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Home My WebLink AboutO-2530 - Bond issuance (Special)~~-!"•c- toP'.\~,t .. r,1 SO"l4S60.01 CITY OF MARYSVILLE, WASHINGTON ORDINANCE NO.~53 0 AN ORDINANCE RELATING TO THE WATERWORKS UTILITY OF THE CITY; PROVIDING FOR THE ISSUANCE OF WATER AND SEWER REVENUE REFUNDING BONDS, 2004, IN THE PRINCIPAL AMOUNT OF $II,555,000 FOR THE PURPOSE OF PROVIDING THE FUNDS TO PAY THE COST OF REFUNDING THE CITY'S OUTSTANDING WATER AND SEWER REFUNDING REVENUE BONDS, 1993, IN A CURRENT REFUNDING, AND PAYING THE ADMINISTRATIVE COSTS OF SUCH REFUNDING AND THE COST OF ISSUING THE BONDS; FIXING THE DATE, FORM, MATURITIES, INTEREST RATES, TERMS .. AND COVENANTS OF THE BONDS; PROVIDING FOR THE CALL, PAYMENT AND REDEMPTION OF THE BONDS TO BE REFUNDED; PROVIDING FOR BOND INSURANCE; AND APPROVING THE SALE AND PROVIDING FOR THE DELIVERY OF THESE BONDS TO PIPER JAFFRAY &CO., OF SEATTLE, WASHINGTON. PASSED JUNE 22, 2004 Prepared By: Foster Pepper &Shefelman PLLC 1111 Third Avenue, Suite 3400 Seattle, Washington 98101 (206)447-4400 f --------------~--~- CITY OF MARYSVILLE, WASHINGTON ORDINANCE NO.__ TABLE OF CONTENTS Section I. Definitions 5 Section 2. Satisfaction of Parity Conditions 10 Section 3. Authorization and Description of Bonds 10 Section 4. Registration and Transfer of Bonds 10 Section 5. Payment of Bonds II Section 6. Redemption and Open Market Purchase of Bonds 12 Section 7. Failure to Redeem Bonds 12 Section 8. Form and Execution of Bonds 12 Section 9. Bond Registrar 13 Section 10. Bond Fund 13 Section II. Finding as to Sufficiency of Revenue, Pledge of Revenue and Lien Position 15 Section 12. Application of Bond Proceeds 15 Section 13. Call for Redemption of the Refunded Bonds 15 Section 14. City Findings with Respect to Refunding 16 Section 15. Covenants ,16 Section 16. Flow of Funds 19 Section 17. Provisions for Future Parity Bonds 20 Section 18. Preservation of Tax Exemption for Interest on Bonds 20 Section 19. Refunding or Defeasance of Bonds 20 Section 20. Approval of Bond Purchase Contract 2I Section 21. Preliminary Official Statement Deemed Final : 22 Section 22. Undertaking to Provide Continuing Disclosure 22 Section 23. Amendatory and Supplemental Ordinances 25 Section 24. Bond Insurance 27 Section 25. Insurance Provisions 26 Section 26. Effective Date of Ordinance 32 -)- 5004560,03 CITY OF MARYSVILLE, WASHINGTON ORDINANCE NO.~530 AN ORDINANCE RELATING TO THE WATERWORKS UTILITY OF THE CITY; PROVIDING FOR THE ISSUANCE OF WATER AND SEWER REVENUE REFUNDING BONDS, 2004, IN THE PRINCIPAL AMOUNT OF $II,555,000 FOR THE PURPOSE OF PROVIDING THE FUNDS TO PAY THE COST OF REFUNDING THE CITY'S OUTSTANDING WATER AND SEWER REFUNDING REVENUE BONDS, 1993, IN A CURRENT REFUNDING, AND PAYING THE ADMINISTRATIVE COSTS OF SUCH REFUNDING AND THE COST OF ISSUING THE BONDS; FIXING THE DATE, FORM, MATURITIES, INTEREST RATES, TERMS AND COVENANTS OF THE BONDS; PROVIDING FOR THE CALL, PAYMENT AND REDEMPTION OF THE BONDS TO BE REFUNDED; PROVIDING FOR BOND INSURANCE; AND APPROVING THE SALE AND PROVIDING FOR THE DELIVERY OF THESE BONDS TO PIPER JAFFRAY &CO., OF SEATTLE, WASHINGTON. WHEREAS, by Ordinance No. 385, passed on September 2, 1952, the then Town of Marysville, Washington, combined its water distribution system with its sewerage system to create a Waterworks Utility of the Town; and WHEREAS, by Ordinance No. 2245, passed on April 5, 1999, the now City of Marysville, Washington (the "City") created and provided for the operation of a Surface Water Utility; and WHEREAS, by Ordiuance No. 2509, passed March 22, 2004, the City combined its Surface Water Utility with the Waterworks Utility of the City; and WHEREAS, pursuant to Ordinance No. 1945, the City issued its $22,505,000 par value Water and Sewer Refunding Revenue Bonds, 1993 (the "1993 Bonds"), for the purpose of refunding all of the City's then outstanding revenue obligations pledged against the Gross Revenue of the Waterworks Utility and ULID Assessments (as hereinafter defined), except the City's $800,000 par value Water and Drought Relief Revenue Bond, 1977, issued pursuant to Ordinance No. 972, which bond has been paid and retired; and WHEREAS, pursuant to Section 18 of Ordinance No. 1945, the City reserved the right to issue water and sewer revenue bonds having a lien and charge on the Gross Revenue of the Waterworks Utility and UUD Assessments on a parity with the lien and charge upon such Gross Revenue and ULID Assessments of the 1993 Bonds for the payment of the principal thereof and interest ·thereon if the following conditions are met and complied with at the time of issuance of those bonds: 50434560.03 r -,' 50434560.1IJ "(a)There shall be no deficiency in the Bond Fund. "(b) The ordinance providing for the issuance of the Future Parity Bonds shall provide that all assessments and interest thereon that may be levied in any UUD created for the purpose of paying, in whole or in part, the principal of and interest on those Future Parity Bonds, shall be paid directly into the Bond Fund, except for any prepaid assessments permitted by law to be paid into a construction fund or account. "(c)The ordinance providing for the issuance of such Future Parity Bonds shall provide for the payment of the principal thereof and interest thereon out of the Bond Fund. "(d) The ordinance providing for the issuance of such Future Parity Bonds shall provide for the deposit into the Reserve Account of (i) an amount equal to the Reserve Requirement for those Future Parity Bonds from the Future Parity Bondproceeds or other money legally available,or (ii) Reserve Insurance or Alternate Security or an amount plus Reserve Insurance or Alternate Security equal to the Reserve Requirement for those Future Parity Bonds, or (iii) to the extent that the Reserve Requirement is not funded from Future Parity Bond proceeds,other legally available money or Reserve Insurance or Alternate Security at the time of issuance of those Future Parity Bonds, within five years from the date of issue of the Future Parity Bonds from UUD Assessments,if any, levied and first collected for the payment of the principal of and interest on those Future Parity Bonds and, to the extent that UUD Assessments are insufficient, then from the Net Revenue of the Waterworks Utility in five approximately equal annual payments. No Reserve Insurance or Alternate Security may be used to satisfy the Reserve Requirement for Future Parity Bonds unless (i) the insurance policy or Alternate Security is non-cancelable and (ii) the insurer or provider of the Alternate Security as of the time of issuance of such insurance or Alternate Security is rated in the highest rating categories by both Moody's Investors Service, Inc., and Standard &Poor's Corporation. "(e) The ordinance authorizing the issuance of such Future Parity Bonds shall provide for the payment of mandatory redemption or sinking fund requirements into the Bond Fund for any Term Bonds to be issued and for regular payments to be made for the payment of the principal of such Term Bonds on or before their maturity,or, as an alternative,the mandatory redemption of those Term Bonds prior to their maturity date from money in the Principal and Interest Account. "(f)There shall be on file from a licensed professional engineer experienced in the design,construction and operation of municipal utilities, or from an independent certified public accountant,a certificate showing that in his or her professional opinion the Net Revenue of the Waterworks Utility for any 12 consecutive calendar months out of the immediately preceding 24 calendar -2- months shall be equal to the Coverage Requirement for each year thereafter. The certificate, in estimating the Net Revenue of the Waterworks Utility available for debt service,may adjustNet Revenue of the Waterworks Utility to reflect: "(1)Any changes in rates in effect and being charged or1expressly committedby ordinance to be made in the future; ,,, "(2) Income derived from customers of the Waterworks, ""Utility who have become customers during the 12 consecutive month period or thereafter adjusted to reflect one year's net revenue from those customers; "(3) Waterworks charges; Income from any customers to be connected to the Utility who have paid the required connection "(4) The engineer's or accountant's estimate of the Net Revenue of the Waterworks Utility to be derived from customers anticipated to connect for whom building permits have been issued; "(5) Income received or to be received which is derived from any person, firm, corporation or municipal corporation under any executed contract for water, sewage disposal or other utility service, which revenue was not included in the historical Net Revenue of the Waterworks Utility; "(6) The engineer's or accountant's estimate of the Net Revenue of the Waterworks Utility to be derived from customers ,with existing homes or buildings which will be required to connect to any additions to and improvements and extensions of the Waterworks Utility constructed and to be paid for out of the proceeds of the sale of the additional Future Parity Bonds or other additions to and improvements and extensions of the Waterworks Utility then under construction and not fully connected to the facilities of the Waterworks Utility when such additions, improvements and extensions are completed; and "(7)Any increases or decreases in Net Revenue as a result of any actual or reasonably anticipated changes in Maintenance and Operation Expense subsequent to the I2-month period. "If Future Parity Bonds proposed to be so issued are for the sole purpose of refunding outstanding bonds payable from the Bond Fund, such certification of coverage shall not be required if the amount required for the payment of the -3- 50434560.03 principal and interest in each year for the refunding bonds is not increased more than $5,000 over the amount for that same year required for the bonds or the portion of that bond issue to be refunded thereby and if the maturities of such refunding bonds are not extended beyond the maturities of the bonds to be refunded thereby. "For purposes of preparing the engineer's or accountant's certificate, Future Parity Bonds (including the Future Parity Bonds proposed to be issued) that are Variable Interest Rate Bonds shall be assumed to bear interest at a fixed rate equal to the higher of (1) the highest variable rate borne during the preceding 24 months by any outstanding variable rate water and sewer revenue bonds of the Waterworks Utility of the City or, (2)if no such Variable Interest Rate Bonds are.. outstanding at the time of calculation, the rate borne by other variable rate debt the interest rate for which is determined by reference to an index comparable to the index to be used to determine the interest rate on the Future Parity Bonds proposed to be issued"; and WHEREAS, pursuant to Ordinance No. 1995, passed June 27, 1994, the City provided for the issuance and sale of $5,800,000 par value Water and Sewer Revenue Bonds, 1994 (the "1994 Bonds"), which 1994 Bonds were issued under date of July 1, 1994, and were issued on a parity of lien and charge on the Gross Revenue of the Waterworks Utility and UUD Assessments with the 1993Bonds; and WHEREAS, pursuant to Ordinance No. 2214, passed December 1, 1998, the City provided for the issuance and sale of $4,900,000 par value Water and Sewer Revenue Refunding Bonds, 1998 (the "1998 Bonds"), which 1998 Bonds were issued under date of December 1, 1998, and were issued on a parity of lien and charge on the Gross Revenue of the Waterworks Utility and UUD Assessments with the 1993Bonds and 1994Bonds; and WHEREAS, by Ordinance No. 1945, the City reserved the right to redeem the 1993 Bonds maturing on and after December 1, 2004, prior to their stated maturity dates on December 1, 2003, as a whole at any time, or in part on any interest payment date, at a price of par plus accrued interest to the date fixed for redemption; and WHEREAS, there are presently outstanding $11,665,000 par value of 1993 Bonds maturing or subject to mandatory redemption on December 1 of each of the years 2004 through 2012, inclusive, andbearing various interest rates from 5.70% to 6.1 0% (the "Refunded Bonds"); and WHEREAS, after due consideration, it appears to the City Council that the Refunded Bonds may be refunded by the issuance and sale of the water and sewer revenue refunding bonds authorized herein (the "Bonds") so that a substantial savings will be effected by the difference between the principal and interest cost over the life of the Bonds and the principal and interest -4- 5043-4560.03 ,. cost over the life of the Refunded Bonds but for such refunding, which refunding will be effected by: (a) The issuance of the Bonds and the payment of the costs of the issuance of the Bonds and the costs of the refunding; (b) The payment of the interest on the Refunded Bonds when due up to and including July 27, 2004, and the call,payment and redemption on July 27, 2004,of all of the Refunded Bonds at a price of par; and WHEREAS,to effect that refunding in the manner that will be most advantageous to the City and its ratepayers it is found necessary and advisable, and the City Council deems it to be in the best interests of the City, to issue and sell the Bonds to pay the cost of refunding the Refunded Bonds in a current refunding and to pay the administrative costs of such refunding and the costs of issuance and sale of the Bonds; and WHEREAS,Financial Security Assurance Inc. (the "Bond Insurer"),has made a commitment to issue an insurance policy (the "Municipal Bond Insurance Policy")insuring the payment when due of the principal of and interest on the Bonds as provided therein, and the City Council deems that the purchase of the Municipal Bond Insurance Policy is in the best interest of the City; and WHEREAS,Piper Jaffray &Co.of Seattle,Washington,has offered to purchase the Bonds under the terms and conditions hereinafter set forth in the form of a bond purchase contract; NOW,THEREFORE, THE CITY COUNCIL OF THE CITY OF MARYSVILLE,WASHINGTON,DO ORDAIN as follows: Section I.Definitions.As used in this ordinance the following words shall have the following meanings: "Alternate Security"means any bond insurance,collateral,security,letter of credit, guaranty, surety bond or similar credit enhancement device providing for or securing the payment of all or part of the principal of and interest on the Parity Bonds, issued by an institution which has been assigned a credit rating at the time of issuance of the Parity Bonds secured by such Alternate Security equal to or better than the highest then-existing rating for any of the Parity Bonds. "Annual Debt Service"for the applicable series of Parity Bonds for any year means all the interest, plus all principal (except principal of Term Bonds due in any Term Bond Maturity Year), plus all mandatory redemption sinking fund installments for that year, less all bond interest payable from the proceeds of any such bonds in that year. -5- 504J4S60.0J "Average Annual Debt Service" means the sum of the Annual Debt Service for the remaining years to the last scheduled maturity of the applicable issue or issues of bonds divided by the number of those years. For purposes of computing the Reserve Requirement the estimated amount of bonds to be redeemed prior to maturity may be taken into account if required under federal arbitrage regulations. "Bond Fund" means that special fund of the City known as the Water and Sewer Revenue Bond Fund, 1993, created by Ordinance No. 1945 for the payment of the principal of and interest on the Parity Bonds. "Bond Insurer"or "FSA" means Financial Security Assurance Inc. "Bond Register"means the books or records maintained by the Bond Registrar on which are recorded the names and addresses of the owners of each of the Bonds. "Bond Registrar"means the Fiscal Agent. "Bonds"means the $11,555,000 par value Water and Sewer Revenue Refunding Bonds, 2004, authorized to be issued by this ordinance. "1998 Bonds" means the $4,900,000 par value Water and Sewer Revenue Refunding Bonds, 1998, authorized to be issued by Ordinance No. 2214. "1993 Bonds" means the outstanding Water and Sewer Refunding Revenue Bonds, 1993, issued for the purposes provided in and pursuant to Ordinance No. 1945. "City"means the City of MarysvilJe,Washington. "Code"means the Internal Revenue Code of 1986, as amended, and applicable rules and regulations promulgated thereunder. "Coverage Requirement"in any year means an amount of Net Revenue of the Waterworks Utility equal to at least 1.20 times an amount equal to the Annual Debt Service that year on all Parity Bonds less the UUD Assessments due in that year and not delinquent. "DTC"means The Depository Trust Company, New York, New York. "Fiscal Agent" means the fiscal agent of the State of Washington, as the same may be designated from time to time. "Future Parity Bonds" means any and all water and sewer revenue bonds of the City issued after the date of the issuance of the Bonds, the payment of the principal of and interest on which constitutes a charge or lien on the Gross Revenue of the Waterworks Utility and UUD Assessments equal in rank with the charge and lien upon such revenue and assessments required to be paid into the Bond Fund to pay and secure the payment of the principal of and interest on the Outstanding Parity Bonds and the Bonds. -6- 50434560.03 , , ------------------------------------------------~ "Government Obligations" means those government obligations defined by RCW 39.53.010(4) as now in effect or hereafter may be amended and which are otherwise Legal Investments ofthe City at the time of such investment. "Gross Revenue of the Waterworks Utility" or "Gross Revenue" means all of the earnings and revenues received by the City from the maintenance and operation of the Waterworks Utility and all earnings from the investment of money in the Bond Fund which earnings are deposited in the Principal and Interest Account, and connection and capital improvement charges collected for the purpose of defraying the cost of capital facilities of the Waterworks Utility, except UUD Assessments, government grants, proceeds from the sale of Waterworks Utility property, City taxes collected by or through the Waterworks Utility, principal proceeds of bonds and earnings or proceeds from any investments in a trust, defeasance or escrow fund created to defease or refund Waterworks Utility obligations (until commingled with other earnings and revenues of the Waterworks Utility) or held in a special account for the purpose of paying a rebate to the United States Government under the Code. "Legal Investments" means any investments now or hereafter authorized for the City under the laws of the State of Washington. "Letter of Representations" means the Blanket Issuer Letter of Representations datedNovember 14, 1997, between the City and DIC. "Maintenance and Operation Expense" means all reasonable expenses incurred by the City in causing the Waterworks Utility of the City to be operated and maintained in good repair, working order and condition, including payments made to any other municipal corporation or private entity for water service and for sewage treatment and disposal service or other utility service in the event the City combines such service into the Waterworks Utility and enters into a contract for such service, but not including any depreciation or taxes levied or imposed by the City or payments to the City in lieu of taxes, or capital additions or capital replacements to the Waterworks Utility. "Maximum Annual Debt Service" means at the time of calculation, the maximum amount of Annual Debt Service that will mature or come due in the current year or any future year on the Parity Bonds then outstanding. "Maximum Interest Rate" means, with respect to any Variable InterestRate Bond, a numerical rate of interest, set forth in the ordinance authorizing the Parity Bonds, that is the maximum rate of interest those Parity Bondsmay bear at any time. "Municipal Bond Insurance Policy" means the policy issued by the Bond Insurer insuring the payment when due of the principal of and interest on the Bonds as provided therein. "Net Revenue of the Waterworks Utility" or "Net Revenue" means the Gross Revenue less Maintenance and Operation Expense. -7- 50434560.03 "Nonrefunded 1994 Bonds" means the outstanding Water and Sewer Revenue Bonds, 1994, maturing on or before December I, 2004,~ssued pursuant to Ordinance No. 1995. "Outstanding Parity Bonds" means the Nonrefunded 1994 Bonds and the 1998 Bonds. "Parity Bonds" means the Outstanding Parity Bonds, the Bonds and any Future Parity Bonds. "Principal and Interest Account" means the account of that name created in the Bond Fund for the payment of theprincipal of and interest on Parity Bonds. "Refunded Bonds" means the outstanding Water and Sewer Revenue Bonds, 1993, of the City maturing or subject to mandatory redemption in the years 2004 through 2012, inclusive, issued pursuant to Ordinance No. 1945, the refunding of which has been provided for by this ordinance. "Refunding Plan" means: (a) the use of sufficient proceeds of the Bonds, with other money of the City, to be deposited with cash,if necessary, with the Bond Registrar; (b)the payment of the interest on the Refunded Bonds when due up to and including July 27, 2004, and the call, payment and redemption on July 27, 2004,of all of the Refunded Bonds at a price of par; and (c) the payment of the costs of issuing the Bonds and the costs of carrying out the foregoing elements of the Refunding Plan. "Reserve Account" means the account of that name created in the Bond Fund for the purpose of securing the payment of the principal of and interest on Parity Bonds. "Reserve Insurance" means, in lieu of cash and investments, insurance obtained by the City equal to part or all of the Reserve Requirement for any Parity Bonds then outstanding for which such insurance is obtained. "Reserve Requirement" means: (I)For the Outstanding Parity Bonds and the Bonds, the amount of $2,220,160. (2) For any Future Parity Bonds, an amount equal to the difference between the Reserve Requirement for the Parity Bonds then outstanding and the least of (a) 10%of the issue price of the Parity Bonds then outstanding and the Future Parity Bonds proposed to be issued,(b)Maximum Annual Debt Service on the Parity Bonds then outstanding and the Future Parity Bonds proposed to be -8- S0434560.03 issued; and (c) 1.25 times Average Annual Debt Service on the Parity Bonds then outstanding and the Future Parity Bonds proposed to be issued,but in no event to exceed an amount equal to the least of 10%of the issue price of the proposed Future Parity Bonds,Maximum Annual Debt Service on those bonds and 1.25 times Average Annual Debt Service on the proposed bonds.For the purposes of determining Maximum Annual Debt Service and Average Annual Debt Service for calculating the Reserve Requirement,all Parity Bonds shall be treated as a single issue and the last scheduled maturity for any of those issues shall be used as the denominator. For purposes of calculating the Reserve Requirement for Future Parity Bonds (including any Future Parity Bonds proposed to be issued),Variable Interest Rate Bonds shall be assumed to bear interest at a fixed rate equal to the higher of (I)the highest variable rate borne during the preceding 24 months by any outstanding variable rate water and sewer revenue bonds of the Waterworks .Utility of the City or, (2)if no such Variable Interest Rate Bonds are outstanding at the time of calculation,the rate borne by other variable rate debt the interest rate for which is determined by reference to an index comparable to the index to be used to determine the interest rate on the Future Parity Bonds proposed to be issued. "Term Bond Maturity Year"means any calendar year in which Term Bonds are scheduled to mature. "Term Bonds"means those Parity Bonds designated as such in the ordinance authorizing the issuance and sale of those bonds. "UUD"means Utility Local Improvement District. "UUD Assessments"means all assessments levied and collected in UUDs Nos. I through IS,inclusive,and 17 and 18, and any UUD of the City created for the acquisition or construction of additions to and extensions and betterments of the Waterworks Utility if such assessments are pledged to be paid into the Bond Fund (less any prepaid assessments permitted by law to be paid into a construction fund or account).UUD Assessments shall include installments thereof and any interest or penalties that may be due thereon. "Variable Interest Rate"means a variable interest rate or rates to be borne by a series of Future Parity Bonds or anyone or more maturities within a series of Future Parity Bonds.The method of computing such a variable interest rate shall be specified in the ordinance authorizing such Future Parity Bonds,which ordinance also shall specify either (i) the particular period or periods of time or manner of determining such period or periods of time for which each value of such variable interest rate shall remain in effect or (ii) the time or times upon which any change in such variable interest rate shall become effective. "Variable Interest Rate Bonds"means, for any period of time,Future Parity Bonds which bear a Variable Interest Rate during that period,except that Future Parity Bonds the -9- 50434560.03 interest rate or rates on which shall have been fixed for the remainder of the term thereof no longer shall be deemed to be Variable Interest Rate Bonds. "Waterworks Utility" means the waterworks utility of the City,including the sewerage system as apart thereof, and all additions thereto and betterments and extensions thereof at any time made. Section 2. Satisfaction of Parity Conditions. The City Council finds and declares that the amounts required to have been paid into the Bond Fund for the Outstanding Parity Bonds have been paid and maintained as required therein, and that all other conditions for the issuance of the Bonds as Future Parity Bonds under Section 18 of Ordinance No. 1945 will have been met and satisfied before the Bonds are delivered to the original purchaser thereof. Section 3. Authorization and Description of Bonds. For the purpose of providing all or part of the money required to carry out the Refunding Plan, the City shall issue the Bonds in the principal amount of $11,555,000. The Bonds shall be designated Water and Sewer Revenue Refunding Bonds, 2004; shall be dated their date of initial delivery; shall be in the denomination of $5,000 or any integral multiple thereof within a single maturity; shall be numbered separately, in the manner and with any additional designation as the Bond Registrar deems necessary for the purpose of identification; shall bear interest (computed on the basis of a 360-day year of twelve 30-day months),payable semiannually on each June 1 and December I,commencing December I,2004, to the maturity of the Bonds; and shall mature on December I in years and amounts and bear interest at the rates per annum as follows: Maturity Interest Years Amounts Rates 2004 $1,345,000 2.000% 2005 1,465,000 3.000 2006 1,495,000 3.000 2007 1,315,000 3.000 2008 1,330,000 3.500 2009 1,340,000 3.500 2010 1,340,000 4.000 2011 1,325,000 4.000 2012 600,000 4.000 Section 4. Registration and Transfer of Bonds. The Bonds shall be issued only in registered form as to both principal and interest and recorded on the Bond Register. The Bond Register shall contain the name and mailing address of the owner of each Bond and the principal amount and number of each of the Bonds held by each owner. Bonds surrendered to the Bond Registrar may be exchanged for Bonds in any authorized denomination of an equal aggregate principal amount and of the same interest rate and maturity. Bonds may be transferred only if endorsed in the manner provided thereon and surrendered to the Bond Registrar. Any exchange or transfer shall be without cost to the owner or transferee. -10- 504).4560.03 ,. The Bond Registrar shall not be obligated to exchange or transfer any Bond during the 15 days preceding any principal payment or redemptiondate. The Bonds initially shall be registered in the name of CEDE &CO., as the nominee of DTC. The Bonds so registered shall be held in fully immobilized form by DTC as depository in accordance with the provisions of the Letter of Representations. Neither the City nor the Bond Registrar shall have any responsibility or obligation to DTC participants or the persons for whom they act as nominees with respect to the Bonds regarding accuracy of any records maintained by DTC or DTC participants of any amount in respect of principal of or interest on the Bonds, or any notice which is permitted or required to be given to registered owners hereunder (except such notice as is required to be givenby the Bond Registrar to DTC). For so long as any Bonds are held in fully immobilized form, DTC or its successor depository shall be deemed to be the registered owner for all purposes hereunder and all references to registered owners, bondowners, bondholders or the like shall mean DTC or its nominees and shall not mean the owners of any beneficial interests in the Bonds. Registered ownership of such Bonds, or any portions thereof, may not thereafter be transferred except: (i) to any successor of DTC or its nominee,if that successor shall be qualified under any applicable laws to provide the services proposed to be provided by it; (ii) to any substitute depository appointedby the City or such substitute depository's successor; or (iii) to any person if the Bonds areno longer held in immobilized form. Upon the resignation of DTC or its successor (or any substitute depository or its successor) from its functions as depository, or a determination by the City that it no longer wishes to continue the system of book entry transfers through DTC or its successor (or any substitute depository or its successor), the City may appoint a substitute depository. Any such substitute depository shall be qualified under any applicable laws to provide the services proposed to be provided by it. If (i) DTC or its successor (or substitute depository or its successor) resigns from its functions as depository, and no substitute depository can be obtained, or (ii) the City determines that the Bonds are to be in certificated form, the ownership of Bonds may be transferred to any person as provided herein andthe Bonds no longer shall be held in fully immobilized form. Section 5. Payment of Bonds. Both principal of and interest on the Bonds shall be payable in lawful money of the United States of America. Interest on the Bonds shall be paid by checks or drafts mailed by the Bond Registrar on the interest payment date to the registered owners at the addresses appearing on the Bond Register on the 15th day of the month preceding the interest payment date. Principal of the Bonds shall be payable upon presentation and surrender of the Bonds by the registered owners at either of the principal offices of the Bond Registrar at the option of the owners. Notwithstanding the foregoing, as long as the Bonds are registered in the name of DTC or its nominee, payment of principal of and interest on the Bonds shall be made in the manner set forth in the Letter of Representations. The Bonds shall be payable solely out of the Bond Fund and shall not be general obligations of the City. -1 1- ~ I Section 6.Redemption and Open Market Purchase of Bonds.The Bonds shall be issued without the right or option of the City to redeem the Bonds prior to their stated maturity dates. The City reserves the right and option to purchase any or all of the Bonds in the open market at any time at any price acceptable to the City plus accrued interest to the date of purchase. All Bonds purchased or redeemed under this section shall be cancelled. Section 7.Failure to Redeem Bonds.If any Bond is not redeemed when properly presented at its maturity date, the City shall be obligated to pay interest on that Bond at the same rate provided in the Bond from and after its maturity date until that Bond,both principal and interest,is paid in full or until sufficient money for its payment in full is on deposit in the Bond Fund and the Bond has been called for payment by giving notice of that call to the registered owner of each of those unpaid Bonds. Section 8.Form and Execution of Bonds.The Bonds shall be printed or lithographed on good bond paper in a form consistent with the provisions of this ordinance and state law,shall be signed by the Mayor and City Clerk,either or both of whose signatures may be manual.or in facsimile,and the seal of the City or a facsimile reproduction thereof shall be .impressed or printed thereon..' Only Bonds bearing a Certificate of Authentication in the following form,manually signed by the Bond Registrar,shall be valid or obligatory for any purpose or entitled to the benefits of this ordinance: CERTIFICATE OF AUTHENTICATION This Bond is one of the fully registered City of Marysville,Washington, Water and Sewer Revenue Refunding Bonds,2004,described in the Bond Ordinance. WASHINGTON STATE FISCAL AGENT Bond Registrar By Authorized Signer The authorized signing of a Certificate of Authentication shall be conclusive evidence that the Bonds so authenticated have been duly executed,authenticated and delivered and are entitled to the benefits ofthis ordinance. If any officer whose facsimile signature appears on the Bonds ceases to be an officer of the City authorized to sign bonds before the Bonds bearing his or her signature are authenticated -12- 50434560.03 _._~---------------------------------" ,. or delivered by the Bond Registrar or issued by the City, those Bonds nevertheless may be authenticated, delivered and issued and, when authenticated, issued and delivered, shall be as binding on the City as though that person had continued to be an officer of the City authorized to sign bonds. Any Bond also may be signed on behalf of the City by any person who, on the actual date of signing of the Bond, is an officer of the City authorized to sign bonds, although he or she did not hold the required office on the date of issuance ofthe Bonds. Section 9. Bond Registrar. The Bond Registrar shall keep, or cause to be kept, at its principal corporate trust office, sufficient books for the registration and transfer of the Bonds which shall at all times be open to inspection by the City. The Bond Registrar is authorized, on behalf of the City, to authenticate and deliver Bonds transferred or exchanged in accordance with the provisions of the Bonds and this ordinance, to serve as the City'S paying agent for the Bonds and to carry out all of the Bond Registrar's powers and duties under this ordinance and City Ordinance No. 1405 establishing a system of registration for the City's bonds and obligations. The Bond Registrar shall be responsible for its representations contained in the Bond Registrar's Certificate of Authentication on the Bonds. The Bond Registrar may become the owner of Bonds with the same rights it would have if it were not the Bond Registrar and, to the extent permitted by law, may act as depository for and permit any of its officers or directors to act as members of, or in any other capacity with respect to, any committee formed to protect the rights of Bond owners. Section 10. Bond Fund. The Bond Fund previously has been created in the office of the City Finance Director and is divided into two accounts: the Principal and Interest Account and the Reserve Account. So long as any Parity Bonds are outstanding against the Bond Fund, the City shall set aside and pay into the Bond Fund all UUD Assessments on their collection and, out of the Net Revenue of the Waterworks Utility (in addition to those amounts required for any Outstanding Parity Bonds), certain fixed amounts without regard to any fixed proportion, namely: (a) Into the Principal and Interest Account on the 20th day of August, 2004, and each month thereafter to and including November 20, 2004, an amount, together with other money on deposit therein, sufficient to pay the principal and interest requirement on the Bonds on December I, 2004, and thereafter, on the 20th day of each succeeding month, an amount, together with other money on deposit therein, sufficient to pay 1/6 of the next ensuing interest requirement on the Bonds and 1/12 of the next ensuing principal requirement on the Bonds; and (b)Into the Reserve Account, on the date of issue, an amount of Bond proceeds,if necessary, together with other money on deposit therein, sufficient to fully fund the Reserve Requirement. (c) Notwithstanding clauses (a) and (b)above, the deposit to be made into the Reserve Account, and Reserve Requirement, each may be decreased for any issue of Future Parity Bonds when and to the extent that the City has provided for Reserve Insurance or Alternate Security. -13- 50434560.03 Except for withdrawals therefrom as authorized herein, the Reserve Account shall be maintained at the Reserve Requirement amount for all Parity Bonds at all times so long as any of such bonds are outstanding. When the total amount in the Bond Fund shall equal the total amount of principal and interest for all outstanding Parity Bonds to the last maturity thereof, no further payment need be made into the Bond Fund.Notwithstanding the first sentence of this paragraph, the Reserve Requirement may be decreased for the Parity Bonds when and to the extent the City has provided for an Alternate Security or Reserve Insurance. If there is a deficiency in the Principal and Interest Account in the Bond Fund to meet maturing installments of either principal or interest, as the case may be, that deficiency shall be made up from the Reserve Account by the withdrawal of cash therefrom for that purpose. Any deficiency created in the Reserve Account by reason of any such withdrawal shall then be made up from UUD Assessment payments and the Net Revenue of the Waterworks Utility first available after making necessary provisions for the required payments into the Principal and Interest Account. The money in the Reserve Account otherwise shall be held intact and may be applied against the last outstanding Parity Bonds, except that if the Reserve Account is fully funded, any money in excess of the Reserve Requirement may be withdrawn and deposited in the Principal and Interest Account and spent for the purpose of retiring Parity Bonds or may be deposited in any other fund and spent for any other lawful Waterworks Utility purpose. The City may provide for the purchase, redemption or defeasance of Parity Bonds by the use of money on deposit in any account in the Bond Fund as long as the money remaining in those accounts is sufficient to satisfy the required deposits in those accounts for the remaining Parity Bonds. All money in the Bond Fund may be kept in cash or invested in Legal Investments maturing not later than the date when the funds are required for the payment of principal of or interest on the outstanding Parity Bonds (for investments in the Principal and Interest Account) or having a guaranteed redemption price prior to maturity and, in no event, maturing later than the last maturity of any remaining outstanding Parity Bonds (for investments in the Reserve Account). Earnings from investments in the Principal and Interest Account shall be deposited in that account. Income from investments in the Reserve Account shall be deposited in that account until the amount therein is equal to the Reserve Requirement for all Parity Bonds and thereafter shall be deposited in the Principal and Interest Account. The City may create sinking fund accounts or other accounts in the Bond Fund for the payment or securing the payment of Parity Bonds as long as the maintenance of such accounts does not conflict with the rights of the owners of Parity Bonds. If the City fails to set aside and pay into the Bond Fund the amounts set forth above, the owner of any of the outstanding Parity Bonds may bring action against the City and compel such setting aside and payment. Section II.Finding as to Sufficiency of Revenue, Pledge of Revenue and Lien Position. The City Council finds and determines that the Gross Revenue and benefits to be derived from -14- 50434S6{l.OJ the operation and maintenance of the Waterworks Utility of the City at the rates to be charged for water and sewer services from the Waterworks Utility will be more than sufficient to meet all Maintenance and Operation Expense and to permit the setting aside into the Bond Fund out of the Gross Revenue of amounts sufficient to pay the principal of and interest on the Outstanding Parity Bonds and the Bonds when due. The Net Revenue of the Waterworks Utility and UUD Assessments are pledged to the payment of the Outstanding Parity Bonds, the Bonds and any Future Parity Bonds, and the Outstanding Parity Bonds, the Bonds and those Future Parity Bonds,if any, shall constitute a lien and charge upon such Net Revenue and UUD Assessments prior and superior to any other charges whatsoever. Section 12. Application of Bond Proceeds. If necessary, principal proceeds ofthe Bonds shall be deposited in the Reserve Account in an amount, together with other money on deposit therein, sufficient to fully fund the Reserve Requirement. On the delivery date of the Bonds, the initial purchaser of the Bonds shall wire a sufficient amount of the proceeds of the Bonds directly to the Bond Registrar of the Refunded.Bonds to carry out the Refunding Plan. The purchaser shall also wire a sufficient amount of bond proceeds necessary to pay the premium amount to the Bond Insurer. The Finance Director is authorized and directed to deposit into the Utility Fund of the City the remaining proceeds of the Bonds to be used for costs of issuance. Any amounts not used to carry out the Refunding Plan and pay costs of issuance, shall be deposited into the Principal and Interest Account of the Bond Fund. Section 13. Call for Redemption of the Refunded Bonds. The City calls for redemption on July 27, 2004, all of the Refunded Bonds at par plus accrued interest. Such call for redemption shall be irrevocable after the delivery of the Bonds to the initial purchaser thereof. The date on which the Refunded Bonds are herein called for redemption is the first date on which the those bonds may be called. The proper City officials are authorized and directed to give or cause to be given such notices as required, at the times and in the manner required, pursuant to Ordinance No. 1945 in order to effect the redemption prior to their maturity ofthe Refunded Bonds. Section 14. City Findings with Respect to Refunding. The City Council finds and determines that the issuance and sale of the Bonds at this time will effect a savings to the City and is in the best interest of the City and its ratepayers and in the public interest. In making such finding and determination, the City Council has given consideration to the fixed maturities of the Bonds and the Refunded Bonds, the costs of issuance of the Bonds and the known earned income from the investment of the proceeds of the issuance and sale of the Bonds pending payment and redemption of the Refunded Bonds. The City Council further finds and determines that the money to be deposited with the Bond Registrar for the Refunded Bonds in accordance with Section 12 of this ordinance will discharge and satisfy the obligations of the City under Ordinance No. 1945 with respect to the Refunded Bonds, and the pledges, charges, trusts, covenants and agreements of the City therein made or provided for as to the Refunded Bonds, and that the Refunded Bonds shall no longer be deemed to be outstanding under such ordinance immediately upon the deposit of such money with the Bond Registrar. -15- 5(}H4%O.OJ Section 15. Covenants. The City covenants and agrees with the owner of each Bond at any time outstanding, as follows: (a) Maintenance and Ooeration.It will at all times maintain, preserve and keep the properties of the Waterworks Utility in good repair, working order and condition, will make all necessary' and proper additions, betterments, renewals and repairs thereto, and improvements, replacements and extensions thereof, and will at all times operate or cause to be operated the properties of the Waterworks Utility and the business in connection therewith in an efficient manner and at a reasonable cost. (b) Establishment and Collection of Rates and Charges.It will establish, maintain and collect rates and charges for all services and facilities provided by the Waterworks Utility which will be fair and nondiscriminatory, and will adjust those rates and charges from time to time so that: (1)The Gross Revenue of the Waterworks Utility will at all times be sufficient to (i) pay all Maintenance and Operation Expense on a current basis, (ii) pay when due all amounts that the City is obligated to pay into the Bond Fund and the accounts therein, and (iii) pay all taxes, assessments or other governmental charges lawfully imposed on the Waterworks Utility or the revenue therefrom or payments in lieu thereof and any and all other amounts which the City may now or hereafter become obligated to pay from the Gross Revenue of the Waterworks Utility by law or contract. (2) The Net Revenue of the Waterworks Utility in each calendar year will be at least equal to the Coverage Requirement. To the extent allowable by law, those to which service of the Waterworks Utility is available will be charged for that service at the prevailing rate within 30 days of the availability of that service. (c) Sale or Disposition of the Waterworks Utility.It will not sell or otherwise dispose of the Waterworks Utility in its entirety unless,simultaneously with such sale or other disposition, all Parity Bonds are defeased under Section 22 of this ordinance. It will not sell, lease, mortgage or in any manner encumber or otherwise dispose of any part of the Waterworks Utility, including all additions and improvements thereto and extensions thereof at any time made, that are used, useful or material in the operation of the Waterworks Utility, unless provision is made for the replacement thereof or for payment into the Bond Fund of the greatest of the following: -16- SO04!'6D.03 50434560.0l (1) An amount which will be in the same proportion to the net amount of Parity Bonds then outstanding (defined as the total amount of the Parity Bonds less the amount of cash and investments in the Bond Fund and accounts therein) that the Gross Revenue of the Waterworks Utility from the portion of the Waterworks Utility sold or disposed of for the preceding year bears to the total Gross Revenue of the Waterworks Utility for that period; or (2)An amount which will be in the same proportion to the net amount of Parity Bonds then outstanding (as defined above) that the Net Revenue from the portion of the Waterworks Utility sold or disposed of for the preceding year bears to the total Net Revenue of the Waterworks Utility for such period; or (3) An amount which will be in the same proportion to the net amount of Parity Bonds then outstanding (as defined above) that the depreciated cost value of the facilities sold or disposed of bears to the depreciated cost value of the entire Waterworks Utility immediately prior to such sale or disposition. Notwithstanding any other provision of this subsection, the City in its discretion may sell or otherwise dispose of any of the works, plant, properties or facilities of the Waterworks Utility or any real or personal property comprising a part of the same which shall have become unserviceable, inadequate, obsolete or unfit to be used in the operation of the Waterworks Utility, or no longer necessary, material to or useful.to the operation of the Waterworks Utility, without making any deposit into the Bond Fund. In no event shall such proceeds be treated as Gross Revenue of the Waterworks Utility for purposes of this ordinance. (d) Liens Upon the Waterworks Utility.It will not at any time create or permit to accrue or to exist any lien or other encumbrance or indebtedness upon the Gross Revenue of the Waterworks Utility, or any part thereof, prior or superior to the lien thereon for the payment of the Parity Bonds, and will pay and discharge, or cause to be paid and discharged, any and all lawful claims for labor, materials or supplies which,if unpaid, might become a lien or charge upon the Gross Revenue of the Waterworks Utility, or any part thereof, prior to or superior to the lien of the Parity Bonds, or which might impair the security of the Parity Bonds. (e) Books and Accounts.It will keep proper books, records and accounts with respect to the operations, income and expenditures of the Waterworks Utility in accordance with proper accounting procedures and any applicable rules and regulations prescribed by the State of Washington.It will prepare annual financial and operating statements within 90 days of the close of each fiscal year showing in reasonable detail the financial condition of the -17- ----------------------------------- Waterworks Utility as of the close of the previous year, and the income and expenses for such year,including the amounts paid into the Bond Fund and into any and all special funds or accounts created pursuant to the provisions of this ordinance, the status of all funds and accounts as of the end of such year, and the amounts expended for maintenance,renewals,replacements and capital additions to the Waterworks Utility. Such statements shall be sent to the owner of any Parity Bonds upon written request therefor being made to the City.. (f)No Free Service.Except to aid the poor or infirm,to provide for resource conservation or to provide for the proper handling of hazardous materials, it will not furnish or supply or permit the furnishing or supplying of any service or facility in connection with the operation of the Waterworks Utility free of charge to any person, firm or corporation,public or private,other than the City, so long as any Parity Bonds are outstanding. (g)Collection of Delinquent Accounts. On at least an annual basis, it will determine all accounts that are delinquent and will take all necessary action to enforce payment of such accounts against those property owners whose accounts are delinquent. (h) Fire and Extended Coverage Insurance.It at all times will carry fire and extended coverage and such other forms of insurance with responsible insurers and with policies payable to the City on such of the buildings,equipment, works, plants, facilities and properties of the Waterworks Utility as are ordinarily carried by municipal or privately owned utilities engaged in the operation of like systems, or will implement and maintain a self-insurance or an insurance pool program with reserves adequate, in the reasonable judgment of the City, to protect the Waterworks Utility and the owners of the Parity Bonds against loss. (i) Public Liability and Property Damage Insurance.It at all. times will keep or arrange to keep in full force and effect such policies of public liability and property damage insurance with responsible insurers and with policies payable to the City against such claims for damages as are ordinarily carried by municipal or privately owned utilities engaged in the operation of like systems, or will implement and maintain a self-insurance or an insurance pool program with reserves adequate,in the reasonable judgment of the City Council, to protect the Waterworks Utility and the owners of the Parity Bonds against loss. Section 16. Flow of Funds. All ULID Assessments shall be paid into the Bond Fund as provided by Section 10. The Gross Revenue of the Waterworks Utility shall be used for the following purposes only and shall be applied in the following order of priority: (a) To pay the Maintenance and Operation Expense; (b)To pay the principal of and interest on the Parity Bonds as they come due or as the principal is required to be paid and to make all payments -18- S0434560.0J required to be made into any mandatory redemption or sinking fund account created to provide for the payment of the principal of Term Bonds; (c) Account; To make all payments required to be made into the Reserve (d) To make all payments required to be made into any revenue bond, note,warrant or other revenue obligation redemption fund, debt service account or reserve account created to payor secure the payment of the principal of and interest on any revenue bonds, notes, warrants or other obligations of the City having a lien upon the revenue of the Waterworks Utility junior and inferior to the lien thereon for the payment of the principal of and interest on the Parity Bonds; and (e) To retire by redemption or purchase in the open market any outstanding revenue bonds or other revenue obligations of the Waterworks Utility, to make necessary additional betterments,improvements and repairs to or extensions and replacements of the Waterworks Utility, or for any other lawful Waterworks Utility purposes. The City may transfer any money from any funds or accounts of the Waterworks Utility legally available therefor,except bond redemption funds,refunding escrow funds or defeasance funds, to meet the required payments to be made into the Bond Fund. Section 17.Provisions for Future Parity Bonds.The City reserves the right to issue Future Parity Bonds if the conditions set forth in Section 18 of Ordinance No. 1945, which section by this reference is incorporated herein and made a part hereof, are met and complied with at the time of the issuance of those Future Parity Bonds. Nothing contained herein shall prevent the City from issuing revenue bonds that are a charge upon the Gross Revenue of the Waterworks Utility of the City subordinate to the payments required to be made therefrom into the Bond Fund for the payment of Parity Bonds or from pledging the payment of utility local improvement district assessments into a bond redemption fund created for the payment of the principal of and interest on those junior lien bonds as long as such utility local improvement district assessments are levied for improvements constructed from the proceeds of those junior lien bonds. Section 18.Preservation of Tax Exemption for Interest on Bonds. The City covenants that it will take all actions necessary to prevent interest on the Bonds from being included in gross income for federal income tax purposes,and it will neither take any action nor make or permit any use of proceeds of the Bonds or other funds of the City treated as proceeds of the Bonds at any time during the term of the Bonds which will cause interest on the Bonds to be included in gross income for federal income tax purposes.The City also covenants that it will, to the extent the arbitrage rebate requirement of Section 148 of the Code is applicable to the Bonds, take all actions necessary to comply (or to be treated as having complied)with that requirement in connection with the Bonds,including the calculation and payment of any penalties that the -19- 50434560.03 City has elected to pay as an alternative to calculating rebatable arbitrage, and the payment of any other penalties if required under Section 148 of the Code to prevent interest on the Bonds from being included in gross income for federal income tax purposes. The City certifies that it has not been notified of any listing or proposed listing by the Internal Revenue Service to the effect that it is abond issuer whose arbitrage certifications may not be relied upon. Section 19. Refunding or Defeasance of Bonds. The City may issue refunding bonds pursuant to the laws of the State of Washington or use money available from any other lawful source to pay when due the principal of and interest on the Bonds, or such portion thereof included in a refunding or defeasance plan, and to redeem and retire, release, refund or defease all such then-outstanding Bonds (hereinafter colIectively calIed the "defeased Bonds") and to pay the costs of such refunding or defeasance.If money and/or Government Obligations sufficient in amount, together with known earned income from the investments thereof, to redeem and retire, release, refund or defease the defeased Bonds in accordance with their terms, are set aside in a special trust fund or escrow account irrevocably pledged to that redemption, retirement or defeasance of defeased Bonds (hereinafter calIed the "trust account"), then alI right and interest of the owners of the defeased Bonds in the covenants ofthis ordinance and in the Gross Revenue of the Waterworks Utility,UUD Assessments, funds and accounts obligated to the payment of the defeased Bonds, other than the right to receive the funds so set aside and pledged, thereafter shall cease and become void. Such owners thereafter shall have the right to receive payment of the principal of and interest on the defeased Bonds from the trust account. The City shall include in the refunding or defeasance plan such provisions as the City deems necessary for the random selection of any defeased Bonds that constitute less than all of a particular maturity of the Bonds, for notice of the defeasance to be given to the owners of the defeased Bonds and to such other persons as the City shaII determine, and for any required replacement of Bond certificates for defeased Bonds. After the establishing and full funding of such a trust account, the City then may apply any money in any other fund or account established for the payment or redemption of the defeased Bonds to any lawful purposes as it shall determine, subject only to the rights of the owners of any other Bonds or bonds then outstanding. If the refunding plan provides that the defeased Bonds or the refunding bonds to be issued be secured by money and/or Government Obligations pending the prior redemption of the defeased Bonds and if such refunding plan also provides that certain money and/or Government Obligations are pledged irrevocably for the prior redemption of the defeased Bonds included in that refunding plan, then only the debt service on the Bonds which are not defeased Bonds and the refunding bonds, the payment of which is not so secured by the refunding plan, shall be included in the computation of the coverage requirement for the issuance of Future Parity Bonds. and the annual computation of coverage for determining compliance with the rate covenants. Notwithstanding anything in this section to the contrary,if the principal of and/or interest due on the Bonds is paid by the Bond Insurer pursuant to the Municipal Bond Insurance Policy, the Bonds shall not be considered paid by the City, and the covenants, agreements and other obligations of the City to the registered owners of the Bonds shall continue to exist and run to the -20- 50434560.0) , r benefit of the Bond Insurer, and the Bond Insurer shall be subrogated to the rights of the registered owners. Section 20. Approval of Bond Purchase Contract.Piper Jaffray &Co.of Seattle, Washington,has presented a purchase contract (the "Bond Purchase Contract")to the City offering to purchase the Bonds under the terms and conditions provided in the Bond Purchase Contract,which.written Bond Purchase Contract is on file with the City Clerk and is incorporated herein by this reference. The City Council finds that entering into the Bond Purchase Contract is in the City's best interest and therefore accepts the offer contained therein and authorizes its execution by City officials. The Bonds will be printed at City expense and will be delivered to the purchaser in accordance with the Bond Purchase Contract, with the approving legal opinion of Foster Pepper &Shefelman PLLC,municipal bond counsel of Seattle,Washington,regarding the Bonds delivered with the Bonds. Bond counsel shall not be required to review and shall express no opinion concerning the completeness or accuracy of any official statement,offering circular or other sales or disclosure material issued or used in connection with the Bonds, and bond counsel's opinion shall so state. The proper City officials are authorized and directed to do everything necessary for the prompt delivery of the Bonds to the purchaser and for the proper application and use of the proceeds of the sale thereof. Section 21.Preliminary Official Statement Deemed Final. The City Council has been provided with copies of a preliminary official statement dated June 2, 2004 (the "Preliminary Official Statement"),prepared in connection with the sale of the Bonds.For the sole purpose of the Bond purchaser's compliance with Securities and Exchange Commission ("SEC")Rule 15c2- 12(b)(1), the City "deems final" that Preliminary Official Statement as of its date, except for the omission of information as to offering prices,interest rates,selling compensation,aggregate principal amount,principal amount per maturity,maturity dates,options of redemption,delivery dates, ratings and other terms of the Bonds dependent on such matters. Section 22.Undertaking to Provide Continuing Disclosure.To meet the requirements of SEC Rule 15c2-12(b)(5)(the "Rule"),as applicable to a participating underwriter for the Bonds, the City makes the following written undertaking (the "Undertaking")for the benefit of holders of the Bonds: (a)Undertaking to Provide Annual Financial Infonnation and Notice of Material Events. The City undertakes to provide or cause to be provided,either directly or through a designated agent: (i) To each nationally recognized municipal securities information repository designated by the SEC in accordance with the Rule ("NRMSIR")and to a state information depository,if any,established in the State of Washington (the "SID")annual financial information and operating data of the type included in the final official statement for the -21- 50434560.03 S0434~60.03 Bonds and described in subsection (b)of this section ("annual financial information"); (ii) To each NRMSlR or the Municipal Securities Rulemaking Board ("MSRB"),and to the SID,timely notice of the occurrence of any of the following events with respect to the Bonds,ifmaterial:(1)principal and interest payment delinquencies;(2)non-payment related defaults; (3) unscheduled draws on debt service reserves reflecting financial difficulties;(4)unscheduled draws on credit enhancements reflecting financial difficulties;(5)substitution of credit or liquidity providers,or their failure to perform;(6)adverse tax opinions or events affecting the tax-exempt status of the Bonds; (7)modifications to rights of holders of the Bonds; (8) Bond calls (other than scheduled mandatory redemptions of Term Bonds);(9)defeasances;(10)release,substitution,or sale of property securing repayment of the Bonds; and (1I)rating changes;and (iii) To each NRMSIR or to the MSRB, and to the SID,timely notice of a failure by the City to provide required annual financial information on or before the date specified in subsection (b)of this section. (b) Tvoe of Annual Financial Information Undertaken to be Provided. The annual financial information that the City undertakes to provide in subsection (a)ofthis section: (i) Shall consist of (I)annual financial statements prepared (except as noted in the financial statements) in accordance with applicable generally accepted accounting principles applicable to governmental units, as such principles may be changed from time to time and in conformity with state law and regulations pertaining to cities, which statements shall not be audited except, however, that if and when audited financial statements are otherwise prepared and available to the City they will be provided; (2) a statement of authorized, issued and outstanding bonded debt secured by the Gross Revenue of the Waterworks Utility, (3) debt service coverage ratios, and (4) general customer statistics for the Water Utility and the Wastewater Utility; (ii) Shall be provided to each NRMSIR and the SID, not later than the last day of the ninth month after the end of each fiscal year of the City (currently, a fiscal year ending December 31), as such fiscal year may be changed as required or permitted by State law,commencing with the City's fiscal year ending December 31,2003;and (iii) May be provided in a single or multiple documents,and may be incorporated by reference to other documents that have been filed with each NRMSIR and the SID, or,if the document incorporated by -22- 50434560.0) ----------------------- reference is a "final official statement"with respect to other obligations of the City, that has been filed with the MSRB. (c)Amendment of Undertaking.The Undertaking is subject to amendment after the primary offering of the Bonds without the consent of any holder of any Bond, or of any broker,dealer,municipal securities dealer, participating underwriter,rating agency,NRMSIR,the SID or the MSRB,under the circumstances and in the manner permitted by the Rule. The City will give notice to each NRMSIR or the MSRB,and the SID,of the substance (or provide a copy)of any amendment to the Undertaking and a brief statement of the reasons for the amendment.If the amendment changes the type of annual financial information to be provided,the annual financial information containing the amended financial information will include a narrative explanation ofthe effect of that change on the type of information to be provided. (d)Beneficiaries.The Undertaking evidenced by this section shall inure to the benefit of the City and any holder of Bonds,and shall not inure to the benefit of or create any rights in any other person. (e)Termination of Undertaking.The City's obligations under this Undertaking shall terminate upon the legal defeasance of all of the Bonds.In addition,the City's obligations under this Undertaking shall terminate if those provisions of the Rule which require the City to comply with this Undertaking become legally inapplicable in respect of the Bonds for any reason,as confirmed by an opinion of nationally recognized bond counsel or other counsel familiar with federal securities laws delivered to the City, and the City provides timely notice of such termination to each NRMSIR or the MSRB and the SID. (f)Remedy for Failure to Comply with Undertaking.As soon as practicable after the City learns of any failure to comply with the Undertaking,the City will proceed with due diligence to cause such noncompliance to be corrected.. No failure by the City or other obligated person to comply with the Undertaking shall.constitute a default in respect of the Bonds.The sole remedy of any holder of a Bond shall be to take such actions as that holder deems necessary,including seeking an order of specific performance from an appropriate court, to compel the City or other obligated person to comply with the Undertaking. (g)Designation of Official Responsible to Administer Undertaking. The Finance Director ofthe City (or such other officer of the City who may in the future perform the duties of the Finance Director)or his or her designee is authorized and directed in his or her discretion to take such further actions as may be necessary,appropriate or convenient to carry out the Undertaking of the City in respect of the Bonds set forth in this section and in accordance with the Rule, including,without limitation,the following actions:. -23- r (i)Preparing and undertaken to be provided; filing the annual financial information (ii)Determining whether any event specified in subsection (a) has occurred,assessing its materiality with respect to the Bonds, and,if material,preparing and disseminating notice of its occurrence; (iii)Determining whether any person other than the City is an "obligated person"within the meaning of the Rule with respect to the Bonds, and obtaining from such person an undertaking to provide any annual financial information and notice of material events for that person in accordance with the Rule; (iv) Selecting,engaging and compensating designated agents and consultants,including but not limited to financial advisors and legal counsel, to assist and advise the City in carrying out the Undertaking;and (v)Effecting any necessary amendment of the Undertaking. Section 23.Amendatory and Supplemental Ordinances. (a) This ordinance shall not be modified or amended in any respect subsequent to the initial issuance of the Bonds, except as provided in and in accordance with and subject to the provisions of this section. (b) The City, from time to time, and at any time,without the consent of or notice to the registered owners of the Bonds, may pass supplemental or amendatory ordinances as follows: (I)To cure any formal defect,omission,inconsistency or ambiguity in this ordinance in a manner not adverse to the owner of any Outstanding Parity Bonds,Bonds or Future Parity Bonds; (2) To impose upon the Bond Registrar (with its consent)for the benefit of the registered owners of the Bonds any additional rights,remedies,powers,authority, security,liabilities or duties which may lawfully be granted,conferred or imposed and which are not contrary to or inconsistent with this ordinance as theretofore in effect; (3) To add to the covenants and agreements of, and limitations and restrictions upon, the City in this ordinance, other covenants,agreements,limitations and restrictions to be observed by the City which are not contrary or inconsistent with this ordinance as theretofore in effect; (4) To confinn, as further assurance, any pledge under, and the subjection to any claim, lien or pledge created or to be created by this ordinance of any other money,securities or funds; -24- 50434560.03 (5) To authorize different denominations of the Bonds and to make correlative amendments and modifications to this ordinance regarding exchangeability of Bonds of different authorized denominations,redemptions of portions of Bonds of particular authorized denominations and similar amendments and modifications of a technical nature; (6) To modify, alter, amend or supplement this ordinance in any other respect which is not materially adverse to the registered owners of the Bonds and which does not involve a change described in Subsection (c)of this section; and (7)Because of change in federal law or rulings, to maintain the exclusion from gross income of the interest on the Bonds from federal income taxation. Before the City shall adopt any such supplemental ordinance pursuant to this subsection, there shall have been delivered to the City and the Bond Registrar an opinion of Foster Pepper & Shefelman PLLC, bond counsel, or other nationally recognized bond counsel,stating that such supplemental ordinance is authorized or permitted by this ordinance and,upon the execution and delivery thereof, will be valid and binding upon the City in accordance with its terms and will not adversely affect the exclusion from gross income for federal income tax purposes of interest on the Bonds. (c) (1) Except for any supplemental ordinance entered into pursuant to Subsection (b)of this section,subject to the terms and provisions contained in this Subsection (c) and not otherwise,registered owners of not less than 60% in aggregate principal amount of the Bonds then outstanding shall have the right from time to time to consent to and approve the passage by the City Council of any supplemental ordinance deemed necessary or desirable by the City for the purpose of modifying,altering, amending,supplementing or rescinding,in any particular,any of the terms or provisions contained in this ordinance;except that, unless approved in writing by the registered owners of all the Bonds then outstanding,nothing contained in this section shall permit, or be construed as permitting: (i) A change in the times,amounts or currency of payment of the principal of or interest on any outstanding Bond, or a reduction in the principal amount of redemption price of any outstanding Bond or a change in the redemption price of any outstanding Bond or a change in the method of determining the rate of interest thereon, or (ii) A preference of priority of any Bond or Bonds or any other bond or bonds, or (iii) A reduction in the aggregate principal amount of Bonds, the consent of the registered owners of Bonds of which is required for any such supplemental ordinance. (2)If at any time the City shall pass any supplemental ordinance for any of the purposes of this Subsection (c), the Bond Registrar shall cause notice of the proposed -25- 50434560.03 ·, supplemental ordinance to be given by first-class United States mail to all registered owners of the then outstanding Bonds, to the Bond Insurer, and to Moody's Investors Service, Inc., and Standard &Poor's,if the Bonds are rated by those agencies. Such notice shall briefly set forth the nature of the proposed supplemental ordinance and shall state that a copy thereof is on file at the office of the Bond Registrar for inspection by all registered owners of the outstanding Bonds. (3) Within two years after the date of the mailing of such notice, the City may adopt such supplemental ordinance in substantially the form described in such notice, but only if there shall have first been delivered to the Bond Registrar (i) the required consents, in writing,of the registered owners of the Bonds, and (ii) an opinion of bond counsel stating that such supplemental ordinance is authorized or permitted by this ordinance and, upon the execution and delivery thereof; will be valid and binding upon the City in accordance with its terms and will not adversely affect the exclusion from gross income for federal income tax purposes of interest on the Bonds. (4)If registered owners of not less than the percentage of Bonds required by this Subsection (c) shall have consented to and approved the execution and delivery thereof as herein provided, no owner of the Bonds shall have any right to object to the passage 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 passage thereof, or to enjoin or restrain the City or the Bond Registrar from passing the same or from taking any action pursuant to the provisions thereof. (d) Upon the execution and delivery of any supplemental ordinance pursuant to the provisions of this section, this ordinance shall be, and be deemed to be, modified and amended in accordance therewith, and the respective rights, duties and obligations under this ordinance of the City, the Bond Registrar and all registered owners of Bonds then outstanding, shall thereafter be determined, exercised and enforced under this ordinance subject in all respects to such modifications and amendments. Section 24. Bond Insurance. The City Council finds that it is in the City's best interest to purchase, and that a savings will result from purchasing, the Municipal Bond Insurance Policy for the Bonds. The Mayor or Finance Director of the City is hereby authorized to execute the Bond Insurer's Municipal Bond Insurance Commitment. The City shall purchase from the Bond Insurer the Municipal Bond Insurance Policy insuring the prompt payment of the principal of and interest on the Bonds and agrees to the conditions for obtaining that policy, including the payment of the premium therefor. Section 25. Insurance Provisions. The Bond Insurer requires that the following sections be included in this ordinance and that for so long as the Municipal Bond Insurance Policy shall be in full force and effect, the following conditions shall apply, the provisions of which section or article shall be stated in the Ordinance to govern,notwithstanding anything to the contrary set forth in the Ordinance, or individually in the appropriate sections: "(a) "Insurance Policy" means "the insurance policy issued by the Insurer guaranteeing the scheduled payment of principal of and interest on the Bonds when due". "Insurer" means -26- !'04MS60.0J ., .. "Financial Security Assurance Inc., a New York stock Insurance company,or any successor thereto or assignee thereof'. "(b)The prior written consent of the Insurer shall be a condition precedent to the deposit of any credit instrument provided in lieu of a cash deposit into the Reserve Account. Notwithstanding anything to the contrary set forth in the Ordinance,amounts on deposit in the Reserve Account shall be applied solely to the payment of debt service on the Bonds. "(c)The Insurer shall be deemed to be the sole holder of the Bonds for the purpose of exercising any voting right or privilege or giving any consent or direction or taking any other action that the holders of the Bonds insured by it are entitled to take pursuant the Ordinance.The remedies of the Bondholders shall include mandamus. "(d)The maturity of Bonds insured by the Insurer shall not be accelerated without the consent of the Insurer and in the event the maturity of the Bonds is accelerated,the Insurer may elect, in its sole discretion,to pay accelerated principal and interest accrued [or accreted, as applicable],on such principal to the date of acceleration (to the extent unpaid by the Issuer) and the Trustee shall be required to accept such amounts.Upon payment of such accelerated principal and interest accrued [or accreted,as applicable]to the acceleration date as provided above, the Insurer's obligations under the Insurance Policy with respect to such Bonds shall be fully discharged. "(e)The Insurer shall be a third party beneficiary to the Ordinance. "(f) Upon the occurrence of an extraordinary optional or special or extraordinary mandatory redemption in part, the selection of Bonds to be redeemed shall be subject to the approval of the Insurer.The exercise of any provision of the Ordinance which permits the purchase of Bonds in lieu of redemption shall require approval of the Insurer wherein any Bond so purchased is not extinguished. "(g) No modification or amendment to the Ordinance or any other transaction document (each a "Related Document")may become effective except upon obtaining the prior written consent of the Insurer.Copies of any modification or amendment to the Ordinance or any other Related Document shall be sent to Standard &Poor's Credit Market Services and Moody's Investors Service,Inc. at least 10 days prior to the effective date thereof. "(h)Unless the Insurer otherwise directs, upon the occurrence and continuance of a breach by the Issuer of the Ordinance amounts on deposit in the Construction Fund shall not be disbursed but shall instead be applied to the payment of debt service or redemption price of the Bonds. "(i)The rights granted to the Insurer under the Ordinance or any other Related Document to request,consent to or direct any action are rights granted to the Insurer in consideration of its issuance of the Insurance Policy. Any exercise by the Insurer of such rights is merely an exercise of the Insurer's contractual rights and shall not be construed or deemed to be taken for the benefit or on behalf of the Bondholders nor does such action -27- 50434$60.0] ·, ,, evidence any position of the Insurer,positive or negative,as to whether Bondholder consent is required in addition to consent of the Insurer. "(j)Only (1) cash, (2)non-callable direct obligations of the United States of America ("Treasuries"),(3) evidences of ownership of proportionate interests in future interest and principal payments on Treasuries held by a bank or trust company as custodian,under which the owner of the investment is the real party in interest and has the right to proceed directly and individually against the obligor and the underlying Treasuries are not available to any person claiming through the custodian or to whom the custodian may be obligated, (4)pre-refunded municipal obligations rated "AAA" and "Aaa" by S&P and Moody's,respectively or (5) securities eligible for "AAA"defeasance under then existing criteria of S & P or any combination thereof, shall be authorized to be used to effect defeasance of the Bonds unless the Insurer otherwise approves. To accomplish defeasance of the Bonds the Issuer shall cause to be delivered (i) a report of an independent firm of nationally recognized certified public accountants or such other accountant as shall be acceptable to the Insurer ("Accountant")verifying the sufficiency of the escrow established to pay the Bonds in full on the maturity or redemption date ("Verification"), (ii) an Escrow Deposit Agreement (which shall be acceptable in form and substance to the Insurer), (iii) an opinion of nationally recognized bond counsel to the effect that the Bonds are no longer "Outstanding"under the Ordinance and (iv)if there is a Trustee for the Bonds a certificate of discharge of the Trustee with respect to the Bonds; each Verification and defeasance opinion shall be acceptable in form and substance, and addressed, to the Issuer, the Trustee and the Insurer. The Insurer shall be provided with final drafts of the above-referenced documentation not less than five business days prior to the funding of the escrow. Bonds shall be deemed "Outstanding"under the Ordinance unless and until they are in fact paid and retired or the above criteria are met. "(k) Amounts paid by the Insurer under the Insurance Policy shall not be deemed paid for purposes of the Ordinance and shall remain Outstanding and continue to be due and owing until paid by the Issuer in accordance with the Ordinance. The Ordinance shall not be discharged unless all amounts due or to become due to the Insurer have been paid in full or duly provided for. "(I)Each of the Issuer and the Trustee covenant and agree to take such action (including, as applicable, filing of UCC financing statements and continuations thereof) as is necessary from time to time to perfect or otherwise preserve the priority of the pledge of Trust Estate under applicable law. "(m) Claims Upon the Insurance Policy and Payments by and to the Insurer. If, on the third Business Day prior to the related scheduled interest payment date or principal payment date ("Payment Date") there is not on deposit with the Bond Registrar, after making all transfers and deposits required under the Ordinance,moneys sufficient to -28- S0434560.(l3 r:,:,~. ,, 5043456/}.03 pay the principal of and interest on the Bonds due on such Payment Date, the Bond Registrar shall give notice to the Bond Insurer and to its designated agent (if any) (the "Insurer's Fiscal Agent") by telephone or telecopy of the amount of such deficiency by 12:00 noon, New York City time, on such Business Day. If, on the second Business Day prior to the related Payment Date, there continues to be a deficiency in the amount available to pay the principal of and interest on the Bonds due on such Payment Date, the Bond Registrar shall make a claim under the Insurance Policy and give notice to the Insurer and the Insurer's Fiscal Agent (if any) by telephone of the amount of such deficiency, and the allocation of such deficiency between the amount required to pay interest on the Bonds and the amount required to pay principal of the Bonds, confirmed in writing to the Insurer and the Insurer's Fiscal Agent by 12:00 noon, New York City time, on such second Business Day by filling in the form of Notice of Claim and Certificate delivered with the Insurance Policy. In the event the claim to be made is for a mandatory sinking fund redemption installment, upon receipt of the moneys due, the Bond Registrar shall authenticate and deliver to affected Bondholders who surrender their Bonds a new Bond or Bonds in an aggregate principal amount equal to the unredeemed portion of the Bond surrendered. The Bond Registrar shall designate any portion of payment of principal on Bonds paid by the Insurer, whether by virtue of mandatory sinking fund redemption, maturity or other advancement of maturity, on its books as a reduction in the principal amount of Bonds registered to the then current Bondholder, whether DTC or its nominee or otherwise, and shall issue a replacement Bond to the Insurer,registered in the name of Financial Security Assurance Inc., in a principal amount equal to the amount of principal so paid (without regard to authorized denominations); provided that the Bond Registrar's failure to so designate any payment or issue any replacement Bond shall have no effect on the amount of principal or interest payable by the Issuer on any Bond or the subrogation rights of the Insurer. The Bond Registrar shall keep a complete and accurate record of all funds deposited by the Insurer into the Policy Payments Account (defined below) and the allocation of such funds to payment of interest on and principal paid in respect of any Bond. The Insurer shall have the right to inspect such records at reasonable times upon reasonable notice to the Bond Registrar. Upon payment of a claim under the Insurance Policy the Bond Registrar shall establish a separate special purpose trust account for the benefit of Bondholders referred to herein as the "Policy Payments Account" and over which the Bond Registrar shall have exclusive control and sale right of withdrawal. The Bond Registrar shall receive any amount paid under the Insurance Policy in trust on behalf of Bondholders and shall deposit any such amount in the Policy Payments Account and distribute such amount only for purposes of making the payments for which a claim was made. Such amounts shall be disbursed by the Bond Registrar to Bondholders in the same manner as principal and interest payments are to be made with respect to the Bonds under the sections hereof regarding payment of Bonds.It shall not be necessary for such payments to be made by checks or wire transfers separate from the check or wire transfer used to pay debt service with other funds -29- ·..,. available to make such payments.Notwithstanding anything to the contrary otherwise set forth in the Ordinance, and to the extent permitted by law, in the event amounts paid under the Insurance Policy are applied to claims for payment of principal of or interest on the Bonds, interest on such principal of and interest on such Bonds shall accrue and be payable from the date of such payment at the greater of (i) the per annum rate of interest, publicly announced from time to time by JPMorgan Chase Bank or its successor at its principal office in the City of New York, as its prime or base lending rate plus 3%, and (ii) the then applicable rate of interest on the Bonds provided that in no event shall such rate exceed the maximum rate permissible under applicable usury or similar laws limiting interest rates. Funds held in the Policy Payments Account shall not be invested by the Bond Registrar and may not be applied to satisfy any costs, expenses or liabilities of the Bond Registrar. Any funds remaining in the Policy Payments Account following a Bond payment date shall promptly be remitted to the Insurer. "(n) The Insurer shall, to the extent it makes any payment of principal of (or, in the case of Capital Appreciation Bonds, accreted value) or interest on the Bonds,become subrogated to the rights of the recipients of such payments in accordance with the terms of the Insurance Policy. The obligations to the Insurer shall survive discharge or termination of the Ordinance. n(0) The Issuer shall pay or reimburse the Insurer any and all charges, fees, costs and expenses which the Insurer may reasonably payor incur in connection with (i) the administration, enforcement, defense or preservation of any rights or security in any Related Document; (ii) the pursuit of any remedies under the Ordinance or any other Related Document or otherwise afforded by law or equity, (iii) any amendment, waiver or other action with respect to, or related to, the Ordinance or any other Related Document whether or not executed or completed, (iv) the violation by the Issuer or the Obligor of any law, rule or regulation, or any judgment,order or decree applicable to it or (v) any litigation or other dispute in connection with the Ordinance or any other Related Document or the transactions contemplated thereby,other than amounts resulting from the failure of the Insurer to honor its obligations under the Insurance Policy. The Insurer reserves the right to charge a reasonable fee as a condition to executing any amendment, waiver or consent proposed in respect of the Ordinance or any other Related Document. n(p) The Insurer shall be entitled to pay principal (or, in the case of Capital Appreciation Bonds, accreted value) or interest on the Bonds that shall become Due for Payment but shall be unpaid by reason of Nonpayment by the Issuer (as such terms are defined in the Insurance Policy) and any amounts due on the Bonds as a result of acceleration of the maturity thereof in accordance with the Ordinance, whether or not the Insurer has received a Notice of Nonpayment (as such terms are defined in the Insurance Policy) or a claim upon the Insurance Policy. n(q) The notice address of the Insurer is: Financial Security Assurance Inc., 350 Park Avenue, New York, New York 10022-6022, Attention:Managing 'Director - -30- 504345611.0J ---------------------------------------------------, ,' ..."',I,, Surveillance, Re: Policy No._,Telephone: (212) 826-0100; Telecopier: (212) 339-3556. In each case in which notice or other communication refers to an Event of Default, then a copy of such notice or other communication shall also be sent to the attention of the General Counsel and shall be marked to indicate nURGENTMATERIAL ENCLOSED. n "(r) The Insurer shall be provided with the following information: "(i)Annual audited financial statements within 150 days after the end of the Issuer's fiscal year (together with a certification of the Issuer that it is not aware of any default or breach under the Ordinance), and the Issuer's annual budget within 30 days after the approval thereof together with such other information, data or reports as the Insurer shall reasonably request from time to time; "(ii)Notice of any draw upon the Debt Service Reserve Fund within two Business Days after knowledge thereof other than (i) withdrawals of amounts in excess of the Debt Service Reserve Requirement and (ii) withdrawals in connection with a refunding of Bonds; "(iii)Notice of any default known to the Bond Registrar or the Issuer within five Business Days afterknowledge thereof; "(iv) Prior notice of the advance refunding or redemption of any of the Bonds, including the principal amount, maturities and CUSIP numbers thereof; n(v)Notice of the resignation or removal of the Paying Agent and Bond Registrar and the appointment of, and acceptance of duties by, any successor thereto; "(vi) Notice of the commencement of any proceeding by or against the Issuer or the Obligor commenced under the United States Bankruptcy Code or any other applicable bankruptcy, insolvency, receivership, rehabilitation or similar law (an "Insolvency Proceeding"); "(vii)Notice.of the making of any claim in connection with any Insolvency Proceeding seeking the avoidance as a preferential transfer of any payment of principal of, or interest on, the Bonds; "(viii) A full original transcript of all proceedings relating to the execution of any amendment or supplement to the Related Documents; and "(ix) All reports, notices and correspondence to be delivered to Bondholders under the terms of the Ordinance. "(s) Notwithstanding satisfaction of other conditions to the issuance of Additional Bonds contained in the Ordinance, no such issuance may occur (1) should any event of default -31- 5&434560.03 •r'• •!4,.,, , (or any event which,once all notice or grace periods have passed,would constitute default or breach)have occurred and be continuing unless such default or breach shall be cured upon such issuance and (2)unless the Debt Service Reserve Fund is fully funded at its requirement (including the new issue)upon the issuance of such Additional Bonds,in either case unless otherwise permitted by the Insurer. "(t) No contract shan be entered into nor any action taken by which the rights of the Insurer or security for or sources of payment of the Bonds may be impaired or prejudiced in any material respect except upon obtaining the prior written consent of the Insurer." Section 26.Effective Date of Ordinance.This ordinance shall take effect and be in force from and after its passage and five days following its publication as required by law. PASSED by the City Council of the City of Marysville,Washington,at a special open public meeting thereof,of which due notice was given as provided by 'law, and APPROVED by the Mayor this 22 nd day of June, 2004...... a~ Mayor ATTEST: ~ APPROVED AS TO FORM: -32-