(SRF BONDS)
AN ORDINANCE OF THE TOWN OF LAPEL, MADISON COUNTY, INDIANA, AUTHORIZING THE ACQUISITION, CONSTRUCTION OF CERTAIN ADDITIONS AND IMPROVEMENTS TO THE WATERWORKS OF THE TOWN OF LAPEL, MADISON COUNTY, INDIANA; AUTHORIZING THE ISSUANCE OF REVENUE BONDS TO PROVIDE FUNDS FOR THE PAYMENT OF THE COSTS THEREOF; ADDRESSING OTHER MATTERS CONNECTED THEREWITH, INCLUDING THE ISSUANCE OF NOTES IN ANTICIPATION OF BONDS; REPEALING ALL ORDINANCES IN CONFLICT HEREWITH; AND ALL MATTERS RELATED HERETO
WHEREAS, the Town has heretofore established, acquired, constructed and finances its municipal waterworks utility system (the "Waterworks" or the "System") for the purpose of furnishing the public water supply to the Town and its inhabitants, and now owns and operates the Waterworks pursuant to provisions of I.C. 8-1.5, as in effect on the issue date of the Bond Anticipation Notes or the Bonds, as applicable, which are authorized herein (the "Act"); and
WHEREAS, the Town Council of the Town of Lapel, Madison County, Indiana, a Municipal Corporation (hereinafter, the "Town Council"), as its duly elected legislative body, finds that certain additions, improvements and extensions to the System are necessary; and that Commonwealth Engineers, Inc., of Indianapolis, Indiana, the consulting engineers employed by the Town (the "Consulting Engineers"), have prepared and filed plans, specifications, and detailed descriptions and estimates of the costs of the necessary improvements and extensions to the Waterworks, which plans, specifications, descriptions and estimates, to the extent required by applicable law, have been duly submitted to and approved by or will be approved by all governmental authorities having jurisdiction thereover (the improvements and extensions to the Waterworks as described in such engineers' plans and specifications and below as set forth on Exhibit A (and as more fully set forth in the Financial Assistance Agreement (as hereinafter defined), and any amendment thereto, attached hereto and made a part hereof) are referred to herein as the "Project"); and
WHEREAS, the Town Council now further finds that the estimates prepared and delivered by the Consulting Engineers with respect to the costs of acquisition and construction of such improvements and extensions to the Waterworks, and including all authorized expenses relating thereto, including the costs of issuance of bonds on account of the financing of all or a portion thereof, will be in the aggregate amount not to exceed Seven Million Five Hundred Thousand Dollars ($7,500,000); and
WHEREAS, the Town has advertised or will advertise for and receive bids or proposals for the construction of the Project, which bids or proposals will be subject to the Town obtaining funds to pay for the Project; that on the basis of said aforementioned engineering estimates, the maximum estimated cost of the Project, including incidental expenses, in in the amount of Seven Million Find Hundred Thousand Dollars ($7,500,000); and
WHEREAS, the Town Council has determined that to provide funds necessary to pay for the costs of the Project for which other funding is not available, it will be necessary for the Town to issue waterworks revenue bonds, in one (1) or more series, in an amount not to exceed Seven Million Five Hundred Thousand Dollars ($7,500,000), and, if necessary, bond anticipation notes ("BANs") in an aggregate amount not to exceed Seven Million Five Hundred Thousand Dollars ($7,500,000); and
WHEREAS, the Town Council, after being duly advised, now seeks to authorize the issuance of the Bonds hereunder payable from the Net Revenues (as hereinafter defined) of the Waterworks and the BANs hereunder, if necessary, payable solely from the proceeds of the Waterworks Revenue Bonds issued hereunder; and
WHEREAS, the Town expects to refund its outstanding (a) Waterworks Revenue Bonds, Series 2000 and (b) Waterworks Revenue Bonds, Series 2011 prior to the issuance of the Bonds, by issuing its Waterworks Revenue Refunding Bonds, Series 2021A (hereinafter, the "2021A Bonds" ), in the aggregate principal amount of not to exceed Two Million Five Hundred Thousand Dollars ($2,500,000), and maturing annually on January 1st of each year over a period ending not later than January 1st, 2042, and which 2021A Bonds shall constitute a charge on the Net Revenues (as hereinafter defined) of the System; and
WHEREAS, the Town Council has been informed and advised that the Ordinance authorizing the 2021A Bonds (the "2021A Ordinance") allows for the issuance of additional bonds payable from revenues of the System, and ranking on parity with the 2021A Bonds; and
WHEREAS, the Town Council now finds, after being duly informed and advised, that all conditions precedent to the issuance of the Bonds on a parity with the 2021A Bonds have been or will be met; and
WHEREAS, the Town Council now, based on the foregoing, consequently seeks to authorize the issuance of the Bonds and the BANs to finance the costs of the acquisition and construction of the Project pursuant to the Act and the sale of such revenue bonds at public or private sale, all pursuant ot the provisions of IC 5-1-11, or to the Authority, as set forth below, pursuant to the provisions of the Act, subject to and dependent upon the terms and conditions hereinafter set forth; and
WHEREAS, this Town Council now finds, after being duly informed and advised, that all conditions precedent to the adoption of an Ordinance authorizing the issuance of bond anticipation notes and revenue bonds to provide the necessary funds to be applied to pay all or a portion of the cost of the Project have been compiled with in accordance with the applicable provisions of the Act; and
WHEREAS, it is anticipated that the Town may advance all or a portion of the costs of the Project prior to the issuance of the BANs or the Bonds, with such advance to be repaid from proceeds of the BANs or the Bonds upon the issuance thereof; and
WHEREAS, the Town Council has been further informed and advised that Section 1.150-2 of the Treasury Regulations on Income Tax (the "Reimbursement Regulations") specifies conditions under which a reimbursement allocation may be treated as an expenditure of bond proceeds, and the Town intends by this Ordinance to qualify amounts advanced by the Town to the Project for reimbursement from proceeds of the BANs or the Bonds in accordance with the applicable requirements of the Reimbursement Regulations; and
WHEREAS, the Town may enter into a Financial Assistance Agreement, Funding Agreement and/or Financial Aid Agreement (substantially in the form of Exhibit B attached hereto and made a part hereof) ("Financial Assistance Agreement") with the Indiana Finance Authority (the "Authority") as part of its drinking water 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 5-2.2-14 and/or IC 5-1.2-14.5 (collectively, the "IFA Program"), pertaining to the Project and financing of the Project if any Bonds or BANs are sold to the Authority as part of its IFA Program; and
WHEREAS, the Town Council 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 waterworks and the Project fir its useful life and (b) represent and warrant to the AUthority that the Town has not intent to sell, transfer or lease the waterworks or the Project for its useful life; and
WHEREAS, the Town may accept other forms of financial assistance, as and if available from the IFA Program; and
WHEREAS, the Town has removed its waterworks from the jursidiction of the Indiana Utility Regulatory Commission (the "IURC") with repsect to the approval of rates and charges and financings of the waterworks and, accordingly, the Town will not need approval of the IURC prior to the issuance of the Bonds and BANs herein authorized;
NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF LAPEL, MADISON COUNTY, INDIANA, AS FOLLOWS:
SECTION 1. Authorization of Project. The Town may proceed with the construction of the Project in accorance with the plans and specifications heretofore prepared and filed by the consulting engineers employed by the Town, which plans and specifications are by reference made a part of this Ordinance as fully as if the same were attached hereto and incorporated herein. Two (2) copies of the plans and specifications are now on file or will be subsequently placed on file in the Office of the Clerk-Treasurer and/or Administrative Offices of the Town and open for public inspection pursuant to the provisions of IC 36-1-5-4. The cost of construction of the Project to be financed shall not exceed the sum of Seven Million Five Hundred Thousand Dollars ($7,500,000), plus investment earnings on the Bond and BAN proceeds, without further authorization from this Town Council. Where used in this Ordinance, the term "Town" shall be construed also to include any Department, Board, Commission or Officer or Officers of the Town. The terms "Waterworks", "waterworks", "works", "system", and similar terms used in this Ordinance, shall be construed to mean the Town's existing waterworks system together with all the real estate, equipment and appurtenances thereto used in connection therewith, and all improvements, extensions and additions thereto, and replacements thereof, now or subsequently constructed or acquired. If the bonds herein authorized will be sold to the IFA Program, such terms shall also be construed to mean the Drinking Water System, as defined in the Financial Assistance Agreement to be entered into, in such case, between the Town and the Authority through the IFA Program. The Project shall be constructed in accordance with the plans and specifications heretofore mentioned, which plans and specifications are hereby approved. The Project shall be constructed and the Bonds herein authorized shall be issued pursuant to and in accordance with provisions of the Act. The Town reasonably expects to reimburse expenditures incurred by the Town for the Project with proceeds of the Bods and this constitutes a declaration of Official Intent pursuant to Treasury Regulation 1.150-2(e) and the provisions of IC 5-1-14-6(c).
In the event the bonds herein authorized or the 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 waterworks and the Project for its useful life and (ii) represents and warrants to the Authority that the Town has no intent to sell, transfer or lease the waterworks or the Project for its useful life.
SECTION TWO: Description of the Project. The Project is more particularly described in Exhibit A attached hereto and made a part hereof. The Town shall proceed with the acquisition, construction and installation of the Project and shall enter into all contracts necessary or appropriate for such purpose, in conformity with and subject to the requirements and conditions set forth in this Ordinance and in the Act.
SECTION THREE: Issuance of BANS and Bonds.
(a) The Town shall issue, if necessary, Bond Anticipation Notes (the "BANs") for the purpose of procuring interim financing to pay a portion of the cost of the Project and, if deemed appropriate, the costs of issuance of the BANs. The Town may issue the BANs in one (1) or more series, in an aggregate amount outstanding at any one (1) time not to exceed $7,500,000 to be designated "Waterworks Bond Anticipation Notes, Series 2021," to be completed with the appropriate year of issuance and an alphabetical designation, if necessary. The BANs shall be lettered and numbers consecutively from R-1 and upward, and shall be in authorized denominations of $1,000 or more. The BANs shall be dated as of the date of delivery thereof and shall bear interest at a rate not to exceed Three and a Half percent (3.50%) per annum (the exact rate or rates to be determined through negotiations with the purchasers of the BANs) payable either upon maturity or semiannually on January 1st and July 1st, as designated by the Clerk-Treasurer of the Town (the "Clerk-Treasurer"), with the advice of Reedy Financial Group P.C., the Municpal Advisor to the Town (the "Municipal Advisor"). Each series of BANs will mature no later than five (5) years after their date of delivery, the exact maturity determined by the Clerk-Treasurer, with the advice of the Municipal Advisor and Barnes & Thornburg LLP, Bond Counsel to the Town ("Bond Counsel"). The President of the Town Council (the "President") and the Clerk-Treasurer are hereby authorized and directed to execute a BAN Purchase Agreement in such form or substance as they shall approve acting upon the advice of counsel. The BANs are subject to renewal or extension at an interest rate or rates not to exceed Three and a Half percent (3.50%) per annum (the exact rate or rates to be negotiated with the purchaser of the BANs). The term of any renewal BANs may not exceed five (5) years from the date of delivery of the BANs. The BANs shall be registered in the name of the purchasers thereof. Notwithstanding anything in this Ordinance to the contrary, any series of BANs issued hereunder may bear interest that is taxable and included in the gross income of the owners thereof. If the BANs are issued on a taxable basis, the designated name shall include the term "Taxable" as the first word in the designated name.
(b) The BANs shall be issued pursuant to IC 5-1.2-1 through IC 5-1.2-4, IC 5-1.2-10, IC 5-1.2-14 and/or IC 5-1.2-14.5 if sold to the Authority or pursuant to the provisions of IC 5-1-14-5, as amended, and the Act, if sold to a financial institution or any other purchaser. The BANs shall be sold at a price not less than One Hundred percent (100.00%) of the principal amount thereof. The Town shall pledge to the payment of the principal of and interest on the BANs the proceeds from the issuance of the Bonds pursuant to and in the manner prescribed by the Act. The Town may also use other revenues or funds of the Town legally available therefor, if any, including amounts available to the Town out of federal or state funds available for application to the Project, for payment of the principal of the BANs; provided, however that no funds other than proceeds from the issuance and sale of the Bonds, if and when issued, are pledged to the payment of principal of the BANs. Notwithstanding any other provision of this Ordinance, if the BANs are sold to a purchaser that so agrees, the Town may receive payment for the BANs in installments, and principal shall not be payable and interest shall not accrue on the BANs until such principal amount has been advanced pursuant to requests made by the Town to such purchaser. In the event that the total principal amount of the BANS sold to such purchaser is not advanced to the Town, the principal amount of the BANs shall be reduced accordingly.
(c) The Town shall issue its Waterworks Revenue Bonds (the "Bonds"), in one (1) or more series, in an aggregate principal amount not to exceed $7,500,000 to be designated "Waterworks Revenue Bonds, Series 202...," to be completed with the year in which the Bonds are issued and separate series designations as appropriate, for the purpose of procuring funds to pay a portion of the cost of the Project, the refunding of the BANs, if issued, and the issuance costs of the Bonds or the BANs, if issued, as deterimed by the Town, with the advice of the Municipal Advisor. The Bonds shall be issued and sold at a price not less than One Hundred percent (100%) of the principal amount thereof. The Bonds shall be issued in fully registered form in authorized denominations of One Dollar ($1) each if sold to the Authority as part of the IFA Program and in the denomination of Five Thousand Dollars ($5,000) each (or such higher minimum denominations as the Clerk_Treasurer shall determine prior to the sale of the Bonds) if sold to another purchaser, and any integral multiple thereof not exceeding the aggregate principal amount of the Bonds maturing in any one (1) year. The Bonds shall be lettered and numbered consecuitvely from ....R-1 and upward (with such blank to be filled in based on the year of issuance of the Bonds), originally dated as of the date of delivery, and shall bear interest at a rate not to exceed Three and a Half percent (3.50%) per annum if sold to the Authority as a part of the IFA Program, or shall bear interest at a rate or rates not exceeding Three and a Half percent (3.50%) per annum if sold to any other purchaser (the exact rate or rates to be determined by negotiation with the IFA Program or another purchaser, or by bidding, as the case may be). Interest on the Bonds shall be calculated on the basis of twelve (12) thirty (30)-day months for a three hundred sixty (360) day year (or on the basis of a three hundred sixty-five (365) day year, if required by the purchaser of the Bonds) and payable semiannually on a January 1st and July 1st in each year (each an "Interest Payment Date"), commencing on the first January 1st or July 1st following the date of delivery of the Bonds, all as determined by the Clerk-Treasurer, with the advice of the Municipal Advisor. The Bonds shall be payable in lawful money of the United States of America, at the principal office of the Paying Agent (as hereinafter defined). The Bonds shall mature annually on January 1st of each year, or shall be subject to mandatory sinking fund redemption if term bonds are issued, over a period ending no later than thirty (30) years after the date of issuance of the Bonds in such amounts as is deemed appropriate by the Clerk-Treasurer, with the advice of the Municpal Advisor; provided, however, that any Bonds sold to the Authority as part of its IFA Program shall mature annually on January 1st, or be subject to mandatory sinking fund redemption on January 1st, over a period ending no later than thirty-five (35) years after the date of issuance of the Bonds, and in such amounts as will allow the Town to meet the coverage and/or amortization requirements of the IFA Program, with such debt service schedules to be finalized and set forth in the Financial Assistance Agreement. If the Bonds are sold to a purchaser other than to the Authortiy as part of its SRF Program, The Town may, upon the advice of the Municipal Advisor, obtain bond insurance for the Bonds.
(d) All or a portion of the Bonds may be issued as one (1) 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 accorance with the preceding paragraph, in the years as determined by the purchaser thereof, but in no event later than the last serial maturity date of the Bonds as determined in the preceding 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 princpial amount thereof, plus accrued interest to the redemption date, on principal payment dates which are hereafter determined in accordance with the preceding paragraph.
(e) If the Bonds authorized hereunder are issed in multiple series, each series of the Bonds shall rank on a parity basis with any other series issued hereunder for all purspoes, including the pledge of Net Revenues under this Ordinance.
(f) The Clerk-Treasurer is authorized to serve or select and appoint a qualified financial institution to serve as the Registrar and the Paying Agent for the BANs and the Bonds, which Registrar is hereby charged with the responsibility of authenticating the BANs and the Bonds (the "Registrar" or the "Paying Agent"). The Clerk-Treasurer is hereby authorized to enter into such agreements or understandings with such institution as will enable the institution to perform the services required of the Registrar and the Paying Agent. The Clerk-Treasurer is further authortized to pay such fees as the institution may charge for the services it provides as the Registrar and the Paying Agent, and such fees may be paid from the Sinking Fund. As to the BANs and as to the Bonds, if the purchaser thereof does not object to such designation, the Clerk-Treasurer may serve as Registrar and Paying Agent, and in that case, is hereby charged with the perofrmance of all duties and responsibilites of Registrar and Paying Agent.
(g) If the BANS or Bonds 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 Authortiy on the due date of such payment or, if such due date is a day when financial instutions 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 BANs or the Bonds, such BANs or Bonds shall be presented for payment as directed by the Authority.
(h) If the BANS or Bonds are not sold to the Authortiy as part of its IFA Program or if the wire transfer payment is not required, the principal of the Bonds and the principal and interest on the BANs shall be payable at the principal (or designated) corporate trust office of the Paying Agent. All payments of interest on the Bonds shall be paid by check mailed to the registered owners thereof, as of the fifteenth (15th) day of the month preceding each Interest Payment Date ("Record Date"), 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 on or before such Record Date. 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 1:00pm (New York City time) so such payments are received at the depository by 2:30pm (New York City time). All payments on the BANs and 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.
(i) Each BAN or Bond shall be transferable or exchangeable only upon the books of the Town kept for that purpose at the principal office of the Registrar, by the registered owner thereof in person, or by its attorney duly authortized in writing, upon surrender of such BAN or 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 BAN or BANs or Bond or Bonds in the same aggregate principal amount and of the same maturity shall be executed and delivered in the name of the transferee or transferees or the registered owner, as the case may be, in exchange thereof. The costs of such transfer or exchange shall be borne by the Town; provided, however that the Registrar may make a charge sufficient to reimburse it for any tax, fee or other governmental charge required to be paid with respect to such exchange or transfer, which sum or sums shall be paid by the person requesting such exchange or transfer as a condition precedent to the exercise of the privilege of making such exchange or transfer. The Town, the Registrar and Paying Agent for the Bonds may treat and consider the person in whose name the BANs or the 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, the premium, if any, and interest due thereon.
(j) 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 thirty (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 Waterworks Sinking Fund continued in SECTION THIRTEEN 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.
(k) The BANs and the Bonds shall bear an original issue date which shall be the date of issuance of the BANs and the Bonds, and each BAN and Bond shall also bear the date of its authentication. Any BAN or Bond authenticated on or before the fifteenth day of the calendar month immediately preceding the first Interest Payment Date shall pay interest from its original issue date; provided,however, that interest on any BANs or Bonds sold to the Authority as part of its IFA Program shall be payable from the date or dates of payment made by the Authority as part of its purchase of the BANs or Bonds pursuant to the Financial Assistance Agreement. Any BAN or Bond authenticated thereafter shall pay interest from the Interest Payment Date next preceding the date of authentication of such BAN or BOnd to which interest thereon has been paid or duly provided for, unless such BAN or Bond is authenticated after the day which is the fifteenth day of the calendar month immediately preceding an Interest Payment Date and on or before such Interest Payment Date, in which case interest thereon shall be paid from such Interest Payment Date.
(l) The BANs or the Bonds may be issued in book-entry-only form as one (1) fully registered BAN or Bond per maturity registered in the name of Cede & Co., as nominee for The Depository Trust Company ("DTC"), New York, New York, and DTC may act as securities depository for the BANs or the Bonds and have transfers of the Bonds effected by book-entry on the books of DTC (the "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. Purchasers of beneficial interests will not receive certificates representing their interests in the BANs or the Bonds purchased.
(m) 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.
(n) With respect to Bonds registered in the name of CEDE & CO., the following provisions shall also apply. 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 by or with respect to 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 oly 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 premiium, 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 such Bonds shall be made and gioven to the Depository Trust Company as provided in a Representation Letter from the Town to the Depository Trust Company.
(o) 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 if 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.
(p) If the Town determines that it is in the best interests 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 Onwers 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 o do so, the Registrar and the Townl will cooperate with the Depository Trust Compinay by taking appropriate actions after reasonable notice (i) to make available one (1) 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 and evidencing the Bonds.
(q) 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.
(r) 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 of a record date selected by the Registrar, 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.
(s) 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 BAN or Bond 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 BANs or 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 BANs or Bonds is junior and subordinate to the payment of the principal of and interest on other series of BANs or 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 BANs or Bonds as modified pursuant to this authorization. Such financial assistance, if any, shall be as provided in the Financial Assistance Agreement and the BANs or Bonds of each series of BANs or Bonds issued hereunder (including any modification made pursuant to the authorization in this paragraph to the form of Bond otherwise contained herein).
SECTION 4: Redemption of BANS and Bonds.
(a) If deemed appropriate by the Clerk-Treasurer, with the advice of the Municpal Advisor, the BANs shall be prepayable by the Town, in whole or in part, on or after the date determined to be most appropriate by the Clerk-Treasurer, with the advice of the Municpal Advisor, upon seven (7) days' notice to the owner of the BANs as of the date which is one hundred eighty (180) days prior to such prepayment, without any premium, but with accrued interest to the date of prepayment.
(b) The Bonds may be made redeemable at the option of the Town, in whole or in part, in the order of maturity as determined by the Town, and by lot within a maturity, on thirty (30) days' notice (or sixty (60) days' notice for Bonds sold to the Authortiy as part of its SRF Program), at face value, with a premoim no greater than two-percent (2%), plus accrued interest to the date fixed for redemption. The exact redemption dates and premium, if any, shall be established by the Clerk-Treasurer, with the advice of the Town's municpal advisor, prior to the sale of the Bonds; provided, that Bonds sold to the Authority as part of its IFA Program shall be redeemable not sooner than ten (10) years after their date of delivery and in inverse order of maturity; provided, further, that 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.
(c) All or a portion of the Bonds may be aggregated into one (1) or more term bonds payable from mandatory sinking fund redemption payments. If any BOnd 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 maturing on the same date which have previously been redeemed (otherwise than as a result of a previous mandatory redemption requirement) or delivered to the Registrar for cancellation or purchased for cancellation by the Paying Agent and not theretofore applied as a credit against any redemption obligation. Each 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 excees 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 creidt only such Bonds maturing as term bonds to the extent received on or before forty-five (45) days precedingthe applicable mandatory redemption date.
(d) Each authorized denomination amount of Bonds 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 the Bonds ofr mandatory sinking fund redemption before selecting the Bonds by lot for optional redemption.
(e) Notice of redemption shall be given not less than thirty (30) days prior to the date fixed for redemption for Bond's, unless such redemption notice is waived by the owner of the Bonds or Bonds to be redeemed. Such notice shall be mailed to the address of the registered owner as shown on the registration record of the Town as of he date which is forty-five (45) days prior to such redemption date for Bonds that are sold to any other purchaser; provided, however that such notice shall be provided at least (60) days in advance if the Bonds are sold to the Authority as part of the IFA Program, to the registered owner as shown on the registration record of the Town as of the date which is sixety-five (65) days prior to the redemption date for such Bonds. 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 notive if sufficient funds are available at the place of redemption to pay the redemption price on the date so named.
(f) The BANs and the Bonds shall be called for redemption in multiples of their minimum authorized denomination. The BANs and the Bonds in denominations of more than the minimum authorized denomination shall be treated as representing the number of BANs and Bonds, respectively, obtained by diving the denomination of the BAN and the Bond, respectively, by the minimum authorized denomination within a maturity. The BANs and the Bonds may be redeemed in part. In the event of redemption of BANs and Bonds in part, upon surrender of the BAN or the Bond to be redeemed, a new BAN or BANs or Bond or Bonds in an aggregate principal amount equal to the unredeemed portion of the BAN or the Bond surrendered shall be issued to the registered owner thereof.
SECTION FIVE: Execution and Authentication of the BANs and the Bonds; Pledge of Net Revenues to the Bonds. The BANs and the Bonds shall be executed in the name of the Town by the manual or facsimile signature of the President of the Town Council (the "President") and attested by the manual or facsimile signature of the Clerk-Treasurer, who shall affix the seal of the Town to each of the BANs and the Bonds manually or shall have the seal imprinted or impressed thereon by facsimile. These Officials, by the signing of a Signature and No Litigation Certificate, shall adopt as and for their own proper signatures their facsimile signatures appearing on the BANs and the Bonds. The BANs and the Bonds must be authenticated by an authorized Officer of the Registrar or by the Clerk-Treasurer if the Clerk-Treasurer is acting as the Registrar. 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 Bonds and BANs shall have all of the qualities and incidents of negotiable instruments under the laws of the State of Indiana, subject to the provisions for registration herein. The Bonds, the 2021A Bonds and any additional bonds issued on a parity with the Bonds in accordance with the restrictions imposed by this Ordinance (the "Parity BOnds"), 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 System, on parity with the 2021A Bonds. The TOwn agrees to take such action as is necessary from time to time to perfect or to otherwise preserve the priority of the pledge of the Net Revenues underapplicable law. The Town shall not be obligated to pay the principal of and interest on the Bonds, except from the Net Revenues of the System (except to the extent payable from the proceeds of the Bonds), 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.
SECTION SIX: Security and Sources of Payment for the Bonds. The Bonds, as and to the extent paid for and delivered to the purchaser thereof, together with any other bonds issued on a parity therewith, including the 2021A Bonds (to be referred to hereinafter collectively as the "bonds," unless the context otherwise requires) , as to both principal and interest, shall be valid and binding special revenue obligations of the Town, payable solely from and secured by an irrevocable pledge of and constituting a charge upon all of the Net Revenues (herein defined as gross revenues, including System Development Charges (as hrereinafter defined), after deduction only for the payment of the reasonable expenses of operation, repair and maintenance) derived from the Waterworks, including all such Net Revenues from the existing works, the Project and all additions and improvements thereto and replacements thereof subsequently constructed or acquired, to be set aside into the Sinking Fund as herein provided. For purposes of this Ordinance, "System Development Charges" shall mean the proceeds and balances from any System Development 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. The Town shall not be obligated to pay the Bonds or the interest thereon except from the Net Revenues of the Waterworks, 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 SEVEN: Form of Bonds. The form and tenor of the Bonds shall be substantially as set forth in Exhibit C, with all blanks to be filled in properly and all necessary additions and deletions to be made prior to delivery thereof.
SECTION EIGHT: Preparation and Sale of BANs and Bonds Generally. The Clerk-Treasurer is hereby authroized and directed to have the BANs and the Bonds prepared, and the Town Council President and the Clerk-Treasurer are hereby authorized and directed to execute the BANs and the Bonds in the form and manner herein provided. The Clerk-Treasurer is hereby authorized and directed to deliver the BANs and the Bonds to the purchasers thereof after the sale made in accordance with the provisions of this Ordinance, provided that at the time of such delivery, the Clerk-Treasurer shall collect the full amount which the purchasers have agreed to pay therefor, which amount shall not be less than the applicable minimum percentage of the par value of the BANs or the Bonds set forth in SECTION THREE of this Ordinance. The Town may receive payment for the BANs and the Bonds in installments. The Bonds, as and to the extent paid for and delivered to the purchaser, shall be the binding speical revenue obligations of the Town, payable out of the Net Revenues of the System to be set aside into the Sinking Fund as provided herein. The proceeds derived from the sale of the BANs and the Bonds shall be and are hereby set aside to pay a portion of the cost of the project, the refunding of the BANs, if issued, and the investnment income therefrom, if applicable, and the expenses necessarily incurred in connection with the issuance of the BANs, if issued, and the Bonds. The designated and proper Officers of the Town are hereby directed to draw all proper and necessary warrants, and to do whatever acts and things which may be necessary to carry out the provisions of this Ordinance.
SECTION NINE: Issuance, Sale and Delivery of the Bonds; Official Statement.
(a) To provide for the Bonds to be sold by competitive sale, the Clerk-Treasurer shall cause to be published iether (i) a notice of such sale in the authorized newspaper(s) published in the Town, two (2) times, at least one (1) week apart, with the first publication being made 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; or (ii) a notice of intent to sell bonds in such authorized newspaper(s) and the Indiana Business Journal, all in accordance with the provisions of IC 5-1-11, as amended, and the provsions of IC 5-3-1, as amended. The notice shall state the character, the amount and the authorized denominations of the Bonds, the maximum rate or rates 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. Any summary notice may contain any information deemed so advisable. The notice may provide, among other htings, that each bid shall be accompanied by a certified or cashier's check or a financial surety bond in an amount equal to one percent (1%) of the principal amount of the Bonds described in the notice. If a financial surety bond is used, it must be from an insurance company licensed to issue such bond in the State, and such bond must be submitted to the Town prior to the opening of the bids. The financial surety bond must identify each bidder who good faith deposit is guaranteed by such financial surety bond. If the Bonds are awarded to a bidder utilizing a financial surety bond, then the purchaser is required to submit to the Town a certified or cashier's check (or wire transfer such amount as instructed by the Town) not later than a time determined by the Municipal Advisor on the next business day following the award. In the event that 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 such good faith deposit and the proceeds thereof shall be the property of the Town and shall be considered as its liquidated damages on account of such default. Bidders for the Bonds will 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 hundredth (1/100) of one percent (1%). The rate bid on a maturity shall be equal to or greater than the rate bid on the immediately preceding maturtiy. No conditional bid or bid for less than the applicable minimum percentage of the par value of the Bonds set forht in SECTION THREE of this Ordinance will be considered. The bonds shall be awarded by the Clerk-Treasurer to the best bidder who has submitted its bid in accordance with the terms of this Ordinance, the provisions of IC 5-1-11, as amended, and the notice. The best billder will be the one which offers the lowest interest cost to the Town, to be determined by computing the total interest on all of the Bonds to their maturities and deducting the premium bid, if any, or adding thereto the discount bid, if any. The right to reject any and all bids shall be reserved. If an acceptable bid is not received on the date of sale, the sale may be continued from day today thereafter without further advertisement for a period of thirty (30) days, during which time, no bid which provides a higher net interest cost to the Town that the best bid received at the time of the advertised sale will be considered. The opinion of Bond Counsel approving the legality of the Bonds will be furnished to the purchaser at the expense of the Town.
(b) As an alternative to public sale, the Clerk-Treasurer may negotiate the sale of the BANs or Bonds to any purchaser or to the Authority as part of its IFA Program. The President and the Clerk-Treasurer are hereby authorized to (i) submit an application to the Authority as part of its IFA Program, (ii) execute a Financial Assistance Agreement with the Authority with terms conforming to this ordinance, and (iii) sell such BANs or Bonds upon such terms as are acceptable to the President and the Clerk-Treasurer consistent with the terms of this Ordinance. The substantially final form of Financial Assistance Agreement attached hereto Exhibit B and incorporated herein by reference is hereby approved by this Town Council, and the 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 such execution.
(c) The BANs and Bonds (other than the BANs and Bonds sold to the Authority as part of its IFA Program) may, to the extent required by law, be offered and sold pursuant to an Official Statement with respect to the BANS or Bonds. Distribution of an Official Statement (Preliminary and Final) when and if prepared by the Municipal Advisor on behalf of the Town, is hereby authorized and approved, and the Town Council President is authorized and directed to execute the Offical Statement on behalf of the Town in a form consistent with this Ordinance. The Town Council President is authorized to deem the Preliminary Official Statement as "final" for purposes of Rule 15c2-12 promulgated by the Securities and Exchange Commission (the "Rule"). In the alternative, the Town Council President or the Clerk-Treasurer may obtain an investment letter from the purchaser of the Bonds in a form satisfactory to the Town Attorney and Bond Counsel.
SECTION TEN: Use of Proceeds.
(a) The accrued interest and the premium, if any received at the time of the delivery of the Bonds shall be deposited in the Bond and Interest Account (defined hereinbelow). The remaining proceeds from the sale of the Bonds and the BAN proceeds shall be deposited in a bank or banks which are legally designed depositories for the funds of the Town, in a special account or accounts to be deisgnated as "Town of Lapel Waterworks Construction Account" (the "Construction Account"). 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 the provisions of IC 5-13, as amended. The funds in the Construction Account shall be expended only for the purpose of paying the costs of issuance of the BANs or the Bonds, to pay all or any portion of the cost of the Project, refunding all or a portion of the BANS, if issued, or as otherwise required by the Act. The cost of obtaining the legal services of Bond Counsel shall be considered a part of the costs of issuance of the BANs and the Bonds.
(b) The Town hereby declares that it reasonably expects to reimburse the Town's advances to the Project from proceeds of the BANs or the Bonds, as anticipated by this Ordinance.
(c) Any balance or balances remaining unexpended in the Construction Account after completion of the Project, which are not required to meet unpaid obligations incurred in connection with the Project, shall either (1) be paid into the Bond and Interest Account and used solely for the purpose of paying the interest on the BANs or the Bonds when due until depleted or (2) be used for the same purpose or type of project for which the BANs or the Bonds were originally issued, all in accordance with the provisions of IC 5-1-13, as amended and supplemented.
(d) With respect to any BANs or Bonds sold to the Authority as part of its IFA Program, to the extent that (a) the total principal amount of the BANs or 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 Authority), the Town shall reduce the principal amount of the remaing Bond maturities to effect such reduction in accounts which will still achieve the annual debt service as described in SECTION THREE subject to and upon the terms set forth in the Financial Assistance Agreement.
SECTION ELEVEN: Revenues. All income and revenues of the System shall be deposited upon receipt in the "Town of Lapel, Indiana. Waterworks Special Fund" (the "Revenue Fund"), hereby continued. 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 Waterworks shall be paid, the principal and interest of 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 shall be paid. All monies deposited in the Revenue Fund may be invested in accordance with the provisions of IC 5-13-9, as amended, and other applicable laws. The Revenue Fund shall be maintained separate and apart from all other accounts of the Town. No monies derived from the revenues of the System shall be transferred to the General Fund of the Town, or be used for any purpose not connected with the Waterworks.
SECTION TWELVE: Operation and Maintenance Fund. These shall be transferred from the Revenue Fund and credited to the "Town of Lapel, Indiana, Waterworks Operation and Maintenance Fund" (the "Operation and Maintenance Fund"), hereby continued, on the last day of each calendar month, a sufficient amount of the revenues of the System so that the balance in the Operation and Maintenance Fund shall be sufficient to pay the expenses of operation, repair and maintenance of the System for the then next succeeding two (2) calendar months. The monies credited to the Operation and Maintenance Fund shall be used for the payment of the reasonable and proper operation, repair and maintenance expenses of the System on a day-to-day basis, but none of the monies in such fund shall be used for depreciation, replacements or improvements. Any monies in the Operation and Maintenance Fund in excess of the expected expenses of operation, repair and maintenance for the next succeeding month may be transferred to the Sinking Fund if necessary to prevent a default in the payment of the principal of or interest on the Bonds, the 2021A Bonds, and any Parity Bonds (collectively, the "Bonds").
SECTION THIRTEEN: Sinking Fund.
(a) General. Aftermeeting the requirements of the Operation and Maintenance Fund set forth hereinabove, there shall be set aside and deposited in the "Town of Lapel, Indiana,Bond and Interest Redemption Account" (the "Sinking Fund"), hereby continued, as available, and as provided below (which Sinking Fund shall contain a Debt Service Subaccount, hereby continued (the "Bond and Interest Account") and a Reserve Subaccount, hereby continued (the "Reserve Account")), a sufficient amount of the Net Revenues of the System to meet the requirements of the Bond and Interest Account and the Reserve Account. Such payments shall continue until the balance in the Bond and Interest Account, plus the balance in the Reserve Account, equals the amount necessary to redeem all of the Bonds, the 2021A Bonds, and any Parity Bonds.
If the Bonds are sold to the Authority as part of its IFA Program, the Sinking Fund, containing the Bond and Interest Account and the Reserve Account, and/or the Construction Account, may be held by a financial institution acceptable to the Authority as part of its IFA Program, 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 13, 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 Town Council President and Clerk-Treasurer are hereby authorized to execute and deliver an agreement with a financial institution to reflect this trust arrangement for the Sinking Fund and/or the Construction Account. The financial institution selected to serve in this role may also serve as the Registrar and the Paying Agent for any outstanding bonds of the Town.
(b) Bond and Interest Account. Beginning as of the date of issuance of the Bonds, there shall be transferred from the Revenue Fund and credited on the first day of each month to the Bond and Interest Account an amount of the Net Revenues equal to at least (i) one sixth (1/6) of the interest on all the then-outstanding bonds payable from the Net Revenues on the next succeeding Interest Payment Date and (ii) one-twelth (1/12) of the principal on all of the outstanding bonds payable on the next succeeding principal payment date, until the amount of interest and principal payable on the next succeeding interest and principal payment date shall have been so credited. There should similarly be credited to the account any amount necessary to pay the bank fiscal agency changes on the outstanding Bonds as the same became 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 bank fiscal agent sufficient monies to pay the principal and interest on the due date thereof together with the amount of bank fiscal agency charges.
In no event shall any part of the Sinking Fund be used in calling Bonds for redemption prior to their respective maturities, except to the extent that the amount then in the Sinking Fund exceeds the amount required to pay the Bonds which will mature within a period of twelve (12) calendar months next following the date of such redemption, together with all interest on Bonds payable in such period. Any such excess of funds above such required levle may also be used in purchasing outstanding bonds at a price less than the then-applicable redemption price, with the prior approval of the Town. Monies in the Sinking Fund shall not be used for any other purpose whatsoever except as provided in this Ordinance.
(c) Reserve Account.
(1) On the date of delivery of the Bonds, the Town may deposit Bond proceeds, unless the Bonds are sold to the Authority as part of its IFA Program, funds on hand or a combination thereof, into the Reserve Account. Except as set forth herein, the balance to be maintained in the Reserve Account shall equal but not exceed the least of (i) the maximum annual debt service on the Bonds issued hereunder, the 2021A Bonds, and any Parity Bonds; (ii) one hundred twenty-five percent (125%) of average annual debt service on the Bonds issued hereunder, the 2021A Bonds, and the Parity Bonds; or (iii) ten percent (10%) of the proceeds of the Bonds issued hereunder, the 2021A Bonds, and the Pairty Bonds (the "Reserve Requirement"). In the event the Bonds are sold to the Authority as part of its IFA Program, then the Reserve Requirement shall equal but not exceed the maximum annual debt service on the Bonds, the 2021A Bonds, and any Parity Bonds. If no deposit is made at the time of the issuance of the Bonds or if the initial deposit does not equal the Reserve Requirement, the monthly deposits of Net Revenues 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 balance in the Reserve Account, allocable to the Bonds, shall never exceed the Reserve Requirement.
(2) The Reserve Account shall constitute a margin for safety and a protection against default in the payment of the principal of, premium, if any, and interest on the Bonds, the 2021A Bonds, and any Parity Bonds on a parity basis, and the monies in the Reserve Account shall be used to pay the principal of and interest on the Bonds, the 2021A Bonds, and any Parity Bonds on a parity basis, to the extent that monies 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 after the required deposits into the Bond and Interest Account. In the event monies in the Reserve Account are transferred to the Bond and Interest Account to pay the principal of and interest on the Bonds, the 2021A Bonds, and any Parity Bonds on a parity basis, then that depletion of the balance in the Reserve Account shall be made up from the next available Net Revenues after the required deposits into the Bond and Interest Account. Invenstments in the Reserve Account shall be valued at least annually at their fair market value and marked to market. If, after such valuation, it is determined that the amount on deposit in the Reserve Account is in excess of the Reserve Requirement, such excess shall either be transferred to the Town of Lapel, Indiana, Waterworks Improvement Account, hereby continued (the "Improvement Fund"), or be used for the purchase of Bonds or installments of principal of Bonds at a price not exceeding par and accrued interest.
(3) Notwithstanding the foregoing, the Clerk-Treasurer, with the advice of the Municipal Advisor and Bond Counsel and with the prior written consent of the Authority if the Bonds are sold to the Authority as part of the IFA Program, may enable the Town to satisfy all or any portion of the Reserve Requirement by depositing in the Reserve Account any surety bond, insurance policy, guaranty, letter of credit or other credit enhancement in an amount equal to such portion, provided the issuer of such instrument is rated "AA" or higher at the time of such deposit.
(4) If the Bonds are sold to the Authority as part of its IFA program, the Sinking Fund (containing the Bond and Interest Account, and the Reserve Account), or any portion thereofm and the Construction Fund, may be held by one (1) or more financial institutions acceptable to the Authority as part of its IFA Program, pursuant to terms acceptable to the Authority. If the Sinking Fund and the account therein, or any portion thereof, are so 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 SECTION THIRTEEN of this Ordinance, and the financial instution holding such funds in trust shall be instructed to pay the required payments in accordance with the payment schedules applicable to the Town's outstanding bonds. If the Construction Fund 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. The Town Council President and 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 Fund in the form of a Trust Agreement as approved by the Town Council President and Clerk-Treasurer, consistent with the terms and provisions of this Ordinance.
SECTION FOURTEEN: Improvement Fund. After meeting the requirements of the Operation and Maintenance Fund and the Sinking Fund set forth above, the Town shall transfer to the Improvement Fund from the Revenue Fund on or before the last day of each calendar month a sufficient amount of Net Revenues to be used for improvements to, replacements of, additions to, and extensions of the System. Monies in the Improvement Fund shall be transferred to the Bond and Interest Account if and to the extent necessary to prevent a default in the payment of the principal of, premium, if any, or interest on any Bond payable from Net Revenues, or, if necessary, to eliminate any deficiencies in the deposits or the minimum balance in the Reserve Account as required by SECTION THIRTEEN (c) of this Ordinance. At any other time, monies in the Improvement Fund may be transferred to the Operation and Maintenance Fund to meet unforeseen contingencies in the operation, repair and maintenance of the System.
SECTION FIFTEEN: Maintenance of Accounts: Investments. The Sinking Fund shall be maintained as a separate account or accounts from all other accounts of the Town. The Operation and Maintenance Fund and the Improvement Fund may be maintained in a single account or separate accounts, but such account or accounts, shall likewise be maintained separate and apart from all other accounts of the Town and apart from the Sinking Fund account or accounts. All monies deposited in the Funds and Accounts continued by this Ordinance shall be deposited and held and secured as public funds in accordance with the public depository lawns of the State; provided that monies therein may be invested in obligations in accordance with applicable laws, including the provisions of IC 5-13-9, 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 (as applicable), as each are amended or supplemented, and in the event of such investment, the income therefrom shall become a part of the funds invested and shall be used only as provided in this Ordinance. The amounts in the Bond and Interest Account and all other funds and accounts created pursuant to this Ordinance shall be kept in separate bank accounts apart from all other bank accounts of the Town. In no event shall any of the revenues of the Waterworks be transferred or used for any purpose not authorized by this Ordinance so long as any of the bonds of the Waterworks issued pursuant to the provisons of this Ordinance shall be outstanding. Investment income earned on monies in the funds and accounts established by this Ordinance shall become a part of the funds and accounts invested and shall be used only as provided in this Ordinance.
SECTION SIXTEEN: Maintenance of Books and Records.
The Town shall keep proper books of records and accounts, separate from all of its other records and accounts, in which complete and correct entries shall be made showing all revenues collected from the Waterworks, all disbursements made on account of the operation of the Waterworks, and to meet the requirements of the Sinking Fund and all other financial transactions relating to the Waterworks. There shall be prepared and furnished upon written request, to any owner of the BANs or Bonds at the time then outstanding, not more than ninety (90) days after the close of each fiscal year, complete financial statements of the works, covering the preceding fiscal year, which annual statements shall be certified by the Clerk-Treasurer, or by licensed independent public accountants employed for that purpose. Copies of all such statements and reports shall be kept on file in the office of the Clerk-Treasurer. Any owner or owners of at least five percent (5%) of the Bonds then outstanding shall have the right at all reasonable times to inspect the works and all records accounts and date of the Town relating thereto. Such inspections may be made by representatives duly authorized by written instrument. If any BAN's or Bonds 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 waterworks in accordance with (i) generally accepted governmental accounting standards for utilities, on an accrued basis, as promulgated by the Government Account Standards Board and (ii) the rules, regulations and guideance of the State Board of Accounts.
SECTION SEVENTEEN: Rate Covenant. The Town covenants and agrees that, by orginance of the Town Council, it will establish and maintain just and equitable rates and charges for the use of and the service rendered by the System, to be paid by the owner of each and every lot, parcel of real estate or building that is connected with and uses the System by or through any part of the Waterworks of the Town, or that in any way uses or is served by the System, that such rates and charges shall be sufficient in each year to provide for the payment of the proper and reasonable expenses of Operation and Maintenance and for the payment of the sums required to be paid into the Sinking Fund by the Act and this Ordinance and to comply with an satisfy all covenants contained in this Ordinance and the Financial Assistance Agreement. So long as any of the Bonds are outstanding, none of the facilities or services afforded or rendered by said system shall be furnished without a reasonable and just charge being made therefor. The Town shall pay like charges for any and all services rendered by said Waterworks to the Town, and all such payments shall be deemed to be revenues of the Waterworks. Such rates and charges shall, if necessary, be changed and readjusted from time to time so that the revenues therefrom shall always be sufficient to meet the expenses of Operation and Maintenance of the System and the requirements of the Sinking Fund. The rates and charges so established shall apply to any and all use of the System by and service rendered to the Town and shall be paid by the Town as the charges accrue.
SECTION EIGHTEEN: Defeasance of Bonds. If: (i) any of the Bonds 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 whlole amount of the principal, the premium, if any, and the interest, so due and payable upon all of the Bonds or any designated portion thereof then outstanding shall be paid; or (ii) the Town shall cause to be held in trust for the purpose of paying when due the principal of, premium, if any, and interest on the Bonds or any designated portion thereof, money, together with 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 be sufficient, without reinvestment, to make such payments, and provision shall also be made for paying all fees and expenses for the redemption of such Bonds; then and in that case, such Bonds shall no longer be deemed outstanding or entitled to the pedge of the Net Revenues of the System.
SECTION NINETEEN: Additonal BANs and Bonds. 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 authorized and issue Parity Bonds for the purpose of financing the cost of future additions to, extensions of and improvements to the System, or to refund obligations, subject to the following conditions:
(a) The principal of and interest on all bonds payable from the Net Revenues of the System shall have been paid in accordance with the terms thereof, and the amounts required to be paid into the Sinking Fund shall have been made to date in accordance with the provisions of this Ordinance.
(b) The Net Revenues of the System 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 principal and interest requirements of the then-outstanding bonds payable from the Net Revenues and the additional Parity Bonds proposed to be issued; or, prior to the issuance of such Parity Bonds, the water rates and charges shall be increased sufficiently so that such increased rates and charges applied to the previous year's operations would have produced Net Revenues for such year equal to not less than one hundred twenty-five percent (125%) of the maximum annual principal and interest requirements of the then-outstanding bonds payable from the Net Revenues and the additional Parity Bonds porposed to be issued. For purposes of this subsection, the records of the System shall be analyzed and all showings shall be prepared by a certified public accountant 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 subjection (b).
(c) The principal of, or mandatory sinking fund redemption dates for, the additional Parity Bonds shall be payable annually on January 1st and interest on the additional Parity Bonds shall be payable semiannually on the first day of January and July.
(d) The Reserve Requirement shall be satisfied for the additional Parity Bonds either at the time of delivery of the additional Pairty Bonds or over a five (5) year or shorter period, in a manner which is commensurate with the requirements established in Section 11(c) of this Ordinance.
(e) If the Bonds are sold to the Authority as part of its IFA program: (i) the Town obtains the consent of the Authority; (ii) each of the Town and the Town Council 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 System permits, except for noncompliance, the elimination of which is a purpose for which the Parity Bonds, including any refunding bons are issued so long as such issuance constitutes part of an overall plan to eliminate such noncompliance.
SECTION TWENTY: Further Covenants. For the purpose of further safeguarding the interests of the owners of the BANs and the Bonds, it is specifically provided as follows:
(a) All contracts let by the Town in connection with the construction of said additions and improvements to the Waterworks shall be let after due advertisement as required by the applicable 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 applicable laws of the State of Indiana in the case of public contracts, and shall be governed in all respects by the applicable laws of the State of Indiana relating to public contracts.
(b) Said additions and improvements shall be constructed under the supervision and subject to the approval of the Consulting Engineers or such other competent engineer as shall be designated by the Town Council. All estimates for work done or material furnished shall first be checked by the Consulting Engineers and approved by the Town Council.
(c) The Town shall at all times maintain the System in good condition and operate the same in an efficient manner and at a reasonable cost.
(d) So long as any of the BANs or the Bonds are outstanding, the Town shall acquire and maintain insurance coverage acceptable to the Authority if any Bonds are sold to or owned by the Authority as part of the IFA Program, on the insurable parts of the system, of a kind and in an amount such as is usually carried by private corporations engaged in a similar type of business. All insurance shall be placed with responsible insurance companies qualified to do business under the applicable laws of the State. All insurance proceeds or condemndation proceeds shall be used in replacing or restoring the System or, unless the Authority shall consent to a different use of such proceeds or awards if any Bonds are sold to or are owned by the Authority as part of its IFA Program, or, if no bonds are sold to or are owned by the Authortiy as part of its IFA Program and such proceeds or awards are not used for such purposes, such proceeds or awards shall be treated and applied as Net Revenues of the Waterworks.
(e) So long as any of the BANs or the Bonds are outstanding, the Town shall not mortgage, pledge or otherwise encumber the property and plant of the System, or any portion thereof, or any interest therein. The Town shall not sell, lease or otherwise dispose of any part of the System, except for such machinery, equipment or other property as may be replaced or shall no longer be necessary for use in connection with the System, and if Bonds are sold to the Authortiy as part of its IFA Program, provided that the Town shall obtain the prior written consent of the Authority.
(f) Except as otherwise specifically provided in SECTION NINETEEN hereof, as long as any of the BANs or the Bonds are outstanding, no additional bonds or other obligations pledging any portion of the revenues of the System shall be authorized, executed, or issued by the Town, except those as shall be made subordinate and junior in all respects to the Bonds herein authorized, unless the BANs and the Bonds are redeemed or defeased pursuant to SECTION EIGHTEEN hereof coincidentally with the delivery of such additional bonds or other obligations.
(g) If any Bonds are sold to the Authority as part of its IFA Program, except as otherwise specifically provided in SECTION NINETEEN 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 Waterworks 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 Waterworks.
(h) The provisions of this Ordinance shall constitute a contract by and between the Town and the owners of the BANs and the Bonds, all the terms of which shall be enforceable by any holder of the BANs or the Bonds by any and all appropriate proceedings in law or in equity. After the issuance of the BANs or the Bonds, this Ordinance shall not be repealed, amended or modified in any respect which will adversely affect the rights or interests of the owners of the BANs or the Bonds, nor shall the Town Council or any other body of the Town adopt any law, Ordinance or Resoluton which in any way adversely affects the rights of such owners so long as any of the BANs or the Bonds remain outstanding. Except for the changes set forth in SECTION TWENTY-THREE (a)(1)-(7) of this Ordinance, this Ordinance may be amended, however, without the consent of the BAN or the Bond owners, if the Town Council determines, in its sole discretion, that such amendment would not adversely affect the rights of any of the owners of the BANs or the Bond; provided, however, that if any of the Bonds are sold to and owned by the Authority as part of its IFA Program, the Town shall obtain the prior written consent of the Authority.
(i) The provisions of this Ordinance shall be construed to create a trust in the proceeds of the sale of the BANs and the Bonds for the uses and purposes set forth herein, and the owners of the BANs and the Bonds shall retain a lien on such proceeds until the same are applied in accordance with the provisions of this Ordinance and the 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 or the Improvement Fund for the uses and purposes of such Funds as set forth in this Ordinance. The owners of the BANs and the Bonds shall have all of the rights, remedies and privileges set forth in the provisions of the Act, including the right to have a receiver appointed to administer the System, in the event of default in the payment of the principal of or interest on any of the Bonds. Upon the appointment of such receiver, the receiver may: (i) charge and collect rates sufficient to provide for the payment of the expenses of the operation, repair and maintenance of the System and debt service as provided in the next following clause; (ii) pay the interest on the BANs or the principal of, premium, if any, and interest on any bonds payable from the Net Revenues; and (iii) apply the revenues of the System in conformity with the Act and this Ordinance.
In addition, any owner of the BANs and the Bonds may, by civil action, protect and enforce rights, granted by the Act or under this Ordinance in connection with any action or duty to be performed by the Town, the Town Council, or any Officer of the Town, including the making and collecting of reasonable and sufficient charges and rates for services provided by the System as described in this Ordinance.
(j) For purpose of this SECTION, 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 Waterworks, whether the Town intends 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, finacning lease, operating lease, non-appropriation leases, installment purchase agreement or lease, or otherwise (including any combination thereof).
(k) None of the provisions of this Ordinance shall be construed as requiring the expenditure of any funds of the Town derived from any source other than the proceeds of the BANs, the Bonds or the operations of the System.
SECTION TWENTY-ONE: Investment of Funds.
(a) The Clerk-Treasurer is hereby authorized pursuant to the provisions of IC 5-1-14-3, as mended, to invest monies pursuant to the provisions of this Ordinance (subject to applicable requirements of federal law to insure the yields on such investments are equal to the then-current market rates) to the extent necessary or advisable to preserve the exclusion from gross income of interest on the BANs or the Bonds under federal law.
(b) The Clerk-Treasurer shall keep full and accurate records of investment earnings and income from monies held in the Funds and Accounts continued by this Ordinance. 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 exclusion described above. The Clerk-Treasurer may pay the fees of such consultants or attorneys as operation expense of the System.
SECTION TWENTY-TWO: Tax Covenants. In order to preserve the exclusion of interrest on the BANs and the Bonds 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 BANs or the Bonds, as the case may be (the "Code"), and as an inducement to the purchasers of the BANs and the Bonds, the Town represents, covenants and agrees that:
(a) The use of the System will be based upon arrangements providing for use that is available to the general public on the basis of rates that are generally applicable and uniformly applied, and, to the extent so used, such use shall constitute general public use. No person or entity, other than the Town or another state or local governmental unit, will use more than tent percent (10%) of the proceeds of the BANs or the Bonds or the property financed by the BAN or Bond proceeds, other than in a manner constituting general public use. No person or entity, other than the Town or another state or local governmental unit, will own property financed by the BAN or Bond proceeds or will have actual or beneficial use of such property pursuant to a lease, management, service or incentive payment contract, 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 general public use, unless such uses in the aggregate relate to no more than tent percent (10%) of the proceeds of the BANs or the Bonds, as the case may be. If the Town enters into a management contract for all or a portion of the System, the terms of the contract will comply with the Treasury Regulations issued by the United States Department of the Treasury (the "Regulations") and IRS Revenue Procedure 2017-13, and as such may hereafter be further 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 tent percent (10%) of the BANs or the Bonds.
(b) No more than tent percent (10%) of the principal of or interest on the BANs or the Bonds is (under the terms of the BANs, the Bonds, this Ordinance or any underlying arrangement), directly or indirectly, secured by an interest in property used or to be used for 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 property or borrowed money used or to be used for a private business use.
(c) No more than five percent (5%) of the BAN or Bond proceeds will be loanded to any person or entity other than another state or local governmental unit. No more than five percent (5%) of the BAN or Bond proceeds will be transferred, directly or indirrectly, or deemed transferred to a nongovernmental person in any manner that would in substance constitute a loan of the BAN or Bond proceeds.
(d) The Town reasonably expects, as of the date hereof, that the BANs and the Bonds will not meet either the private business use test described in sub-sections (a) and (b) above or the private loan test described in sub-section (c) above during the entire term of the BANs and the Bonds.
(e) No more than five percent (5%) of the proceeds of the BANs or the Bonds will be attributable to private business use as described in sub-section (a) above and private security or payments described in sub-section (b) above attributable to unrelated or disproportionate private business use. For this purpose, the private business use test is applied by taking to account only that that is not related to any government use of proceeds of the issues and use that is related but disproportionate to any governmental use of those proceeds.
(f) The Town will not take any action nor fail to take any action with respect to the BANs or the Bonds that would result in the loss of the exclusion from gross income for federal tax purposes of interest on the BANs or the Bonds pursuant to the provisions of Section 103 of the Code, nor will the Town act in any other manner which would adversely affect such exclusion.
(g) It shall not be an event of default under this Ordinance if the interest on any BANs or Bonds 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 BANs or the Bonds, as the case may be.
(h) The Town represents that will will rebate any arbitrage profits to the United States of America to the extent required by the Code and the Regulations.
(i) On or before the date of issuance of each series of BANs and the Bonds, the Clerk-Treasurer is hereby authorized to designate all or any portion of such BANs or Bonds as qualified tax-exempy obligations pursuant to Section 265(b)(3) of the Code, if determined appropriate and permissible thereunder, with the advice of Bond Counsel.
(j) These covenants are based solely on current law in effect and in existence on the date of delivery of the BANs or the Bonds as the case may be.
(k) Notwithstanding any other provisions of this Ordinance, the covenants and authorizations contained in this Ordinance (the "Tax Sections"), which are designed to preserve the exclusion of interest on the BANs and the Bonds from gross income under federal law (the "Tax Exemption"), need not be complied with if the Town receives an opinion of nationally recognized bond counsel that any Tax Section is unnecessary to preserve the tax exemption.
SECTION TWENTY-THREE: Amendments with Consent of Bondholders.
(a) Subject to the terms and provisions contained in this SECTION and SECTION NINETEEN (e) of this Ordinance, 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 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 Council 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 any supplemental ordinance; provided, however, for so long as the Bonds are outstanding and owned by the Authority, 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:
(1) An extension of the maturity of the principal of or the due date of interest on any BAN or Bond; or
(2) A reduction in the principal amount of any BAN or Bond or the redemption premium or the rate of interest thereon; or
(3) The creation of a lien upon or a pledge of the revenues or Net Revenues of the System ranking prior to the pledge thereof created by this Ordinance; or
(4) A preference or priority of any BAN or BANs over any other BAN or BANs or of any Bond or Bonds over any other Bond or Bonds; or
(5) A reduction in the aggregate principal amount of the Bonds required for consent to such supplemental ordinance; or
(6) A reduction in the Reserve Requirement; or
(7) The extension of mandatory sinking fund redemption dates for the Bonds, if any.
(b) 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, no owner of any Bond 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; provided, however that if any BANs or Bonds are sold to the Authority, the Town shall obtain the prior written consent of the Authority. 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. Not withstanding anything contained in the foregoing provisions of this Ordinance, the rights and obligations of the Town and the owners of the Bonds, and the terms and provisions of the Bonds and this Ordinance, or any supplemental Ordinance, may be modified or altered in any respect with the consent of the Town and the owners of all the Bonds then-outstanding.
SECTION TWENTY-FOUR: Issuance of BANs.
(a) The Town, having satisfied all the statutory requirements for the issuance of the Bonds, may elect to issue the BAN or BANs to a financial institution, or any other purchaser (if then authorized by State law), pursuant to a Bond Anticipation Note Purchase Agreement (the "Bond Anticipation Note Agreement") to be entered into between the Town and the purchaser of the BAN or BANs, but only if such Agreement is deemed necessary by Bond Counsel. The Town Council hereby authorizes the isusance and execution of the BAN or BANs in lieu of initially issuing the Bonds to provide interim financing for the Refunding until permanent financing becomes available and, if deemed appropriate, to refund such BAN or BANs and to pay the costs of issuance of the BANs. It shall not be necessary for the Town to repat the procedures for the issuance of the 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.
(b) The President and the Clerk-Treasurer are hereby authorized and directed to execute a Bond Anticipation Note Agreement, if any (and any amendments made from time to time) in such form or substance as they shall approve, acting upon the advice of Bond Counsel. The Town Council President and the Clerk-Treasurer may take such other actions or execute and deliver such 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 deemed necessary or required in connection therewith.
SECTION TWENTY-FIVE: Rate Ordinance. The Town Council adopted a Rate Ordinance which sets forth the rates and charges applicable to the System.
SECTION TWENTY-SIX: Continuing Disclosure. If necessary in order for the purchaser of the BANs or the Bonds to comply with the Rule, the Town Council President and the Clerk-Treasurer are hereby authorized to execute and deliver, in the name and on behalf of the Town, (i) an agreement by the Town to comply with the requirements for a Continuing Disclosure Undertaking of the Town pursuant to subsection (b)(5) or (d)(2) of the Rule, and (ii) amendments to such agreement from time to time in accordance with the terms of such agreement (the agreement and any amendments thereto are collectively referred to hereinafter as the "Continuing Disclosure Agreement"). The Town hereby covenants and agrees that it will comply with and carry out all of the provisions of the Continuing Disclosure Agreement. The remedies for any failure of the Town to comply with and carry out the provisions of the Continuing Disclosure Agreement shall be as set forth therein.
SECTION TWENTY-SEVEN: Conflicting Ordinances. All prior Ordinances, and parts of prior ordinances insofar as they are in conflict herewith, are hereby repealed.
SECTION TWENTY-EIGHT: Effective Date. This Ordinance shall take effect, and be in full force and effect, from and after its passage and adoption by the Toen Council of the Town of Lapel, Madison County, Indiana, in conformance with applicable law.
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