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HomeMy WebLinkAboutOrdinance #1983~~ Ordinance No. 19 8 3 An Ordinance authorizing and providing for an Installment Purchase Agreement for the purpose of paying the cost of purchasing real or personal property, or both, in and for the City of Canton, Fulton County, Illinois, and authorizing and providing for the issue of not to exceed $4,000,000 Debt Certifcates, Series 2009, of said City evidencing the rights to payment under such Agreement, prescribing the details of the Agreement and Certificates, and providing for the security for and means of payment under the Agreement of the Certificates. WHEREAS, the City of Canton, Fulton County, Illinois (the "City"), is a non-home rule City of the State of Illinois operating under and pursuant to the Illinois Municipal Code, as amended (the "Municipal Code"), the Local Government Debt Reform Act of the State of Illinois, as amended (the "Debt Reform Act") and together with the Municipal Code, (the "Installment Purchase Provisions"); and WHEREAS, the Mayor and City Council of the City (the "Corporate Authorities") have considered the needs of the City and, in so doing, the Corporate Authorities have deemed and does now deem it advisable, necessary, and for the best interests of the City (i) to finance various municipal improvements within the City including, in connection with said work, acquisition of all land or rights in land, mechanical, electrical, and other services necessary, useful, or advisable thereto (the "Project"), and (ii) currently refund an outstanding note in the amount of $800,000 (the "Refunding") all as shown on preliminary plans and cost estimates on file with and approved by the Corporate Authorities; and WHEREAS, the Corporate Authorities have determined the total cost of the Project and Refunding and expenses incidental thereto, including financial, legal, architectural, and engineering services related to such work and to the Agreement hereinafter provided for in this .~ Ordinance to be not less than $4,000,000, plus estimated investment earnings which may be received on said sum prior to disbursement; and WHEREAS, sufficient funds of the City are not available to pay the costs of the Project and Refunding, and it will, therefore, be necessary to borrow money in the amount of not to exceed $4,000,000 for the purpose of paying such costs; and WHEREAS, pursuant to the Installment Purchase Provisions, the City has the power to purchase real or personal property through agreements that provide that the consideration for the purchase may be paid through installments made at stated intervals for a period of no more than 20 years, to sell, convey and reacquire either real or personal property upon any terms and conditions and in any manner as the Corporate Authorities shall determine, if the City will lease, acquire by purchase agreement, or otherwise reacquire the property as authorized by applicable law and to issue certificates evidencing indebtedness incurred under such agreements; and WHEREAS, the Corporate Authorities finds that it is desirable and in the best interests of the City to avail of the provisions of the Installment Purchase Provisions to authorize an Installment Purchase Agreement (the "Agreement"); name as counter-party to the Agreement the City Treasurer (the "City Treasurer"), as nominee-seller; authorize the Mayor and City Clerk to execute and attest, respectively, the Agreement on behalf of the City and to file same with said Clerk in his or her capacity as keeper of the records and files of the City; and issue certificates evidencing the indebtedness incurred under the Agreement in the amount of not to exceed $4,000,000: NOW, THEREFORE, Be It and It Is Hereby Ordained by the Mayor and City Council of the City of Canton, Fulton County, Illinois, as follows: -2- Section 1. Incorporation o~ Preambles. The Corporate Authorities hereby find that all of the recitals contained in the preambles to this Ordinance are full, true and correct and does incorporate them into this Ordinance by this reference. Section 2. Authorization and Bond Counsel, Underwriter/Placement Agent. It is necessary and advisable for the residents of the City to pay the costs of the Project and Refunding and to borrow money and, in evidence thereof and for the purpose of financing same, enter into the Agreement and, further, to provide for the issuance and delivery of certificates evidencing the indebtedness incurred under the Agreement. The City retains Ice Miller LLP as bond counsel and Ruan Securities, a division of D.A. Davidson & Co. as Underwriter and Placement Agent. Section 3. Agreement is a General Obligation; Annual Appropriation; Contract to Issue Certificates. The City hereby represents, warrants, and agrees that the obligation to make the payments due under the Agreement shall be a general obligation of the City payable from any funds of the City lawfully available and annually appropriated for such purpose. The City represents and warrants that the total amount due under the Agreement, together with all other indebtedness of the City, is within all statutory and constitutional debt limitations. The City agrees to appropriate funds of the City annually and in a timely manner so as to provide for the making of all payments when due under the terms of the Agreement. Section 4. Execution and Filing of the Agreement. From and after the effective date of this Ordinance, the Mayor and City Clerk be and they are hereby authorized and directed to execute and attest, respectively, the Agreement, in substantially the form set forth in Section 5 of this Ordinance, and to do all things necessary and essential to effectuate the provisions of the Agreement, including the execution of any documents and certificates incidental thereto or -3- necessary to carry out the provisions thereof. Further, as nominee-seller, the City Treasurer is hereby authorized and directed to execute the Agreement. Upon full execution, the original of the Agreement shall be filed with the City Clerk and retained in the City records and shall constitute authority for the issuance of the Certificates hereinafter authorized. Section S. Form o the Agreement. The Agreement shall be in substantially the form as follows: Installment Purchase Agreement for purchase of real or personal property, or both, in and for the City of Canton, Fulton County, Illinois. THIS INSTALLMENT PURCHASE AGREEMENT (this "Agreement") dated as of July 1, 2009, by and between the City Treasurer (as hereinafter defined), as Nominee-Seller (the "Seller"), and the City of Canton, Fulton County, Illinois, a City of the State of Illinois (the "City"): WITNESSETH A. The Mayor and City Council of the City (the "Corporate Authorities") have determined to finance (i) various municipal improvements within the City (the "Project") and (ii) currently refund an outstanding note in the amount of $800,000 (the "Refunding"), all as previously approved by the Corporate Authorities and on file with the City Clerk (the "Clerk") as set forth on the attached Exhibit A. B. Pursuant to the provisions of the Illinois Municipal Code (the "Municipal Code"), the Local Government Debt Reform Act of the State of Illinois (the "Debt Reform Act") and together with the Municipal Code (the "Installment Purchase Provisions"), in each case, as supplemented and amended (collectively, "Applicable Law"), the City has the power to purchase real or personal property through agreements that provide that the consideration for the purchase -4- may be paid through installments made at stated intervals for a period of no more than 20 years, to sell, convey and reacquire either real or personal property upon any terms and conditions and in any manner as the Corporate Authorities shall determine, if the City will lease, acquire by purchase agreement, or otherwise reacquire the property as authorized by applicable law and to issue certificates evidencing indebtedness incurred under such agreements. C. On the 30th day of June, 2009, the Corporate Authorities, pursuant to Applicable Law and the need to provide for the Project and Refunding, adopted an ordinance (the "Ordinance") authorizing the borrowing of money for the Project and Refunding, the execution and delivery of this Agreement to finance same, and the issuance of certificates evidencing the indebtedness so incurred. D. The Ordinance is (1) incorporated herein by reference; and (2) made a part hereof as if set out at this place in full; and each of the terms as defined in the Ordinance is also incorporated by reference for use in this Agreement. E. The Seller, as nominee as expressly permitted by the Installment Purchase Provisions, has agreed to make, construct, and acquire the Project and undertake the Refunding on the terms as hereinafter provided. NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter contained and other valuable consideration, it is mutually agreed between the Seller and the City as follows: -5- 1. MAKE AND ACQUIRE PROJECT The Seller agrees to make, construct, and acquire the Project upon real estate owned or to be owned by or upon which valid easements have been obtained in favor of the City and undertake the Refunding. 2. CONVEYANCE The City conveys to the Seller any portion of the Project and Refunding heretofore acquired by the City and to be paid from proceeds of the Certificates (as defined in the Ordinance). The Seller agrees to convey each part of the Project and Refunding to the City and to perform all necessary work and convey all necessary equipment; and the City agrees to purchase the Project and Refunding from the Seller and pay for the Project and Refunding the purchase price of not to exceed $4,000,000, plus the amount of investment earnings which are earned on the amount deposited with the City Treasurer from the sale of the Certificates and in no event shall the total aggregate principal purchase price to be paid pursuant to this Agreement exceed the sum of $4,000,000, plus the amount of investment earnings which are earned on the amount deposited with the City Treasurer from the sale of the Certificates. 3. PAYMENTS The payment of the entire sum of $4,000,000 of said purchase price shall: (a) be payable in installments due on the dates and in the amounts; (b) bear interest at the rates percent per annum which interest shall also be payable on the dates and in the amounts; (c) be payable at the place or places of payment, in the medium of payment, and upon such other terms, including prepayment (redemption); all as provided for payment of the Certificates in the Ordinance. -6- 4. ASSIGNMENT Rights to payment of the Seller as provided in this Agreement are assigned as a matter of law under the Installment Purchase Provisions to the owners of the Certificates. This Agreement and any right, title, or interest herein, shall not be further assignable. The Certificates, evidencing the indebtedness incurred hereby, are assignable (registrable) as provided in the Ordinance. 5. TAX COVENANTS The covenants relating to the tax-exempt status of the Certificates, as set forth in the Ordinance, insofar as may be applicable, apply to the work to be performed and the payments made under this Agreement. 6. TITLE (a) Vesting of Title. Title in and to any part of the Project, upon delivery or as made, during all stages of the making or acquisition thereof, shall and does vest immediately in the City. (b) Damage, Destruction, and Condemnation. If, during the term of this Agreement, (i) all or any part of the Project shall be destroyed, in whole or in part, or damaged by fire or other casualty or event; or (ii) title to, or the temporary or permanent use of, all or any part of the Project shall be taken under the exercise of the power of eminent domain by any governmental body or by any person, firm, or corporation acting under governmental authority; or (iii) a material defect in construction of all or any part of the Project shall become apparent; or (iv) title to or the use of all or any part of the Project shall be lost by reason of a defect in title; then the City shall continue to make payments as promised herein and in the Certificates and to take such action as it shall deem necessary or appropriate to repair and replace the Project. -7- 7. LAWFUL CORPORATE OBLIGATION The City hereby represents, warrants, and agrees that the obligation to make the payments due hereunder shall be a lawful direct general obligation of the City payable from the general funds of the City and such other sources of payment as are otherwise lawfully available. The City represents and warrants that the total amount due the Seller hereunder, together with all other indebtedness of the City, is within all statutory and constitutional debt limitations. The City agrees to appropriate funds of the City annually and in a timely manner so as to provide for the making of all payments when due under the terms of this and to apply the proceeds thereof to the payment of principal and interest on the Agreement. 8. GENERAL COVENANT AND RECITAL It is hereby certified and recited by the Seller and the City, respectively, that as to each, respectively, for itself, all conditions, acts, and things required by law to exist or to be done precedent to and in the execution of this Agreement did exist, have happened, been done and performed in regular and due form and time as required by law. 9. NO SEPARATE TAX The Seller and the City recognize that there is no statutory authority for the levy of a separate tax in addition to other taxes of the City or the levy of a special tax unlimited as to rate or amount to pay any of the amounts due hereunder. 10. DEFAULT In the event of a default in payment hereunder by the City, the Seller or any Certificate holder may pursue any available remedy by suit at law or equity to enforce the payment of all amounts due or to become due under this Agreement, including, without limitation, an action for specific performance. -8- IN WITNESS WHEREOF, the Seller has caused this Installment Purchase Agreement to be executed, and his or her signature to be attested by the City Clerk, and the City has caused this Installment Purchase Agreement to be executed by the Mayor, and also attested by the City Clerk and the seal of the City to be hereunto affixed, all as of the day and//year first above'~writ/t~en. SELLER: Signature: (J~`""~' /~ • ~..~~`'`-' [Here type name]: ~ [~~ ~ ~ ~ ~rl~r~~~ as Nominee-Seller and the City Treasurer Attest: ~~~ City Clerk CITY OF CANTON, LTON COUNTY, ILLINOIS Mayor [Seal] Attest: ~. City Clerk -9- STATE OF ILLINOIS ) SS COUNTY OF FULTON ) CERTIFICATE OF INSTALLMENT PURCHASE AGREEMENT FILING I, the undersigned, do hereby certify that I am the duly qualified and acting City Clerk (the "City Clerk") of the City of Canton, Fulton County, Illinois (the "City"), and as such officer I do hereby certify that on the 30th day of June, 2009, there was filed in my office a properly certified copy of that certain document, executed by the Mayor, attested by me in my capacity as City Clerk, and further executed, as Nominee-Seller, by the City Treasurer, also attested by me, dated as of July 1, 2009, and entitled "Installment Purchase Agreement for purchase of real or personal property, or both, in and for the City of Canton, Fulton County, Illinois"; and supporting the issuance of certain Debt Certificates, Series 2009, of the City; that attached hereto is a true and complete copy of said Agreement as so filed; and that the same has been deposited in the official files and records of my office. In Witness Whereof, I hereunto affix my official signature, this 30th day of June, 2009. ~~~ ty Clerk Section 6. Certificate Details. For the purpose of providing for the Project and Refunding, there shall be issued and sold certificates of the City in the principal amount of not to exceed $4,000,000, which shall be designated "Debt Certificates, Series 2009" (the "Certificates"). The Certificates shall be dated the date set forth in the hereinafter defined Notification of Sale, and shall also bear the date of authentication, shall be in fully registered form, shall be in denominations of $5,000 each and authorized integral multiples thereof (but no single Certificate shall represent installments of principal maturing on more than one date), shall be numbered 1 and upward, and the Certificates shall become due and payable serially (not later than 2012) as set forth in the Notification of Sale of the Certificates (the "Notification of Sale"). The Certificates shall bear interest at rates not to exceed 5.00% per annum, from their date or from the most recent interest payment date to which interest has been paid or duly provided for, until the principal amount of the Certificates is paid, such interest (computed upon the basis of a 360-day year of twelve 30-day months) being payable as set forth in the Notification of Sale. Interest on each Certificate shall be paid by check or draft of the Certificate Registrar and Paying Agent (the "Certificate Registrar"), as specified in the Notification of Sale, payable upon presentation in lawful money of the United States of America, to the person in whose name such Certificate is registered at the close of business on the 15th day of the month next preceding the interest payment date. The principal of the Certificates shall be payable in lawful money of the United States of America at the principal corporate trust office of the Certificate Registrar. The Certificates shall be signed by the Mayor and City Clerk, and shall be countersigned by the City Treasurer, and the seal of the City shall be affixed thereto or printed thereon, and in case any officer whose signature shall appear on any Certificate shall cease to be such officer -11- before the delivery of such Certificate, such signature shall nevertheless be valid and sufficient for all purposes, the same as if such officer had remained in office until delivery. All Certificates shall have thereon a certificate of authentication substantially in the form hereinafter set forth duly executed by the Certificate Registrar as authenticating agent of the City and showing the date of authentication. No Certificate shall be valid or obligatory for any purpose or be entitled to any security or benefit under this Ordinance unless and until such certificate of authentication shall have been duly executed by the Certificate Registrar by manual signature, and such certificate of authentication upon any such Certificate shall be conclusive evidence that such Certificate has been authenticated and delivered under this Ordinance. The certificate of authentication on any Certificate shall be deemed to have been executed by the Certificate Registrar if signed by an authorized officer of the Certificate Registrar, but it shall not be necessary that the same officer sign the certificate of authentication on all of the Certificates issued hereunder. Section 7. Registration of Certificates; Persons Treated as Owners. (a) General. The City shall cause books (the "Certificate Register") for the registration and for the transfer of the Certificates as provided in this Ordinance to be kept at the principal corporate trust office of the Certificate Registrar, which is hereby constituted and appointed the registrar of the City. The City is authorized to prepare, and the Certificate Registrar shall keep custody of, multiple Certificate blanks executed by the City for use in the transfer and exchange of Certificates. Upon surrender for transfer of any Certificate at the principal corporate trust office of the Certificate Registrar, duly endorsed by, or accompanied by a written instrument or instruments of transfer in form satisfactory to the Certificate Registrar and duly executed by, the registered owner or his attorney duly authorized in writing, the City shall execute and the Certificate -12- Registrar shall authenticate, date and deliver in the name of the transferee or transferees a new fully registered Certificate or Certificates of the same maturity of authorized denominations, for a like aggregate principal amount. Any fully registered Certificate or Certificates may be exchanged at said office of the Certificate Registrar for a like aggregate principal amount of Certificate or Certificates of the same maturity of other authorized denominations. The execution by the City of any fully registered Certificate shall constitute full and due authorization of such Certificate and the Certificate Registrar shall thereby be authorized to authenticate, date and deliver such Certificate, provided, however, the principal amount of outstanding Certificates of each maturity authenticated by the Certificate Registrar shall not exceed the authorized principal amount of Certificates for such maturity less previous retirements. The Certificate Registrar shall not be required to transfer or exchange any Certificate during the period beginning at the close of business on the 15th day of the month next preceding any interest payment date on such Certificate and ending at the opening of business on such interest payment date, nor to transfer or exchange any Certificate after notice calling such Certificate for redemption has been mailed, nor during a period of fifteen (15) days of mailing of a notice of redemption of any Certificates. The person in whose name any Certificate shall be registered shall be deemed and regarded as the absolute owner thereof for all purposes, and payment of the principal of or interest on any Certificate shall be made only to or upon the order of the registered owner thereof or his legal representative. All such payments shall be valid and effectual to satisfy and discharge the liability upon such Certificate to the extent of the sum or sums so paid. No service charge shall be made for any transfer or exchange of Certificates, but the City or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other -13- governmental charge that may be imposed in connection with any transfer or exchange of Certificates except in the case of the issuance of a Certificate or Certificates for the unredeemed portion of a Certificate surrendered for redemption. (b) Global Book-Entry System. The Certificates may be initially issued in the form of a separate single fully registered Certificate for each of the maturities of the Certificates determined as described in Section 6 hereof. Upon initial issuance, the ownership of each such Certificate may be registered in the Certificate Register in the name of Cede & Co., or any successor thereto ("Cede"), as nominee of The Depository Trust Company, New York, New York, and its successors and assigns ("DTC"). All of the outstanding Certificates may be registered in the Certificate Register in the name of Cede, as nominee of DTC, except as hereinafter provided. The Mayor and City Clerk, the City Treasurer and the Certificate Registrar are each authorized to execute and deliver, on behalf of the City, such letters to or agreements with DTC as shall be necessary to effectuate such book-entry system (any such letter or agreement being referred to herein as the "Representation Letter"), which Representation Letter may provide for the payment of principal of or interest on the Certificates by wire transfer. With respect to Certificates registered in the Certificate Register in the name of Cede, as nominee of DTC, the City and the Certificate Registrar shall have no responsibility or obligation to any broker-dealer, bank or other financial institution for which DTC holds Certificates from time to time as securities depository (each such broker-dealer, bank or other financial institution being referred to herein as a "DTC Participant") or to any person on behalf of whom such a DTC Participant holds an interest in the Certificates. Without limiting the immediately preceding sentence, the City and the Certificate Registrar shall have no responsibility or obligation with respect to (i) the accuracy of the records of DTC, Cede or any DTC Participant with respect to -14- any ownership interest in the Certificates, (ii) the delivery to any DTC Participant or any other person, other than a registered owner of a Certificate as shown in the Certificate Register, of any notice with respect to the Certificates, including any notice of redemption, or (iii) the payment to any DTC Participant or any other person, other than a registered owner of a Certificate as shown in the Certificate Register, of any amount with respect to the principal of or interest on the Certificates. The City and the Certificate Registrar may treat and consider the person in whose name each Certificate is registered in the Certificate Register as the holder and absolute owner of such Certificate for the purpose of payment of principal and interest with respect to such Certificate, for the purpose of giving notices of redemption and other matters with respect to such Certificate, for the purpose of registering transfers with respect to such Certificate, and for all other purposes whatsoever. The Certificate Registrar shall pay all principal of and interest on the Certificates only to or upon the order of the respective registered owners of the Certificates, as shown in the Certificate Register, or their respective attorneys duly authorized in writing, and all such payments shall be valid and effective to fully satisfy and discharge the City's obligations with respect to payment of the principal of and interest on the Certificates to the extent of the sum or sums so paid. No person other than a registered owner of a Certificate as shown in the Certificate Register, shall receive a Certificate evidencing the obligation of the City to make payments of principal and interest with respect to any Certificate. Upon delivery by DTC to the Certificate Registrar of written notice to the effect that DTC has determined to substitute a new nominee in place of Cede, and subject to the provisions in Section 6 hereof with respect to the payment of interest to the registered owners of Certificates at the close of business on the 15th day of the month next preceding any applicable interest payment date, the name "Cede" in this Ordinance shall refer to such new nominee of DTC. -15- In the event that (i) the City determines that DTC is incapable of discharging its responsibilities described herein and in the Representation Letter, (ii) the agreement among the City, the Certificate Registrar and DTC evidenced by the Representation Letter shall be terminated for any reason or (iii) the City determines that it is in the best interests of the beneficial owners of the Certificates that they be able to obtain certificated Certificates, the City shall notify DTC and DTC Participants of the availability through DTC of certificated Certificates and the Certificates shall no longer be restricted to being registered in the Certificate Register in the name of Cede, as nominee of DTC. At that time, the City may determine that the Certificates shall be registered in the name of and deposited with such other depository operating a universal book-entry system, as may be acceptable to the City, or such depository's agent or designee, and if the City does not select such alternate universal book-entry system, then the Certificates may be registered in whatever name or names registered owners of Certificates transferring or exchanging Certificates shall designate, in accordance with the provisions of Section 7(a) hereof. Notwithstanding any other provisions of this Ordinance to the contrary, so long as any Certificate is registered in the name of Cede, as nominee of DTC, all payments with respect to principal of and interest on such Certificate and all notices with respect to such Certificate shall be made and given, respectively, in the name provided in the Representation Letter. Section 8. Redemption. (a) The Certificates shall be subject to optional and mandatory redemption as set forth in the Notification of Sale. (b) General. The Certificates shall be redeemed only in the principal amount of $5,000 and integral multiples thereof. The City shall, at least forty-five (45) days prior to the redemption date (unless a shorter time period shall be satisfactory to the Certificate Registrar) -16- notify the Certificate Registrar of such redemption date and of the principal amount and maturity or maturities of Certificates to be redeemed. For purposes of any redemption of less than all of the outstanding Certificates of a single maturity, the particular Certificates or portions of Certificates to be redeemed shall be selected by lot by the Certificate Registrar from the Certificates of such maturity by such method of lottery as the Certificate Registrar shall deem fair and appropriate; provided that such lottery shall provide for the selection for redemption of Certificates or portions thereof so that any $5,000 Certificate or $5,000 portion of a Certificate shall be as likely to be called for redemption as any other such $5,000 Certificate or $5,000 portion. The Certificate Registrar shall make such selection upon the earlier of the irrevocable deposit of funds with an escrow agent sufficient to pay the redemption price of the Certificates to be redeemed or the time of the giving of official notice of redemption. The Certificate Registrar shall promptly notify the City in writing of the Certificates or portions of Certificates selected for redemption and, in the case of any Certificate selected for partial redemption, the principal amount thereof to be redeemed. Section 9. Redemption Procedure. Unless waived by any holder of Certificates to be redeemed, notice of the call for any such redemption shall be given by the Certificate Registrar on behalf of the City by mailing the redemption notice by first class mail at least thirty (30) days and not more than sixty (60) days prior to the date fixed for redemption to the registered owner of the Certificate or Certificates to be redeemed at the address shown on the Certificate Register or at such other address as is furnished in writing by such registered owner to the Certificate Registrar. All notices of redemption shall state: (1) the redemption date, (2) the redemption price, -17- (3) if less than all outstanding Certificates are to be redeemed, the identification (and, in the case of partial redemption, the respective principal amounts) of the Certificates to be redeemed, (4) that on the redemption date the redemption price will become due and payable upon each such Certificate or portion thereof called for redemption, and that interest thereon shall cease to accrue from and after said date, (5) the place where such Certificates are to be surrendered for payment of the redemption price, which place of payment shall be the principal corporate trust office of the Certificate Registrar, and (6) such other information then required by custom, practice or industry standard. Prior to any redemption date, the City shall deposit with the Certificate Registrar an amount of money sufficient to pay the redemption price of all the Certificates or portions of Certificates which are to be redeemed on that date. Unless moneys sufficient to pay the redemption price of the Certificates to be redeemed shall have been received by the Certificate Registrar prior to the giving of such notice of redemption, such notice may, at the option of the City, state that said redemption shall be conditioned upon the receipt of such moneys by the Certificate Registrar on or prior to the date fixed for redemption. If such moneys are not received, such notice shall be of no force and effect, the City shall not redeem such Certificates, and the Certificate Registrar shall give notice, in the same manner in which the notice of redemption was given, that such moneys were not so received and that such Certificates will not be redeemed. Notice of redemption having been given as aforesaid, the Certificates or portions of Certificates so to be redeemed shall, on the redemption date, become due and payable at the redemption price. therein specified, and from and after such date (unless the City shall default in the payment of the redemption price) such Certificates or portions of Certificates shall cease to bear interest. Upon surrender of such Certificates for redemption in accordance with said notice, -18- such Certificates shall be paid by the Certificate Registrar at the redemption price. Installments of interest due on or prior to the redemption date shall be payable as herein provided for payment of interest. Upon surrender for any partial redemption of any Certificate, there shall be prepared for the registered holder a new Certificate or Certificates of the same maturity in the amount of the unpaid principal. If any Certificate or portion of Certificate called for redemption shall not be so paid upon surrender thereof for redemption, the principal shall, until paid, bear interest from the redemption date at the rate borne by the Certificate or portion of Certificate so called for redemption. All Certificates which have been redeemed shall be cancelled and destroyed by the Certificate Registrar and shall not be reissued. Section 10. Form o Certi icate. The Certificates shall be in substantially the following form: -19- UNITED STATES OF AMERICA STATE OF ILLINOIS COUNTY OF FULTON CITY OF CANTON DEBT CERTIFICATE SERIES 2009 Interest Rate Maturity Date Dated Date CUSIP 20_ , 2009 Registered Owner: Principal Amount: [1] KNOW ALL PERSONS BY THESE PRESENTS, that the City of Canton, Fulton County, Illinois (the "City"), hereby acknowledges itself to owe and for value received promises to pay from the source and as hereinafter provided to the Registered Owner identified above, or registered assigns as hereinafter provided, on the Maturity Date identified above, the Principal Amount identified above and to pay interest (computed on the basis of a 360-day year of twelve 30-day months) on such Principal Amount from the date of this Certificate or from the most recent interest payment date to which interest has been paid at the Interest Rate per annum set forth above on and of each year, commencing , 20_, until said Principal Amount is paid. Principal of this Certificate is payable in lawful money of the United States of America upon presentation and surrender hereof at the principal corporate trust office of Illinois, as certificate registrar and paying agent (the "Certificate Registrar"). Payment of the installments of interest shall be made to the Registered Owner hereof as shown on the registration books of the City maintained by the Certificate Registrar at the close of business on the 15th day of the month next preceding each interest payment date and shall be paid by check or draft of the Certificate Registrar, payable upon presentation in lawful money of the United States of America, mailed to -20- the address of such Registered Owner as it appears on such registration books or at such other address furnished in writing by such Registered Owner to the Certificate Registrar. [2] Reference is hereby made to the further provisions of this Certificate set forth on the reverse hereof and such further provisions shall for all purposes have the same effect as if set forth at this place. [3] It is hereby certified and recited that all conditions, acts and things required by law to exist or to be done precedent to and in the issuance of this Certificate did exist, have happened, been done and performed in regular and due form and time as required by law; that the indebtedness of the City, including the issue of certificates of which this is one, does not exceed any limitation imposed by law; that the obligation to make payments due hereon is a general obligation of the City payable from any funds of the City legally available and annually appropriated for such purpose, that the City shall appropriate funds annually and in a timely manner so as to provide for the making of all payments hereon when due. THE OWNER OF THIS CERTIFICATE ACKNOWLEDGES THAT THERE IS NO STATUTORY AUTHORITY FOR THE LEVY OF A SEPARATE TAX IN ADDITION TO OTHER TAXES OF THE CITY OR THE LEVY OF A SPECIAL TAX UNLIMITED AS TO RATE OR AMOUNT TO PAY ANY OF THE AMOUNTS DUE HEREUNDER. [4] This Certificate shall not be valid or become obligatory for any purpose until the certificate of authentication hereon shall have been signed by the Certificate Registrar. [5] This Certificate is one of a series of certificates issued by the City to finance (i) various municipal improvements within the City and (ii) currently refund an outstanding note in the amount of $800,000 (the "Refunding") in full compliance with the provisions of the Illinois Municipal Code (the "Municipal Code"), and the Local Government Debt Reform Act of the -21- State of Illinois (the "Debt Reform Act"), and all laws amendatory thereof and supplementary thereto, and is authorized by the Mayor and City Council of the City by an ordinance duly and properly adopted for that purpose, in all respects as provided by law. The Certificates issued by the City in connection with the Project and Refunding have been issued in evidence of the indebtedness incurred pursuant to a certain Installment Purchase Agreement (the "Agreement"), dated as of September 1, 2009, entered into by and between the City and the City Treasurer thereof, as Seller-Nominee, to which reference is hereby expressly made for further definitions and terms and to all the provisions of which the holder by the acceptance of this certificate assents. [6] [Insert any redemption provision here] [7] Notice of any such redemption shall be sent by first class mail not less than thirty (30) days nor more than sixty (60) days prior to the date fixed for redemption to the registered owner of each Certificate to be redeemed at the address shown on the registration books of the City maintained by the Certificate Registrar or at such other address as is furnished in writing by such registered owner to the Certificate Registrar. When so called for redemption, this Certificate will cease to bear interest on the specified redemption date, provided funds for redemption are on deposit at the place of payment at that time, and shall not be deemed to be outstanding. [8] This Certificate is transferable by the Registered Owner hereof in person or by his attorney duly authorized in writing at the principal corporate trust office of the Certificate Registrar in ,Illinois, but only in the manner, subject to the limitations and upon payment of the charges provided in the authorizing ordinance, and upon surrender and cancellation of this Certificate. Upon such transfer a new Certificate or Certificates of -22- authorized denominations of the same maturity and for the same aggregate principal amount will be issued to the transferee in exchange therefor. [9] The Certificates are issued in fully registered form in the denomination of $5,000 each or authorized integral multiples thereof. This Certificate may be exchanged at the principal corporate trust office of the Certificate Registrar for a like aggregate principal amount of Certificates of the same maturity of other authorized denominations, upon the terms set forth in the authorizing ordinance. The Certificate Registrar shall not be required to transfer or exchange any Certificate during the period beginning at the close of business on the 15th day of the month next preceding any interest payment date on such Certificate and ending at the opening of business on such interest payment date, nor to transfer or exchange any Certificate after notice calling such Certificate for redemption has been mailed, nor during a period of fifteen (15) days of mailing of a notice of redemption of any Certificates. [ 10] The City and the Certificate Registrar may deem and treat the Registered Owner hereof as the absolute owner hereof for the purpose of receiving payment of or on account of principal hereof and interest due hereon and for all other purposes and neither the City nor the Certificate Registrar shall be affected by any notice to the contrary. [11] In Witness Whereof, said City of Canton, Fulton County, Illinois, by its Mayor and City Council, has caused this Certificate to be signed by the Mayor and Clerk of said Mayor and City Council, and to be countersigned by the City Treasurer thereof, and has caused the seal of the City to be affixed hereto or printed hereon, all as of the Dated Date identified above. -23- (Seal) Mayor Countersigned: ~~ i City Clerk ~.~zk~ ~- City Treasurer Date of Authentication: , 20_ CERTIFICATE OF AUTHENTICATION This Certificate is one of the Certificates described in the within mentioned ordinance and is one of the Debt Certificates, Series 2009, of the City of Canton, Fulton County, Illinois By: Authorized Officer Certificate Registrar and Paying Agent: Illinois Section 11. Sale o~'Certi~cates. The City Treasurer is hereby authorized and directed to deliver the Certificates to the purchaser thereof as identified in the Notification of Sale (the "Purchaser'. Authority is hereby delegated to the Mayor or the City Treasurer (i) to sell all, but not less than all, of the Certificates to the Purchaser at a purchase price of at least 98% of the Certificates, plus accrued interest on the Certificates from their dated date to the date of delivery and (ii) to determine all of the terms and details of the Certificates not determined in this -24- Ordinance including whether to purchase insurance. The sale of the Certificates shall be evidenced by a Notification of Sale which shall be signed by the Mayor or City Treasurer. A manually executed counterpart of the Notification of Sale shall be filed with the City Clerk and the Certificate Registrar. The Mayor and the City Clerk are authorized and directed to execute a bond purchase agreement (the "Purchase Contract") in connection with the sale of the Certificates, in the name of and on behalf of the City. The purchase agreement shall be substantially in the form of purchase agreements commonly used in transactions similar to that described in the Ordinance, with such changes as necessary to reflect the terms and provisions of the Certificates, this Ordinance and such other changes as the Mayor or City Treasurer shall determine are necessary or desirable in connection with the sale of the Certificates. No person holding any office of the City, either by election or appointment, is in any manner financially interested directly in his own name or indirectly in the name of any other person, association, trust or corporation, in the Purchase Contract. The use by the Purchaser of any Preliminary Official Statement and any final Official Statement relating to the Certificates (the "Official Statement") is hereby ratified, approved and authorized; the execution and delivery of the Official Statement is hereby authorized; and the officers of the Corporate Authorities are hereby authorized to take any action as may be required on the part of the City to consummate the transactions contemplated by the Purchase Contract, this Ordinance, said Preliminary Official Statement, the Official Statement and the Certificates. Section 12. Use of Certif cate Proceeds. Accrued interest received on the delivery of the Certificates is hereby appropriated for the purpose of paying first interest due on the Certificates and is hereby ordered deposited into the "Debt Certificate Fund of 2009" (the "Certificate Fund'), which shall be the fund for the payment of the principal of and interest on -25- the Certificates. Funds lawfully available for the purpose of paying the principal of and interest on the Certificates shall be deposited into the Certificate Fund and used solely and only for such purpose. Principal proceeds in the amount of $800,000 shall be used by the City to currently refund and pay in full a certain note of the City currently due and owing. The remaining principal proceeds of the Certificates and any premium received on the delivery of the Certificates are hereby appropriated to pay the costs of issuance of the Certificates and for the purpose of paying the cost of the Project, and that portion thereof not needed to pay such costs of issuance is hereby ordered deposited into the "Capital Improvement Account of the City" (the "Project Fund"), hereby created. It is hereby found and determined and hereby declared and set forth that the Corporate Authorities (i) has not entered into an agreement of any kind with any entity, party or person (including, but not limited to, the Purchaser) to not expend the proceeds of the Certificates deposited into the Project Fund for any period of time and (ii) is not required by any contract, decree, instrument, order, regulation or ruling, to not expend the proceeds of the Certificates deposited into the Project Fund for any period of time. Moneys in the Project Fund shall be used to pay costs of the Project in accordance with the following procedures: 1. Contracts ("Work Contracts") have been or shall be awarded, from time to time, by the Corporate Authorities for the work on the Project; and the Corporate Authorities represents and covenants that each Work Contract has been or will be let in strict accordance with the applicable laws of the State of Illinois, and the rules and procedures of the City for same. -26- 2. Pursuant to this Ordinance or subsequent ordinance or ordinances to be duly adopted, the Corporate Authorities shall identify all or a designated portion of each Work Contract to the Agreement. The Work Contracts attached hereto as Exhibit 1 are hereby identified to the Agreement. This Ordinance, any such further ordinance and said Work Contracts shall be filed of record with the City Clerk and the City Treasurer. The adoption and filing of any such ordinance or ordinances and the Work Contracts with such officers shall constitute authority for the City Treasurer to make disbursements from the Project Fund to pay amounts due under such Work Contracts from time to time, upon such further ordinances, resolutions, orders, vouchers, warrants, or other proceedings as are required under the applicable laws of the State of Illinois, and the rules and procedures of the City for same. No action need be taken by or with respect to the contractors under the Work Contracts as, pursuant to the Installment Purchase Provisions, the City Treasurer acts as Nominee-Seller of the Project for all purposes, enabling the issuance of the Certificates. Alternatively to the creation of the funds described above, the appropriate officers may allocate the funds to be deposited into the Certificate Fund or proceeds of the Certificates to one or more related funds of the City already in existence and in accordance with good accounting practice; provided, however, that this shall not relieve such officers of the duty to account and invest such funds and the proceeds of the Certificates, as herein provided, as if the funds described above had in fact been created. Section 13. Tax Covenants. In order to preserve the exclusion of interest on the Certificates from gross income for federal tax purposes under Section 103 of the Internal Revenue Code of 1986 as existing on the date of issuance of the Certificates (the "Code") and as an inducement to purchasers of the Certificates, the City represents, covenants and agrees that: -27- (a) No more than ten percent (10%) of the payment of the principal of or interest on the Certificates will be (under the terms of the Certificates, this ordinance or any underlying arrangement), directly or indirectly, (i) secured by any interest in property used or to be used for a private business use or payments in respect of such property or (ii) derived from payments (whether or not to the City) in respect of such property or borrowed money used or to be used for a private business use. (b) No more than five percent (5%) of the Certificate proceeds will be loaned to any entity or person other than a state or local governmental unit. No more than five percent (5%) of the Certificate proceeds will be transferred, directly or indirectly, or deemed transferred to a nongovernmental person in any manner that would in substance constitute a loan of the Certificate proceeds. (c) The City reasonably expects, as of the date hereof, that the Certificates will not meet either the private business use test described in paragraph (a) above or the private loan test described in paragraph (b) above during the entire term of the Certificates. (d) No more than five percent (5%) of the proceeds of the Certificates will be attributable to private security or payments described in (a) attributable to unrelated or disproportionate private business use. For this purpose, the private business use test is applied by taking into account only use that is not related to any government use of proceeds of the issue (Unrelated Use) and use that is related but disproportionate to any governmental use of those proceeds (Disproportionate Use). (e) The City hereby designates each of the Certificates as a "qualified tax-exempt obligation" for the purposes and within the meaning of Section 265(b)(3) of the Code. In support of such designation, the City hereby certifies that (i) as of the date hereof in calendar year 2009, -28- the City has not issued any tax-exempt obligations of any kind other than the Certificates nor have any tax-exempt obligations of any kind been issued on behalf of the City and (ii) not more than $30,000,000 of obligations of any kind (including the Certificates) issued by or on behalf of the City during calendar year 2009 will be designated for purposes of Section 265(b)(3) of the Code. (f) Neither the City nor the Corporate Authorities will take any action or fail to take any action with respect to the Certificates that would result in the loss of the exclusion from gross income for federal tax purposes on the Certificates pursuant to Section 103 of the Code, nor will the City or the Corporate Authorities act in any other manner which would adversely affect such exclusion. (g) It shall not be an event of default under this ordinance if the interest on any Certificate is not excludable from gross income for federal tax purposes or otherwise pursuant to any provision of the Code which is not currently in effect and in existence on the date of issuance of the Certificates. (h) The City certifies that to the extent necessary to preserve the exclusion from gross income of interest on the Certificates for federal tax purposes, it will rebate any arbitrage profits to the United States of America in accordance with Section 148(f) of the Code and the Regulations promulgated thereunder. (i) These covenants are based solely on current law in effect and in existence on the date of delivery of such Certificates. The City hereby authorizes the officials of the City responsible for issuing the Bonds, the same being the Mayor and the City Clerk, to make such further covenants and certifications as may be necessary to assure that the use thereof will not cause the Certificates to be arbitrage -29- Certificates and to assure that the interest on the Certificates will be excludable from gross income for federal income tax purposes. In connection therewith, the City further agrees: (a) through its officers, to make such further specific covenants, representations as shall be truthful, and assurances as may be necessary or advisable; (b) to consult with counsel approving the Bonds; (c) to pay to the United States, as necessary, such sums of money representing required rebates of excess arbitrage profits relating to the Certificates as required pursuant to Section 148 of the Code and the regulations promulgated thereunder; (d) to file such forms, statements, and supporting documents as may be required and in a timely manner; and (e) if deemed necessary or advisable by their officers, to employ and pay fiscal agents, financial advisors, attorneys, and other persons to assist the City in such compliance. Section 14. Noncompliance with Tax Covenants. Notwithstanding any other provisions of this ordinance, the covenants and authorizations contained in this ordinance (the "Tax Sections") which are designed to preserve the exclusion of interest on the Certificates from gross income under federal law (the "Tax Exemption") need not be complied with if the City receives an opinion of nationally recognized bond counsel that any Tax Section is unnecessary to preserve the Tax Exemption. Section 1 S. List o Certif cateholders. The Certificate Registrar shall maintain a list of the names and addresses of the holders of all Certificates and upon any transfer shall add the name and address of the new Certificate holder and eliminate the name and address of the transferor Certificate holder. Section 16. Duties o Certificate Registrar. If requested by the Certificate Registrar, the Mayor and City Clerk are authorized to execute the Certificate Registrar's standard form of -30- agreement between the City and the Certificate Registrar with respect to the obligations and duties of the Certificate Registrar hereunder which may include the following: (a) to act as certificate registrar, authenticating agent, paying agent and transfer agent as provided herein; (b) to maintain a list of Certificateholders as set forth herein and to furnish such list to the City upon request, but otherwise to keep such list confidential; (c) to give notice of redemption of Certificates as provided herein; (d) to cancel and/or destroy Certificates which have been paid at maturity or upon earlier redemption or submitted for exchange or transfer; (e) to furnish the City at least annually a certificate with respect to Certificates cancelled and/or destroyed; and (fj to furnish the City at least annually an audit confirmation of Certificates paid, Certificates outstanding and payments made with respect to interest on the Certificates. Section 17. Continuing Disclosure Undertaking. The Mayor is hereby authorized, empowered and directed to execute and deliver a Continuing Disclosure Undertaking under Section (b)(5) of Rule 15c2-12 adopted by the Securities and Exchange Commission pursuant to the Securities Exchange Act of 1934, as amended (the "Continuing Disclosure Undertaking") When the Continuing Disclosure Undertaking is executed and delivered on behalf of the City as herein provided, the Continuing Disclosure Undertaking will be binding on the City and the officers, employees and agents of the City, and the officers, employees and agents of the City are hereby authorized, empowered and directed to do all such acts and things and to execute all such documents as may be necessary to carry out and comply with the provisions of the Continuing Disclosure Undertaking as executed. Notwithstanding any other provision of this Ordinance, the -31- sole remedy for failure to comply with the Continuing Disclosure Undertaking shall be the ability of the beneficial owner of any Certificate to seek mandamus or specific performance by court order to cause the City to comply with its obligations under the Continuing Disclosure Undertaking. Section I8. Severability. If any section, paragraph, clause or provision of this Ordinance shall be held to be invalid or unenforceable for any reason, the invalidity or unenforceability of such section, paragraph, clause or provision shall not affect any of the remaining provisions of this Ordinance. Section 19. Repeal. All ordinances, resolutions or parts thereof in conflict herewith be and the same are hereby repealed, and this Ordinance shall be in full force and effect forthwith upon its adoption. Adopted June 30, 2009. Mayor Attest: City Clerk -32- STATE OF ILLINOIS ) SS COUNTY OF FULTON ) CERTIFICATION OF MINUTES AND ORDINANCE I, the undersigned, do hereby certify that I am the duly qualified and acting City Clerk of the City of Canton, Fulton County, Illinois (the "City Clerk"), and as such official I am the keeper of the records and files of the Corporate Authorities. I do further certify that the foregoing constitutes a full, true and complete transcript of the minutes of the meeting of the Corporate Authorities held on the 30th day of June, 2009, insofar as same relates to the adoption of an ordinance entitled: An ORDINANCE authorizing and providing for an Installment Purchase Agreement for the purpose of paying the cost of purchasing real or personal property, or both, in and for the City of Canton, Fulton County, Illinois, and authorizing and providing for the issue of not to exceed $4,000,000 Debt Certificates, Series 2009, of said City evidencing the rights to payment under such Agreement, prescribing the details of the Agreement and Certificates, and providing for the security for and means of payment under the Agreement of the Certificates. a true, correct and complete copy of which said ordinance as adopted at said meeting appears in the foregoing transcript of the minutes of said meeting. I do further certify that the deliberations of the Corporate Authorities on the adoption of said ordinance were conducted openly, that the vote on the adoption of said ordinance was taken openly, that said meeting was called and held at a specified time and place convenient to the public, that notice of said meeting was duly given to all of the news media requesting such notice, that an agenda for said meeting was posted at the location where said meeting was held and at the principal office of the Corporate Authorities at least 48 hours in advance of the holding of said meeting, a true, correct and complete copy of said agenda as so posted is attached hereto as Exhibit A, that said meeting was called and held in strict compliance with the provisions of the Open Meetings Act of the State of Illinois, as amended, and with the provisions of the Illinois Municipal Code, as amended, and that the Corporate Authorities has complied with all of the provisions of said Act and said Code and with all of the procedural rules of the Corporate Authorities. IN WITNESS WHEREOF, I hereunto affix my official signature and seal of said City, this 30th day of June, 2009. , „ ,~,~ _ ,, ity Clerk (Seal) STATE OF ILLINOIS ) SS COUNTY OF FULTON ) FILING CERTIFICATE We, the undersigned, do hereby certify that we are, respectively, the duly qualified and acting City Clerk and City Treasurer of the City of Canton, Fulton County, Illinois (the "City"), respectively, and as such officers we do hereby certify that on the 30th day of June, 2009, there was filed with each of us, respectively, and placed on deposit in our respective records, a properly certified copy of an ordinance adopted by the Corporate Authorities on the 30th day of June, 2009, and entitled: An ORDINANCE authorizing and providing for an Installment Purchase Agreement for the purpose of paying the cost of purchasing real or personal property, or both, in and for the City of Canton, Fulton County, Illinois, and authorizing and providing for the issue of not to exceed $4,000,000 Debt Certificates, Series 2009, of said City evidencing the rights to payment under such Agreement, prescribing the details of the Agreement and Certificates, and providing for the security for and means of payment under the Agreement of the Certificates. together with any Work Contracts identified by the adoption of said ordinance and attached thereto as Exhibit 1, and that the same have all been deposited in, and all as appears from, the official files and records of our respective offices. IN WITNESS WHEREOF, we hereunto affix our official signatures and the seal of the City, this 30th day of June, 2009. Ci Clerk City Treasurer (Seal)