 in each year, commencing on the first January 1 or the first July 1 following delivery of the Bonds and as designated by the Clerk-Treasurer, with the advice of the Town’s Municipal Advisor. Principal shall be payable in lawful money of the United States of America, at the principal office of the Paying Agent (as hereinafter defined) and each series of Bonds shall mature semiannually on January 1 and July 1, over a period ending no later than thirty-five (35) years from the date of issuance of the Bonds. As long as the 2006 Bonds remain outstanding, the Bonds shall mature annually on January 1 through January 1, 2027 and semiannually on January 1 and July 1 thereafter, over a period ending no later than thirty-five (35) years from the date of issuance of the Bonds. If issued in series, the Bonds shall mature in such amounts which take into account the annual debt service on all series of Bonds issued under this ordinance, or (b) if the Bonds are sold to the Authority as part of its IFA Program, allow the Town to meet the coverage and/or amortization requirements of the IFA Program. If the Bonds are sold to the Authority as part of its IFA Program, such debt service schedules shall be finalized and set forth in the Financial Assistance Agreement.
All or a portion of the Bonds may be issued as one or more term bonds, upon election of the purchaser thereof. Such term bonds shall have a stated maturity or maturities consistent with the maturity schedule determined in accordance with the preceding paragraph on the dates as determined by the purchaser thereof, but in no event later than the final serial maturity date of the Bonds as determined in accordance with the above paragraph. The term bonds shall be subject to mandatory sinking fund redemption and final payment(s) at maturity at one hundred percent (100%) of the principal amount thereof, plus accrued interest to the redemption date, on principal payment dates which are hereinafter determined in accordance with the above paragraph.
Each series of Bonds issued hereunder shall rank on a parity with each other for all purposes, including the pledge of Net Revenues under this ordinance.
Notwithstanding anything in this ordinance to the contrary, the BANs and Bonds issued hereunder may bear interest that is taxable and includable in the gross income of the owners thereof. If any BANs or Bonds are issued on a taxable basis, the designated name shall include the term “Taxable” as the first word in the designated name.
Interest on the Bonds and the BANs shall be calculated according to a 360-day calendar year containing twelve 30-day months.
Each series of Bonds issued hereunder shall rank as a parity for all purposes, including the pledge of Net Revenues under this ordinance.
Notwithstanding anything contained herein, the Town may accept any other forms of financial assistance, as and if available, from the IFA Program (including without limitation any forgivable loans, grants or other assistance) whether available as an alternative to any Bond or BAN related provision otherwise provided for herein or as a supplement or addition thereto. If required by the IFA Program to be eligible for such financial assistance, one or more of the series of the Bonds issued hereunder may be issued on a basis such that the payment of the principal of or interest on (or both) such series of Bonds is junior and subordinate to the payment of the principal of and interest on other series of Bonds issued hereunder (and/or any other revenue bonds secured by a pledge of Net Revenues, whether now outstanding or hereafter issued), all as provided by the terms of such series of Bonds as modified pursuant to this authorization. Such financial assistance, if any, shall be as provided in the Financial Assistance Agreement and the Bonds of each series of Bonds issued hereunder (including any modification made pursuant to the authorization in this paragraph to the form of Bond otherwise contained herein).
Section 3. Registrar and Paying Agent; Book-Entry Provisions. The Clerk-Treasurer is hereby authorized to contract with a qualified financial institution to serve as Registrar and Paying Agent for the Bonds (“Registrar” or “Paying Agent”). The Registrar is hereby charged with the responsibility of authenticating the Bonds. The Clerk-Treasurer is hereby authorized to enter into such agreements or understandings with the Registrar as will enable the institution to perform the services required of a registrar and paying agent. The Clerk-Treasurer is further authorized to pay such fees as the institution may charge for the services it provides as Registrar and Paying Agent and such fees may be paid from the Sinking Fund established to pay the principal of and interest on the Bonds as fiscal agency charges.
As to the BANs and as to the Bonds, if sold to the Authority as part of its IFA Program or any other purchaser that does not object to such designation, the Clerk-Treasurer may serve as Registrar and Paying Agent and is hereby charged with the duties of a Registrar and Paying Agent.
If any Bonds or BANs are sold to the Authority as part of its IFA Program, the principal of and interest thereon shall be paid by wire transfer to such financial institution if and as directed by the Authority on the due date of such payment or, if such due date is a day when financial institutions are not open for business, on the business day immediately after such due date. So long as the Authority as part of its IFA Program is the owner of the Bonds or BANs, such Bonds and BANs shall be presented for payment as directed by the Authority.
If such Bonds and BANs are not sold to the Authority as part of its IFA Program or if wire transfer payment is not required, the principal of and interest on the BANs and the principal of the Bonds shall be payable at the designated corporate office of the Paying Agent and all payments of interest on the Bonds shall be paid by check, mailed one (1) business day prior to the interest payment date to the registered owners thereof as the names appear as of the (15th) fifteenth day of the month preceding the interest payment date (“Record Date”) and at the addresses as they appear on the registration books kept by the Registrar or at such other address as is provided to the Paying Agent in writing by such registered owner. If payment of principal or interest is made to a depository, payment shall be made by wire transfer on the payment date in same-day funds. If the payment date occurs on a date when financial institutions are not open for business, the wire transfer shall be made on the next succeeding business day. The Paying Agent shall be instructed to wire transfer payments by 1:00 p.m. (New York City time) so such payments are received at the depository by 2:30 p.m. (New York City time). Notwithstanding anything to the contrary herein, the Bonds shall not be required to be presented or surrendered to receive payment in connection with any mandatory sinking fund redemption until the final maturity date of the Bonds or earlier payment in full of the Bonds.
All payments on the Bonds shall be made in any coin or currency of the United States of America, which on the date of such payment, shall be legal tender for the payment of public and private debts.
Each Bond shall be transferable or exchangeable only upon the books of the Town kept for that purpose at the designated corporate office of the Registrar by the registered owner in person, or by its attorney duly authorized in writing, upon surrender of such Bond together with a written instrument of transfer or exchange satisfactory to the Registrar duly executed by the registered owner, or its attorney duly authorized in writing, and thereupon a new fully registered Bond or Bonds in an authorized aggregate principal amount and of the same maturity, shall be executed and delivered in the name of the transferee or transferees or the registered owner, as the case may be, in exchange therefor. The costs of such transfer or exchange shall be borne by the Town except for any tax or governmental charge required to be paid with respect to the transfer or exchange, which taxes or governmental charges are payable by the person requesting such transfer or exchange. The Town, Registrar and Paying Agent for the Bonds may treat and consider the person in whose name such Bonds are registered as the absolute owner thereof for all purposes including for the purpose of receiving payment of, or on account of, the principal thereof and interest due thereon.
The Registrar and Paying Agent may at any time resign as Registrar and Paying Agent upon giving thirty (30) days’ notice in writing to the Town and by first class mail to each registered owner of the Bonds then outstanding, and such resignation will take effect at the end of such 30 day period or upon the earlier appointment of a successor registrar and paying agent by the Town. Any such notice to the Town may be served personally or sent by registered mail. The Registrar and Paying Agent may be removed at any time as Registrar and Paying Agent by the Town, in which event the Town may appoint a successor registrar and paying agent. The Town shall notify each registered owner of the Bonds then outstanding by first class mail of the removal of the Registrar and Paying Agent. Notices to the registered owners of the Bonds shall be deemed to be given when mailed by first class mail to the addresses of such registered owners as they appear on the registration books kept by the Registrar.
Upon the appointment of any successor registrar and paying agent by the Town, the Clerk-Treasurer is authorized and directed to enter into such agreements and understandings with such successor registrar and paying agent as will enable the institution to perform the services required of a registrar and paying agent for the Bonds. The Clerk-Treasurer is further authorized to pay such fees as the successor registrar and paying agent may charge for the services it provides as registrar and paying agent and such fees may be paid from the Sinking Fund set forth in Section 14 hereof. Any predecessor registrar and paying agent shall deliver all of the Bonds and any cash or investments in its possession with respect thereto, together with the registration books, to the successor registrar and paying agent.
Interest on any Bonds sold to the Authority as part of its IFA Program shall be payable from the date or dates of payments made by the Authority as part of its purchase of the Bonds pursuant to the Financial Assistance Agreement. Interest on all other Bonds shall be payable from the interest payment date to which interest has been paid next preceding the authentication date of the Bonds unless the Bonds are authenticated after the Record Date and on or before such interest payment date in which case they shall bear interest from such interest payment date, or unless the Bonds are authenticated on or before the Record Date preceding the first interest payment date, in which case they shall bear interest from the original date until the principal shall be fully paid.
The Town has determined that it may be beneficial to the Town to have the Bonds held by a central depository system pursuant to an agreement between the Town and The Depository Trust Company, New York, New York (“Depository Trust Company”) and have transfers of the Bonds effected by book-entry on the books of the central depository system (“Book Entry System”). The Bonds may be initially issued in the form of a separate single authenticated fully registered Bond for the aggregate principal amount of each separate maturity of the Bonds. In such case, upon initial issuance, the ownership of such Bonds shall be registered in the register kept by the Registrar in the name of CEDE & CO., as nominee of the Depository Trust Company.
With respect to the Bonds registered in the register kept by the Registrar in the name of CEDE & CO., as nominee of the Depository Trust Company, the Town and the Paying Agent shall have no responsibility or obligation to any other holders or owners (including any beneficial owner (“Beneficial Owner”)) of the Bonds with respect to (i) the accuracy of the records of the Depository Trust Company, CEDE & CO., or any Beneficial Owner with respect to ownership questions, (ii) the delivery to any bondholder (including any Beneficial Owner) or any other person, other than the Depository Trust Company, of any notice with respect to the Bonds including any notice of redemption, or (iii) the payment to any bondholder (including any Beneficial Owner) or any other person, other than the Depository Trust Company, of any amount with respect to the principal of, or premium, if any, or interest on the Bonds except as otherwise provided herein.
No person other than the Depository Trust Company shall receive an authenticated Bond evidencing an obligation of the Town to make payments of the principal of and premium, if any, and interest on the Bonds pursuant to this ordinance. The Town and the Registrar and Paying Agent may treat as and deem the Depository Trust Company or CEDE & CO. to be the absolute bondholder of each of the Bonds for the purpose of (i) payment of the principal of and premium, if any, and interest on such Bonds; (ii) giving notices of redemption and other notices permitted to be given to bondholders with respect to such Bonds; (iii) registering transfers with respect to such Bonds; (iv) obtaining any consent or other action required or permitted to be taken of or by bondholders; (v) voting; and (vi) for all other purposes whatsoever. The Paying Agent shall pay all principal of and premium, if any, and interest on the Bonds only to or upon the order of the Depository Trust Company, and all such payments shall be valid and effective fully to satisfy and discharge the Town’s and the Paying Agent’s obligations with respect to principal of and premium, if any, and interest on the Bonds to the extent of the sum or sums so paid. Upon delivery by the Depository Trust Company to the Town of written notice to the effect that the Depository Trust Company has determined to substitute a new nominee in place of CEDE & CO., and subject to the provisions herein with respect to consents, the words “CEDE & CO.” in this ordinance shall refer to such new nominee of the Depository Trust Company. Notwithstanding any other provision hereof to the contrary, so long as any Bond is registered in the name of CEDE & CO., as nominee of the Depository Trust Company, all payments with respect to the principal of and premium, if any, and interest on such Bonds and all notices with respect to such Bonds shall be made and given, respectively, to the Depository Trust Company as provided in a representation letter from the Town to the Depository Trust Company.
Upon receipt by the Town of written notice from the Depository Trust Company to the effect that the Depository Trust Company is unable or unwilling to discharge its responsibilities and no substitute depository willing to undertake the functions of the Depository Trust Company hereunder can be found which is willing and able to undertake such functions upon reasonable and customary terms, then the Bonds shall no longer be restricted to being registered in the register of the Town kept by the Registrar in the name of CEDE & CO., as nominee of the Depository Trust Company, but may be registered in whatever name or names the bondholders transferring or exchanging the Bonds shall designate, in accordance with the provisions of this ordinance.
If the Town determines that it is in the best interest of the bondholders that they be able to obtain certificates for the fully registered Bonds, the Town may notify the Depository Trust Company and the Registrar, whereupon the Depository Trust Company will notify the Beneficial Owners of the availability through the Depository Trust Company of certificates for the Bonds. In such event, the Registrar shall prepare, authenticate, transfer and exchange certificates for the Bonds as requested by the Depository Trust Company and any Beneficial Owners in appropriate amounts, and whenever the Depository Trust Company requests the Town and the Registrar to do so, the Registrar and the Town will cooperate with the Depository Trust Company by taking appropriate action after reasonable notice (i) to make available one or more separate certificates evidencing the fully registered Bonds of any Beneficial Owner’s Depository Trust Company account or (ii) to arrange for another securities depository to maintain custody of certificates for and evidencing the Bonds.
If the Bonds shall no longer be restricted to being registered in the name of the Depository Trust Company, the Registrar shall cause the Bonds to be printed in blank in such number as the Registrar shall determine to be necessary or customary; provided, however, that the Registrar shall not be required to have such Bonds printed until it shall have received from the Town indemnification for all costs and expenses associated with such printing.
In connection with any notice or other communication to be provided to bondholders by the Town or the Registrar with respect to any consent or other action to be taken by bondholders, the Town or the Registrar, as the case may be, shall establish a record date for such consent or other action and give the Depository Trust Company notice of such record date not less than fifteen (15) calendar days in advance of such record date to the extent possible.
So long as the Bonds are registered in the name of the Depository Trust Company or CEDE & CO. or any substitute nominee, the Town and the Registrar and Paying Agent shall be entitled to request and to rely upon a certificate or other written representation from the Beneficial Owners of the Bonds or from the Depository Trust Company on behalf of such Beneficial Owners stating the amount of their respective beneficial ownership interests in the Bonds and setting forth the consent, advice, direction, demand or vote of the Beneficial Owners as of a record date selected by the Registrar and the Depository Trust Company, to the same extent as if such consent, advice, direction, demand or vote were made by the bondholders for purposes of this ordinance and the Town and the Registrar and Paying Agent shall for such purposes treat the Beneficial Owners as the bondholders. Along with any such certificate or representation, the Registrar may request the Depository Trust Company to deliver, or cause to be delivered, to the Registrar a list of all Beneficial Owners of the Bonds, together with the dollar amount of each Beneficial Owner’s interest in the Bonds and the current addresses of such Beneficial Owners.
The Town is authorized to issue its BANs in book-entry form and, in that case, all of the provisions set forth in this Section 3 shall apply.
Section 4. Redemption of BANs and Bonds. (a) The BANs are prepayable by the Town, in whole or in part, at any time, upon twenty (20) days’ notice to the owner of the BANs without premium.
(b) For any Bonds not sold to the Authority as part of its IFA Program, such Bonds are redeemable at the option of the Town, but no earlier than January 1, 2029, or thereafter on any date, on thirty (30) days’ notice, in whole or in part, in the order of maturity as determined by the Town and by lot within a maturity, at face value, together with a premium not to exceed one percent (1%), plus in each case accrued interest to the date fixed for redemption. The exact redemption features shall be established by the Clerk-Treasurer with the advice of the Town’s Municipal Advisor prior to the sale of the Bonds.
For any Bonds sold to the Authority as part of its IFA Program, the Bonds are redeemable at the option of the Town on any date no sooner than ten (10) years after their date of delivery, or thereafter on any date, on sixty (60) days’ notice, in whole or in part, in inverse order of maturity, at face value, together with a premium no greater than two percent (2%), plus in each case accrued interest to the date fixed for redemption; provided however, if the Bonds are sold to the IFA Program and registered in the name of the Authority, the Bonds shall not be redeemable at the option of the Town unless and until consented to by the Authority. The exact redemption dates and premiums shall be determined by the Clerk-Treasurer, with the advice of the Town’s Municipal Advisor, prior to the sale of the Bonds.
(c) If any Bond is issued as a term bond, the Paying Agent shall credit against the mandatory sinking fund requirement for the Bonds maturing as term bonds, and corresponding mandatory redemption obligation, in the order determined by the Town, any Bonds maturing as term bonds which have previously been redeemed (otherwise than as a result of a previous mandatory redemption requirement) or delivered to the Registrar for cancellation or purchased for cancellation by the Paying Agent and not theretofore applied as a credit against any redemption obligation. Each Bond maturing as a term bond so delivered or canceled shall be credited by the Paying Agent at one hundred percent (100%) of the principal amount thereof against the mandatory sinking fund obligation on such mandatory sinking fund date, and any excess of such amount shall be credited on future redemption obligations, and the principal amount of the Bonds to be redeemed by operation of the mandatory sinking fund requirement shall be accordingly reduced; provided, however, the Paying Agent shall credit only such Bonds maturing as term bonds to the extent received on or before forty-five (45) days preceding the applicable mandatory redemption date.
(d) Each authorized denomination shall be considered a separate bond for purposes of optional and mandatory redemption. If less than an entire maturity is called for redemption, the Bonds to be called for redemption shall be selected by lot by the Registrar. If some Bonds are to be redeemed by optional redemption and mandatory sinking fund redemption on the same date, the Registrar shall select by lot the Bonds for optional redemption before selecting the Bonds by lot for the mandatory sinking fund redemption.
Notice of redemption shall be given not less than sixty (60) days, if the Bonds are sold to the Authority as part of its IFA Program, and thirty (30) days, if the Bonds are sold to another purchaser, prior to the date fixed for redemption unless such redemption notice is waived by the owner of the Bond or Bonds redeemed. Such notice shall be mailed to the address of the registered owner as shown on the registration record of the Town as of the date which is sixty-five (65) days, if the Bonds are sold to the Authority as part of its IFA Program, and forty-five (45) days, if the Bonds are sold to another purchaser, prior to such redemption date. The notice shall specify the date and place of redemption and sufficient identification of the Bonds called for redemption. The place of redemption may be determined by the Town. Interest on the Bonds so called for redemption shall cease on the redemption date fixed in such notice if sufficient funds are available at the place of redemption to pay the redemption price on the date so named. Coincidentally with the payment of the redemption price, the Bonds so called for redemption shall be surrendered for cancellation.
Section 5. Execution and Negotiability. Each series of the BANs and Bonds shall be executed in the name of the Town by the manual, facsimile or electronic signature of the Town Council President (the “Town Council President”) and attested by the manual, facsimile or electronic signature of its Clerk-Treasurer (“Clerk-Treasurer”), and the seal of the Town shall be affixed, imprinted or impressed to or on each of the BANs and Bonds manually, by facsimile or any other means; and these officials, by the execution of a signature and no litigation certificate, shall adopt as and for their own proper signatures the facsimile signatures appearing on the Bonds or BANs. The use of electronic signatures by the Town Council President and Clerk-Treasurer are authorized and affirmed with full valid legal effect and enforceability. In case any officer whose signature or facsimile signature appears on the Bonds or BANs shall cease to be such officer before the delivery of the Bonds or BANs, the signature of such officer shall nevertheless be valid and sufficient for all purposes the same as if such officer had remained in office until such delivery. The officers have full authority to execute any and all documents necessary to issue the Bonds and/or BANs and the use of electronic signatures by the officers are hereby authorized and affirmed with full valid legal effect and enforceability.
The Bonds and BANs, and any bonds ranking on a parity therewith, as to both principal and interest, shall be payable from and secured by an irrevocable pledge of and shall constitute a first charge upon the Net Revenues of the sewage works of the Town. The Town shall not be obligated to pay the Bonds or BANs or the interest thereon except from the Net Revenues of said works, and the Bonds and BANs shall not constitute an indebtedness of the Town within the meaning of the provisions and limitations of the constitution of the State of Indiana.
The BANs and Bonds shall have all of the qualities and incidents of negotiable instruments under the laws of the State of Indiana, subject to the provisions for registration herein.
The Bonds shall also be authenticated by the manual, facsimile or electronic signature of the Registrar, and no Bond shall be valid or become obligatory for any purpose until the certificate of authentication thereon has been so executed.
Section 6. Form of Bonds. The form and tenor of the Bonds shall be substantially as follows, all blanks to be filled in properly and all necessary additions and deletions to be made prior to delivery thereof:
[Unless this certificate is presented by an authorized representative of The Depository Trust Company, a New York corporation ("DTC"), to the Town of Churubusco, Indiana, or its agent for registration of transfer, exchange, or payment, and any certificate issued is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein.]
No. _____

UNITED STATES OF AMERICA

STATE OF INDIANA COUNTY OF WHITLEY

TOWN OF CHURUBUSCO
SEWAGE WORKS REVENUE
BONDS OF _____[, SERIES _____]

[Interest Rate] [Maturity Date] Original Date Authentication Date [CUSIP]

(SEE EXHIBIT A)

REGISTERED OWNER:
PRINCIPAL SUM:
The Town of Churubusco, in Whitley County, State of Indiana (“Town”), for value received, hereby promises to pay to the Registered Owner named above or registered assigns, solely out of the special revenue fund hereinafter referred to, the Principal Sum set forth above[, or so much thereof as may be advanced from time to time and be outstanding as evidenced by the records of the registered owner making payment for this bond, or its assigns,] on [the Maturity Date set forth above] OR [January 1 [and July 1] [on the dates] and in the amounts as set forth on Exhibit A attached hereto] (unless this bond be subject to and shall have been duly called for redemption prior to maturity as provided for herein), and to pay interest hereon until the Principal Sum shall be fully paid at the [Interest Rate[s]] per annum stated [above] OR [at the interest rates per annum as set forth on Exhibit A attached hereto] from [the dates of payment made on this bond] OR [the interest payment date to which interest has been paid next preceding] the Authentication Date of this bond unless this bond is authenticated after the fifteenth day of the month preceding an interest payment date and on or before such interest payment date in which case it shall bear interest from such interest payment date, or unless this bond is authenticated on or before _____ 15, ____, in which case it shall bear interest from the Original Date, until the principal is paid, which interest is payable semiannually on the first days of January and July in each year, beginning on ___________, 20__. Interest shall be calculated according to a 360-day calendar year containing twelve 30-day months.
[The principal of this bond is payable at the designated corporate office of _____________________ ______ ("Registrar" or "Paying Agent"), in the ____________ of ____________, Indiana.] All payments of [principal of and] interest on this bond shall be paid by [check mailed one business day prior to the interest payment date] OR [paid by wire transfer for deposit to a financial institution as directed by the Indiana Finance Authority ("Authority") on the due date or, if such due date is a day when financial institutions are not open for business, on the business day immediately after such due date] to the registered owner hereof, as of the fifteenth day of the month preceding an interest payment, at the address as it appears on the registration books kept by the Registrar or at such other address as is provided to the Paying Agent in writing by the registered owner. If payment of principal or interest is made to a depository, payment shall be made by wire transfer on the payment date in same-day funds. If the payment date occurs on a date when financial institutions are not open for business, the wire transfer shall be made on the next succeeding business day. The Paying Agent shall wire transfer payments by 1:00 p.m. (New York City time) so such payments are received at the depository by 2:30 p.m. (New York City time). [Notwithstanding anything to the contrary herein, this bond shall not be required to be presented or surrendered to receive payment in connection with any mandatory sinking fund redemption until the final maturity date of this bond or earlier payment in full of this bond.] All payments on the bond shall be made in any coin or currency of the United States of America, which on the dates of such payment, shall be legal tender for the payment of public and private debts.
THE TOWN SHALL NOT BE OBLIGATED TO PAY THIS BOND OR THE INTEREST HEREON EXCEPT FROM THE HEREINAFTER DESCRIBED SPECIAL FUND, AND NEITHER THIS BOND NOR THE ISSUE OF WHICH IT IS A PART SHALL IN ANY RESPECT CONSTITUTE A CORPORATE INDEBTEDNESS OF THE TOWN WITHIN THE PROVISIONS AND LIMITATIONS OF THE CONSTITUTION OF THE STATE OF INDIANA.
This bond is [the only] one of an authorized issue of bonds of the Town, [[to be] [issued in series]] of like date, tenor and effect, [except as to numbering, rates of interest, [series designation] and dates of maturity]; in the total aggregate principal amount _________________________ Dollars ($_________________) [for this series]; numbered consecutively from 1 up; issued for the purpose of providing funds to be applied on the cost of certain additions, extensions and improvements to the Town’s sewage works (“Project”)[, to refund interim notes issued in anticipation of the bonds] and to pay issuance expenses[, including [a] premium[s] for [municipal bond insurance and] a debt service reserve surety]. This bond is issued pursuant to an Ordinance adopted by the Town Council of the Town on the ___ day of ___________, 2022, entitled “An Amended and Restated Ordinance of the Town of Churubusco authorizing the restructuring and reissuance by the Town of its outstanding Sewage Works Revenue Bonds, Series 2006, and authorizing the issuance of sewage works revenue bonds for the purpose of providing funds to pay the cost of certain additions, extensions and improvements to the municipal sewage works of said Town, providing for the safeguarding of the interests of the owners of said bonds, other matters connected therewith, including the issuance of notes in anticipation of bonds, and repealing ordinances inconsistent herewith” (“Ordinance”), and in accordance with the provisions of Indiana law, including without limitation Indiana Code 36-9-23, as in effect on the date of delivery of the bonds of this issue (“Act”), the proceeds of which bonds are to be applied to the costs of the Project[, the payment of notes issued in anticipation of the bonds,] and expenses incurred in connection therewith[, including [a] premium[s] for [municipal bond insurance and] [a debt service reserve surety]].
[Reference is hereby made to the Financial Assistance Agreement ("Financial Assistance Agreement") between the Town and the Authority concerning certain terms and covenants pertaining to the Projects and the purchase of this bond as part of the wastewater loan program established and existing pursuant to IC 5-1.2-1 through IC 5-1.2-4 [and IC 5-1.2-10.] [IC 5-1.2-11.] [IC 5-1.2-14.]]
Pursuant to the provisions of the Act and the Ordinance, the principal of and interest on this bond and all other bonds of said issue[, including the Sewage Works Revenue Bonds of 20_____[, Series _______] (“Series ________Bonds”)] and any bonds hereafter issued on a parity therewith are payable solely from the Sewage Works Sinking Fund continued by the Ordinance (“Sinking Fund”) to be provided from the Net Revenues (herein defined as the gross revenues, inclusive of System Development Charges (as defined in the Ordinance), after deduction only for the payment of the reasonable expenses of operation, repair and maintenance, excluding transfers for payment in lieu of property taxes) of the sewage works of the Town. The bonds of this issue rank on a parity with the 2006 Bonds, as defined in the Ordinance.
The Town irrevocably pledges the entire Net Revenues of the sewage works to the prompt payment of the principal of and interest on the bonds authorized by the Ordinance, of which this is one, and any bonds ranking on a parity therewith, including the 2006 Bonds [and the Series _____ Bonds], to the extent necessary for that purpose, and covenants that it will cause to be fixed, maintained and collected such rates and charges for services rendered by the utility as are sufficient in each year for the payment of the proper and reasonable expenses of operation, repair and maintenance of the sewage works and for the payment of the sums required to be paid into the Sinking Fund under the provisions of the Act and the Ordinance. If the Town or the proper officers thereof shall fail or refuse to so fix, maintain and collect such rates or charges, or if there be a default in the payment of the interest on or principal of this bond, the owner of this bond shall have all of the rights and remedies provided for in the Act, including the right to have a receiver appointed to administer the works and to charge and collect rates sufficient to provide for the payment of this bond and the interest hereon.
[The bonds shall be initially issued in a Book-Entry System (as defined in the Ordinance). The provisions of this bond and of the Ordinance are subject in all respects to the provisions of the Letter of Representations between the Town and DTC, or any substitute agreement, effecting such Book-Entry System.]
The Town further covenants that it will set aside and pay into its Sinking Fund monthly, as available, or more often if necessary, a sufficient amount of the Net Revenues of the works for payment of (a) the interest on all bonds which by their terms are payable from the revenues of the sewage works, as such interest shall fall due, (b) the necessary fiscal agency charges for paying bonds and interest, (c) the principal of all bonds which by their terms are payable from the revenues of the sewage works, as such principal shall fall due, and (d) an additional amount as a margin of safety to [create and] maintain the debt service reserve required by the Ordinance. Such required payments shall constitute a first charge upon all the Net Revenues of the sewage works, on a parity with the 2006 Bonds [and the Series ____ Bonds].
The bonds of this issue maturing on and after ____________ 1, 20___, and thereafter, are redeemable at the option of the Town on ____________ 1, 20___, or any date thereafter, on [sixty (60)] OR [thirty (30)] days’ notice, in whole or in part, [in inverse order of maturity] OR [in the order of maturity as determined by the Town] and by lot within a maturity, at face value, together with [no premium] OR [the following premiums:
__% if redeemed on ___________ 1, 20__ or thereafter
on or before ______________, 20__;

__% if redeemed on ___________ 1, 20__ or thereafter
on or before ______________, 20__;

0% if redeemed on ___________ 1, 20__ or thereafter
prior to maturity;

plus, in each case accrued interest to the date fixed for redemption[; provided however if the Bonds are sold to the IFA Program and registered in the name of the Authority, the Bonds shall not be redeemable at the option of the Town unless and until consented to by the Authority]].

[The bonds maturing on ____________ 1, ____, are subject to mandatory sinking fund redemption prior to maturity, at a redemption price equal to the principal amount thereof plus accrued interest, on the dates and in the amounts set forth below:
20___ Term Bonds

Date Amount

*

* Final Maturity]

Each [Five Thousand Dollars ($5,000)] [One Dollar ($1)] principal amount shall be considered a separate bond for purposes of optional [and mandatory] redemption. If less than an entire maturity is called for redemption, the bonds to be redeemed shall be selected by lot by the Registrar. [If some bonds are to be redeemed by optional redemption and mandatory sinking fund redemption on the same date, the Registrar shall select by lot the bonds for optional redemption before selecting the bonds by lot for the mandatory sinking fund redemption.]
Notice of redemption shall be mailed to the address of the registered owner as shown on the registration records of the Town, as of the date which is [sixty-five (65)] OR [forty-five (45)] days prior to such redemption date, not less than [sixty (60)] OR [thirty (30)] days prior to the date fixed for redemption unless the notice is waived by the registered owner of this bond. The notice shall specify the date and place of redemption and sufficient identification of the bonds called for redemption. The place of redemption may be determined by the Town. Interest on the bonds so called for redemption shall cease on the redemption date fixed in such notice if sufficient funds are available at the place of redemption to pay the redemption price on the date so named.
If this bond shall not be presented for payment or redemption on the date fixed therefor, the Town may deposit in trust with its depository bank an amount sufficient to pay such bond or the redemption price, as the case may be, and thereafter the registered owner shall look only to the funds so deposited in trust with said bank for payment and the Town shall have no further obligation or liability in respect thereto.
This bond is transferable or exchangeable only upon the books of the Town kept for that purpose at the [principal corporate trust] office of the Registrar by the registered owner hereof in person, or by his attorney duly authorized in writing, upon surrender of this bond together with a written instrument of transfer or exchange satisfactory to the Registrar duly executed by the registered owner, or his attorney duly authorized in writing, and thereupon a new fully registered bond or bonds in an authorized aggregate principal amount and of the same maturity, shall be executed and delivered in the name of the transferee or transferees or to the registered owner, as the case may be, in exchange therefor. This bond may be transferred without cost to the registered owner except for any tax or governmental charge required to be paid with respect to the transfer. The Town, the Registrar, the Paying Agent and any other registrar or paying agent for this bond may treat and consider the person in whose name this bond is registered as the absolute owner hereof for all purposes including for the purpose of receiving payment of, or on account of, the principal hereof and interest due hereon.
[The bonds shall be initially issued in a Book Entry System (as defined in the Ordinance). The provisions of this bond and of the Ordinance are subject in all respects to the provisions of the Letter of Representations between the Town and The Depository Trust Company, or any substitute agreement, effecting such Book Entry System.]
This bond is subject to defeasance prior to redemption or payment as provided in the Ordinance referred to herein. THE OWNER OF THIS BOND, BY THE ACCEPTANCE HEREOF, HEREBY AGREES TO ALL THE TERMS AND PROVISIONS CONTAINED IN THE ORDINANCE. The Ordinance may be amended without the consent of the owners of the bonds as provided in the Ordinance.
The bonds maturing in any one year are issuable only in fully registered form in the denomination of [$5,000] OR [$1] or any integral multiple thereof.
It is hereby certified and recited that all acts, conditions and things required to be done precedent to and in the execution, issuance and delivery of this bond have been done and performed in regular and due form as provided by law.
This bond shall not be valid or become obligatory for any purpose until the certificate of authentication hereon shall have been executed by an authorized representative of the Registrar.
IN WITNESS WHEREOF, the Town of Churubusco, in Whitley County, Indiana, has caused this bond to be executed in its corporate name by the manual, electronic or facsimile signature of its Town Council President, its corporate seal to be hereunto affixed, imprinted or impressed by any means and attested manually, electronically or by facsimile by its Clerk-Treasurer.
TOWN OF CHURUBUSCO, INDIANA

By ___________________________________
Town Council President
[SEAL]

Attest:

______________________________
Clerk-Treasurer
REGISTRAR’S CERTIFICATE OF AUTHENTICATION
This bond is one of the bonds described in the within-mentioned Ordinance.
_________________________________,
as Registrar

By ________________________________
Authorized Representative

[INSURANCE LEGEND]

ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto this bond and all rights thereunder, and hereby irrevocably constitutes and appoints , attorney, to transfer the within bond in the books kept for the registration thereof with full power of substitution in the premises.
Dated:
__
NOTICE: Signature(s) must be guaranteed by an eligible guarantor institution participating in a Securities Transfer Association recognized signature guarantee program. _____________________________________
NOTICE: The signature to this assignment must correspond with the name as it appears on the face of the within bond in every particular, without alteration or enlargement or any change whatsoever.
[EXHIBIT A]
(End of Bond Form)
Section 7. Authorization for Preparation and Sale of the BANs and the Bonds; Official Statement; Continuing Disclosure; Municipal Bond Insurance. (a) The Clerk-Treasurer is hereby authorized and directed to have the BANs and the Bonds prepared, and the Town Council President and Clerk-Treasurer are hereby authorized and directed to execute and attest the BANs and the Bonds in the form and manner provided herein. The Clerk-Treasurer is hereby authorized and directed to deliver the BANs and the Bonds to the respective purchasers thereof after a sale made in accordance with the provisions of this ordinance, provided that at the time of said delivery of the BANs and the Bonds, the Clerk-Treasurer shall collect the full amount which the respective purchasers have agreed to pay therefor, which amount shall not be less than the par value of the BANs if sold to the Authority as part of its IFA Programs, not less than ninety-nine percent (99%) of the par value of the BANs if sold to any other purchaser, and not less than the par value of the Bonds if sold to the Authority as part of its IFA Programs, and not less than ninety-nine percent (99%) of the par value of the Bonds if sold to any other purchaser, as the case may be, plus accrued interest to the date of delivery, if any. The Town may receive payment for the BANs and the Bonds in installments. The Bonds, when fully or as and to the extent paid for and delivered to the purchaser, shall be the binding special revenue obligations of the Town payable out of the Net Revenues of the Town’s sewage works, on a parity with 2006 Bonds. The proceeds derived from the sale of the BANs and the Bonds shall be and are hereby set aside for application on the costs of the Project hereinbefore referred to, the refunding of the BANs, if issued, and the expenses necessarily incurred in connection with the BANs and Bonds. The proper officers of the Town are hereby directed to sell the Bonds, to draw all proper and necessary warrants, and to do whatever acts and things which may be necessary to carry out the provisions of this ordinance.
(b) Distribution of an Official Statement (preliminary and final) prepared by the Municipal Advisor, on behalf of the Town, is hereby authorized and approved and the Town Council President and/or the Clerk-Treasurer are authorized and directed to execute the final and preliminary Official Statements on behalf of the Town in a form consistent with this ordinance. The Town Council President and/or the Clerk-Treasurer is hereby authorized to designate the preliminary Official Statement as “nearly final” for purposes of Rule 15c2-12 as promulgated by the Securities and Exchange Commission (“Rule”).
If an Official Statement is not required upon delivery of the Bonds, the Town shall obtain an investment letter from the purchaser of the Bonds which satisfies federal and state securities laws applicable to the Bonds.
(c) If the Bonds are subject to the Rule, a Continuing Disclosure Undertaking (“Undertaking”) for the Bonds is hereby authorized and approved by the Town Council, and the Town Council President and/or Clerk-Treasurer are hereby authorized and directed to complete, execute and attest the same on behalf of the Town, in a form consistent with this ordinance. Notwithstanding any other provisions of this ordinance, failure of the Town to comply with the Undertaking shall not be considered an event of default under the Bonds or this ordinance.
(d) In the event the Municipal Advisor to the Town certifies to the Town that it would be economically advantageous for the Town to acquire a municipal bond insurance policy for any of the Bonds, the Town hereby authorizes and directs the Town Council President and Clerk-Treasurer to obtain such an insurance policy. The acquisition of a municipal bond insurance policy is hereby deemed economically advantageous in the event the difference between the present value cost of (a) the total debt service on the Bonds if issued without municipal bond insurance and (b) the total debt service on the Bonds if issued with municipal bond insurance, is greater than the cost of the premium on the municipal bond insurance policy. If such an insurance policy is purchased, the Town Council President and Clerk-Treasurer are hereby authorized to execute and deliver all agreements with the provider of the policy, to the extent necessary to comply with the terms of such insurance policy and the commitment to issue such policy. Such agreement is hereby incorporated herein by reference and shall be deemed as a part of this ordinance for all purposes, including the rights of the bond insurer providing the policy.
Section 8. Sale of the Bond Sale; Award of Bonds. (a) If any series of the Bonds will be sold at a competitive sale, prior to the sale of any series of the Bonds, the Clerk-Treasurer shall cause to be published either (i) a notice of such sale two (2) times one (1) week apart in the newspaper or newspapers in accordance with IC 5-1-11-2(a) and IC 5-11-1(a)(1) which meet the requirements of IC 5-3-1, with the first publication occurring at least fifteen (15) days before the date of the sale and the second publication being made at least three (3) days before the date of the sale, (ii) a notice of intent to sell in the newspaper or newspapers published in the Town which meet the requirements of IC 5-3-1 and the Indianapolis Business Journal all in accordance with IC 5-1-11-2(b), IC 5-1-11(a)(1) and IC 5-3-1; (iii) a notice or notices as determined by the Clerk-Treasurer, upon the advice of the Town’s municipal advisor, to assist the Town with the sale of the Bonds pursuant to IC 5-1-11-1(a)(2); or (iv) the Town may negotiate a sale with a potential bidder, upon the advice of the Town’s municipal advisor. At the election of the Town, a notice or summary notice of sale may also be published one (1) time in the Indianapolis Business Journal, and a notice or summary notice may also be published in The Bond Buyer in New York, New York. The notice shall state the character and amount of the Bonds, the maximum rate of interest thereon, the terms and conditions upon which bids will be received and the sale made, and such other information as the Clerk-Treasurer and the attorneys employed by the Town shall deem advisable and any summary notice may contain any information deemed so advisable. The notice will also state that the winning bidder will agree to assist the Town in establishing the issue price of the Bonds under Treas. Reg. Section 1.148-1(f) (“Issue Price Regulation”). The criteria for establishing the issue price under the Issue Price Regulation shall be set forth in the preliminary Official Statement and/or the bid form. Said notice may provide, among other things, that electronic bidding will be permitted and that the successful bidder shall be required to submit a certified or cashier’s check or a wire transfer in an amount equal to one percent (1%) of the aggregate principal amount of the Bonds described in the notice within twenty-four (24) hours of the award of the Bonds. In the event the successful bidder shall fail or refuse to accept delivery of the Bonds and pay for the same as soon as the Bonds are ready for delivery, or at the time fixed in the notice of sale, then the proceeds of such deposit shall become the property of the Town and shall be considered as its liquidated damages on account of such default. All bids for the Bonds shall be sealed and shall be presented either to the Clerk-Treasurer, or at the office of the Town’s Municipal Advisor on behalf of the Clerk-Treasurer. The Clerk-Treasurer, or the Town’s Municipal Advisor on behalf of the Clerk-Treasurer, shall continue to receive all bids offered until the hour on the day fixed in the notice, at which time and place the Clerk-Treasurer, or the Town’s municipal advisor on behalf of the Clerk-Treasurer, shall open and consider the bids. Bidders for the Bonds shall be required to name the rate or rates of interest which the Bonds are to bear, not exceeding the maximum rate hereinbefore fixed, and that such interest rate or rates shall be in multiples of one-eighth (1/8), one-twentieth (1/20) or one-hundredth (1/100) of one percent (1%). The notice may provide that the rate bid on any maturity shall be equal to or greater than the rate bid on the immediately preceding maturity. No conditional bid or bid for less than ninety-nine percent (99%) of the par amount of the Bonds will be considered. Prior to the delivery of the Bonds, the Clerk-Treasurer shall obtain a legal opinion as to the validity of the Bonds from Ice Miller LLP, bond counsel, of Indianapolis, Indiana, and shall furnish this opinion to the purchaser of the Bonds. The cost of this opinion shall be considered as part of the costs incidental to these proceedings and may be paid out of proceeds of the Bonds.
The Bonds shall be awarded by the Clerk-Treasurer to the best bidder who has submitted a bid in accordance with the terms of this ordinance, IC 5-1-11 and the notice of sale. The best bidder shall be the one who offers the lowest net interest cost to the Town, to be determined by computing the total interest on all of the Bonds to their maturities and adding thereto the discount bid, if any, and deducting therefrom the premium bid, if any. The Clerk-Treasurer shall have full right to reject any and all bids. If an acceptable bid is not received on the date and time fixed in the notice for sale of the Bonds, the Clerk-Treasurer shall be authorized to continue to receive bids from day to day thereafter without further advertisement for a period not to exceed thirty (30) days, during which time no bid which provides a net interest cost to the Town which is equal to or higher than the best bid received at the time of the advertised sale will be considered.
As an alternative to public sale, the Clerk-Treasurer may negotiate the sale of the Bonds to the Authority as part of its IFA Programs. The Town Council President and Clerk-Treasurer are hereby authorized to: (i) submit an application to the Authority as part of its IFA Programs; (ii) execute a Financial Assistance Agreement with the Authority with terms conforming to this ordinance; and (iii) sell such Bonds upon such terms as are acceptable to the Town Council President and the Clerk-Treasurer consistent with the terms of this ordinance. The Town Council President and Clerk-Treasurer are hereby authorized to execute and deliver the Financial Assistance Agreement with terms consistent with the terms of this ordinance. The substantially final form of Financial Assistance Agreement attached hereto as Exhibit B and incorporated herein by reference is hereby approved by the Town Council, and the Town Council President and Clerk-Treasurer are hereby authorized to execute and deliver the same, and to approve any changes in form or substance to the Financial Assistance Agreement, which are consistent with the terms of this ordinance, such changes to be conclusively evidenced by its execution.
Section 9. Use of Proceeds and Costs of Issuance. Any accrued interest and any premium received at the time of the delivery of the Bonds shall be deposited in the Sinking Fund hereinafter defined. The proceeds from the sale of the Bonds, to the extent not used to refund BANs, and BAN proceeds, excluding any BAN proceeds to be used for capitalized interest, shall be deposited in a bank or banks which are legally designated depositories for the funds of the Town, in a special account or accounts to be designated as “Town of Churubusco, Sewage Works Construction Account” (“Construction Account”). Any BAN proceeds to be used for capitalized interest shall be deposited into the Sinking Fund as further described in Section 14 herein. All funds deposited to the credit of the Sinking Fund or the Construction Account shall be deposited, held, secured or invested in accordance with the laws of the State of Indiana relating to the depositing, holding, securing or investing of public funds, including particularly IC 5-13, as amended and supplemented, and as applicable, pursuant to IC 5-1.2-1 through IC 5-1.2-4, IC 5-1.2-10, IC 5-1.2-11, IC 5-1.2-14 and/or IC 5-1.2-14.5. The funds in the Construction Account shall be expended only for the purpose of paying the costs of the Project, refunding the BANs, if issued, or as otherwise permitted or required by the Act or for the remaining expenses of issuance of the Bonds or BANs. The cost of obtaining the services of Ice Miller LLP, the Municipal Advisor and counsel for the Town, shall be considered as a part of the cost of the Project on account of which the BANs and Bonds are issued. Any balance or balances remaining unexpended in such special account or accounts after completion of the Project, which are not required to meet unpaid obligations incurred in connection with the Project, shall either: (1) be paid into the Sewage Sinking Fund and used solely for the purposes of the Sinking Fund or (2) be used for the same purpose or type of project for which the Bonds were originally issued, all in accordance with IC 5-1-13, as amended and supplemented.
If the Bonds are sold to the Authority as part of its IFA Programs, to the extent (a) that the total principal amount of the Bonds is not paid by the purchaser or drawn down by the Town or (b) proceeds remain in the Construction Account and are not applied to the Project (or any modifications or additions thereto approved by the Department and the Authority), the Town shall reduce the principal amounts of the Bond maturities to effect such reduction in a manner that will still achieve the annual debt service as described in Section 2 hereof subject to and upon the terms set forth in the Financial Assistance Agreement.
Section 10. Financial Records and Accounts. The Town shall keep proper records and books of account, separate from all of its other records and accounts, in which complete and correct entries shall be made showing all revenues received on account of the operation of the sewage works and all disbursements made therefrom and all transactions relating to the utility. Copies of all such statements and reports shall be kept on file in the office of the Clerk-Treasurer.
If any series of Bonds or BANs are sold to the Authority as part of its IFA Program, the Town shall establish and maintain the books and other financial records of the Project (including the establishment of a separate account or subaccount for the Project) and the sewage works in accordance with (i) generally accepted governmental accounting standards for utilities, on an accrual basis, as promulgated by the Government Accounting Standards Board and (ii) the rules, regulations and guidance of the State Board of Accounts.
Section 11. Pledge of Net Revenues. The interest on and the principal of the Bonds issued pursuant to the provisions of this ordinance, and any bonds hereafter issued on a parity therewith, shall constitute a first charge on all the Net Revenues, on a parity with the 2006 Bonds, and such Net Revenues are hereby irrevocably pledged to the payment of the interest on and principal of such Bonds, to the extent necessary for that purpose. The Town shall not be obligated to pay the Bonds or the interest thereon except for the Net Revenues, and the Bonds shall not constitute an indebtedness of the Town within the meaning of the provisions and limitations of the constitution of the State of Indiana.
Section 12. Revenue Fund. All income and revenues derived from the operation of the sewage works and from the collection of sewer and storm water rates and charges (including any System Development Charges) shall be deposited upon receipt in the Revenue Fund (“Revenue Fund”) hereby continued and segregated and deposited as set forth in this ordinance. The Revenue Fund shall be maintained separate and apart from all other accounts of the Town. Of these revenues the proper and reasonable expenses of operation, repair and maintenance of the works shall be paid, the principal of and interest on all bonds and fiscal agency charges of registrars or paying agents shall be paid, the reserve shall be funded, and the costs of replacements, extensions, additions and improvements to the works shall be paid. No moneys derived from the revenues of the sewage works shall be transferred to any other fund of the Town or be used for any purposes not connected with the sewage works, other than to pay PILOTs, so long as any obligations payable from the Net Revenues of the sewage works are outstanding.
Section 13. Operation and Maintenance Fund. There is hereby continued a fund known as the Operation and Maintenance Fund (“O&M Fund”). On the last day of each calendar month, a sufficient amount of revenues of the sewage works shall be transferred from the Revenue Fund to the O&M Fund so that the balance maintained in the O&M Fund is sufficient to pay the expenses of operation, repair and maintenance of the works for the then next succeeding two (2) calendar months. The moneys credited to the O&M Fund shall be used for the payment of the reasonable and proper operation, repair and maintenance expenses of the sewage works on a day-to-day basis, but none of the moneys in the O&M Fund shall be used for PILOTs, depreciation, replacements, improvements, extensions or additions. Any moneys in the O&M Fund may be transferred to the Sinking Fund, if necessary, to prevent a default in the payment of principal of or interest on any outstanding bonds of the sewage works.
Section 14. Sewage Works Sinking Fund. (a) There is hereby continued a fund for the payment of the principal of and interest on revenue bonds which by their terms are payable from the Net Revenues of the sewage works and the payment of any fiscal agency charges in connection with the payment of the bonds, which fund is designated as the Sewage Works Sinking Fund (“Sinking Fund”). There shall be set aside and deposited in the Sinking Fund, as available, and as hereinafter provided, a sufficient amount of the Net Revenues of the sewage works to meet the requirements of the Bond and Interest Account and the Reserve Account (as defined below) hereby continued in the Sinking Fund. Such payments shall continue until the balances in the Bond and Interest Account and the Reserve Account equal the principal of and interest on all of the then outstanding bonds of the sewage works to their final maturity and provide for payment of all fiscal agency charges.
(b) Bond and Interest Account. There is hereby continued, within the Sinking Fund, the Bond and Interest Account (“Bond and Interest Account”). There shall be credited on the last day of each calendar month from the Revenue Fund to the Bond and Interest Account of the Sinking Fund an amount of the Net Revenues equal to (i) at least one-sixth (1/6) of the interest of all then outstanding bonds payable on the then next succeeding interest payment date and (ii) at least one-sixth (1/6) of the principal or, to the extent the 2006 Bonds remain outstanding, at least one-twelfth (1/12) of the principal through January 1, 2027, and then one-sixth (1/6) of the principal, on all then outstanding bonds payable on the then next succeeding principal payment date, until the amount of interest and principal payable on the then next succeeding interest and principal payment date shall have been so credited. There shall similarly be credited to the Bond and Interest Account any amount necessary to pay the bank fiscal agency charges for paying principal and interest on the Bonds as the same become payable. The Town shall, from the sums deposited in the Sinking Fund and credited to the Bond and Interest Account, remit promptly to the registered owner or to the bank fiscal agency sufficient moneys to pay the interest and principal on the due dates thereof together with the amount of bank fiscal agency charges.
(c) Debt Service Reserve Account. (i) There is hereby continued, within the Sinking Fund, the Debt Service Reserve Account (“Reserve Account”). On the date of delivery of the Bonds, the Town may deposit funds on hand of the sewage works, Bond proceeds or any combination thereof, into the Reserve Account up to an amount which shall not exceed or cause the balance therein to not exceed the hereinafter defined Reserve Requirement. If no deposit is made or if the initial deposit does not cause the balance in the Reserve Account to equal the Reserve Requirement, a sum of Net Revenues of the sewage works shall be deposited into the Reserve Account on the last day of each calendar month until the balance therein equals but does not exceed the least of: (i) the maximum annual debt service on the 2006 Bonds, the Bonds and any bonds issued in the future by the Town which are payable from Net Revenues of the sewage works and which rank on a parity basis with the Bonds (“Parity Bonds”); (ii) 125% of the average annual debt service on the 2006 Bonds, the Bonds or any Parity Bonds; or (iii) 10% of the stated principal amount or issue price, as applicable, of the 2006 Bonds, the Bonds or any Parity Bonds (“Reserve Requirement”). Provided, however, that if any Bonds are sold to and are held by the Authority, the Reserve Requirement shall be the combined maximum annual debt service on the 2006 Bonds, the Bonds and any Parity Bonds. If the initial deposit into the Reserve Account does not cause the balance therein to equal the Reserve Requirement or if no deposit is made, then, after meeting the requirements of the Bond and Interest Account set forth above, an amount of Net Revenues shall be credited to the Reserve Account on or before the last day of each calendar month until the balance therein equals the Reserve Requirement. The monthly deposits shall be equal in amount and sufficient to accumulate the Reserve Requirement within five (5) years of the date of delivery of the Bonds.
The Town may fund all or part of the Reserve Account with a debt service reserve surety bond. If such a surety bond is purchased, the Town Council President and Clerk-Treasurer are hereby authorized to execute and deliver all agreements with the provider of the surety bond, to the extent necessary to comply with the terms of such surety bond and the commitment to issue such surety bond. Such agreement is hereby incorporated herein by reference and shall be deemed as a part of this ordinance for all purposes, including the rights of the provider of the surety bond.
The Reserve Account shall constitute the margin for safety and protection against default in the payment of principal of and interest on the 2006 Bonds, the Bonds and any Parity Bonds, and the moneys in the Reserve Account shall be used to pay current principal and interest on the 2006 Bonds, the Bonds and any Parity Bonds to the extent that moneys in the Bond and Interest Account are insufficient for that purpose. Any deficiency in the balance maintained in the Reserve Account shall be promptly made up from the next available Net Revenues remaining after credits into the Bond and Interest Account. In the event moneys in the Reserve Account are transferred to the Bond and Interest Account to pay principal of or interest on the 2006 Bonds, the Bonds or any Parity Bonds, then such depletion of the balance in the Reserve Account shall be made up from the next available Net Revenues remaining after credits into the Bond and Interest Account. Any interest earnings that accumulate in excess of the Reserve Requirement shall be considered as revenues of the sewage works and shall be transferred to the Sewage Works Improvement Fund or be used for the purchase of outstanding bonds or installments of principal of fully registered bonds.
(ii) The Reserve Account may be satisfied with cash, a debt service reserve surety bond or a combination thereof. If any of the Bonds are sold to the Authority as part of the IFA Programs, the Town shall obtain the consent of the Authority to fund the Reserve Account, in whole or in part, with a surety bond. If such surety bond is purchased, the Town Council President and the Clerk-Treasurer are hereby authorized to execute and deliver all agreements with the provider of the surety bond to the extent necessary to comply with the terms of such surety bond and the commitment to issue such surety. Such agreement shall be deemed a part of this ordinance for all purposes and is hereby incorporated herein by reference.
(d) If the Bonds are sold to the Authority as part of its IFA Programs, the Sinking Fund containing the Bond and Interest Account and the Reserve Account and the Construction Account, may be held by a financial institution acceptable to the Authority as part of its IFA Programs, pursuant to terms acceptable to the Authority. If the Sinking Fund and the accounts therein are held in trust, the Town shall transfer the monthly required amounts of Net Revenues to the Bond and Interest Account and the Reserve Account in accordance with this Section 14, and the financial institution holding such funds in trust shall be instructed to pay the required payments in accordance with the payment schedules for the Town’s outstanding bonds. The financial institution selected to serve in this role may also serve as the Registrar and the Paying Agent for any series of the Bonds and for all or any of the 2006 Bonds. If the Construction Account is so held in trust, the Town shall deposit the proceeds of the Bonds therein until such proceeds are applied consistent with this ordinance and the Financial Assistance Agreement with respect to the Bonds. The Town Council President and the Clerk-Treasurer are hereby authorized to execute and deliver an agreement with a financial institution to reflect this trust arrangement for all or a part of the Sinking Fund and the Construction Account in the form of trust agreement as approved by the Town Council President and the Clerk-Treasurer, consistent with the terms and provisions of this ordinance.
Section 15. Sewage Works Improvement Fund. The Sewage Works Improvement Fund (“Improvement Fund”) is hereby continued. After meeting the requirements of the O&M Fund and the Sinking Fund, any excess revenues shall be transferred or credited from the Revenue Fund to the Improvement Fund, and said Improvement Fund shall be used for improvements, replacements, additions or extensions to the sewage works and to make payments representing PILOTs. The Town reserves the right to transfer PILOTs from the Improvement Fund no more frequently than semiannually, in accordance with the Act, and only if all required transfers have been made to the Sinking Fund and the O&M Fund and the Accounts of the Sinking Fund contain the required balances as of the date the PILOTs are paid. Moneys in the Improvement Fund shall be transferred to the Sinking Fund if necessary, to prevent a default in the payment of principal or interest on the bonds payable from the Sinking Fund or, if necessary, to eliminate any deficiencies in credits to or minimum balance in the Reserve Account. Moneys in the Improvement Fund also may be transferred to the O&M Fund to meet unforeseen contingencies in the operation, repair and maintenance of the sewage works. If any BANs or Bonds are sold to the Authority as part of its IFA Programs, so long as any of the BANs or Bonds are outstanding, no moneys derived from the revenues of the sewage works shall be transferred to the General Fund of the Town or be used for any purpose not connected with the sewage works other than to pay PILOTs as set forth in this Section 15. In no event shall any PILOTs be treated as an expense of operation and maintenance, nor in any case shall it be payable from the O&M Fund or the Sinking Fund. Moneys in the Improvement Fund shall be transferred to the Sinking Fund if necessary to prevent a default in the payment of principal and interest on the then outstanding bonds or, if necessary, to eliminate any deficiencies in credits to or minimum balance in the Reserve Account of the Sinking Fund or may be transferred to the O&M Fund to meet unforeseen contingencies in the operation, repair and maintenance of the sewage works. If any BANs or Bonds are sold to the Authority as part of its IFA Program, so long as any of the BANs or Bonds are outstanding, no monies derived from the revenues of the sewage works shall be transferred to the General Fund of the Town or otherwise be used for any purpose not connected with the System.
Section 16. Maintenance of Accounts; Investments. The Sinking Fund shall be deposited in and maintained as a separate banking account or accounts from all other accounts of the Town. The O&M Fund and the Improvement Fund may be maintained in a single banking account, or accounts, but such account, or accounts, shall likewise be maintained separate and apart from all other banking accounts of the Town and apart from the Sinking Fund account or accounts. All moneys deposited in the accounts shall be deposited, held and secured as public funds in accordance with the public depository laws of the State of Indiana; provided that moneys therein may be invested in obligations in accordance with the applicable laws, including particularly IC 5-13, as amended or supplemented and as applicable, pursuant to IC 5-1.2-1 through IC 5-1.2-4, IC 5-1.2-10, IC 5-1.2-11 and/or IC 5-1.2-14, and in the event of such investment the income therefrom shall become a part of the funds invested and shall be used only as provided in this ordinance. Nothing in this Section or elsewhere in this ordinance shall be construed to require that separate bank accounts be established and maintained for the Funds and Accounts created and/or continued by this ordinance except that (a) the Sinking Fund and the Construction Account shall be maintained as a separate bank account from the other Funds and Accounts of the sewage works and (b) the other Funds and Accounts of the sewage works shall be maintained as a separate bank account from the other funds and accounts of the Town.
Section 17. Defeasance of the Bonds. If, when any of the Bonds issued hereunder shall have become due and payable in accordance with their terms or shall have been duly called for redemption or irrevocable instructions to call the Bonds or any portion thereof for redemption shall have been given, and the whole amount of the principal and the interest and the premium, if any, so due and payable upon all of the Bonds or any portion thereof and coupons then outstanding shall be paid; or (i) sufficient moneys (insured at all times by the Federal Deposit Insurance Corporation or otherwise collateralized with obligations described in (ii) below), or (ii) direct obligations of (including obligations issued or held in book entry form on the books of) the Department of the Treasury of the United States of America, the principal of and the interest on which when due will provide sufficient moneys for such purpose, shall be held in trust for such purpose, and provision shall also be made for paying all fees and expenses for the redemption, then and in that case the Bonds issued hereunder or any designated portion thereof issued hereunder shall no longer be deemed outstanding or entitled to the pledge of the Net Revenues of the Town’s sewage works.
Section 18. Rate Covenant. The Town covenants and agrees that it shall establish, maintain and collect reasonable and just and equitable rates and/or charges for the use of and the service rendered by the sewage works, to be paid by the owner of each and every lot, parcel of real estate or building that is connected with and uses the sewage works, or that in any way uses or is served by the sewage works, at a level adequate to produce and maintain sufficient revenue (including user and other charges, fees, income or revenues available to the Town), provided that System Development Charges shall be excluded, to the extent permitted by law, when determining if such rates and charges are sufficient so long as the Bonds are outstanding and owned by the Authority as part of its IFA Program, to provide for the proper and reasonable expenses of operation, repair and maintenance, or Operation and Maintenance (as defined in the Financial Assistance Agreement) if the Bonds are sold to the Authority as part of its IFA Program, of the sewage works to comply with and satisfy all covenants contained in this ordinance and the Financial Assistance Agreement, and to pay all obligations of the sewage works and of the Town with respect to the sewage works. Such rates and charges shall, if necessary, be changed and readjusted from time to time so that the revenues therefrom shall always be sufficient to meet the expenses of operation, repair and maintenance, or Operation and Maintenance, as the case may be, of the sewage works and the requirements of the Sinking Fund. The rates and charges so established shall apply to any and all use of such works by and service rendered to the Town and all departments thereof, and shall be paid by the Town or the various departments thereof as the charges accrue.
Section 19. Additional Bond Provisions. The Town reserves the right to authorize and issue additional BANs at any time ranking on a parity with the BANs. The Town reserves the right to authorize and issue additional Parity Bonds payable out of the Net Revenues of its sewage works ranking on a parity with the 2006 Bonds and the Bonds for the purpose of financing the cost of future additions, extensions and improvements to the sewage works, or to refund obligations, subject to the following conditions:
(a) All required payments into the Sinking Fund shall have been made to date in accordance with the provisions of this ordinance, and the interest on and principal of all bonds payable from the Net Revenues of the sewage works shall have been paid in accordance with their terms. The Reserve Requirement shall be satisfied for the additional Parity Bonds either at the time of delivery of the additional Parity Bonds or over a five year or shorter period, in a manner which is commensurate with the requirements set forth in Section 14 of this ordinance.
(b) The Net Revenues of the sewage works in the fiscal year immediately preceding the issuance of any such Parity Bonds shall be not less than one hundred twenty-five percent (125%) of the maximum annual interest and principal requirements of the then outstanding bonds and the additional Parity Bonds proposed to be issued; or, prior to the issuance of such Parity Bonds, the sewage rates and charges shall be increased sufficiently so that said increased rates and charges applied to the previous year’s operations would have produced Net Revenues for said period equal to not less than one hundred twenty-five percent (125%) of the maximum annual interest and principal requirements of the then outstanding bonds and the additional Parity Bonds proposed to be issued to the final maturity of the then outstanding bonds or, in the case of the construction of new sewage works, which works would serve additional customers at the customers’ existing serviceable structures required to connect to the sewage works, the Net Revenues of the sewage works in the fiscal year immediately preceding the issuance of any such Parity Bonds together with the anticipated Net Revenues from the new system shall be not less than one hundred twenty-five percent (125%) of the maximum annual interest and principal requirements of the then outstanding bonds and the additional Parity Bonds. If the Parity Bonds are issued within ninety (90) days following December 31 and the financial records are not available for the fiscal year immediately preceding the issuance of the Parity Bonds, the financial records of the prior calendar year may be used in determining compliance with this subsection.
For purposes of this subsection, the records of the sewage works shall be analyzed and all showings shall be prepared by a certified public accountant or independent financial auditor employed by the Town for that purpose. In addition, for purposes of this subsection with respect to any Parity Bonds hereafter issued, while the Bonds remain outstanding and owned by the Authority as part of its IFA Program, Net Revenues may not include any revenues from the System Development Charges unless the Authority provides its consent to include all or some portion of the System Development Charges as part of the Net Revenues or otherwise consents to the issuance of such Parity Bonds without satisfying this subsection (b).
(c) The interest on the additional Parity Bonds shall be payable semiannually on the first days of January and July and the principal of, or mandatory sinking fund redemption dates for, the additional Parity Bonds shall be payable semiannually on January 1 and July 1 or, to the extent the 2006 Bonds remain outstanding, shall be payable annually on January 1 through January 1, 2027 and semiannually thereafter on January 1 and July 1.
(d) If the Authority purchases the Bonds as part of its IFA Program, so long as any Bonds or 2006 Bonds are outstanding and owned by the Authority, (i) the Town obtains the consent of the Authority, (ii) the Town has faithfully performed and is in compliance with each of its obligations, agreements and covenants contained in the Financial Assistance Agreement and this ordinance, and (iii) the Town is in compliance with its National Pollutant Discharge Elimination System permits, except for non-compliance for which purpose the Parity Bonds are issued, including refunding bonds issued prior to, but part of the overall plan to eliminate such non-compliance.
Section 20. Further Covenants of the Town; Maintenance, Insurance, Pledge Not To Encumber, Subordinate Indebtedness, and Contract with Bondholders. For the purpose of further safeguarding the interests of the owners of the Bonds and BANs, it is hereby specifically provided as follows:
(a) All contracts let by the Town in connection with the construction of the Project shall be let after due advertisement as required by the laws of the State of Indiana, and all contractors shall be required to furnish surety bonds in an amount equal to one hundred percent (100%) of the amount of such contracts, to insure the completion of said contracts in accordance with their terms, and such contractors shall also be required to carry such employer’s liability and public liability insurance as are required under the laws of the State of Indiana in the case of public contracts, and shall be governed in all respects by the laws of the State of Indiana relating to public contracts.
(b) The Project shall be constructed under the supervision and subject to the approval of such competent engineer as shall be designated by the Town. All estimates for work done or material furnished shall first be checked by the engineer and approved by the Town.
(c) So long as any of the Bonds or BANs are outstanding, the Town shall at all times maintain its sewage works system in good condition, and operate the same in an efficient manner and at a reasonable cost.
(d) So long as any of the Bonds or BANs herein authorized, are outstanding, the Town shall acquire and maintain insurance on the insurable parts of said works, of a kind and in an amount, including fidelity bonds, to protect the sewage works and its operations. If the Authority purchases the Bonds as part of its IFA Program, so long as the Bonds are outstanding and owned by the Authority, such insurance shall be acceptable to the Authority. All insurance shall be placed with responsible insurance companies qualified to do business under the laws of the State of Indiana. To the extent the 2006 Bonds remain outstanding and are owned by the Authority, such insurance coverage shall be acceptable to the Authority. All insurance proceeds shall be used either in replacing or restoring, or repairing the sewage works or used for a different use as permitted by the Act, provided, however, if the Authority owns the Bonds, the Authority consents to a different use of such proceeds or awards.
(e) So long as any of the Bonds or BANs are outstanding, the Town shall not mortgage, pledge or otherwise encumber the property and plant of its sewage works system, or any part thereof, nor shall it sell, lease or otherwise dispose of any part of the same, excepting only such machinery, equipment or other property as may be replaced, or shall no longer be necessary for use in connection with said utility. To the extent the 2006 Bonds remain outstanding and are held by the Authority or provided that, if the Authority purchases the Bonds as part of its IFA Program, so long as the Bonds are outstanding and owned by the Authority, the Town shall not do so without the prior written consent of the Authority.
(f) To the extent the 2006 Bonds remain outstanding and are held by the Authority, and, if the Authority purchases the Bonds as part of its IFA Program, so long as the Bonds are outstanding and owned by the Authority, and, except as otherwise specifically provided in Section 19 hereof, the Town shall not without the prior written consent of the Authority (i) enter into any lease, contract or agreement or incur any other liabilities in connection with the sewage works, other than for normal operating expenditures or (ii) borrow any money (including without limitation any loan from other utilities operated by the Town) in connection with the sewage works.
(g) Except as otherwise specifically provided in Section 19 of this ordinance, so long as any of the Bonds herein authorized are outstanding, no additional bonds or other obligations pledging any portion of the revenues of said sewage works shall be authorized, issued or executed by the Town except such as shall be made junior and subordinate in all respects to the Bonds herein authorized, unless all of the Bonds herein authorized are redeemed, retired or defeased pursuant to Section 17 hereof coincidentally with the delivery of such additional bonds or other obligations.
(h) The Town shall take all action or proceedings necessary and proper, to the extent permitted by law, to require connection of all property where liquid and solid waste, sewage, night soil or industrial waste is produced with available sanitary sewers. The Town shall, insofar as possible, and to the extent permitted by law, cause all such sanitary sewers to be connected with said sewage works.
(i) The provisions of this ordinance shall constitute a contract by and between the Town and the owners of the Bonds and BANs herein authorized, all the terms of which shall be enforceable by any holder of the Bonds or the BANs by any and all appropriate proceedings in law or in equity. After the issuance of the Bonds or BANs, this ordinance shall not be repealed or amended in any respect which will adversely affect the rights or interests of the owners of the Bonds or BANs, nor shall the Town Council adopt any law, ordinance or resolution which in any way adversely affects the rights of the holders of the Bonds or BANs so long as any of the Bonds, BANs or the interest thereon, remain unpaid. Except in the case of changes described in Section 22 (a)-(f), this ordinance may be amended, however, without the consent of Bond or BAN owners, if the Town Council determines, in its sole discretion, that such amendment would not adversely affect the owners of the Bonds or BANs; provided, however, that if the Bonds or BANs are sold to the Authority as part of its IFA Program, the Town shall obtain the prior written consent of the Authority.
(j) The provisions of this ordinance shall be construed to create a trust in the proceeds of the sale of the Bonds and BANs herein authorized for the uses and purposes herein set forth, and the owners of the Bonds and BANs shall retain a lien on such proceeds until the same are applied in accordance with the provisions of this ordinance and of the governing Act. The provisions of this ordinance shall also be construed to create a trust in the portion of the Net Revenues herein directed to be set apart and paid into the Sinking Fund for the uses and purposes of said fund as in this ordinance set forth. The owners of the Bonds shall have all of the rights, remedies and privileges set forth in the provisions of the governing Act, including the right to have a receiver appointed to administer said sewage works, in the event the Town shall fail or refuse to fix and collect sufficient rates and charges, or shall fail or refuse to operate and maintain said system and to apply the revenues derived from the operation thereof, or if there be a default in the payment of the principal of or interest on any of the Bonds herein authorized or in the event of default in respect to any of the provisions of this ordinance or the governing Act.
(k) For purpose this Section 20, the term “lease” shall include any lease, contract, or other instrument conferring a right upon the Town to use property in exchange for a periodic payments made from the revenues of the sewage works, whether the Town desires to cause such to be, or by its terms (or its intended effects) is to be, (i) payable as rent, (ii) booked as an expense or an expenditure, or (iii) classified for accounting or other purposes as a capital lease, financing lease, operating lease, non-appropriation leases, installment purchase agreement or lease, or otherwise (including any combination thereof).
Section 21. Amendments with Consent of Bondholders. Subject to the terms and provisions contained in this section and Section 20(i), and not otherwise, the owners of not less than sixty-six and two-thirds percent (66 2/3%) in aggregate principal amount of the Bonds issued pursuant to this ordinance and then outstanding shall have the right from time to time, anything contained in this ordinance to the contrary notwithstanding, to consent to and approve the adoption by the Town Council of such ordinance or ordinances supplemental hereto or amendatory hereof, as shall be deemed necessary or desirable by the Town for the purpose of modifying, altering, amending, adding to or rescinding in any particular any of the terms or provisions contained in this ordinance, or in any supplemental ordinance; provided, however, if the Bonds or BANs are sold to the Authority as part of its IFA Program, the Town shall obtain the prior written consent of the Authority; and provided, further, that nothing herein contained shall permit or be construed as permitting:
(a) An extension of the maturity of the principal of or interest on, or any mandatory sinking fund redemption date for, any Bond issued pursuant to this ordinance; or
(b) A reduction in the principal amount of any Bond or the redemption premium or the rate of interest thereon; or
(c) Except as set forth in Section 2 regarding the pledge of Net Revenues to the BANs, the creation of a lien upon or a pledge of the revenues or Net Revenues of the sewage works ranking prior to the pledge thereof created by this ordinance; or
(d) A preference or priority of any Bond or Bonds issued pursuant to this ordinance over any other Bond or Bonds issued pursuant to the provisions of this ordinance; or
(e) A reduction in the aggregate principal amount of the Bonds required for consent to such supplemental ordinance;
(f) A reduction in the Reserve Requirement; or
(g) The extension of mandatory sinking fund redemption dates, if any.
If the owners of not less than sixty-six and two-thirds percent (66 2/3%) in aggregate principal amount of the Bonds outstanding at the time of adoption of such supplemental ordinance shall have consented to and approved the adoption thereof by written instrument to be maintained on file in the office of the Clerk-Treasurer of the Town, no owner of any Bond issued pursuant to this ordinance shall have any right to object to the adoption of such supplemental ordinance or to object to any of the terms and provisions contained therein or the operation thereof, or in any manner to question the propriety of the adoption thereof, or to enjoin or restrain the Town Council from adopting the same, or from taking any action pursuant to the provisions thereof. Upon the adoption of any supplemental ordinance pursuant to the provisions of this section, this ordinance shall be, and shall be deemed, modified and amended in accordance therewith, and the respective rights, duties and obligations under this ordinance of the Town and all owners of Bonds then outstanding, shall thereafter be determined, exercised and enforced in accordance with this ordinance, subject in all respects to such modifications and amendments. Notwithstanding anything contained in the foregoing provisions of this ordinance, the rights and obligations of the Town and of the owners of the Bonds authorized by this ordinance, and the terms and provisions of the Bonds and this ordinance, or any supplemental or amendatory ordinance, may be modified or altered in any respect with the consent of the Town and the consent of the owners of all the Bonds then outstanding.
Section 22. Investment of Funds. (a) The Clerk-Treasurer is hereby authorized to invest moneys pursuant to the provisions of this ordinance and IC 5-1-14-3 (subject to applicable requirements of federal law to insure such yield is the then current market rate) to the extent necessary or advisable to preserve the excludability from gross income of interest on the Bonds and BANs under federal law.
(b) The Clerk-Treasurer shall keep full and accurate records of investment earnings and income from moneys held in the funds and accounts continued or referenced herein. In order to comply with the provisions of the ordinance, the Clerk-Treasurer is hereby authorized and directed to employ consultants or attorneys from time to time to advise the Town as to requirements of federal law to preserve the tax excludability. The Clerk-Treasurer may pay any fees as operation expenses of the sewage works.
Section 23. Tax Covenants. In order to preserve the excludability of interest on any tax-exempt Bonds and BANs issued hereunder from gross income for federal income tax purposes under Section 103 of the Internal Revenue Code of 1986 as existing on the date of issuance of the Bonds or the BANs, as the case may be (“Code”) and as an inducement to purchasers of the Bonds and the BANs, the Town represents, covenants and agrees that:
(a) The sewage works will be available for use by members of the general public. Use by a member of the general public means use by natural persons not engaged in a trade or business. No person or entity other than the Town or another state or local governmental unit will use more than 10% of the proceeds of the Bonds or the BANs or property financed by the Bond or BAN proceeds other than as a member of the general public. No person or entity other than the Town or another state or local governmental unit will own property financed by Bond or BAN proceeds or will have any actual or beneficial use of such property pursuant to a lease, management, service or incentive payment contract, an arrangement including take-or-pay or other type of output contracts or any other type of arrangement that conveys other special legal entitlements and differentiates that person’s or entity’s use of such property from use by the general public, unless such uses in the aggregate relate to no more than ten percent (10%) of the proceeds of the Bonds or the BANS, as the case may be. If the Town enters into a management contract for all or a portion of the sewage works, the terms of the contract will comply with the Regulations and IRS Revenue Procedure 2017-33, as amended, supplemented or superseded from time to time, so that the contract will not give rise to private business use under the Code and the Regulations unless such use in the aggregate will not relate to more than 10% of the proceeds of the Bonds or the BANs, as the case may be.
(b) No more than ten percent (10%) of the principal of or interest on the Bonds or BANs is (under the terms of the Bonds or the BANs, this ordinance or any underlying arrangement), directly or indirectly, secured by an interest in property used or to be used for any private business use or payments in respect of any private business use or payments in respect of such property, or to be derived from payments (whether or not to the Town) in respect of such property or borrowed money used or to be used for a private business use or payments in respect of any.
(c) No more than five percent (5%) of the Bond or BAN proceeds will be loaned to any person or entity other than another state or local governmental unit. No more than five percent (5%) of the Bond or BAN proceeds will be transferred, directly or indirectly, or deemed transferred to a nongovernmental person in any manner that would in substance constitute a loan of the Bond or BAN proceeds.
(d) The Town reasonably expects, as of the date hereof, that the Bonds and BANs will not meet either the private business use test described in paragraphs (a) and (b) above or the private loan test described in paragraph (c) above during the entire term of the Bonds and Banks, as the case may be.
(e) No more than five percent (5%) of the proceeds of the Bonds or BANs will be attributable to private business use as described in (a) and private security or payments described in (b) attributable to unrelated or disproportionate private business use. For this purpose, the private business use test is applied by taking into account only use that is not related to any government use of proceeds of the issue (unrelated use) and use that is related but disproportionate to any governmental use of those proceeds (disproportionate use).
(f) The Town will not take any action nor fail to take any action with respect to the Bonds or BANs that would result in the loss of the excludability from gross income for federal tax purposes of interest on the Bonds or BANs pursuant to Section 103 of the Code, nor will the Town act in any other manner which would adversely affect such excludability, and it will not make any investment or do any other act or thing during the period that the Bonds or BANs are outstanding which would cause the Bonds or BANs to be treated as private activity bonds under the meaning of Section 141 of the Code.
(g) It shall be not an event of default under this ordinance if the interest on any Bond or BAN is not excludable from gross income for federal tax purposes or otherwise pursuant to any provision of the Code which is not currently in effect and in existence on the date of issuance of the Bonds or BANs, as the case may be.
(h) The Town represents that it will rebate any arbitrage profits to the United States as required by the Code and the regulations promulgated thereunder.
(i) These covenants are based solely on current law in effect and in existence on the date of delivery of such Bonds or BANs, as the case may be.
Section 24. Issuance of BANs. (a) The Town, having satisfied all the statutory requirements for the issuance of its Bonds, may elect to issue its BAN or BANs pursuant to a Bond Anticipation Note Purchase Agreement (“Note Purchase Agreement”) to be entered into between the Town and the purchaser of the BAN or BANs. If the BANs are sold to the Authority as part of its IFA Program, the Financial Assistance Agreement shall serve as the Note Purchase Agreement. The Town Council hereby authorizes the issuance and execution of the BAN or BANs in lieu of initially issuing Bonds to provide interim financing for the Project until permanent financing becomes available. It shall not be necessary for the Town to repeat the procedures for the issuance of its Bonds, as the procedures followed before the issuance of the BAN or BANs are for all purposes sufficient to authorize the issuance of the Bonds and the use of the proceeds to repay the BAN or BANs.
The Town Council President and the Clerk-Treasurer are hereby authorized and directed to execute a Bond Anticipation Note Agreement (and any amendments made from time to time) in such form or substance as they shall approve acting upon the advice of counsel. The Town Council President and the Clerk-Treasurer may also take such other actions or deliver such other certificates as are necessary or desirable in connection with the issuance of the BANs or the Bonds and the other documents needed for the financing as they deem necessary or desirable in connection therewith.
Section 25. Noncompliance with Tax Covenants. Notwithstanding any other provisions of this ordinance, the covenants and authorizations contained in this ordinance (“Tax Sections”) which are designed to preserve the excludability of interest on the Bonds and BANs from gross income under federal law (“Tax Exemption”) need not be complied with if the Town receives an opinion of nationally recognized bond counsel that any Tax Section is unnecessary to preserve the Tax Exemption.
Section 26. Rates and Charges. The estimate of the rates and charges of the sewage works is set forth in Rate Ordinance No. 2022-18, anticipated to be adopted on November 16, 2022. Such ordinance is hereby incorporated herein by reference.
Section 27. Ordinance Constitutes Resolution under IC 36-9-23. For purposes of Sections 10 and 12 of IC 36-9-23, this ordinance shall constitute and be deemed as the “resolution” as such term is used under Sections 10 and 12 of IC 36-9-23.
Section 28. Conflicting Ordinances. All ordinances and parts of ordinances in conflict herewith (including the Original Ordinance) are hereby repealed; provided, however, that this ordinance shall not be construed as modifying, amending or repealing the ordinance authorizing the 2006 Bonds or as adversely affecting the rights of the holders of the aforementioned 2006 Bonds.
Section 29. Headings. The headings or titles of the several sections shall be solely for convenience of reference and shall not affect the meaning, construction or effect of this ordinance.
Section 30. Effective Date. This ordinance shall be in full force and effect from and after its passage.
* * * * *

Passed and adopted by the Town Council of the Town of Churubusco this 26th day of October, 2022.
TOWN COUNCIL OF THE TOWN OF CHURBUSCO

ATTEST:

_____________________________
Clerk-Treasurer

EXHIBIT A
Project Description

• Project A: Wastewater Treatment Plant Upgrades
o New process facilities and piping, increased capacity of major process items that limit the current capacity, electrical and control upgrades, and site improvements to:
 increase the capacity to allow for future growth
 replace and upgrade existing equipment that has reached the end of its useful life
 continue to meet regulations
• Project B: Pump Station Upgrades
o Upgrades to four (4) existing pump stations
o Installing additional wet well capacity (C&A Tool Station only), new generators, and automatic transfer switches
• Project C: US 33 Extension South
o New gravity sanitary sewer to County limits along US 33, new pump station, and new force main to existing gravity sanitary terminated near Dollar General
• Project D: Sewer Separation Projects (D1: Alley Separation Project between Whitley St/Washington St and D7: Separation at US 33/Tully St/Liberty St)
o Sewer separation and site improvements to remove I/I from wastewater collection system within the Alley and along US 33 between Tully and Liberty
• Line Street Sewer Separation
o Approximately 75 LFT of 8″ sewer replacement, new sanitary manhole, backfill, and two (2) sewer lateral replacements to remove I/I from wastewater collection system
• WWTP Security Cameras
o Installation of two (2) multi-sensor camera units including all appurtenances, mounted on the main treatment plant building for site security and monitoring
o Each camera unit contains four (4) cameras for 360-degree coverage
• Drainage Work and Pipe Replacements
o Replacement storm and sewer drainage lines to correct drainage to mitigate infiltration
o Repaving of road associated with drainage correction

EXHIBIT B

Financial Assistance Agreement

(Attached)