Drafter
Clerk 12/15/2009
Title
AN ORDINANCE authorizing the issuance and sale of multi-modal limited tax general obligation bonds (payable from sewer revenue) in the principal amount of not to exceed $50,000,000 to finance capital improvements to the county's sewer system; providing the covenants and conditions under which the bonds will be issued, including options for liquidity support and credit enhancement for the bonds; authorizing the form, terms, maturity and method of determining interest rates of the bonds; appointing a remarketing agent; and providing for the sale of the bonds to Goldman, Sachs & Co.
Body
PREAMBLE:
The county owns and operates facilities for the conveyance and treatment of sewage and control of combined sewer overflows that include, but are not limited to, wastewater treatment plants, interceptor and trunk sewers, pumping stations, regulator stations, outfall sewers, storm sewers to divert stormwater from sanitary sewers, lands for application of biosolids, property rights, and buildings and other structures (collectively the "Sewer System" or the "System"), all in accordance with a comprehensive plan for metropolitan water pollution abatement under the authority of chapters 36.56 and 35.58 of the Revised Code of Washington ("RCW").
Long term service agreements with participating municipalities (the "Participants") obligate the county to treat and dispose of sewage collected by the Participants. The Participants must pay the costs of such services including debt service on bonds payable from sewer revenues. Comparable rates and charges have been established for customers who deliver sewage to the System but are not subject to a contract with the county for such service.
In accordance with RCW 35.58.200(3), the county has declared that the health, safety and welfare of people within the metropolitan area require that certain Participants discharge sewage collected by such Participants into facilities of the System.
The county has issued the following sewer revenue bonds with a senior lien on revenues of the Sewer System (the "Parity Bonds"):
Series Designation |
Ordinance |
Date of Issue |
Original Principal |
Outstanding Principal (9/1/2009) |
2001 Bonds |
14225 |
11/28/2001 |
$ 270,060,000 |
$ 223,375,000 |
2002A Bonds |
14406 |
8/14/2002 |
100,000,000 |
94,960,000 |
2002B Bonds |
14406 |
10/03/2002 |
346,130,000 |
249,350,000 |
2003A Bonds |
14406 |
4/24/2003 |
96,470,000 |
91,625,000 |
2004A Bonds |
14753 |
3/18/2004 |
185,000,000 |
185,000,000 |
2004B Bonds |
14753 |
3/18/2004 |
61,760,000 |
58,900,000 |
2006 Bonds |
15385 |
5/16/2006 |
124,070,000 |
124,070,000 |
2006 (2nd) Bonds |
15385 |
11/30/2006 |
193,435,000 |
190,085,000 |
2007 Bonds |
15758 |
6/26/2007 |
250,000,000 |
250,000,000 |
2008 Bonds |
16133 |
8/14/2008 |
350,000,000 |
350,000,000 |
2009 Bonds |
16133 |
8/12/2009 |
250,000,000 |
250,000,000 |
The county has issued the following limited tax general obligation bonds additionally secured by a lien on revenues of the Sewer System junior and subordinate to the lien thereon of the Parity Bonds (the "Parity Lien Obligations"):
Series Designation |
Ordinance |
Date of Issue |
Original Principal |
Outstanding Principal (9/1/2009) |
Series 2005 |
15033 |
4/21/2005 |
$ 200,000,000 |
$ 200,000,000 |
Series 2008 |
15779 |
2/12/2008 |
236,950,000 |
233,045,000 |
Series 2009 |
16133 |
4/18/2009 |
300,000,000 |
300,000,000 |
The county has issued the following sewer revenue bonds with a lien on revenues of the Sewer System junior and subordinate to the lien thereon of the Parity Bonds and the Parity Lien Obligations (the "Junior Lien Obligations"):
Series Designation |
Ordinance |
Date of Issue |
Original Principal |
Outstanding Principal (9/1/2009) |
Series 2001A |
14171 |
4/15/2001 |
$ 50,000,000 |
$ 50,000,000 |
Series 2001B |
14172 |
4/15/2001 |
50,000,000 |
50,000,000 |
The county has issued its Sewer Revenue Anticipation Notes, Commercial Paper Series A, in the aggregate principal amount of not to exceed $100,000,000 at any time outstanding (the "Commercial Paper Notes"), with a lien on revenues of the Sewer System junior and subordinate to the lien thereon of the Parity Bonds, the Parity Lien Obligations, and the Junior Lien Obligations, pursuant to Ordinance 12057, as amended by Ordinance 14173.
The ordinances authorizing the issuance of the Parity Bonds, the Parity Lien Obligations, the Junior Lien Obligations and the Commercial Paper Notes permit the county to issue additional sewer revenue bonds with a lien on revenues of the Sewer System junior to the lien thereon of the Junior Lien Obligations and superior to the lien thereon of the Commercial Paper Notes. This ordinance authorizes the issuance of a series of such bonds in the principal amount of not to exceed $50,000,000 (the "Bonds") to be sold by negotiated sale to Goldman, Sachs & Co., subject to final approval of a bond purchase contract by the county's finance director. This ordinance further authorizes the form, terms, maturity, method of determining interest rates and options for liquidity support and credit enhancement for the Bonds.
BE IT ORDAINED BY THE COUNCIL OF KING COUNTY:
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1. Certain Definitions. As used in this ordinance, the following terms and phrases have the meanings set forth in this Section unless the context clearly indicates that another meaning is intended (singular definitions include the plural thereof and vice versa):
"Account" means each Remarketing Proceeds Account, County Purchase Account and Liquidity Facility Purchase Account established within the Purchase Fund.
"Accreted Value" means with respect to any Capital Appreciation Bonds, as of any date of calculation, the sum of the amounts set forth in the ordinance, resolution or motion authorizing such bonds as the amounts representing the initial principal amount of such bonds plus the interest accumulated, compounded and unpaid thereon as of the most recent compounding date, as provided in the ordinance, resolution or motion authorizing the issuance of such bonds; provided that if such calculation is not made as of a compounding date, such amount will be determined by straight-line interpolation as of the immediately preceding and the immediately succeeding compounding dates.
"Agency Customer" means any city, town, water-sewer district or other political subdivision, person, firm or private corporation that collects sewage from customers and disposes of any portion of that sewage into the Metropolitan Sewerage System and is not a Participant.
"Alternate Credit Enhancement" or "Alternate Liquidity Facility" means a letter of credit, insurance policy, line of credit, surety bond, standby purchase agreement or other security or liquidity instrument, as the case may be, issued in accordance with the terms hereof as a replacement or substitute for any Credit Enhancement or Liquidity Facility, as applicable, then in effect.
"Alternate Rate" means, on any Rate Determination Date, for any Interest Rate Mode, a rate per annum equal to 110% of (a) the SIFMA Municipal Swap Index most recently available as of the date of determination, or (b) if such index is no longer available, or if the SIFMA Municipal Swap Index is no longer published, the S&P Weekly High Grade Index (formerly the J.J. Kenny Index), or if neither the SIFMA Municipal Swap Index nor the S&P Weekly High Grade Index is published, the index determined to equal the prevailing rate determined by the Remarketing Agent for tax-exempt state and local government bonds meeting criteria determined in good faith by the Remarketing Agent to be comparable under the circumstances to the criteria used by the Securities Industry and Financial Markets Association to determine the SIFMA Municipal Swap Index just prior to when the Securities and Financial Markets Association stopped publishing the SIFMA Municipal Swap Index. The Registrar will make the determinations required by this definition, upon notification from the county, if there is no Remarketing Agent, if the Remarketing Agent fails to make any such determination or if the Remarketing Agent has suspended its remarketing efforts in accordance with the Remarketing Agreement; provided, however, that if neither the SIFMA Municipal Swap Index nor the S&P Weekly High Grade Index is available, the county will designate in writing the index for the Registrar to use.
"Annual Debt Service" means, for designated obligations of the System, with respect to any calendar year, the sum of the following:
(1) The interest on such designated obligations due (i) on all interest payment dates (other than January 1) in such calendar year, and (ii) on January 1 of the next succeeding calendar year, plus any Payment Agreement Payments due on such dates in respect of Payment Agreements for such obligations and minus any Payment Agreement Receipts due in such period in respect of Payment Agreements for such obligations.
(i) For purposes of calculating the amounts required to pay interest on such designated obligations, capitalized interest, accrued interest paid to the county upon the issuance of such obligations, and Debt Service Offsets pledged to the payment of such designated obligations will be excluded.
(ii) The amount of interest deemed payable on any such obligations bearing interest at a variable rate will be calculated on the assumption that the interest rate on such obligations would be equal to the rate (the "assumed RBI rate") that is 90% of the average Bond Buyer Revenue Bond Index or comparable index during the fiscal quarter preceding the quarter in which the calculation is made; provided, however, that for purposes of determining actual compliance in any past calendar year with the rate covenants made in Section 5.1 of this ordinance, the actual amount of interest paid on any issue of variable rate obligations will be taken into account.
(2) The principal due (at maturity or upon the mandatory redemption of Term Bonds prior to their maturity) for such designated obligations (i) on all principal payment dates (other than January 1) of such calendar year and (ii) on January 1 of the next succeeding calendar year.
(3) An amount for assumed payments of principal of any of such designated obligations that are Balloon Maturity Bonds calculated for the applicable calendar year by amortizing the then outstanding principal amount of such obligations in accordance with a maturity schedule not exceeding 30 years from the date of issuance of such Balloon Maturity Bonds and resulting in approximately level debt service based on their actual interest rates (if such obligations bear interest at fixed rates) or on the assumed interest rate calculated as provided in Paragraph (1)(ii) of this definition (if such obligations bear interest at a variable rate).
In the case of Capital Appreciation Bonds, the Accreted Value due at maturity or upon the mandatory redemption of Term Bonds that are Capital Appreciation Bonds must be included in the calculation of Annual Debt Service, and references in this ordinance to principal of Parity Bonds include the Accreted Value due at maturity or upon the mandatory redemption of any Capital Appreciation Bonds.
Notwithstanding the foregoing, debt service on bonds with respect to which a Payment Agreement is in force will be calculated by the county to reflect the net economic effect of the terms of the bonds and the applicable Payment Agreement, in accordance with the requirements set forth in the ordinances applicable to such bonds.
"Authorized Denominations" means (i) with respect to Bonds in a Daily Mode or Weekly Mode, $100,000 and any integral multiple of $5,000 in excess thereof, (ii) with respect to Bonds in a Flexible Mode, $100,000 and any integral multiple of $1,000 in excess thereof, and (iii) with respect to Bonds in a Long-Term Mode, $5,000 and any integral multiple thereof.
"Automatic Termination Event" means an event of default set forth in a Reimbursement Agreement between the county and the Liquidity Provider that would result in the immediate termination or suspension of the Liquidity Facility prior to its stated expiration date without prior notice from the Liquidity Provider to the Tender Agent.
"Available Amount" means the amount available under any Credit Enhancement or Liquidity Facility, as applicable, to pay the principal of and interest on the Bonds or the Purchase Price of the Bonds, as applicable.
"Balloon Maturity Bonds" means any obligations of the System, other than Term Bonds, the entire principal amount of which is due at maturity without serial bond payments or sinking fund redemption payments, including the Bonds.
"Bank Note" means the bank note authorized to be issued by Ordinance 12057 of the county, as amended, to secure payment of the Commercial Paper Notes.
"Beneficial Owner" means, so long as the Bonds are held in the Book-Entry System, any Person who acquires a beneficial ownership interest in a Bond held by the Securities Depository. If at any time the Bonds are not held in the Book-Entry System, Beneficial Owner means Owner for purposes of this ordinance.
"Bond Counsel" means any firm of nationally recognized municipal bond attorneys selected by the county and experienced in the issuance of municipal bonds and matters relating to the exclusion of the interest thereon from gross income for Federal income tax purposes.
"Bond Register" means the registration books maintained by the Registrar for purposes of identifying ownership of the Bonds.
"Bondowners' Trustee" means the bank or financial institution selected by the Owners of the Bonds pursuant to Section 6.2 of this ordinance.
"Bonds" means the King County, Washington, Multi-Modal Limited Tax General Obligation Bonds (Payable from Sewer Revenue), Series 2010A, authorized to be issued in the aggregate principal amount of not to exceed $50,000,000 pursuant to Section 2.1 of this ordinance.
"Book-Entry System" means the fully immobilized system maintained by the Securities Depository described in Article II of this ordinance.
"Business Day" means any business day other than (i) a Saturday or Sunday or (ii) a day on which the Registrar, Paying Agent, Tender Agent, or the Remarketing Agent, if any, are required or authorized to be closed or (iii) a day on which the office of the Credit Provider or Liquidity Provider at which it will pay draws or advances are required or authorized to be closed, or (iv) a day on which The New York Stock Exchange is closed.
"Capital Appreciation Bonds" means any Parity Bonds the interest on which is compounded, accumulated and payable only upon redemption or on the maturity date of such Parity Bonds; provided, however, that Parity Bonds may be deemed to be Capital Appreciation Bonds for only a portion of their term pursuant to the ordinance, resolution or motion authorizing their issuance. On the date on which Parity Bonds no longer are Capital Appreciation Bonds, they will be deemed outstanding in a principal amount equal to their Accreted Value.
"Certified Public Accountant" means an independent certified public accountant (or firm of certified public accountants) selected by the county and having a favorable national reputation.
"Closing Date" means the date of delivery of the Bonds to the Underwriter against payment therefor.
"Code" means the Internal Revenue Code of 1986, as amended, together with corresponding and applicable final, temporary or proposed regulations and revenue rulings issued or amended with respect thereto by the United States Treasury Department or the Internal Revenue Service, to the extent applicable to the Bonds.
"Commercial Paper Notes" means the King County, Washington, Sewer Revenue Bond Anticipation Notes, Commercial Paper Series A, authorized, issued, and outstanding from time to time pursuant to Ordinance 12057 of the county passed on December 11, 1995, as amended by Ordinance 14173 of the county passed on July 16, 2001.
"Comprehensive Plan" means the county's comprehensive water pollution abatement plan authorized by RCW 35.58.200 and defined in King County Code ("K.C.C.") 28.82.150 as the Comprehensive Sewage Disposal Plan adopted by Resolution No. 23 of the Metro Council on April 22, 1959, and all amendments thereto, together with any amendments hereafter approved by ordinance of the county.
"Conversion Date" means with respect to Bonds in a particular Interest Rate Mode, the day on which another Interest Rate Mode for such Bonds begins.
"Conversion Notice" means the notice from the county to the other Notice Parties of the county's intention to change the Interest Rate Mode with respect to the Bonds.
"County Bonds" means Bonds held by the Registrar for and on behalf of the county or any nominee for (or any Person who owns such Bonds for the sole benefit of) the county pursuant to Section 3.14(c) of this ordinance.
"County Purchase Account" means each account with that name established within the Bond Purchase Fund pursuant to Section 3.14 of this ordinance.
"Credit Enhancement" means any letter of credit, insurance policy, surety bond, line of credit or other instrument, if any, then in effect that secures or guarantees the payment of principal of and interest on the Bonds.
"Credit Provider" means any bank, insurance company, pension fund or other financial institution that provides a Credit Enhancement or Alternate Credit Enhancement for the Bonds.
"Current Mode" has the meaning specified in Section 2.10(a)(i) of this ordinance.
"Daily Mode" means the Interest Rate Mode during which the Bonds bear interest at the Daily Rate.
"Daily Rate" means the per annum interest rate on any Bond in the Daily Mode determined pursuant to Section 2.6(a) of this ordinance.
"Daily Rate Period" means the period during which a Bond in the Daily Mode bears interest at a Daily Rate, which will be from the Business Day upon which a Daily Rate is set to but not including the next succeeding Business Day.
"Debt Service Offset" means receipts of the county that are (i) legally available to pay debt service on obligations payable from Revenue of the System, including without limitation federal interest subsidy payments, and (ii) pledged to the payment of obligations payable from Revenue of the System.
"Default" means any of the events or conditions set forth in Section 6.1 of this ordinance.
"Delayed Remarketing Period" has the meaning specified in Section 3.15(b) of this ordinance.
"DTC" means The Depository Trust Company, a limited purpose trust company organized under the laws of the State of New York, as initial Securities Depository for the Bonds, and any successor thereto.
"DTC Participants" means those broker-dealers, banks and other financial institutions for which DTC holds Bonds as securities depository.
"Electronic Means" means telecopy, facsimile transmission, e-mail transmission or other similar electronic means of communication providing evidence of transmission.
"Expiration Date" means the stated expiration date of the Credit Enhancement or the Liquidity Facility, as it may be extended from time to time as provided in the Credit Enhancement or the Liquidity Facility or Reimbursement Agreement, as applicable, or any earlier date on which the Credit Enhancement or the Liquidity Facility will terminate at the direction of the county, expire or be cancelled.
"Favorable Opinion of Bond Counsel" means, with respect to any action the occurrence of which requires such an opinion, an unqualified Opinion of Counsel, which must be a Bond Counsel, to the effect that such action is permitted under this ordinance and will not adversely affect the exclusion of interest on the Bonds from gross income for purposes of Federal income taxation (subject to the inclusion of any exceptions contained in the opinion delivered upon original issuance of the Bonds).
"Finance Director" means the director of the finance and business operations division of the county or his or her designee, or the successor to the duties of such office.
"Fiscal Agency Agreement" means the agreement of that name dated February 1, 2007, as amended, between the State of Washington and The Bank of New York (now known as The Bank of New York Mellon), and any amendments and supplements thereto and replacements thereof.
"Fixed Rate" means the per annum interest rate on any Bond in the Fixed Rate Mode determined pursuant to Section 2.7(b) of this ordinance.
"Fixed Rate Bond" means a Bond in the Fixed Rate Mode.
"Fixed Rate Mode" means the Interest Rate Mode during which the Bonds bear interest at the Fixed Rate.
"Fixed Rate Period" means for the Bonds in the Fixed Rate Mode, the period from the Conversion Date upon which the Bonds were converted to the Fixed Rate Mode to but not including the Maturity Date for the Bonds.
"Flexible Mode" means the Interest Rate Mode during which the Bonds bear interest at the Flexible Rate.
"Flexible Rate" means the per annum interest rate on a Bond in the Flexible Mode determined for such Bond pursuant to Section 2.5 of this ordinance. The Bonds in the Flexible Mode may bear interest at different Flexible Rates.
"Flexible Rate Bond" means a Bond in the Flexible Mode.
"Flexible Rate Period" means the period of from one to 270 calendar days (which period must end on a day preceding a Business Day) during which a Flexible Rate Bond will bear interest at a Flexible Rate, as established by the Remarketing Agent pursuant to Section 2.5 of this ordinance. The Bonds in the Flexible Mode may be in different Flexible Rate Periods.
"Government Obligations" means those obligations now or hereafter defined as such in Chapter 39.53 of the Revised Code of Washington, as such chapter may be hereafter amended or restated.
"Interest Accrual Period" means the period during which a Bond accrues interest payable on the next Interest Payment Date applicable thereto. Each Interest Accrual Period must commence on (and include) the last Interest Payment Date to which interest has been paid (or, if no interest has been paid, from the date of original authentication and delivery of the Bonds) to, but not including, the Interest Payment Date on which interest is to be paid. If, at the time of authentication of any Bond, interest is in default or overdue on the Bonds, such Bond will bear interest from the date to which interest has previously been paid in full or made available for payment in full on Outstanding Bonds.
"Interest Payment Date" means each date on which interest is to be paid and is: (i) with respect to the Bonds in the Flexible Mode, each Mandatory Purchase Date applicable thereto; (ii) with respect to the Bonds in the Daily Mode or Weekly Mode, the first Business Day of each month; (iii) with respect to the Bonds in a Term Rate Mode or a Fixed Rate Mode, the first day of the sixth calendar month following the month in which such Term Rate Mode or a Fixed Rate Mode takes effect, and the first day of each sixth calendar month thereafter or, upon the receipt by the Registrar of a Favorable Opinion of Bond Counsel, any other six-month interval chosen by the county (beginning with the first such day which is at least three months after the Conversion Date) and, with respect to a Term Rate Period, the final day of the current Interest Period if other than a regular six-month interval; (iv) with respect to the Bonds in the LIBOR Indexed Mode, each January 1, April 1, July 1 and October 1 (beginning with the first such day after the Conversion Date); (v) (without duplication as to any Interest Payment Date listed above) each Maturity Date; and (vi) with respect to any Liquidity Provider Bonds, the day set forth in the Reimbursement Agreement.
"Interest Period" means, for the Bonds in a particular Interest Rate Mode, the period of time that the Bonds bear interest at the rate (per annum) that becomes effective at the beginning of such period, and will include a Flexible Rate Period, a Daily Rate Period, a Weekly Rate Period, a LIBOR Interest Period, a Term Rate Period and a Fixed Rate Period.
"Interest Rate Mode" means, as the context may require, the Flexible Mode, the Daily Mode, the Weekly Mode, the LIBOR Indexed Mode, the Term Rate Mode or the Fixed Rate Mode.
"Junior Lien Bond Fund" means the "King County, Washington, Junior Lien Obligation Redemption Fund" created pursuant to Section 5.01 of Ordinance 14171.
"Junior Lien Obligations" means the bonds identified as such in the Preamble to this ordinance, together with any revenue bonds that the county may hereafter issue with a lien on Revenue of the System equal to the lien thereon of the Junior Lien Obligations.
"Letter of Representations" means the Blanket Issuer Letter of Representations heretofore entered into by the county with DTC, or any similar agreement or document relating to a successor to DTC as Securities Depository.
"LIBOR Indexed Mode" means the Interest Rate Mode during which the Bonds bear interest at the LIBOR Index Rate.
"LIBOR Index Rate" is the rate borne by the Bonds during each Interest Period determined in accordance with Section 2.9 of this ordinance.
"LIBOR Interest Period" means, during the LIBOR Indexed Mode, the period from (and including) the Conversion Date to but not including the first Interest Payment Date and thereafter means the period from (and including) an Interest Payment Date to but not including the following Interest Payment Date (regardless of whether or not such Interest Payment Dates are Business Days).
"Liquidity Facility" means any letter of credit, line of credit, standby purchase agreement or other instrument then in effect that provides for the payment of the purchase price of Bonds upon the tender thereof in the event remarketing proceeds are insufficient therefor.
"Liquidity Facility Purchase Account" means the account by that name created pursuant to Section 3.14 of this ordinance.
"Liquidity Provider" means any bank, insurance company, pension fund or other financial institution that provides a Liquidity Facility or Alternate Liquidity Facility for the Bonds.
"Liquidity Provider Bonds" means any Bonds purchased by the Liquidity Provider with funds drawn on or advanced under the Liquidity Facility.
"London Banking Day" means any day on which commercial banks are open for general business (including dealings in foreign exchange and foreign currency) in the City of London, United Kingdom.
"Long-Term Mode" means a LIBOR Indexed Mode, a Term Rate Mode or a Fixed Rate Mode.
"Mandatory Purchase Date" means: (i) with respect to a Flexible Rate Bond the first Business Day following the last day of each Flexible Rate Period with respect to such Bond; (ii) for Bonds in the Term Rate Mode, on the first Business Day following the last day of each Term Rate Period; (iii) any Conversion Date; (iv) any Substitution Date; (v) the fifth Business Day prior to any Expiration Date (other than as a result of an Automatic Termination Event); (vi) the date specified by the Registrar following the occurrence of an event of default (other than an Automatic Termination Event) under the Reimbursement Agreement, which date must be a Business Day not more than 25 nor less than 20 days after the Registrar's receipt of written notice of such event of default from the Credit Provider or the Liquidity Provider and in no event later than the day preceding the termination date specified by the Credit Provider or the Liquidity Provider; (vii) the date specified by the Registrar following receipt of notice by the Registrar from the Credit Provider that the Credit Enhancement will not be reinstated following a drawing to pay interest on the Bonds (other than interest on Bonds no longer Outstanding after such drawing), which date must be a Business Day not more than five days after the Registrar's receipt of such notice; and (viii) for Bonds in the Daily Mode or Weekly Mode, any Business Day specified by the county not less than 30 days after the Registrar's receipt of such notice and in no event later than the day preceding the Expiration Date.
"Maturity Date" means January 1, 2040, and, if established pursuant to Section 2.10(b)(v) of this ordinance upon a change to the Fixed Rate Mode, any Serial Maturity Date.
"Maximum Rate" means (i) with respect to all Bonds other than Liquidity Provider Bonds, a rate of interest equal to the lesser of (a) 15% per annum or (b) the per annum interest rate used to calculate the Available Amount under the Liquidity Facility, and (ii) with respect to Liquidity Provider Bonds, the rate specified in the Reimbursement Agreement. In no event may such rate(s) exceed the highest rate allowed by law.
"Moody's" means Moody's Investors Service, a corporation duly organized and existing under and by virtue of the laws of the State of Delaware, and its successors and assigns, except that if such corporation is dissolved or liquidated or no longer performs the functions of a securities rating agency, then the term "Moody's" will be deemed to refer to any other nationally recognized securities rating agency selected by the county after consultation with the Remarketing Agent.
"MSRB" means the Municipal Securities Rulemaking Board or any successors to its functions.
"Multi-Modal LTGO/Sewer Revenue Bonds" means the Bonds, the Series 2010B Bonds, and any additional limited tax general obligation bonds of the county payable from Revenue of the System and having the same lien on such revenue as the Bonds and the Series 2010B Bonds.
"Net Revenue" means Revenue of the System less Operating and Maintenance Expenses.
"New Mode" has the meaning specified in Section 2.10(a) of this ordinance.
"Notice Parties" means the county, the Registrar, the Tender Agent, the Remarketing Agent, the Paying Agent, the Credit Provider, if any, and the Liquidity Provider, if any.
"NRMSIR" means a nationally recognized municipal securities information repository.
"Operating and Maintenance Expenses" means all normal expenses incurred by the county in causing the System to be maintained in good repair, working order and condition and includes payments to any private or governmental agency for the operation or maintenance of facilities or for the disposal of sewage but excludes any allowance for depreciation.
"Opinion of Counsel" means a written legal opinion from a firm of attorneys experienced in the matters to be covered in the opinion.
"Outstanding," when used as of a particular time with reference to Bonds, means all Bonds delivered hereunder except:
(a) Bonds cancelled by the Registrar or surrendered to the Registrar for cancellation;
(b) Bonds paid or deemed to have been paid within the meaning of this ordinance; and
(c) Bonds in lieu of or in substitution for which replacement Bonds have been executed by the county and delivered by the Registrar hereunder.
Notwithstanding the foregoing, Liquidity Provider Bonds will remain Outstanding until the Liquidity Provider is paid all amounts due on such Bonds.
"Owner" means the registered owner of a Bond, including the Securities Depository, if any, or its nominee.
"Parity Bond Fund" means the "Water Quality Revenue Bond Account" designated pursuant to Section 30 of Ordinance 12076 of the county for the purpose of paying and securing the payment of the Parity Bonds.
"Parity Bond Reserve Account" means the bond reserve account in the Parity Bond Fund securing the payment of the Parity Bonds.
"Parity Bonds" means the bonds identified as such in the Preamble to this ordinance, together with any sewer revenue bonds that the county may hereafter issue with a lien on Revenue of the System equal to the lien thereon of those Parity Bonds. "Parity Bonds" include any Parity Payment Agreements and parity reimbursement agreements entered into with the provider of a Credit Facility securing any Parity Bonds.
"Parity Lien Obligation Bond Fund" means the Water Quality Limited Tax General Obligation Bond Redemption Fund, established pursuant to Section 8 of Ordinance 11241 of the county, to provide for payment of Parity Lien Obligations.
"Parity Lien Obligation Payment Agreement" means a Payment Agreement under which the county's payment obligations are expressly stated to constitute a charge and lien on the Revenue of the System equal in rank with the charge and lien upon such revenue securing amounts required to be paid into the Parity Lien Obligation Bond Fund to pay and secure the payment of principal of and interest on the Parity Lien Obligations.
"Parity Lien Obligations" means bonds identified as such in the Preamble to this ordinance and any bonds that the county may issue hereafter with a lien on Revenue of the System equal to the lien thereon of those Parity Lien Obligations. "Parity Lien Obligations" include any Parity Lien Obligation Payment Agreements and parity reimbursement agreements entered into with the provider of a Credit Facility securing any Parity Lien Obligations.
"Parity Payment Agreement" means a Payment Agreement under which the county's payment obligations are expressly stated to constitute a charge and lien on the Revenue of the System equal in rank with the charge and lien upon such revenue securing amounts required to be paid into the Bond Fund to pay and secure the payment of principal of and interest on the Parity Bonds.
"Participant" means each city, town, county, water-sewer district, municipal corporation, person, firm or private corporation that disposes of any portion of its sanitary sewage into the Sewer System and has entered into a Service Agreement with the county.
"Paying Agent" means the Registrar or such other or additional Paying Agent designated from time to time, pursuant to Section 8.1 of this ordinance, to pay principal of and interest on the Bonds.
"Payment Agreement" means, to the extent permitted from time to time by applicable law, a written agreement entered into by the county (i) in connection with or incidental to the issuance, incurring or carrying of bonds or other obligations of the county secured in whole or in part by a lien on Revenue of the System; (ii) for the purpose of managing or reducing the county's exposure to fluctuations or levels of interest rates, currencies or commodities or for other interest rate, investment, asset or liability management purposes; (iii) with a Qualified Counterparty; and (iv) which provides, on either a current or forward basis, for an exchange of payments determined in accordance with a formula specified therein.
"Payment Agreement Payments" means the amounts periodically required to be paid by the county to the Qualified Counterparty pursuant to a Payment Agreement. The term "Payment Agreement Payments" does not include any termination payment required to be paid with respect to a Payment Agreement.
"Payment Agreement Receipts" means the amounts periodically required to be paid by the Qualified Counterparty to the county pursuant to a Payment Agreement.
"Person" means a corporation, association, partnership, limited liability company, joint venture, trust, organization, business, individual or government or any governmental agency or political subdivision thereof.
"Principal Office" means, with respect to the Registrar, Tender Agent and Paying Agent, the designated office of the Registrar indicated in Section 11.3 of this ordinance; or such other or additional offices as may be specified to the county by the Registrar, Tender Agent or Paying Agent.
"Principal Payment Date" means any date upon which the principal amount of Bonds is due hereunder, including the Maturity Date, any Serial Maturity Date, any Redemption Date, or the date the maturity of any Bond is accelerated pursuant to the terms hereof or otherwise.
"Professional Utility Consultant" means a licensed professional engineer, a Certified Public Accountant, or other independent person(s) or firm(s) selected by the county having a favorable reputation for skill and experience with sewer systems of comparable size and character to the System in such areas as are relevant to the purposes for which they are retained.
"Public Works Trust Fund Loans" means loans to the county by the State of Washington Department of Community, Trade and Economic Development under the Public Works Trust Fund loan program pursuant to loan agreements in effect as of the date of this ordinance and any loan agreements hereafter entered into by the county under the Public Works Trust Fund loan program, the repayment obligations of which are secured by a lien on Revenue of the System equal to the lien thereon established by such loan agreements.
"Purchase Date" means (i) for a Bond in the Daily Mode or the Weekly Mode, any Business Day selected by the Beneficial Owner of said Bond pursuant to the provisions of Section 3.6 of this ordinance, and (ii) any Mandatory Purchase Date.
"Purchase Fund" means the fund by that name created in Section 3.14 of this ordinance.
"Purchase Price" means an amount equal to the principal amount of any Bonds purchased on any Purchase Date, plus accrued interest to the Purchase Date (unless the Purchase Date is an Interest Payment Date, in which case the Purchase Price will not include accrued interest, which will be paid in the normal course).
"Qualified Counterparty" means with respect to a Payment Agreement an entity (i) whose senior long term debt obligations, other senior unsecured long term obligations or claims paying ability or whose payment obligations under a Payment Agreement are guaranteed by an entity whose senior long term debt obligations, other senior unsecured long term obligations or claims paying ability are rated (at the time the Payment Agreement is entered into) at least as high as A3 by Moody's and A- by S&P, or the equivalent thereof by any successor thereto, and (ii) who is otherwise qualified to act as the other party to a Payment Agreement under any applicable laws of the State.
"Quotation Agent" means Goldman, Sachs & Co., or, if Goldman, Sachs & Co. cannot perform the duties of a Quotation Agent set forth herein, such other quotation agent as may be designated by the county.
"Rate Determination Date" means any date on which the interest rate on Bonds will be determined, which, (i) in the case of the Flexible Mode, will be the first day of an Interest Period; (ii) in the case of the Daily Mode, will be each Business Day commencing with the first day (which must be a Business Day) the Bonds become subject to the Daily Mode; (iii) in the case of the Weekly Mode, (A) initially, each Tuesday or, if Tuesday is not a Business Day, then the Business Day next succeeding such Tuesday or such other day as may be established pursuant to Section 2.6(c) of this ordinance, and (B) not later than the Business Day preceding a Conversion Date, a Substitution Date or a Mandatory Purchase Date specified in clause (viii) of the definition of Mandatory Purchase Date; (iv) in the case of the Term Rate Mode, will be a Business Day no earlier than 15 Business Days and no later than the Business Day next preceding the first day of an Interest Period, as determined by the Remarketing Agent; (v) in the case of the LIBOR Indexed Mode, will be date that is two London Business Days preceding the first day of each LIBOR Interest Period; and (vi) in the case of the Fixed Rate Mode, will be a date determined by the Remarketing Agent that will be at least one Business Day prior to the Conversion Date.
"Rate Stabilization Fund" means the fund of that name created pursuant to Section 13.D of Ordinance 12314 of the county.
"Rating Agency" means Moody's or S&P or, if either Moody's or S&P does not furnish a rating on the Bonds, then each such nationally recognized rating agency then rating the Bonds.
"Rating Confirmation Notice" means a notice from each Rating Agency confirming that the rating on the Bonds will not be lowered or withdrawn (other than a withdrawal of a short-term rating upon a change to a Long-Term Mode) as a result of the action proposed to be taken.
"Record Date" means (i) with respect to Bonds in a Short-Term Mode, the last Business Day before an Interest Payment Date; and (ii) with respect to Bonds in a Long-Term Mode, the 15th day (whether or not a Business Day) of the month next preceding each Interest Payment Date.
"Redemption Date" means the date fixed for redemption of Bonds subject to redemption in any notice of redemption given in accordance with the terms hereof.
"Redemption Price" means an amount equal to the principal of and premium, if any, and accrued interest, if any, on the Bonds to be paid on the Redemption Date.
"Registrar" means initially, the fiscal agency of the State of Washington in New York, New York, or any successor Registrar appointed pursuant to Section 8.1 of this ordinance. The Registrar's duties include (i) registering and authenticating the Bonds, maintaining the Bond Register, registering the transfer of Bonds, (ii) as Paying Agent, paying interest on and principal of the Bonds and holding any Credit Enhancement (except a Credit Enhancement combined with a Liquidity Facility), and (iii) as Tender Agent, paying the Purchase Price of tendered Bonds and holding any Liquidity Facility and any combined Credit Enhancement and Liquidity Facility.
"Reimbursement Agreement" means any reimbursement agreement, credit agreement, line of credit agreement, standby purchase agreement or other agreement, by and between the county and a Credit Provider or Liquidity Provider, as applicable.
"Remarketing Agent" means any investment banking firm appointed as provided in Section 8.2 of this ordinance, initially Goldman, Sachs & Co.
"Remarketing Agreement" means that certain Remarketing Agreement between the county and the Remarketing Agent relating to the Bonds, authorized to be entered into pursuant to Section 8.2 of this ordinance, or any similar agreement between the county and a successor Remarketing Agent, as it may be amended or supplemented from time to time in accordance with its terms.
"Remarketing Proceeds Account" means the account by that name created pursuant to Section 3.14 of this ordinance.
"Revenue Fund" means the "Water Quality Operating Account" as designated by Section 30 of Ordinance 12076 of the county.
"Revenue of the System" means all the earnings, revenues and money received by the county from or on account of the operations of the Sewer System and the income from the investment of money in the Revenue Fund or any account within such fund, but does not include (i) any money collected pursuant to the Service Agreements applicable to administrative costs of the county other than costs of administration of the System and (ii) any Debt Service Offsets.
"Rule" means the Securities and Exchange Commission's Rule 15c2under the Securities Exchange Act of 1934, as amended.
"S&P" means Standard & Poor's Ratings Services, duly organized and existing under and by virtue of the laws of the State of New York, and its successors and assigns, except that if such corporation is dissolved or liquidated or no longer performs the functions of a securities rating agency, then the term "S&P" will be deemed to refer to any other nationally recognized securities rating agency selected by the county after consultation with the Remarketing Agent, if any.
"Securities Depository" means initially DTC or such other securities depository as the county may designate in a certificate of the county delivered to the Registrar.
"Senior Lien Payments" means, for any calendar year, the sum of the following:
(1) Annual Debt Service for such year for then outstanding Parity Bonds and Parity Lien Obligations ; and
(2) any other payments described in Paragraphs Second through Fifth of Section 4.4 of this ordinance required to be made during such year.
"Serial Bonds" means the Bonds maturing on the Serial Maturity Dates, as determined pursuant to Section 2.10(b) of this ordinance.
"Serial Maturity Dates" means the dates on which the Serial Bonds mature, as determined pursuant to Section 2.10(b) of this ordinance.
"Serial Payments" means the payments to be made in payment of the principal of the Serial Bonds on the Serial Maturity Dates.
"Series 2010B Bonds" means the King County, Washington, Multi-Modal Limited Tax General Obligation Bonds (Payable from Sewer Revenue), Series 2010B, authorized to be issued simultaneously with the Bonds.
"Service Agreements" means the sewage disposal agreements entered into between the county and municipal corporations, persons, firms, private corporations, or governmental agencies providing for the disposal by the county of sewage collected from such contracting parties.
"Short-Term Mode" means the Daily Mode, the Weekly Mode or the Flexible Mode.
"SID" means a state information depository for the State of Washington, if any.
"SRF Loans" means loans to the county by the State of Washington Department of Ecology pursuant to loan agreements in effect as of the date of this ordinance and any loans and loan agreements hereafter entered into by the county under the State of Washington water pollution control revolving fund loan program, the repayment obligations of which are secured by a lien on Revenue of the System equal to the lien thereon established by such loan agreements.
"Subordinate Lien Obligations" means the Commercial Paper Notes, the Bank Note, and any revenue bonds or other revenue obligations that the county may hereafter issue with a lien on Revenue of the System equal to the lien thereon of the Commercial Paper Notes and the Bank Note.
. "Substitution Date" means the date on which an Alternate Credit Enhancement or Alternate Liquidity Facility is scheduled to be substituted for the Credit Enhancement or Liquidity Facility then in effect.
"System" or "Sewer System" means the sewers and sewage disposal facilities now or hereafter acquired, constructed, used or operated by the county for the purpose of carrying out the Comprehensive Plan.
"Tax Certificate" means the federal tax certificate with respect to certain federal tax matters executed on behalf of the county upon the issuance of each series of the Bonds.
"Tax-Benefited Bonds" means Bonds other than Tax-Exempt Bonds that are structured so as to confer certain benefits under the Code to the county or to the owners of such Bonds.
"Tax-Exempt Bonds" means Bonds the interest on which the county intends to be excludable from gross income for federal income tax purposes, as provided in Section 5.3 of this ordinance and so designated pursuant to Section 9.1 of this ordinance.
"Tender Agent" means the Registrar or such other or additional Tender Agent designated from time to time, pursuant to Section 8.1 of this ordinance, to pay the Purchase Price of tendered Bonds and hold any Liquidity Facility or combined Credit Enhancement and Liquidity Facility.
"Tender Notice" means a notice delivered by Electronic Means or in writing that states (i) the principal amount of such Bond to be purchased pursuant to Section 3.6 of this ordinance, (ii) the Purchase Date on which such Bond is to be purchased, (iii) applicable payment instructions with respect to the Bonds being tendered for purchase and (iv) an irrevocable demand for such purchase.
"Tender Notice Deadline" means (i) during the Daily Mode, 11:00 A.M. on any Business Day and (ii) during the Weekly Mode, 5:00 P.M. on the Business Day seven days prior to the applicable Purchase Date.
"Term Rate" means the per annum interest rate for the Bonds in the Term Rate Mode determined pursuant to Section 2.7(a) of this ordinance.
"Term Rate Mode" means the Interest Rate Mode during which the Bonds bear interest at the Term Rate.
"Term Rate Period" means the period from (and including) the Conversion Date or the date of initial issuance of the Bonds, as applicable, to (but excluding) the last day of the first period that the Bonds are in the Term Rate Mode as established by the county for the Bonds pursuant to Section 2.10(a)(i) of this ordinance and, thereafter, the period from (and including) the beginning date of each successive Interest Period selected for the Bonds by the county pursuant to Section 2.7(a) of this ordinance while it is in the Term Rate Mode to (but excluding) the commencement date of the next succeeding Interest Period, including another Term Rate Period. Except as otherwise provided in this ordinance, an Interest Period for the Bonds in the Term Rate Mode must be at least 180 days in length.
"Three-Month LIBOR Rate" means the rate for deposits in U.S. dollars with a three-month maturity that appears on Reuters Screen LIBOR01 Page (or such other page as may replace that page on that service, or such other service as may be nominated by the British Bankers Association for the purpose of displaying London interbank offered rates for U.S. dollar deposits) as of 11:00 A.M., London time, on the Rate Determination Date, except that, if such rate does not appear on such page on the Rate Determination Date, the Three-Month LIBOR Rate means a rate determined on the basis of the rates at which deposits in U.S. dollars for a three-month maturity and in a principal amount of at least U.S. $1,000,000 are offered at approximately 11:00 A.M., London time, on the Rate Determination Date, to prime banks in the London interbank market by four major banks in the London interbank market (herein referred to as the "Reference Banks") selected by the Quotation Agent. The Quotation Agent is to request the principal London office of each of the Reference Banks to provide a quotation of its rate. If at least two such quotations are provided, the Three-Month LIBOR Rate will be the arithmetic mean of such quotations. If fewer than two quotations are provided, the Three-Month LIBOR Rate will be the arithmetic mean of the rates quoted by three (if three quotations are not provided, two or one, as applicable) major banks in New York City, selected by the Quotation Agent, at approximately 11:00 A.M. on the Rate Determination Date for loans in U.S. dollars to leading European banks in a principal amount of at least U.S. $1,000,000 having a three-month maturity. If the banks in New York City selected by the Quotation Agent are not then quoting rates for such loans, then the Three-Month LIBOR Rate for the ensuing LIBOR Interest Period will mean the Three-Month LIBOR Rate then in effect.
"Underwriter" means Goldman, Sachs & Co.
"Unremarketed Bonds Rate" means the Maximum Rate, provided that in no event may such rate exceed the highest rate allowed by law.
"Variable Rate Mode" means the Short-Term Mode or the Term Rate Mode.
"Variable Rate Parity Bonds" and "Variable Rate Parity Lien Obligations" mean Parity Bonds and Parity Lien Obligations bearing interest at a variable rate of interest provided that at least one of the following conditions is met: (i) at the time of issuance the county has entered into a Payment Agreement with respect to such Parity Bonds or Parity Lien Obligations, as applicable, which Agreement converts the effective interest rate to the county on such bonds from a variable interest rate to a fixed interest rate, or (ii) the Parity Bonds or Parity Lien Obligations bear interest at a variable rate but are issued concurrently in equal par amounts with other Parity Bonds or Parity Lien Obligations bearing interest at a variable rate and that are required to remain outstanding in equal amounts at all times, if the net effect of such equal par amounts and variable rates at all times is a fixed rate of interest to the county.
"Weekly Mode" means the Interest Rate Mode during which the Bonds bear interest at the Weekly Rate.
"Weekly Rate" means the per annum interest rate on the Bonds in the Weekly Mode determined pursuant to Section 2.6(b) of this ordinance.
"Weekly Rate Period" means the period during which a Bond in the Weekly Mode bears a Weekly Rate, which will be the period commencing on the day following the Rate Determination Date of each week to and including the Rate Determination Date of the following week, except (i) in connection with a conversion to the Weekly Rate, in which case the first Weekly Rate Period will be from the Conversion Date to and including the Rate Determination Date of the following week, (ii) in the case of a Substitution Date or Mandatory Purchase Date specified in clause (viii) of the definition of Mandatory Purchase Date, in which case the Weekly Rate Period prior to the Substitution Date or such Mandatory Purchase Date will end on the day before the Substitution Date or such Mandatory Purchase Date and a new Weekly Rate Period will commence on the Substitution Date or such Mandatory Purchase Date and end on the Rate Determination Date of the following week and (iii) in connection with a conversion from the Weekly Mode, the last Weekly Rate Period will end on the day next preceding the Conversion Date.
SECTION 1.2. Interpretation.
(a) All references to Section numbers or Article numbers that do not specify the document to which such Section numbers or Article numbers relate will be deemed to refer to Section numbers or Article numbers in this ordinance.
(b) Whenever in this ordinance there is specified a time of day at or by which a certain action must be taken, such time will be local time in New York City, except as otherwise specifically provided in this ordinance.
(c) If the date for making any payment or the last day for the performance of any act or the exercise of any right provided in this ordinance is not a Business Day, such payment may be made or act performed or right exercised on the next succeeding Business Day with the same force and effect as if done on the nominal date provided in this ordinance, except as otherwise specifically provided herein.
ARTICLE II
AUTHORIZATION, ISSUANCE AND MODES
OF THE BONDS
SECTION 2.1. Authorization, Delivery and Registration.
(a) Authorization; Initial Mode. To finance a portion of the cost of capital projects of the System, the county will issue a series of Multi-Modal LTGO/Sewer Revenue Bonds in the aggregate principal amount of not to exceed $50,000,000 designated as the "King County, Washington, Multi-Modal Limited Tax General Obligation Bonds (Payable from Sewer Revenues), Series 2010A" (the "Bonds"). The Bonds will be dated the date of their authentication and delivery to the Underwriter and will bear interest at the applicable rate or rates during each applicable Interest Accrual Period until the entire principal amount of the Bonds has been paid.
The Bonds will be issued initially in the Weekly Mode and may be converted to another Interest Rate Mode as provided herein. The initial Weekly Rate on the Bonds will be determined on or prior to the date of issuance of the Bonds by the Underwriter as the lowest rate that in its judgment is necessary to enable the Bonds to be sold at a price equal to the principal amount thereof and will be set forth in a certificate of the Underwriter delivered at or before the date of issuance of the Bonds. Thereafter the interest rate to be applicable to the Bonds will be determined as provided in Section 2.6 of this ordinance until the Interest Rate Mode for the Bonds is changed, as provided herein.
(b) Registration Covenant; Registrar. The county covenants that, until all Bonds have been surrendered and canceled, it will maintain a system for recording the ownership of each Bond that complies with the provisions of Section 149 of the Code. In accordance with K.C.C. Chapter 4.84, the county hereby adopts for the Bonds the system of registration specified and approved by the Washington State Finance Committee, which utilizes the fiscal agency of the State of Washington in New York City as registrar, authenticating agent, paying agent and transfer agent for the Bonds (the "Registrar"). The Registrar will keep, or cause to be kept, at its corporate trust office, sufficient books for the registration and transfer of the Bonds, which will at all times be open to inspection by the county (the "Bond Register"). So long as any Bonds remain Outstanding, the Registrar will make all necessary provisions to permit the exchange or registration of transfer of Bonds at its principal corporate trust office. The Registrar is authorized, on behalf of the county, to authenticate and deliver Bonds transferred or exchanged in accordance with the provisions of the Bonds and this ordinance and to carry out all of the Registrar's powers and duties under this ordinance. The Registrar is responsible for its representations contained in the Certificate of Authentication on the Bonds.
(c) DTC as Initial Securities Depository. To induce DTC to accept the Bonds as eligible for deposit at DTC, the county has heretofore executed and delivered to DTC a Letter of Representations. The Bonds will initially be held in fully immobilized form in a Book-Entry System by DTC acting as Securities Depository. The county, the Registrar, and the Paying Agent have no responsibility or obligation to DTC Participants or the persons for whom they act as nominees with respect to the accuracy of any records maintained by DTC or any DTC Participant as to the Bonds, the payment by DTC or any DTC Participant of any amount in respect of the principal or redemption price of or interest on the Bonds, any notice that is permitted or required to be given to Owners under this ordinance (except any such notices as must be given by the county to the Registrar, the Paying Agent, or to DTC), the selection by DTC or by any DTC Participant of any person to receive payment in the event of a partial redemption of the Bonds, or any consent given or other action taken by DTC as the Owner of the Bonds.
(d) Initial Registration; Transfers. The Bonds will be registered initially in the name of "Cede & Co.," as nominee of DTC, with one Bond in a denomination corresponding to the total principal amount of the Bonds designated to mature on the Maturity Date. Purchases of the Bonds, in Authorized Denominations, may be made through brokers and dealers, who must be or act through DTC Participants. Registered ownership of such immobilized Bonds, or any portions thereof, may not thereafter be transferred except (i) to any successor Securities Depository or its nominee, provided that any such successor must be qualified under any applicable laws to provide the service proposed to be provided by it; (ii) to any substitute Securities Depository appointed by the county pursuant to subsection (e) of this Section 2.1; or (iii) to any person as provided in subsection (h) of this Section 2.1.
(e) Substitute Depository. 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 county that it is no longer in the best interests of owners of beneficial interests in the Bonds to continue the system of book-entry transfers through DTC or its successor (or any substitute depository or its successor), the county may appoint a substitute depository or terminate the use of a depository. Any such substitute depository must be qualified under any applicable laws to provide the services proposed to be provided by it.
(f) Issuance of New Bonds to Successor/Substitute Depository. In the case of any transfer pursuant to clause (i) or (ii) of subsection (d) of this Section 2.1, the Registrar will, upon receipt of all Outstanding Bonds, together with a written request on behalf of the county, issue a single new Bond registered in the name of such successor or such substitute depository, or its nominee, as the case may be, all as specified in the written request of the county.
(g) Termination of Book-Entry System. If (i) the Securities Depository resigns and no substitute Securities Depository can be obtained, or (ii) the Finance Director determines that it is in the best interests of the county or the Beneficial Owners of the Bonds that they be able to obtain bond certificates, the ownership of Bonds may then be transferred to any person or entity as herein provided, and the Bonds will no longer be held in a Book-Entry System. The county will deliver a written request to the Registrar, together with a supply of definitive Bonds, to issue Bonds as herein provided in any Authorized Denomination. Upon receipt of all then Outstanding Bonds by the Registrar, together with a written request on behalf of the county to the Registrar, new Bonds will be issued in such denominations and registered in the names of such persons as are specified in such written request.
(h) Transfer or Exchange of Certificated Bonds. If the Bonds are no longer held in a Book-Entry System, the transfer of ownership of any Bond may be registered and such Bonds may be exchanged, but no transfer of any Bond will be valid unless it is surrendered to the Registrar with the assignment form appearing on such Bond duly executed by the Owner or such Owner's duly authorized agent in a manner satisfactory to the Registrar. Upon such surrender, the Registrar will cancel the surrendered Bond and authenticate and deliver, without charge to the Owner or transferee therefor, a new Bond (or Bonds at the option of the new Owner) of the same date and Maturity Date and for the same aggregate principal amount in any Authorized Denomination, naming as Owner the person or persons listed as the assignee on the assignment form appearing on the surrendered Bond, in exchange for the surrendered and canceled Bond. Any Bond may be surrendered to the Registrar and exchanged, without charge, for an equal aggregate principal amount of Bonds of the same date and Maturity Date in any Authorized Denomination. Other than in connection with an optional or mandatory tender for purchase, the Registrar will not be obligated to transfer or exchange any Bond during the 15-day period prior to the selection of Bonds for redemption or the Maturity Date or following any publication of notice of redemption. No charge will be imposed upon Owners in connection with any transfer or exchange, except for taxes or governmental charges related thereto.
SECTION 2.2. Denominations, Method of Payment, Authentication, and Form of Bonds.
(a) Registered Ownership. The Bonds will be issued in the form of fully registered Bonds in Authorized Denominations. Except as may be specifically set forth herein, the Registrar, the Remarketing Agent, if any, and the county may treat the Owner (including the Securities Depository or its nominee, so long as the Bonds are held in the Book-Entry System) of a Bond as the absolute owner thereof for all purposes, whether or not such Bond is overdue, and the county, Registrar, and Remarketing Agent, if any, will not be affected by any knowledge or notice to the contrary; and payment of the principal of and premium, if any, and interest on such Bond will be made only to such Owner, which payments will be valid and effectual to satisfy and discharge the liability of such Bond to the extent of the sum or sums so paid. All Bonds at maturity or on earlier redemption paid pursuant to the provisions of this Section will be cancelled by the Registrar.
(b) Method of Payment of Bonds. The principal of and premium, if any, and interest on the Bonds are payable in lawful money of the United States of America. Unless otherwise provided in any writing with or from the Securities Depository, the interest on the Bonds will be paid by the Paying Agent on the Interest Payment Dates by wire transfer of immediately available funds to an account specified by the Owner in a writing delivered to the Paying Agent. Any such specified account will remain in effect until revised by such Owner by an instrument in writing delivered to the Paying Agent. The principal of and premium, if any, on each Bond is payable on the Principal Payment Date, upon surrender thereof at the Principal Office of the Paying Agent.
(c) Form of Bonds; Execution. The Bonds will be in substantially the form set forth on Attachment A to this ordinance, with appropriate or necessary insertions, depending upon the omissions and variations as permitted or required hereby. If the Bonds are no longer held in a Book-Entry System, the form of the Bonds will be changed to reflect the changes required in connection with the preparation of certificated Bonds.
The Bonds will be executed on behalf of the county by the manual or facsimile signatures of the county executive and the clerk of the county council, and the official seal of the county will be reproduced thereon. The validity of any Bond so executed will not be affected by the fact that one or more of the officers whose signatures appear on such Bond have ceased to hold office at the time of issuance or authentication or at any time thereafter.
(d) Authentication. No Bond will be valid for any purpose hereunder until the certificate of authentication printed on the Bond is manually signed by an authorized signatory of the Registrar. Such authentication will be proof that the Owner is entitled to the benefit of the trusts hereby created.
(e) Lost, Mutilated or Destroyed Bonds. If any Bond is mutilated, the Registrar will authenticate and deliver a new Bond of like series, amount, date, interest rate and tenor in exchange and substitution for the Bond so mutilated, upon the owner's paying the expenses and charges of the county and the Registrar in connection therewith and upon surrender to the Registrar of the Bond so mutilated. Every mutilated Bond so surrendered will be canceled and destroyed by the Registrar.
In case the Bonds or any of them are lost, stolen or destroyed, the Registrar will authenticate and deliver a new Bond or Bonds of like series, amount, date, and tenor to the Registered Owner thereof upon the owner's paying the expenses and charges of the county and the Registrar in connection therewith and upon his/her filing with the Registrar evidence satisfactory to the Registrar that such Bond or Bonds were actually lost, stolen or destroyed and of his/her ownership thereof, and upon furnishing the county and Registrar with indemnity satisfactory to the Finance Director and the Registrar.
SECTION 2.3. Payment of Principal of and Interest on Bonds; Acceptance of Terms and Conditions.
(a) The interest on the Bonds will become due and payable on the Interest Payment Dates in each year to and including the Maturity Date, and on each Redemption Date. The principal of the Bonds will become due and payable on the Principal Payment Dates. (b) By the acceptance of its Bond, the Owner and each Beneficial Owner thereof will be deemed to have agreed to all the terms and provisions of such Bond as specified in such Bond and this ordinance including, without limitation, the applicable Interest Periods, interest rates (including any applicable Alternate Rate), Purchase Dates, Mandatory Purchase Dates, Purchase Prices, mandatory and optional purchase and redemption provisions applicable to the Bond, method and timing of purchase, redemption, payment, etc. That Owner and each Beneficial Owner further agree that if, on any date upon which one of its Bonds is to be purchased, redeemed or paid at maturity or earlier due date, funds are on deposit with the Paying Agent or the Registrar to pay the full amount due on the Bond, then such Owner or Beneficial Owner will have no rights under this ordinance other than to receive the full amount due with respect to that Bond and that interest on that Bond will cease to accrue as of such date.
(c) While any Bonds are Liquidity Provider Bonds, those Bonds will bear interest and be payable at the times and in the amounts required under the Liquidity Facility.
SECTION 2.4. Calculation and Payment of Interest; Change in Interest Rate Mode; Maximum Rate.
(a) When a Short-Term Mode or a LIBOR Indexed Mode is in effect, interest will be calculated on the basis of a 365/366-day year for the actual number of days elapsed. When a Term Rate Mode or Fixed Rate Mode is in effect, interest will be calculated on the basis of a 360-day year comprised of twelve 30-day months. Payment of interest on each Bond will be made on each Interest Payment Date for such Bond for unpaid interest accrued during the Interest Accrual Period to the Owner of record of such Bond on the applicable Record Date.
(b) Bonds in any Interest Rate Mode, other than a Fixed Rate Mode, may be changed to any other Interest Rate Mode at the times and in the manner hereinafter provided. Subsequent to such change in Interest Rate Mode (other than a change to a Fixed Rate Mode), the Bonds may again be changed to a different Interest Rate Mode at the times and in the manner hereinafter provided. A Fixed Rate Mode will be in effect until the Maturity Date and may not be changed to any other Interest Rate Mode.
(c) No Bonds will bear interest at an interest rate higher than the Maximum Rate.
(d) In the absence of manifest error, the determination of interest rates (including any determination of rates in connection with a New Mode) and interest periods by the Remarketing Agent and the record of interest rates maintained by the Paying Agent will be conclusive and binding upon the Remarketing Agent, the Paying Agent, the Registrar, the county, the Owners and the Beneficial Owners.
SECTION 2.5. Determination of Flexible Rates and Interest Periods During Flexible Mode. An Interest Period for the Bonds in the Flexible Mode will last from one to 270 calendar days, ending on a day preceding a Business Day or the Maturity Date, as the Remarketing Agent will determine in accordance with the provisions of this Section. A Flexible Rate Bond can have an Interest Period, and bear interest at a Flexible Rate, different from another Flexible Rate Bond. In making the determinations with respect to Interest Periods, subject to limitations imposed by the second preceding sentence and in Section 2.4 of this ordinance, on each Rate Determination Date for a Flexible Rate Bond, the Remarketing Agent will select for such Bond the Interest Period that would result in the Remarketing Agent's being able to remarket such Bond at par in the secondary market at the lowest average interest cost for all Flexible Rate Bonds; provided, however, that if the Remarketing Agent has received notice from the county that the Bonds are to be changed from the Flexible Mode to any other Interest Rate Mode, the Remarketing Agent must select Interest Periods that do not extend beyond the resulting applicable Mandatory Purchase Date of the Bonds.
Except while the Bonds are registered in a Book-Entry System, to receive payment of the Purchase Price the Owner of any Bond in the Flexible Mode must present such Bond to the Paying Agent by 12:00 noon on the Rate Determination Date, in which case, the Paying Agent will pay the Purchase Price to such Owner by 3:00 P.M. on the same day.
By 1:00 P.M. on each Rate Determination Date, the Remarketing Agent, with respect to each Bond in the Flexible Mode that is subject to adjustment on such date, will determine the Flexible Rate(s) for the Interest Periods then selected for such Bond and will give notice by Electronic Means to the Paying Agent and the county of the Interest Periods, the Purchase Date(s) and the Flexible Rate(s). The Remarketing Agent will make the Flexible Rate and Interest Period available after 2:00 P.M. on each Rate Determination Date by Electronic Means to any Beneficial Owner or Notice Party requesting such information.
SECTION 2.6. Determination of Interest Rates During the Daily Mode and the Weekly Mode. The interest rate for the Bonds in the Daily Mode or Weekly Mode will be the rate of interest per annum determined by the Remarketing Agent on and as of the applicable Rate Determination Date as the minimum rate of interest that, in the opinion of the Remarketing Agent under then-existing market conditions, would result in the sale of the Bonds in the Daily Rate Period or Weekly Rate Period, as applicable, at a price equal to the principal amount thereof, plus interest, if any, accrued through the Rate Determination Date during the then current Interest Accrual Period.
(a) During the Daily Mode, the Remarketing Agent will establish the Daily Rate by 10:00 A.M. on each Rate Determination Date. The Daily Rate for any day during the Daily Mode that is not a Business Day will be the Daily Rate established on the immediately preceding Rate Determination Date. The Remarketing Agent will make the Daily Rate available no less frequently than once each week by Electronic Means to each Notice Party requesting such rate.
(b) During the Weekly Mode, the Remarketing Agent will establish the Weekly Rate by 4:00 P.M. on each Rate Determination Date. The Weekly Rate will be in effect during the applicable Weekly Rate Period. The Remarketing Agent will make the Weekly Rate available no later than 5:00 P.M. on the Business Day following the Rate Determination Date by Electronic Means to each Notice Party requesting such rate.
(c) During the Weekly Mode, if permitted by the applicable Remarketing Agreement, the county may change the day of the week specified in clause (iii) (A) of the definition of "Rate Determination Date" for the Bonds, subject to the approval of the Remarketing Agent. The Remarketing Agent must give 30 days' notice of any such change to the Notice Parties.
SECTION 2.7. Determination of Term Rates and Fixed Rates.
(a) Term Rates. Except as provided in Section 2.8 of this ordinance, once the Bonds are changed to the Term Rate Mode, the Bonds will continue in the Term Rate Mode until changed to another Interest Rate Mode in accordance with Section 2.10 of this ordinance. The Term Rate will be determined by the Remarketing Agent not later than 4:00 P.M. on the Rate Determination Date, and the Remarketing Agent will make the Term Rate available by Electronic Means to any Notice Party requesting such rate. The Term Rate will be the minimum rate that, in the sole judgment of the Remarketing Agent, would result in a sale of the Bonds at a price equal to the principal amount thereof on the Rate Determination Date for the Interest Period selected by the county in writing delivered to the Remarketing Agent before such Rate Determination Date. If a new Interest Period is not selected by the county prior to a Rate Determination Date, the new Interest Period will be the same length as the current Interest Period (or such lesser period as may be necessary to comply with the last sentence of this paragraph). The Remarketing Agent will make the Term Rate available by Electronic Means after 5:00 P.M. on the Rate Determination Date to any Notice Party requesting such Term Rate. Upon request of any Notice Party, the Paying Agent will give notice of such rate by Electronic Means. No Interest Period in the Term Rate Mode may extend beyond the applicable Maturity Date.
(b) Fixed Rates. The Remarketing Agent will determine the Fixed Rate for the Bonds being converted to the Fixed Rate Mode in the manner and at the times as follows: not later than 4:00 P.M. on the applicable Rate Determination Date, the Remarketing Agent will determine the Fixed Rate (or Rates, if the Bonds will have Serial Maturity Dates in accordance with Section 2.10(b)(v) of this ordinance). Except as set forth in Section 2.10(b)(v) of this ordinance, the Fixed Rate will be the minimum interest rate that, in the sole judgment of the Remarketing Agent, will result in a sale of the Bonds at a price equal to the principal amount thereof on the Rate Determination Date. The Remarketing Agent will make the Fixed Rate available by Electronic Means after 5:00 P.M. on the Rate Determination Date to any Notice Party requesting such Fixed Rate. Upon request of any Notice Party the Paying Agent will give notice of such rate by Electronic Means. Subject to Section 2.10(b)(v) of this ordinance, the Fixed Rate so established will remain in effect until the Maturity Date of such Bonds.
SECTION 2.8. Alternate Rates. The following provisions will apply in the event (i) the Remarketing Agent fails or is unable to determine the interest rate or Interest Period for the Bonds other than when the Bonds are in the LIBOR Indexed Mode, (ii) the method by which the Remarketing Agent determines the interest rate or Interest Period with respect to the Bonds (or the selection by the county of the Interest Periods for Bonds in the Term Rate Mode) is held to be unenforceable by a court of law of competent jurisdiction or (iii) if the Remarketing Agent suspends its remarketing effort in accordance with the Remarketing Agreement. These provisions will continue to apply until such time as the Remarketing Agent (or the county if applicable) again makes such determinations. In the case of clause (ii) above, the Remarketing Agent (or the county, if applicable) will again make such determination at such time as there is delivered to the Remarketing Agent and the county an opinion of Bond Counsel to the effect that there are no longer any legal prohibitions against such determinations. The following are the methods by which the interest rates and, in the case of the Flexible and Term Rate Modes, the Interest Periods, will be determined for the Bonds as to which any of the events described in clauses (i), (ii) or (iii) are applicable. Such methods will be applicable from and after the date any of the events described in clauses (i), (ii) or (iii) first apply to the Bonds until such time as the events described in clauses (i), (ii) or (iii) no longer apply to the Bonds. These provisions will not apply if the county fails to select an Interest Period for the Bonds in the Term Rate Mode for a reason other than as described in clause (ii) above.
(a) For Flexible Rate Bonds, the next Interest Period will be from, and including, the first day following the last day of the current Interest Period for the Bonds to, but excluding, the next succeeding Business Day, and thereafter will commence on each Business Day and extend to, but exclude, the next succeeding Business Day. For each such Interest Period, the interest rate for the Bonds will be the applicable Alternate Rate in effect on the Business Day that begins an Interest Period.
(b) If the Bonds are in the Daily Mode or the Weekly Mode, then the Bonds will bear interest during each subsequent Interest Period at the Alternate Rate in effect on the first day of such Interest Period.
If the Bonds are then in the Term Rate Mode, then the Bonds will automatically convert to Flexible Rate Bonds, with an Interest Period commencing on the first day following the last day of the current Interest Period for the Bonds to, but excluding, the next succeeding Business Day and thereafter will commence on each Business Day and extend to, but exclude, the next succeeding Business Day. For each such Interest Period, the interest rate for the Bonds will be the applicable Alternate Rate in effect at the beginning of each such Interest Period.
SECTION 2.9. Determination of LIBOR Index Rates. During each LIBOR Interest Period, the Bonds will bear interest at the LIBOR Index Rate, which will be the rate of interest per annum determined by the Registrar on the Rate Determination Date to be the sum of (a) 67% of the Three-Month LIBOR Rate and (b) a rate per annum determined on or before the Conversion Date by the Remarketing Agent, in its sole discretion based on market conditions at the time such rate is determined, which, when added to the rate calculated pursuant to clause (a) results in a LIBOR Index Rate necessary to sell the Bonds at 100% of the principal amount on the Conversion Date. The LIBOR Index Rate will be rounded upward or downward to the fifth decimal place and the LIBOR Index Rate may not exceed the Maximum Rate. Upon the request of the Owner or Beneficial Owner of any Bond, the Registrar will provide the LIBOR Index Rate then in effect and, if determined, the LIBOR Index Rate that will become effective for the next LIBOR Interest Period. The Registrar's determination of any LIBOR Index Rate, and its calculation of the amount of interest for any LIBOR Interest Period, will be final and binding in the absence of manifest error.
SECTION 2.10. Changes in Interest Rate Mode. Subject to the provisions of this Section, the county may effect a change in Interest Rate Mode with respect to the Bonds by following the procedures set forth in this Section. If a change in Interest Rate Mode will make the Bonds subject to Rule 15c2-12 promulgated under the Securities Exchange Act of 1|10 13|34, as amended, it will be a condition to the conversion that the county execute a continuing disclosure undertaking satisfying the requirements of such Rule and cooperate with the Remarketing Agent, if any, and any Underwriter (as defined in such Rule) in satisfying the requirements of such Rule.
(a) Changes to Interest Rate Modes Other Than to Fixed Rate Mode. All or a portion of the Bonds (other than Bonds in the Fixed Rate Mode) may be changed from one Interest Rate Mode to another Interest Rate Mode (other than the Fixed Rate Mode) as follows:
(i) Conversion Notice; Notice to Owners. No later than a Business Day that is at least seven Business Days prior to the date on which the Registrar is required to notify the registered owners (or such shorter time as may be agreed to by the county, the Registrar and the Remarketing Agent) preceding the proposed Conversion Date, the county must give written notice to the Notice Parties of its intention to change the Interest Rate Mode from the Interest Rate Mode then prevailing (for purposes of this Section, the "Current Mode") to another Interest Rate Mode (for purposes of this Section, the "New Mode") specified in such written notice, and, if the change is to a Term Rate Mode, the length of the initial Interest Period as set by the county. Such notice must be accompanied by a Favorable Opinion of Bond Counsel. In the case of a change to a Term Rate Mode or from one Term Rate Mode to another Term Rate Mode, such notice to the Notice Parties must also state whether a Liquidity Facility or Credit Enhancement will be in effect with respect to the Bonds following such change and the identity of any provider of a Liquidity Facility or Credit Enhancement. Notice of the proposed change in Interest Rate Mode must be given by the Registrar to the Owners of the Bonds not later than the 20th day next preceding the Conversion Date; provided, however, that no notice need be given for a Conversion Date occurring on the first Business Day following the last day of a Flexible Rate Period or Term Rate Mode or on a Substitution Date. Such notice must state: (1) the Interest Rate Mode to which the conversion will be made and the Conversion Date; (2) in the case of a change from any Interest Rate Mode that the Bonds will be subject to mandatory purchase on the Conversion Date (regardless of whether all of the conditions to the change in the Interest Rate Mode are satisfied) and the Purchase Price of the Bonds; and (3) if the Book-Entry System is no longer in effect, information with respect to required delivery of bond certificates and payment of Purchase Price.
(ii) Determination of Interest Rates. The New Mode will commence on the Conversion Date and the interest rate(s) (together, in the case of a change to the Flexible Mode, with the Interest Period(s)) will be determined by the Remarketing Agent (or the county in the case of the Interest Period for the Bonds converted to the Term Rate Mode) in the manner provided in Sections 2.5, 2.6 and 2.7 of this ordinance, as applicable. Such determination will be conclusive and binding upon the county, the Registrar, and the Owners of the Bonds to which such rate will be applicable.
(iii) Conditions Precedent:
(A) The Conversion Date will be:
(1) in the case of a change from the Flexible Mode to another Interest Rate Mode, the next Mandatory Purchase Date for all of the Flexible Rate Bonds;
(2) in the case of a change from the Daily or Weekly Mode to another Interest Rate Mode (other than to the Daily or Weekly Mode), any Interest Payment Date, and in the case of a change from the Daily or Weekly Mode to the Daily or Weekly Mode, any Business Day; and
(3) in the case of a change from the Term Rate Mode to another Interest Rate Mode, or from a Term Rate Period to a Term Rate Period of a different duration, or from a LIBOR Indexed Mode to another Interest Rate Mode, the Conversion Date will be limited to any Interest Payment Date on which the Bonds are subject to optional redemption or to the last Interest Payment Date of the current Term Rate Period, as the case may be. Such Bonds will be purchased on such Conversion Date at a Purchase Price equal to 100% of the principal amount thereof, provided that if such Bonds would otherwise be subject to optional redemption on such Conversion Date at a Redemption Price of more than 100% of the principal amount thereof, such Bonds will be purchased at a Purchase Price equal to such Redemption Price.
(B) If the Bonds to be converted are in the Flexible Mode, no Interest Period set after delivery by the county to the Remarketing Agent of the notice of the intention to change the Interest Rate Mode will extend beyond the day preceding the proposed Conversion Date.
(C) The following items must be delivered to the Registrar, the Tender Agent, and the Remarketing Agent, if any, on or prior to each Conversion Date:
(1) a Favorable Opinion of Bond Counsel dated the Conversion Date and addressed to the Notice Parties;
(2) if there is to be a Liquidity Facility or an Alternate Liquidity Facility or a Credit Enhancement or an Alternate Credit Enhancement delivered in connection with such change, the items required by Section 3.13(d) of this ordinance; and
(3) a Rating Confirmation Notice, or if the Conversion Date is a Mandatory Purchase Date, a notice from the Rating Agencies of the rating(s) to be assigned the Bonds on such Conversion Date.
(D) It is a condition to the conversion of the Bonds from the LIBOR Indexed Mode that all Bonds being converted be remarketed on the Conversion Date.
(b) Change to Fixed Rate Mode. At the option of the county, all or any portion of the Bonds bearing interest at a Daily Rate, a Weekly Rate or a Flexible Rate (in an amount that is an Authorized Denomination for the new Rate Period) may be changed to the Fixed Rate Mode, as provided in this Section 2.10(b). On any Business Day that is at least seven Business Days prior to the date on which the Registrar is required to notify the registered owners (or such shorter time as may be agreed to by the county, the Registrar and the Remarketing Agent, but in any event not less than the 20th day next preceding the Conversion Date) before the proposed Conversion Date, the county will give written notice to the Notice Parties stating that the Interest Rate Mode will be changed to the Fixed Rate Mode and setting forth the proposed Conversion Date. Such notice will also state whether or not there will be Credit Enhancement with respect to the Bonds following such change and, if so, the identity of the Credit Provider. In addition, such notice will state whether some or all of the Bonds to be converted will be converted to Serial Bonds and, if so, the applicable Serial Maturity Dates and Serial Payments, all as determined pursuant to subsection (v) of this subsection (b). Such notice must be accompanied by a Favorable Opinion of Bond Counsel. Any such change in Interest Rate Mode will be made as follows:
(i) Conversion Date. The Conversion Date will be:
(A) in the case of a change from the Flexible Mode, the next Mandatory Purchase Date for the Flexible Rate Bonds;
(B) in the case of a change from the Daily or Weekly Mode, any Interest Payment Date; and
(C) in the case of a change from the Term Rate Mode or the LIBOR Indexed Mode, the Conversion Date will be limited to any Interest Payment Date on which the Bonds are subject to optional redemption or to the next Mandatory Purchase Date for the Term Rate Bonds, as the case may be. Such Bonds will be purchased on such Conversion Date at a Purchase Price equal to 100% of the principal amount thereof; provided, however, that if such Bonds would otherwise be subject to optional redemption on such Conversion Date at a Redemption Price of more than 100% of the principal amount thereof, such Bonds will be purchased at a Purchase Price equal to that Redemption Price.
(ii) Notice to Owners. Not later than the 20th day next preceding the Conversion Date, the Registrar will mail, in the name of the county, a notice of such proposed change to the Owners of the Bonds stating that the Interest Rate Mode will be changed to the Fixed Rate Mode and the proposed Conversion Date. Such notice must also state that such Owner is required to tender such Owner's Bonds for purchase on such proposed Conversion Date regardless of whether all of the conditions to the change to the Fixed Rate Mode are satisfied.
(iii) General Provisions Applying to Change to Fixed Rate Mode. The change to the Fixed Rate Mode will not occur unless the following items are delivered to the county, the Registrar, the Tender Agent, the Credit Provider, if any, and the Remarketing Agent, if any, on or prior to the Conversion Date:
(A) a Favorable Opinion of Bond Counsel dated the Conversion Date and addressed to the county, the Registrar and the Remarketing Agent, if any;
(B) if there is to be Credit Enhancement delivered in connection with the change, the items required by Section 3.13(d) of this ordinance in connection with the delivery of an Alternate Credit Enhancement, and
(C) notice from the Rating Agencies of the rating(s) to be assigned the Bonds on such Conversion Date.
(iv) Determination of Interest Rate. The Fixed Rate (or rates in the case of Serial Bonds) for the Bonds to be converted to the Fixed Rate Mode will be established by the Remarketing Agent on the Rate Determination Date applicable thereto pursuant to the provisions of Section 2.7(b) of this ordinance. Such Rate will remain in effect until the Maturity Date of the Bonds.
Such determination will be conclusive and binding upon the county, the Registrar, the Credit Provider, if any, and the Owners of the Bonds to which such rate will apply. Not later than 5:00 P.M. on the date of determination of the Fixed Rate, the Remarketing Agent will provide notice of such rate to the Registrar by Electronic Means and to the Credit Provider and the county by telephone.
(v) Serialization and Sinking Fund; Price. Upon conversion of the Bonds to the Fixed Rate Mode, the Bonds will be remarketed at par, will mature on the same Maturity Date(s) and be subject to the same mandatory sinking fund redemption, if any, and special redemption provisions, if any, as set forth in this ordinance for any prior Interest Rate Mode; provided, however, that if the county delivers to the Registrar a Favorable Opinion of Bond Counsel, the county may elect to (1) have some of the Bonds be Serial Bonds and some subject to sinking fund redemption even if such Bonds were not Serial Bonds or subject to mandatory sinking fund redemption prior to such change, (2) change the optional redemption dates or premiums set forth in Section 3.3(b) of this ordinance, and (3) sell some or all of the Bonds at a premium or a discount to par.
(c) Failure to Satisfy Conditions Precedent to an Interest Rate Conversion. In the event the conditions described above in subsections (a) or (b) of this Section 2.10, as applicable, have not been satisfied by the applicable Conversion Date, then the New Mode will not take effect (although, except in the case of a failed conversion from the LIBOR Indexed Mode, any mandatory purchase will be made on such date if notice has been sent to the Owners stating that such Bonds would be subject to mandatory purchase on such date). If the failed change in Interest Rate Mode was from the Flexible Mode, the Bonds will remain in the Flexible Mode with interest rates and Interest Periods to be established by the Remarketing Agent on the failed Conversion Date in accordance with Section 2.5 of this ordinance. If the failed change in Interest Rate Mode was from the Daily Mode, the Bonds will remain in the Daily Mode, and if the failed change in Interest Rate Mode was from the Weekly Mode, the Bonds will remain in the Weekly Mode, in each case with interest rates established in accordance with the applicable provisions of Section 2.6 of this ordinance on and as of the failed Conversion Date. If the failed change in Interest Rate Mode was from the Term Rate Mode, then the Bonds will stay in the Term Rate Mode for an Interest Period ending on the following Interest Payment Date for the Bonds in the Term Rate Mode, and the interest rate will be established by the Remarketing Agent on the failed Conversion Date in accordance with Section 2.7(a) of this ordinance. If the failed change in Interest Rate Mode was from the LIBOR Indexed Mode, then the Bonds will not be subject to mandatory tender, and the Bonds will remain in the LIBOR Indexed Mode, with interest rates established in accordance with the applicable provisions of Section 2.10 of this ordinance on and as of the failed Conversion Date.
(d) Rescission of Election. Notwithstanding anything herein to the contrary, the county may rescind any election by it to change an Interest Rate Mode as described above prior to the Conversion Date by giving written notice thereof to the Notice Parties prior to 10:00 A.M. on the Business Day preceding such Conversion Date. If the Registrar receives notice of such rescission prior to the time the Registrar has given notice to the Owners of the Bonds, then such notice of change in Interest Rate Mode will be of no force and effect. If the Registrar receives notice from the county of rescission of an Interest Rate Mode change after the Registrar has given notice thereof to the Owners of the Bonds, then if the proposed Conversion Date would have been a Mandatory Purchase Date, such date will continue to be a Mandatory Purchase Date except if the conversion is from the LIBOR Indexed Mode. If the proposed change in Interest Rate Mode was from the Flexible Mode, the Bonds will remain in the Flexible Mode with interest rates and Interest Periods to be established by the Remarketing Agent on the proposed Conversion Date in accordance with Section 2.5 of this ordinance. If the proposed change in Interest Rate Mode was from the Daily Mode, the Bonds will remain in the Daily Mode, and if the proposed change in Interest Rate Mode was from the Weekly Mode, the Bonds will remain in the Weekly Mode, in each case with interest rates established in accordance with the applicable provisions of Section 2.6 of this ordinance on and as of the proposed Conversion Date. If the proposed change in Interest Rate Mode was from the Term Rate Mode, then the Bonds will stay in the Term Rate Mode for an Interest Period ending on the following Interest Payment Date for the Bonds in the Term Rate Mode, and the interest rate will be established by the Remarketing Agent on the proposed Conversion Date in accordance with Section 2.7(a) of this ordinance. If the Remarketing Agent is unable to determine the interest rate on the proposed Conversion Date, the provisions of Section 2.8 of this ordinance will apply in effect at the beginning of each such Interest Period. If the proposed change in Interest Rate Mode was from the LIBOR Indexed Mode, the Bonds will remain in the LIBOR Indexed Mode, with interest rates established in accordance with the applicable provisions of Section 2.10 of this ordinance on and as of the proposed Conversion Date.
ARTICLE III
REDEMPTION AND PURCHASE OF
BONDS BEFORE MATURITY
SECTION 3.1. Optional Redemption of Flexible Rate Bonds. Bonds in the Flexible Mode are not subject to optional redemption prior to their respective Purchase Dates. Bonds in the Flexible Mode will be subject to redemption at the option of the county in whole or in part on their respective Purchase Dates at a redemption price equal to the principal amount thereof.
SECTION 3.2. Optional Redemption of Bonds in the Daily Mode or the Weekly Mode. Bonds in the Daily Mode or the Weekly Mode are subject to optional redemption by the county, in whole or in part (and if in part, with any Liquidity Provider Bonds redeemed first), in Authorized Denominations on any Business Day, at a redemption price equal to the principal amount thereof, plus, accrued interest, if any, to the Redemption Date. Liquidity Provider Bonds will be redeemed in accordance with the applicable Reimbursement Agreement. So long as a Credit Enhancement is in effect for Bonds in the Daily Mode or Weekly Mode, no optional redemption of such Bonds will be permitted without (i) the prior written consent of the Credit Provider or (ii) the deposit by the county with the Registrar on or prior to the Redemption Date of funds sufficient to reimburse the Credit Provider for the draw on the Credit Enhancement to pay the Redemption Price for such Bonds.
SECTION 3.3. Optional Redemption of Bonds in the Term Rate or the Fixed Rate Mode.
(a) Bonds in a Term Rate Mode will be subject to redemption, in whole or in part, on their individual Mandatory Purchase Dates, at the option of the county at a redemption price equal to the principal amount thereof.
(b) The county, in connection with a change to a Long-Term Mode, may establish the redemption provisions for any such Bonds so changed to a Long-Term Mode at any time without premium; provided that notice describing such provisions will be submitted to the Paying Agent, the Registrar and the Remarketing Agent, together with a Favorable Opinion of Bond Counsel, addressed to them.
SECTION 3.4. Optional Redemption of Bonds in the LIBOR Indexed Mode. Bonds in the LIBOR Indexed Mode are subject to redemption prior to their stated maturity, at the option of the county, in whole or in part, in such amounts as may be specified by the county on any Interest Payment Date on and after the fifth anniversary of the first day of the LIBOR Indexed Mode.
SECTION 3.5. Notice and Effect of Redemption.
(a) Timing of Notice. The county will give the Registrar sufficient notice of any redemption of Bonds to permit the Registrar to give notice to the Securities Depository at least 30 days prior to the proposed Redemption Date for Bonds in any Long-Term Mode and at least 15 days prior to the proposed Redemption Date for Bonds in any Short-Term Mode. For so long as the Book-Entry System is in effect, notice of any redemption will be provided in accordance with the operational arrangements of the Securities Depository referred to in the Letter of Representations, and, except as provided in an undertaking to provide continuing disclosure under the Rule, the county will provide no additional published or other notice. If the Bonds are not held in a Book-Entry System, the Registrar will give written notice of any redemption of Bonds by first class mail, postage prepaid, not less than 30 days (for Bonds in any Long-Term Mode) or not less than 15 days (for Bonds in any Short-Term Mode) nor more than 60 days before the proposed Redemption Date to the registered owners of Bonds that are to be redeemed at their last addresses shown on the Bond Register.
(b) Contents of Notice. Each notice of redemption will state: (1) the Redemption Date, (2) the Redemption Price, (3) the CUSIP numbers of the Bonds being redeemed, (4) if less than all outstanding Bonds are to be redeemed, identification information and principal amounts of the Bonds to be redeemed, (5) the dated date of the Bonds, (6) the rate of interest for each Bond being redeemed, (7) that the Bonds are to be surrendered for payment at the principal office of the Registrar, (8) any condition to the redemption, (9) that on the Redemption Date, upon the satisfaction of any such condition, the Redemption Price will become due and payable upon each Bond or portion called for redemption and interest will cease to accrue from the Redemption Date, (10) the date of the notice, and (11) any other information needed to identify the Bonds being redeemed. The requirements of this Section will be deemed complied with when notice is mailed, whether or not it is actually received by the owner.
(c) Notice of Redemption on Mandatory Purchase Date. Notwithstanding anything herein to the contrary, no notice of redemption is required to be given for a redemption occurring on a Mandatory Purchase Date.
(d) Effect of Redemption. Unless any condition for redemption has not been satisfied, the county will provide funds to the Registrar that, in addition to other money, if any, held by the Registrar, will be sufficient to redeem on the Redemption Date all Bonds to be redeemed. From the Redemption Date, interest on all such paid and redeemed Bonds will cease to accrue.
SECTION 3.6. Optional Tenders of Bonds in the Daily Mode or the Weekly Mode. Subject to Section 3.11 of this ordinance, the Beneficial Owners of Bonds in a Daily Mode or a Weekly Mode may elect to have their Bonds (or portions of those Bonds in amounts equal to an Authorized Denomination) purchased on any Business Day at a price equal to the Purchase Price, upon delivery of a Tender Notice to the Tender Agent by the Tender Notice Deadline. Immediately upon receipt of a Tender Notice, the Tender Agent will notify the Remarketing Agent and provide the Remarketing Agent with a copy of the Tender Notice.
SECTION 3.7. Mandatory Purchase on Mandatory Purchase Date. The Bonds are subject to mandatory purchase on each Mandatory Purchase Date. The Registrar will give notice of the mandatory purchase by mail to the Owners of the Bonds subject to mandatory purchase no fewer than 20 days prior to the Mandatory Purchase Date described in clauses (iii), (iv), (v), (vi) and (viii) of the definition of Mandatory Purchase Date and no fewer than 3 days prior to the Mandatory Purchase Date described in clause (vii) of the definition of Mandatory Purchase Date. No notice will be given of the Mandatory Purchase Date at the end of each Interest Period for Flexible Rate Bonds or at the end of Term Rate Period for Bonds in the Term Rate Mode. Any notice will state the Mandatory Purchase Date, the Purchase Price, the numbers of the Bonds to be purchased if less than all of the Bonds owned by such Owner are to be purchased, and that interest on Bonds subject to mandatory purchase will cease to accrue from and after the Mandatory Purchase Date. The failure to mail such notice with respect to any Bond will not affect the validity of the mandatory purchase of any other Bond with respect to which notice was so mailed. Any notice mailed will be conclusively presumed to have been given, whether or not actually received by any Owner or Beneficial Owner. The Registrar will also give a copy of such notice to the Rating Agencies.
SECTION 3.8. Remarketing of Bonds; Notices.
(a) Remarketing of Bonds. The Remarketing Agent will use its best efforts, in accordance with the terms and conditions of the Remarketing Agreement, to offer for sale at par up to the Maximum Rate:
(i) all Bonds or portions thereof as to which notice of tender pursuant to Section 3.6 of this ordinance has been given;
(ii) all Bonds required to be purchased on a Mandatory Purchase Date described in clauses (i), (ii), (iii), (iv), (v), (vii) or (viii) of the definition thereof;
(iii) any Liquidity Provider Bonds (A) purchased on a Purchase Date described in clause (i) or (ii) above, (B) with respect to which the Liquidity Provider has provided notice to the Tender Agent, Registrar and Remarketing Agent that it has reinstated the Available Amount, (C) with respect to which an Alternate Liquidity Facility and Alternate Credit Enhancement is in effect (if such bonds were secured by a Credit Enhancement prior to becoming Liquidity Provider Bonds, which Credit Enhancement is no longer in effect), or (D) that are being marketed as Fixed Rate Bonds; and
(iv) any County Bonds; provided, however, that the Remarketing Agent will not remarket Bonds held by or for the account of the county, or any affiliate of the county without a Favorable Opinion of Bond Counsel addressed to the county, the Registrar, the Tender Agent and the Remarketing Agent. In connection with the remarketing of any Bonds with respect to which notice of redemption or notice of mandatory purchase has been given, the Remarketing Agent will notify each person to which such Bonds are remarketed of such notice of redemption or notice of mandatory purchase.
(b) Notice of Remarketing; Registration Instructions; New Bonds. On each date on which a Bond is to be purchased:
(i) the Remarketing Agent will notify the Tender Agent by Electronic Means by 11:30 A.M. of the principal amount of tendered Bonds it has remarketed;
(ii) unless the Remarketing Agent has delivered the notice described in clause (i) above, the Remarketing Agent will notify the Tender Agent by Electronic Means not later than 1:00 P.M. of such information as may be necessary to register and deliver Bonds remarketed with respect thereto;
(iii) the Remarketing Agent will cause the proceeds of its remarketing of tendered Bonds to be paid to the Tender Agent in immediately available funds not later than 11:45 A.M. on the Purchase Date for such Bonds; and
(iv) if the Bonds are no longer in the Book-Entry System, the Tender Agent will authenticate new Bonds for the respective purchasers thereof, which will be available for pick up by the Remarketing Agent not later than 2:30 P.M.
(c) Draw on Liquidity Facility. On each Purchase Date, (i) if the Remarketing Agent has given notice to the Tender Agent pursuant to clause (b)(i) above that it has been unable to remarket any of the Bonds or (ii) if the Tender Agent has not received from the Remarketing Agent an amount sufficient to pay the Purchase Price of tendered Bonds by 11:45 A.M., then the Tender Agent will draw on the Liquidity Facility in accordance with its terms (or if no Liquidity Facility is in effect, request funds from the county) by 12:00 Noon in an amount equal to the Purchase Price of all such Bonds that have not been successfully remarketed, requesting payment not later than 2:30 P.M. on that Purchase Date. If a Liquidity Facility is in effect, the Tender Agent will also give the county notice by 2:30 P.M. on the Purchase Date if it does not have funds in the Remarketing Proceeds Account and the Liquidity Facility Purchase Account sufficient to pay the Purchase Price of Bonds tendered on such Purchase Date. Any draw on a Liquidity Facility to be made on a Substitution Date will be on the Liquidity Facility being replaced. In no event will the Liquidity Facility be drawn on to purchase any Bonds not covered by the Liquidity Facility, any Liquidity Provider Bonds or any County Bonds.
SECTION 3.9. Source of Funds for Purchase of Bonds. By 3:00 P.M. on the date on which a Bond is to be purchased, and except as set forth in Section 3.11(b)(ii) of this ordinance, the Tender Agent will purchase tendered Bonds from the tendering Owners at the applicable Purchase Price by wire transfer in immediately available funds. Funds for the payment of such Purchase Price will be derived solely from the following sources in the order of priority indicated, and none of the Tender Agent, the Registrar nor the Remarketing Agent will be obligated to provide funds from any other source:
(a) immediately available funds on deposit in the Remarketing Proceeds Account;
(b) immediately available funds on deposit in the Liquidity Facility Purchase Account; and
(c) money of the county on deposit in the County Purchase Account.
If no Liquidity Facility is in effect, then the county will be obligated to deposit amounts into the County Purchase Account sufficient to pay the Purchase Price to the extent that amounts on deposit in the Remarketing Proceeds Account are insufficient therefor, and the county's failure to make such a deposit will constitute an event of default under Section 6.1(e). If a Liquidity Facility is in effect, then the county will be obligated, within 365 days after a Purchase Date on which the Liquidity Provider fails to honor a conforming draw on the Liquidity Facility to pay the Purchase Price, to deposit amounts into the County Purchase Account sufficient to pay the Purchase Price to the extent that amounts on deposit in the Remarketing Proceeds Account and the Liquidity Facility Purchase Account are insufficient therefor, and the county's failure to make such a deposit will constitute an event of default under Section 6.1(f). For purposes of this paragraph, a Liquidity Facility will be deemed to be in effect so long as the Liquidity Provider is contractually obligated to honor future draws on the Liquidity Facility pursuant to Section 3.8(c) of this ordinance, even if the Liquidity Provider in fact has failed to honor past draws on the Liquidity Facility and has declared its intent not to honor future draws on the Liquidity Facility or otherwise is in breach of its obligations under the Liquidity Facility.
SECTION 3.10. Delivery of Bonds. On each date on which a Bond is to be purchased, that Bond will be delivered as follows:
(a) Bonds sold by the Remarketing Agent and described in Section 3.9(a) of this ordinance will be delivered by the Remarketing Agent to the purchasers of those Bonds by 3:00 P.M.;
(b) Bonds purchased by the Tender Agent with money described in Section 3.9(b) of this ordinance will be registered immediately in the name of the Liquidity Provider or its nominee (which may be the Securities Depository) on or before 3:00 P.M.; and
(c) Bonds purchased by the county with money described in Section 3.9(c) of this ordinance will be registered immediately in the name of the county or its nominee on or before 3:00 P.M. Bonds so owned by the county will continue to be Outstanding under the terms of this ordinance and subject to all of the terms and conditions of this ordinance and will be subject to remarketing by the Remarketing Agent.
SECTION 3.11. Book-Entry Tenders.
(a) Notwithstanding any other provision of this Article III to the contrary, all tenders for purchase during any period in which the Bonds are registered in the name of Cede & Co. (or the nominee of any successor Securities Depository) will be subject to the terms and conditions set forth in the Letter of Representations and to any regulations promulgated by DTC (or any successor Securities Depository). For so long as the Bonds are registered in the name of Cede & Co., as nominee for DTC, the tender option rights of Owners of Bonds may be exercised only by DTC by giving notice of its election to tender Bonds or portions thereof at the times and in the manner described above. Beneficial Owners will not have any rights to tender Bonds directly to the Tender Agent. Procedures under which a Beneficial Owner may direct a Direct DTC Participant or DTC, or an Indirect DTC Participant acting through a Direct DTC Participant, to exercise a tender option right in respect of Bonds or portions thereof in an amount equal to all or a portion of such Beneficial Owner's beneficial ownership interest therein will be governed by standing instructions and customary practices determined by such Direct DTC Participant or Indirect DTC Participant. For so long as the Bonds are registered in the name of Cede & Co., as nominee for DTC, delivery of Bonds required to be tendered for purchase will be effected by the transfer on the applicable Purchase Date of a book-entry credit to the account of the Tender Agent of a beneficial interest in such Bonds.
(b) Notwithstanding anything expressed or implied herein to the contrary, so long as the Book-Entry System for the Bonds is maintained:
(i) there will be no requirement of physical delivery to or by the Tender Agent, the Remarketing Agent or the Registrar of:
(A) any Bonds subject to mandatory or optional purchase as a condition to the payment of the Purchase Price therefor;
(B) any Bonds that have become Liquidity Provider Bonds; or
(C) any remarketing proceeds of such Bonds or Liquidity Provider Bonds; and
(ii) except as provided in subsection (b)(iii) below, none of the Registrar, the Tender Agent nor the Paying Agent will have any responsibility for paying the Purchase Price of any tendered Bond or for remitting remarketing proceeds to any person; and
(iii) the Tender Agent's sole responsibilities in connection with the purchase and remarketing of a tendered Bond will be to:
(A) draw upon the applicable Liquidity Facility as provided in Section 3.8(c) hereof, , which draw will be in an amount equal to the difference between the Purchase Price of such Bond and any remarketing proceeds received by the Remarketing Agent in connection with a partial remarketing of such Bond, and to remit the amount so drawn to or upon the order of the Securities Depository for the benefit of the tendering Beneficial Owners; and
(B) remit any proceeds derived from the remarketing of a Liquidity Provider Bond to the Liquidity Provider.
SECTION 3.12. No Book-Entry System. If at any time the Bonds are no longer in the Book-Entry System, the following procedures will be followed:
(a) Bonds will be delivered (with all necessary endorsements) at or before 12:00 noon on the Purchase Date at the Principal Office of the Tender Agent; provided, however, that payment of the Purchase Price will be made pursuant to this Section only if the Bond so delivered to the Tender Agent conforms in all respects to the description thereof in the notice described in this Article III. Payment of the Purchase Price with respect to purchases under this Section will be made to the Owners of tendered Bonds by wire transfer in immediately available funds by the Tender Agent by 3:00 P.M. on the Purchase Date.
(b) If a Bond to be purchased is not delivered by the Owner to the Tender Agent by 12:00 noon on the date on which such Bond is to be purchased, the Tender Agent will hold any funds received for the purchase of those Bonds in the Purchase Fund uninvested and without liability for interest and will pay such funds to the former Owners of the Bonds upon presentation of the Bonds. Such undelivered Bonds will cease to accrue interest as to the former Owners on such purchase date, and money representing the Purchase Price will be available against delivery of those Bonds at the Principal Office of the Tender Agent; provided, however, that any funds so held by the Tender Agent that remain unclaimed by the former Owner of a Bond not presented for purchase for a period of three years after delivery of those funds to the Tender Agent, will, to the extent permitted by law, upon request in writing by the county and the furnishing of security or indemnity to the Tender Agent's satisfaction, be paid to the county free of any trust or lien. Thereafter the former Owner of such Bond may look only to the county and then only to the extent of the amounts so received by the county without any interest thereon, and the Tender Agent will have no further responsibility with respect to such money or payment of the purchase price of such Bonds. The Registrar will authenticate a replacement Bond for any undelivered Bond that may then be remarketed by the Remarketing Agent.
(c) The Tender Agent will hold all Bonds properly tendered to it for purchase hereunder as agent and bailee of, and in escrow for the benefit of, the respective Owners of the Bonds who have so tendered such Bonds until money representing the Purchase Price of such Bonds has been delivered to or for the account of or to the order of those Owners.
SECTION 3.13. Credit Enhancement and Liquidity Facility.
(a) At any time when a Credit Enhancement is in effect for the Bonds, the county may elect to terminate the Credit Enhancement without obtaining an Alternate Credit Enhancement if the county delivers to the Registrar a Favorable Opinion of Bond Counsel. The Bonds would then be subject to mandatory tender on the Mandatory Purchase Date described in clause (v) of the definition of Mandatory Purchase Date. While a Credit Enhancement is in effect with respect to the Bonds, the Tender Agent or Paying Agent, as applicable, must, on the Business Day preceding each Interest Payment Date and Principal Payment Date, before 4:00 P.M. on such day, draw on the Credit Enhancement in accordance with the terms thereof so as to receive thereunder and transfer to the Registrar (if the two are separate entities) by 1:00 P.M. on said Interest Payment Date and Principal Payment Date, an amount, in immediately available funds, equal to the amount of interest and principal payable on the Bonds on such Interest Payment Date and Principal Payment Date. The proceeds of such draws will be applied to pay principal of and interest on the Bonds prior to the application of any other funds held by the Registrar therefor. Such amounts will be held uninvested and separate and apart from all other funds.
(b) At any time when a Liquidity Facility is in effect for the Bonds, the county may elect to terminate the Liquidity Facility without obtaining an Alternate Liquidity Facility if the county delivers to the Registrar a Favorable Opinion of Bond Counsel. The Bonds would then be subject to mandatory tender on the Mandatory Purchase Date described in clause (v) of the definition of Mandatory Purchase Date. While a Liquidity Facility is in effect with respect to the Bonds, on each date on which a Bond is to be purchased, the Tender Agent, by demand given by Electronic Means before 12:00 Noon, will draw on the Liquidity Facility in accordance with the terms thereof so as to receive thereunder by 2:30 P.M. on such date an amount, in immediately available funds, sufficient, together with the proceeds of the remarketing of Bonds on such date, to enable the Tender Agent to pay the Purchase Price in connection therewith. The proceeds of such draw will be paid to the Tender Agent, who will deposit said proceeds in the Liquidity Facility Purchase Account pursuant to Section 3.14(b) of this ordinance.
(c) Notwithstanding the foregoing paragraphs of this Section, if the Credit Provider and the Liquidity Provider are the same entity, the Tender Agent will not draw on the Credit Enhancement with respect to any payments due or made in connection with Liquidity Provider Bonds. In no event may the Tender Agent or Paying Agent, as applicable, draw on the Credit Enhancement with respect to any payments made or made in connection with Bonds not covered by the Credit Enhancement or Bonds listed on the Bond Register as owned by the county.
(d) The county may provide an Alternate Credit Enhancement or Alternate Liquidity Facility on any day on which the Bonds could otherwise be subject to redemption at par not later than the fifth (5th) Business Day prior to the Expiration Date of the Credit Enhancement or Liquidity Facility then in effect. The county will give the Notice Parties written notice of the proposed substitution of an Alternate Credit Enhancement or Alternate Liquidity Facility no less than 2 Business Days prior to the date on which the Registrar is required to provide notice of the proposed substitution to the Owners of the Bonds. The Registrar will give notice of such Substitution Date in accordance with Section 3.7 of this ordinance. On or before the Substitution Date there must be delivered to the Registrar, Paying Agent or Tender Agent, as applicable (i) the Alternate Credit Enhancement or the Alternate Liquidity Facility in substitution for the Credit Enhancement or Liquidity Facility then in effect, (ii) a Favorable Opinion of Bond Counsel, (iii) a written Opinion of Counsel for the provider of the Alternate Credit Enhancement or Alternate Liquidity Facility, as applicable, to the effect that such Alternate Credit Enhancement or Alternate Liquidity Facility is a valid, legal and binding obligation of the provider thereof, and (iv) unless waived by such entity in a writing delivered to the Registrar, Paying Agent, or Tender Agent, as applicable, written evidence satisfactory to the Credit Provider and the Liquidity Provider of the provision for purchase from the Liquidity Provider of all Liquidity Provider Bonds, at a price equal to the principal amount thereof plus accrued and unpaid interest, and payment of all amounts due to the Credit Provider and the Liquidity Provider under the Reimbursement Agreement(s) on or before the effective date of such Alternate Letter of Credit or Alternate Liquidity Facility. Upon the satisfaction of the conditions described in the preceding sentence, the Tender Agent or Paying Agent, as applicable, will accept such Alternate Credit Enhancement or Alternate Liquidity Facility on the close of business on the Substitution Date and will surrender the Credit Enhancement or Liquidity Facility then in effect to the provider thereof on the Substitution Date; provided, however, that the Tender Agent or Paying Agent, as applicable, may not surrender the Credit Enhancement or Liquidity Facility then in effect unless and until the Tender Agent or Paying Agent, as applicable has received all amounts drawn thereunder. As provided in Section 3.8(c) of this ordinance, any draw on a Liquidity Facility to be made on a Substitution Date must be on the Liquidity Facility being replaced. If any condition to the substitution is not satisfied, the substitution will not occur, but the Bonds will remain subject to mandatory purchase on the proposed Substitution Date.
(e) In the event of an extension of the Expiration Date, the county will give to the Notice Parties and Owners of the affected Bonds, a written notice of the new Expiration Date at least 21 days prior to the fifth Business Day prior to the Expiration Date in effect prior to such extension.
(f) The references to Liquidity Facility and Liquidity Provider will be disregarded during any period during which a Liquidity Facility is not in effect. The references to Credit Enhancement and Credit Provider will be disregarded during any period during which a Credit Enhancement is not in effect.
(g) Any claim by the Registrar, Paying Agent or Tender Agent on any amounts drawn under the Credit Enhancement or the Liquidity Facility or on any amounts on deposit in the account described in subsection (a) of this Section 3.13 in which proceeds of draws on the Credit Enhancement are deposited or the Liquidity Facility Purchase Account is subordinate to the lien thereon of the Bonds.
SECTION 3.14. Purchase Fund. There is hereby established and there will be maintained with the Tender Agent, as agent for the Registrar, a separate fund to be known as the "Purchase Fund." The Tender Agent will further establish separate accounts within the Purchase Fund to be known as the "Liquidity Facility Purchase Account," the "Remarketing Proceeds Account" and the "County Purchase Account." All funds in any account within the Purchase Fund will be held solely for the benefit of Owners of the Bonds.
(a) Remarketing Proceeds Account. Upon receipt of the proceeds of a remarketing of a Bond on the date such Bond is to be purchased, the Tender Agent will deposit those proceeds in the Remarketing Proceeds Account for application to the Purchase Price of such Bonds. Notwithstanding the foregoing, upon the receipt of the proceeds of a remarketing of Liquidity Provider Bonds, the Tender Agent will immediately pay such proceeds to the Liquidity Provider to the extent of any amount owing to the Liquidity Provider.
(b) Liquidity Facility Purchase Account. Upon receipt of proceeds of a draw on the Liquidity Facility pursuant to Section 3.8(c) of this ordinance, the Tender Agent will deposit such money in the Liquidity Facility Purchase Account for application to the Purchase Price of the Bonds to the extent that the money on deposit in the Remarketing Proceeds Account is not sufficient. Any amounts deposited in the Liquidity Facility Purchase Account and not needed with respect to the Purchase Price for any Bonds will be immediately returned to the Liquidity Provider.
(c) County Purchase Account. Upon receipt of Funds from the county pursuant to Section 3.9(c) of this ordinance, the Tender Agent will deposit such Funds in the County Purchase Account for application to the Purchase Price of the Bonds. Any amounts deposited in the County Purchase Account and not needed with respect to the Purchase Price for any Bonds will be immediately refunded to the county.
(d) Investment. Amounts held in the Liquidity Facility Purchase Account and the Remarketing Proceeds Account by the Tender Agent must be held uninvested and separate and apart from all other funds and accounts.
SECTION 3.15. Insufficient Funds for Tenders.
(a) If money sufficient to pay the Purchase Price of all tendered Bonds to be purchased on any Purchase Date is not available (1) no purchase may be consummated on such Purchase Date, (2) all tendered Bonds will be returned to the Owners thereof, (3) all remarketing proceeds will be returned to the Remarketing Agent for return to the Persons providing such money, and (4) such occurrence may be or become an event of default described in Section 6.1(e) or (f).
(b) All Bonds will bear interest at the Unremarketed Bonds Rate during the period of time from and including the applicable Purchase Date to (but not including) the date that all such tendered Bonds are successfully remarketed (the "Delayed Remarketing Period").
(c) The county may direct the conversion of the tendered Bonds to a different Interest Rate Mode during the Delayed Remarketing Period in accordance with Section 2.10 of this ordinance; provided that the county will not be required to comply with the notice requirements described in Section 2.10 of this ordinance.
(d) Subject to the terms of the Remarketing Agreement, the Remarketing Agent will continue to use its best efforts to remarket all of the tendered Bonds.
(e) During the Delayed Remarketing Period, the Registrar may, upon written direction of the county, apply funds provided by the county to the redemption of such tendered Bonds, as a whole or in part on any Business Day during the Delayed Remarketing Period, at a redemption price equal to the principal amount thereof, together with interest accrued thereon to the date fixed for redemption, without premium. The Registrar will give five Business Days' notice of such redemption to the Owners of the Bonds to be redeemed.
(f) During the Delayed Remarketing Period, interest on such tendered Bonds will be paid to the Owners thereof (i) on the first Business Day of each calendar month occurring during the Delayed Remarketing Period and (ii) on the last day of the Delayed Remarketing Period.
SECTION 3.16. Amendments on Mandatory Purchase Date. The owner of a Bond will be deemed to have consented to any amendment proposed to become effective on any Mandatory Purchase Date for such Bond.
SECTION 3.17. No Defeasance in Short-Term Mode. Bonds in any Short-Term Mode may not be defeased. Any defeasance of Bonds in any Long-Term Mode must be in accordance with the defeasance provisions set forth in Section 4.5 of this ordinance.
ARTICLE IV
SECURITY FOR THE BONDS
SECTION 4.1. Multi-Modal LTGO/Sewer Revenue Bond Fund. A special fund of the county designated the "King County, Washington, Multi-Modal Limited Tax General Obligation (Payable from Sewer Revenue) Bond Fund" (the "Multi-Modal LTGO/Sewer Revenue Bond Fund") is hereby authorized to be created for the purpose of paying Multi-Modal LTGO/Sewer Revenue Bonds. The Multi-Modal LTGO/Sewer Revenue Bond Fund will be held separate and apart from all other funds and accounts of the county and will be a trust fund for the owners of Multi-Modal LTGO/Sewer Revenue Obligations.
The county hereby irrevocably obligates and binds itself for as long as any Bonds remain Outstanding to set aside and pay into the Multi-Modal LTGO/Sewer Revenue Bond Fund from the sources described in Sections 4.2 and 4.3 of this ordinance, on or prior to the respective dates the same become due (and if such payment is made on the due date, such payment must be made in immediately available funds):
(1) Such amounts as are required to pay the interest scheduled to become due on the Outstanding Bonds (including all Liquidity Provider Bonds); and
(2) Such amounts with respect to the Outstanding Bonds as are required (A) to pay maturing principal, (B) to make any required sinking fund payments, and (C) to redeem Outstanding Bonds in accordance with any mandatory redemption provisions (including all Liquidity Provider Bonds).
So long as the county maintains a Credit Enhancement, the payment requirements of this Section 4.1 will be deemed satisfied by draws on the Credit Enhancement; provided, however, that the Credit Enhancement must not be drawn upon to make any payments of principal of or interest on Liquidity Provider Bonds.
SECTION 4.2. Pledge of Taxation and Credit. The county hereby irrevocably covenants and agrees for as long as any Bonds are outstanding and unpaid, that each year it will include in its budget and levy an ad valorem tax upon all the property within the county subject to taxation in an amount that will be sufficient, together with all other revenues and money of the county legally available for such purpose, to make the payments into the Multi-Modal LTGO/Sewer Revenue Bond Fund required by Section 4.1 of this ordinance as the same become due. All of the taxes so collected will be paid into the Multi-Modal LTGO/Sewer Revenue Bond Fund no later than the date such funds are required for the payments described in Section 4.1.
The county hereby irrevocably pledges that the annual tax herein authorized to be levied for the payment of such amounts will be within and a part of the tax levy permitted to counties without a vote of the people, and that a sufficient portion of the taxes to be levied and collected annually by the county prior to the full payment of the amounts described in Section 4.1 will be and is hereby irrevocably set aside, pledged and appropriated for the payment of the amounts described in Section 4.1.
The county hereby irrevocably pledges its full faith, credit and resources for the annual levy and collection of said taxes and for the prompt payment of the amounts described in Section 4.1 as the same become due.
SECTION 4.3. Pledge of Revenue.
(a) Lien on Revenue of the System. The Bonds are also payable from and secured by a pledge of Revenue of the System and by drawings under any Credit Enhancement or Liquidity Facility; provided, however, that any series of additional Multi-Modal LTGO/Sewer Revenue Bonds also may be payable from and secured by a separate credit or liquidity facility pledged specifically to or provided for that series of additional Multi-Modal LTGO/Sewer Revenue Bonds, and such separate credit or liquidity facility will not secure payment of the Bonds. No additional Multi-Modal LTGO/Sewer Revenue Bonds may be secured by the Credit Enhancement or the Liquidity Facility unless the Credit Provider or the Liquidity Provider, as the case may be, amends the Credit Enhancement or increases the Available Amount under the Liquidity Facility, as the case may be, to account for such additional Multi-Modal LTGO/Sewer Revenue Bonds. Unless the Credit Enhancement is so amended or the Available Amount is so increased, funds drawn under the Credit Enhancement or the Liquidity Facility must be held separately and will not be available for payments with respect to any other Multi-Modal LTGO/Sewer Revenue Bonds.
From and after the time of issuance and delivery of the Bonds and so long thereafter as any of the same remain Outstanding, the county hereby irrevocably obligates and binds itself to set aside and pay into the Multi-Modal LTGO/Sewer Revenue Bond Fund out of Revenue of the System, on or prior to the date due, the amounts described in Section 4.1 of this ordinance.
The amounts herein covenanted to be paid out of the Revenue of the System and deposited into the Multi-Modal LTGO/Sewer Revenue Bond Fund constitute, and the county hereby grants and pledges to the owners of the Bonds and to any Credit Provider and Liquidity Provider with respect to obligations owed to them under a Reimbursement Agreement or Liquidity Facility, a lien and charge on such Revenue junior, subordinate and inferior to Operating and Maintenance Expenses; junior, subordinate and inferior to the lien and charge on such Revenue for the payments required to be made into the Parity Bond Fund and the accounts therein; junior, subordinate and inferior to the lien and charge on such Revenue of the payments required to be made into the Parity Lien Obligation Bond Fund and the accounts therein; junior and inferior to the lien and charge on such Revenue to pay and secure the payment of any Junior Lien Obligations; equal to the lien and charge on such Revenue to pay and secure the payment of the Series 2010B Bonds and any additional Multi-Modal LTGO/Sewer Revenue Bonds; and superior to all other liens and charges of any kind or nature, including, inter alia, the lien and charge on such Revenue to pay and secure the payment of the Subordinate Lien Obligations and the SRF Loans and Public Works Trust Fund Loans.
(b) Due Regard for Expenses of Maintenance and Operation. The county council hereby declares that, in fixing the amounts to be paid into the Multi-Modal LTGO/Sewer Revenue Bond Fund and the accounts therein out of the Revenue of the System, it has exercised due regard for the necessary Operating and Maintenance Expenses and has not obligated the county to set aside, pay into and maintain in said fund and accounts a greater amount of the Revenue of the System than in its judgment will be available over and above such necessary Operating and Maintenance Expenses.
SECTION 4.4. Revenue Fund. All Revenue of the System will be deposited in the Revenue Fund as collected. The Revenue Fund will be held separate and apart from all other funds and accounts of the county, and the Revenue of the System deposited therein may be used only for the following purposes and in the following order of priority:
First, to pay all Operating and Maintenance Expenses;
Second, to make all required deposits into the debt service account in the Parity Bond Fund to provide for the payment of principal of and interest on Parity Bonds as the same become due and payable and to make any Payment Agreement Payments with respect to any Parity Payment Agreements;
Third, to make all payments required to be made pursuant to a reimbursement agreement or agreements (or other equivalent documents) with the providers of any debt service reserve insurance, sureties or letters of credit securing Parity Bonds, provided that if there is not sufficient money to make all payments under such reimbursement agreements the payments will be made on a pro rata basis;
Fourth, to establish and maintain the Parity Bond Reserve Account (including making deposits into such account and paying the costs of obtaining debt service reserve insurance, sureties or letters of credit);
Fifth, to make all required payments of principal of and interest on the Parity Lien Obligations as the same become due and payable and to make Payment Agreement Payments with respect to any Parity Lien Obligation Payment Agreements;
Sixth, to make all required payments of principal of and interest on Junior Lien Obligations as the same become due and payable, to make all Payment Agreement Payments for any Payment Agreements entered into with respect to Junior Lien Obligations, and to make any payments required to be made to providers of credit enhancements or liquidity facilities for any Junior Lien Obligations;
Seventh, to make all required payments of principal of and interest on Multi-Modal LTGO/Sewer Revenue Bonds as the same become due and payable, to make all Payment Agreement Payments for any Payment Agreements entered into with respect to Multi-Modal LTGO/Sewer Revenue Bonds, and to make any payments required to be made to providers of credit enhancements or liquidity facilities for any Multi-Modal LTGO/Sewer Revenue Bonds;
Eighth, to make all required payments of principal of and interest on the Subordinate Lien Obligations as the same become due and payable;
Ninth, to make all required payments of principal and interest on bonds, notes, warrants and other evidences of indebtedness, the lien and charge against Revenue of the System of which is junior and inferior to the Subordinate Lien Obligations, as the same become due and payable; and
Tenth, to make all required payments of principal and interest due on the SRF Loans and the Public Works Trust Fund Loans as the same become due and payable.
Any surplus money that the county may have on hand in the Revenue Fund after making all required payments set forth above may be used by the county (i) to make necessary improvements, additions and repairs to and extensions and replacements of the System, (ii) to purchase or redeem and retire outstanding sewer revenue bonds of the county, (iii) to make deposits into the Rate Stabilization Fund, (iv) to make any termination payment required to be paid with respect to a Payment Agreement, or (v) for any other lawful purposes of the county related to the System.
SECTION 4.5. Defeasance. In the event that money or noncallable Government Obligations maturing at such time or times and bearing interest to be earned thereon in amounts (together with such money, if necessary) sufficient to redeem and retire, refund or defease part or all of Bonds in a Long-Term Mode in accordance with their terms, are set aside in a special account of the county to effect such redemption and retirement, and such money and the principal of and interest on such Government Obligations are irrevocably set aside and pledged for such purpose, then no further payments need be made into the Bond Fund for the payment of the principal of and interest on the Bonds so provided for, and such Bonds will cease to be entitled to any lien, benefit or security of this ordinance except the right to receive the money so set aside and pledged, and such Bonds will be deemed not to be outstanding hereunder; provided, however, that Bonds in the Term Rate Mode may be defeased only to the end of their current Interest Period. Bonds in any Short-Term Mode may not be defeased.
ARTICLE V
COVENANTS OF THE COUNTY
SECTION 5.1. Rate Covenants. The county hereby makes the following covenants and agrees with the Owners of the Bonds for as long as any of the same remain Outstanding.
(a) General Rate Covenant. The county will establish, maintain and collect rates and charges for sewage disposal service for each calendar year that are fair and nondiscriminatory and adequate to provide the county with Revenue of the System sufficient (1) to pay all Operating and Maintenance Expenses during such calendar year; (2) to pay punctually all amounts described in Paragraphs Second through Eleventh in Section 4.4 of this ordinance due during such calendar year; and (3) to pay any and all amounts that the county is now or may hereafter become obligated by law or contract to pay during such calendar year from the Revenue of the System.
(b) Coverage Requirement.
(i) Subject to the provisions of subparagraph (ii) of this Section 5.1(b), the county hereby covenants with the owners of the Bonds for so long as any of the same are Outstanding that the county will at all times establish, maintain and collect rates and charges for sewage disposal service that, together with the interest to be earned on investments made of money in the Revenue Fund, Parity Bond Fund, Parity Lien Obligation Bond Fund, Junior Lien Bond Fund, Multi-Modal LTGO/Sewer Revenue Bond Fund, and Construction Account will provide in each calendar year Net Revenue, after deducting therefrom amounts required in such year to pay Annual Debt Service on Parity Bonds and Parity Lien Obligations, in an amount equal to at least 1.10 times the amounts required to pay Annual Debt Service for all Junior Lien Obligations and Multi-Modal LTGO/Sewer Revenue Bonds for such year.
(ii) There will be added to Revenue of the System for any calendar year any amount withdrawn from the Rate Stabilization Fund and deposited in the Revenue Fund. There will be subtracted from Revenue of the System for any year any amounts in such year withdrawn from the Revenue Fund and deposited into the Rate Stabilization Fund in such year.
SECTION 5.2. Other Covenants. The county hereby makes the following additional covenants and agrees with the Owners of the Bonds for as long as any of the same remain Outstanding.
(a) Maintain in Good Order. The county will cause the System and the business in connection therewith to be operated in a safe, sound, efficient, and economic manner in compliance with all health, safety, and environmental laws, regulatory body rules, regulatory body orders and court orders applicable to the county's operation of the System, and will cause to be maintained, preserved, reconstructed, expanded and kept, with all appurtenances and every part and parcel thereof, in good repair, working order and condition, and will from time to time cause to be made, without undue deferral, all necessary or proper repairs, replacements and renewals, so that all times the operation of the System will be properly and advantageously conducted.
(b) Books and Records. The county will cause proper books of record and accounts of operation of the System to be kept, including an annual financial report.
(c) Annual Audit. The county will cause its books of accounts, including its annual financial report, to be audited annually by the State auditor's office or other State department or agency as may be authorized and directed by law to make such audits, or if such an audit is not made for twelve months after the close of any fiscal year of the county, by a Certified Public Accountant. The county will furnish such audit to the owner or holder of any Bond upon written request therefor.
(d) Insurance. The county will at all times carry fire and extended coverage and such other forms of insurance on such of the buildings, equipment, facilities and properties of the Sewer System as under good practice are ordinarily carried on such buildings, equipment, facilities and properties by municipal or privately owned utilities engaged in the operation of sewer systems and will also carry adequate public liability insurance at all times, provided that the county may, if deemed advisable by the county council, institute or continue a self insurance program with respect to any or all of the aforementioned risks.
(e) Construction. The county will cause the construction of any duly authorized and ordered portions of the Comprehensive Plan to be performed and completed within a reasonable time and at the lowest reasonable cost.
(f) Collection of Revenue. The county will so operate and maintain the System and conduct its affairs as to entitle it at all times to receive and enforce payment to it of sewage disposal charges payable (i) pursuant to the ordinance or ordinances establishing a tariff of rates and charges for sewage disposal services and (ii) under any Service Agreement that the county has now or may hereafter enter into and to entitle the county to collect all revenues derived from the operation of the System. The county may not release the obligations of any person, corporation or political subdivision under such tariff of rates and charges or the Service Agreements and will at all times, to the extent permitted by law, defend, enforce, preserve and protect the rights and privileges of the county and of the holders of the Bonds under or with respect thereto.
In accordance with RCW 35.58.200(3), the county will require any county, city, special district or other political subdivision to discharge to the System all sewage collected by such entity from any portion of the Seattle metropolitan area that can drain by gravity flow into facilities of the System that serve such areas if the county council declares that the health, safety or welfare of the people within the metropolitan area require such action.
(g) Legal Authority. The county has full legal right, power and authority to adopt this ordinance, to sell, issue and deliver Bonds as provided herein, and to carry out and consummate all other transactions contemplated by this ordinance.
(h) Due Authorization. By all necessary official action prior to or concurrently herewith, the county has duly authorized and approved the execution and delivery of, and the performance by the county of its obligations contained in, the Bonds and in this ordinance and the consummation by it of all other transactions necessary to effectuate this ordinance in connection with the issuance of Bonds, and such authorizations and approvals are in full force and effect and have not been amended, modified or supplemented in any material respect.
(i) Binding Obligation. This ordinance constitutes a legal, valid and binding obligation of the county.
(j) No Conflict. The adoption of this ordinance, and compliance on the county's part with the provisions contained herein, will not conflict with or constitute a breach of or default under any constitutional provisions, law, administrative regulation, judgment, decree, loan agreement, indenture, bond, note, resolution, ordinance, motion, agreement or other instrument to which the county is a party or to which the county or any of its property or assets are otherwise subject, nor will any such adoption, execution, delivery, sale, issuance or compliance result in the creation or imposition of any lien, charge or other security interest or encumbrance of any nature whatsoever upon any of the property or assets of the county or under the terms of any such law, regulation or instrument, except as may be provided by the Bonds and this ordinance.
(k) Performance Under Ordinance. None of the proceeds of the Bonds will be used for any purpose other than as provided in this ordinance, and the county will not suffer any amendment or supplement to this ordinance, or any departure from the due performance of its obligations hereunder, that might materially adversely affect the rights of the owners from time to time of the Bonds.
(l) Sale or Disposition. The county will not sell or voluntarily dispose of all of the operating properties of the System unless provision is made for payment into the appropriate bond funds of a sum sufficient to pay the principal of and interest on all outstanding Parity Bonds, Parity Lien Obligations, Junior Lien Obligations and Multi-Modal LTGO/Sewer Revenue Bonds, in accordance with the terms thereof, nor will the county sell or voluntarily dispose of any part of the operating properties of the System unless the county has first complied with any applicable covenants of the Parity Bonds and Parity Lien Obligations.
SECTION 5.3. Tax Covenants.
(a) General. For all or a portion of the Bonds, the county may elect to structure such Bonds so that interest on such Bonds would be excludable from gross income for federal income tax purposes pursuant to sections 103 and 141 through 150 of the Code (the "Tax-Exempt Bonds") or to confer other benefits under the Code to the county or owners of such Bonds ("Tax-Benefited Bonds"). The county covenants not to take any action, or knowingly to omit to take any action within its control, that if taken or omitted would cause the interest on Tax-Exempt Bonds to be includable in gross income, as defined in section 61 of the Code, for federal income tax purposes.
(b) Tax Certificate. Upon the issuance of Tax-Exempt Bonds or Tax-Benefited Bonds, the Finance Director is authorized to execute a federal tax certificate (the "Tax Certificate"), which will certify to various facts and representations concerning such Bonds, based on the facts and estimates known or reasonably expected on the date of their issuance, and make certain covenants with respect to such Bonds as may be necessary or desirable to obtain or maintain the benefits conferred under the Code relating to Tax-Exempt Bonds or Tax-Benefited Bonds.
The county covenants that it will comply with the Tax Certificate unless it receives advice from nationally recognized bond counsel or the Internal Revenue Service that certain provisions have been amended or no longer apply to the Tax-Exempt Bonds or Tax-Benefited Bonds, as applicable.
(c) Arbitrage Rebate. If the county does not qualify for an exception to the requirements of Section 148(f) of the Code relating to the payment of arbitrage rebate to the United States, the county will take all necessary steps to comply with the requirement that certain amounts earned by the county on the investment of the "gross proceeds" of the Tax-Exempt Bonds (within the meaning of the Code) be rebated.
SECTION 5.4. Additional Obligations of the Sewer System.
(a) Senior Lien Bonds. The county reserves the right to issue additional Parity Bonds, Parity Lien Obligations and Junior Lien Obligations on the terms and conditions set forth in the ordinances authorizing issuance of the Parity Bonds, Parity Lien Obligations and Junior Lien Obligations.
(b) Additional Multi-Modal LTGO/Sewer Revenue Bonds. The county also reserves the right to issue additional Multi-Modal LTGO/Sewer Revenue Bonds, but only if such Multi-Modal LTGO/Sewer Revenue Bonds are issued (i) for the purpose of refunding any then outstanding Junior Lien Obligations or Multi-Modal LTGO/Sewer Revenue Bonds or (ii) for any lawful purpose of the county related to the System and the following conditions are met:
(A) At the time of issuing such additional Multi-Modal LTGO/Sewer Revenue Bonds, there will be no default in the payment of the principal of or interest on any Parity Bonds, Parity Lien Obligations, Junior Lien Obligations or Multi-Modal LTGO/Sewer Revenue Bonds, Subordinate Lien Obligations, the Public Works Trust Fund Loans or the SRF Loans.
(B) The county will have on file one of the following certificates:
(1) certificate of the Finance Director showing that Net Revenue in any 12 consecutive months out of the most recent 18 months preceding the issuance of such additional Multi-Modal LTGO/Sewer Revenue Bonds, based on financial statements of the System prepared by the county and after deducting therefrom the Senior Lien Payments required in each calendar year during the life of such additional Multi-Modal LTGO/Sewer Revenue Bonds, will be at least equal to 1.10 times the Annual Debt Service for the proposed additional Multi-Modal LTGO/Sewer Revenue Bonds and all then outstanding Junior Lien Obligations and Multi-Modal LTGO/Sewer Revenue Bonds in each year during the life of such additional Multi-Modal LTGO/Sewer Revenue Bonds; or
(2) A certificate from a Professional Utility Consultant (which certificate may not be dated more than 90 days prior to the date of delivery of such additional Multi-Modal LTGO/Sewer Revenue Bonds) showing that in his or her professional opinion the Net Revenue, estimated on the basis of all factors as he or she may consider reasonable, for each of the five calendar years next following the year in which such additional Multi-Modal LTGO/Sewer Revenue Bonds are to be issued, after deducting therefrom Senior Lien Payments for each such year, will be at least equal to 1.10 times the Annual Debt Service for the proposed additional Multi-Modal LTGO/Sewer Revenue Bonds and all then outstanding Junior Lien Obligations and Multi-Modal LTGO/Sewer Revenue Bonds in each of those five years.
(c) Nothing herein contained prevents the county from issuing revenue bonds, notes or other obligations that are a charge upon the Revenue of the System junior or inferior to the payments required to be made therefrom into the Multi-Modal LTGO/Sewer Revenue Bond Fund to pay and secure the payment of any Multi-Modal LTGO/Sewer Revenue Bonds.
SECTION 5.5. Payment Agreements.
(a) General. To the extent and for the purposes permitted from time to time by Chapter 39.96 RCW and other applicable provisions of State law, the county may enter into Payment Agreements with respect to any Multi-Modal LTGO/Sewer Revenue Bonds, subject to the conditions set forth in this Section and in other provisions of this ordinance.
(b) Manner and Schedule of Payments. Each Payment Agreement must set forth the manner in which the Payment Agreement Payments and the Payment Agreement Receipts will be calculated and a schedule of payment dates.
(c) Authorizing Ordinance. Prior to entering into a Payment Agreement, the county council must pass an ordinance authorizing the agreement and setting forth such provisions as the county deems necessary or desirable and are not inconsistent with the provisions of this ordinance.
(d) Calculation of Payment Agreement Payments and Debt Service on Multi-Modal LTGO/Sewer Revenue Bonds with Respect to which a Payment Agreement is in Force. It is the intent of the county, for purposes of Sections 5.1(b) and 5.4(b) of this ordinance, that debt service on Multi-Modal LTGO/Sewer Revenue Bonds with respect to which a Payment Agreement is in force will be calculated to reflect the net economic effect on the county intended to be produced by the terms of the Multi-Modal LTGO/Sewer Revenue Bonds and the terms of the Payment Agreement. In calculating such amounts, the county will be guided by the following requirements.
(i) The amount of interest deemed to be payable on any Multi-Modal LTGO/Sewer Revenue Bonds with respect to which a Payment Agreement is in force will be an amount equal to the amount of interest that would be payable at the rate or rates stated in those Multi-Modal LTGO/Sewer Revenue Bonds plus Payment Agreement Payments minus Payment Agreement Receipts.
(ii) For any period during which Payment Agreement Payments are not taken into account in calculating interest on any outstanding Multi-Modal LTGO/Sewer Revenue Bonds because the Payment Agreement is not then related to any outstanding Multi-Modal LTGO/Sewer Revenue Bonds, Payment Agreement Payments on that Payment Agreement will be calculated based upon the following assumptions:
(A) County Obligated to Make Payments Based on Fixed Rate. If the county is obligated to make Payment Agreement Payments based on a fixed rate and the Qualified Counterparty is obligated to make payments based on a variable rate index, payments by the county will be based on the assumed fixed payor rate, and payments by the Qualified Counterparty will be based on a rate equal to the average rate determined by the variable rate index specified by the Payment Agreement during the fiscal quarter preceding the quarter in which the calculation is made; and
(B) County Obligated to Make Payments Based on Variable Rate Index. If the county is obligated to make Payment Agreement Payments based on a variable rate index and the Qualified Counterparty is obligated to make payments based on a fixed rate, payments by the county will be based on a rate equal to the average rate determined by the variable rate index specified by the Payment Agreement during the fiscal quarter preceding the quarter in which the calculation is made, and the Qualified Counterparty will make payments based on the fixed rate specified by the Payment Agreement.
(e) Prior Notice to Rating Agencies. The county will give notice to each Rating Agency 30 days prior to the date it intends to enter into a Payment Agreement with respect to any Multi-Modal LTGO/Sewer Revenue Bonds.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.1. Defaults. The county hereby finds and determines that the failure or refusal of the county or any of its officers to perform the covenants and obligations of this ordinance will endanger the operation of the System and the application of Revenue of the System and such other money, funds and securities to the purposes herein set forth. Any one or more of the following will constitute a Default under this ordinance:
(a) The county fails to make payment of the principal of any Bonds when the same becomes due and payable whether by maturity or scheduled redemption prior to maturity;
(b) The county fails to make payment of any installment of interest on any Bonds when the same becomes due and payable (excluding the interest component, if any, of the Purchase Price of any Bonds);
(c) The county defaults in the observance or performance of any other covenant, condition, or agreement on the part of the county contained in this ordinance, and such default has continued for a period of 30 days.
(d) The county (i) admits in writing its inability to pay its debts generally as they become due; (ii) files a petition in bankruptcy or seeking a composition of indebtedness under any state or federal bankruptcy or insolvency law; (iii) makes an assignment for the benefit of its creditors; (iv) consents to the appointment of a receiver for the whole or any substantial part of the System; or (v) consents to the assumption by any court of competent jurisdiction under the provisions of any other law for the relief or aid of debtors of custody or control of the county or of the whole or any substantial part of the System.
(e) Where no Liquidity Facility is in effect, the county fails to pay the Purchase Price of any Bonds when due and payable.
(f) Where a Liquidity Facility is in effect and the Liquidity Provider fails to honor a conforming draw on the Liquidity Facility to pay the Purchase Price of any Bonds when due and payable, the county fails to pay the Purchase Price of such Bonds within 365 days after the Purchase Date applicable to such Bonds,
SECTION 6.2. Remedies.
(a) Control by Credit Provider. Upon the occurrence and continuation of a Default described in Section 6.1(a)-(d), the Credit Provider, if any, will be entitled to exercise, on behalf of the Bondowners, any of the remedies provided under this Section and, for as long as the Credit Provider is not in default of its obligations under the Credit Enhancement, the Credit Provider will be the only party entitled to exercise the remedies provided under this Section.
(b) Bondowners' Trustee. Upon the occurrence of a Default and so long as such Default is not remedied, and subject to the rights of the Credit Provider as provided in subsection (a) above, a Bondowners' Trustee may be appointed for the Bonds by the owners of 51% in principal amount of the Outstanding Bonds by an instrument or concurrent instruments in writing signed and acknowledged by such Bondowners or by their attorneys-in-fact duly authorized and delivered to such Bondowners' Trustee, notification thereof being given to the county. Any Bondowners' Trustee appointed under the provisions of this Section must be a bank or trust company organized under the laws of a state or a national banking association. The fees and expenses of a Bondowners' Trustee must be borne by the Bondowners and not by the county. The bank or trust company acting as a Bondowners' Trustee may be removed at any time, and a successor Bondowners' Trustee may be appointed, by the owners of 51% in principal amount of the Bonds Outstanding, by an instrument or concurrent instruments in writing signed and acknowledged by such Bondowners or by their attorneys-in-fact duly authorized. The Bondowners' Trustee may resign upon 60 days' notice and a new Bondowners' Trustee appointed by the owners of at least 51% in principal amount of Bonds; provided, however, that no such resignation or removal will be effective until a successor Bondowners' Trustee has been appointed and has delivered to the county and the Owners of the Bonds then Outstanding a written instrument of acceptance of the duties and responsibilities of the Bondowners' Trustee under this ordinance.
The Bondowners' Trustee appointed in the manner herein provided, and each successor thereto, is hereby declared to be a trustee for the owners of all Bonds then Outstanding and is empowered to exercise all the rights and powers herein conferred on the Bondowners' Trustee.
(c) Legal Action by Bondowners' Trustee. Subject to the rights of the Credit Provider, if any, upon the happening of a Default and during the continuation thereof, the Bondowners' Trustee may, and upon the written request of the Owners of not less than 25% in principal amount of Bonds then Outstanding must, take such steps and institute such suits, actions or other proceedings, as it may deem appropriate for the protection and enforcement of the rights of Bondowners to collect any amounts due and owing to or from the county, or to obtain other appropriate relief, and may enforce the specific performance of any covenant, agreement or condition contained in this ordinance or the Bonds. Any action, suit or other proceedings instituted by a Bondowners' Trustee hereunder will be brought in its name as trustee for the Bondowners, and all such rights of action upon or under any of the Bonds or the provisions of this ordinance may be enforced by a Bondowners' Trustee without the possession of any of said Bonds, and without the production of the same at any trial or proceedings relating thereto except where otherwise required by law. Any such suit or proceeding instituted by the Bondowners' Trustee will be brought for the ratable benefit of all Owners of the Bonds, subject to the provisions of this ordinance. The respective owners of said Bonds by taking and holding the same, will be conclusively deemed irrevocably to appoint a Bondowners' Trustee the true and lawful trustee of the respective Owners of said Bonds, with authority to institute any such action, suit or proceeding; to receive as trustee and deposit in trust any sums that become distributable on account of said Bonds; to execute any paper or documents for the receipt of such money, and to do all acts with respect thereto that the Bondowner himself might have done. Nothing herein will be deemed to authorize or empower any Bondowners' Trustee to consent to accept or adopt, on behalf of any Owner of said Bonds, any plan of reorganization or adjustment affecting the said Bonds or any right of any Owner thereof, or to authorize or empower the Bondowners' Trustee to vote the claims of the Owners thereof in any receivership, insolvency, liquidation, bankruptcy, reorganization or other proceeding to which the county is a party.
(d) Restrictions on Legal Action by Individual Bondowners. No Owner or Beneficial Owner of any Bonds has any right to institute any action, suit or proceedings at law or in equity for the enforcement of the same unless:
(i) a Default has happened and is continuing; and
(ii) a Bondowners' Trustee has been appointed as herein provided, and
(iii) such owner previously has given to the Bondowners' Trustee written notice of the Default as to which such suit, action or proceeding is to be instituted; and
(iv) the Owners of 25% in principal amount of the Bonds then Outstanding, after the occurrence of such Default, have made written request of the Bondowners' Trustee and have afforded the Bondowners' Trustee a reasonable opportunity to institute such suit, action or proceedings; and
(v) the Bondowners' Trustee has been offered security and indemnity satisfactory to it against the costs, expenses and liabilities to be incurred therein or thereby; and
(vi) the Bondowners' Trustee has refused or neglected to comply with such request within a reasonable time.
No Owner or Beneficial Owner of any Bond will have any right in any manner whatever by his or her action to affect or impair the obligation of the county, which is absolute and unconditional, to pay from Revenue of the System or draws on the Credit Enhancement or Liquidity Facility the principal of and interest on said Bonds to the respective Owners thereof when due.
(e) Waivers of Default; Remedies not Exclusive. The remedies herein conferred upon or reserved to the Owners of the Bonds and to a Bondowners' Trustee are not intended to be exclusive of any other remedy or remedies, and each and every such remedy will be cumulative and will be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute. The privileges herein granted may be exercised from time to time and continued so long as and as often as the occasion therefor may arise.
The Credit Provider may on behalf of the Owners of all Bonds then Outstanding waive any past Default and its consequences, except a default in the payment of the principal of, premium, if any, or interest on any of the Bonds. No such waiver will extend to or affect any subsequent Default or impair any rights or remedies consequent thereon. No delay or omission of the Credit Provider to exercise any right or power accruing upon any default will impair any such right or power or be construed to be a waiver of any such Default or acquiescence therein.
ARTICLE VII
APPLICATION OF BOND PROCEEDS
SECTION 7.1. Construction Account. There has heretofore been created a special fund of the county known as the "Second Water Quality Construction Account" (the "Construction Account"). For purposes of separately accounting for investment earnings on the proceeds of the Bonds to facilitate compliance with the requirements of Section 5.3(c) of this ordinance, there is hereby established a special subaccount within the Construction Account to be designated as the "Multi-Modal Series 2010A Construction Subaccount" (the "Construction Subaccount"). The proceeds of the Bonds will be deposited into the Construction Subaccount.
Money in the Construction Subaccount will be held and applied to pay costs of acquiring, constructing and equipping improvements, additions or betterments to the System set forth in the Comprehensive Plan and all costs incidental thereto, including but not limited to engineering, architectural, planning, financial, legal, urban design or any other incidental costs, including costs of issuing the Bonds, and to repay any advances heretofore or hereafter made on account of such costs.
ARTICLE VIII
REGISTRAR, PAYING AGENT AND TENDER AGENT FUNCTIONS; APPOINTMENT OF REMARKETING AGENT
SECTION 8.1. Duties of Registrar.
(a) Registrar as Initial Paying Agent and Tender Agent. The Registrar will be the initial Paying Agent and Tender Agent for the Bonds. The county may at any time appoint an additional or successor Paying Agent or Tender Agent. Any appointment of an additional or successor Paying Agent or Tender Agent must be made by written instrument executed by the Finance Director and will be effective immediately after the Registrar has consented to such appointment in writing and such paying agent or tender agent has accepted its obligations under this ordinance by delivery of a written instrument to that effect to the county and the Registrar.
(b) Fiscal Agency Agreement. The Bank of New York Mellon, in its capacity as fiscal agent under the current Fiscal Agency Agreement, will perform the duties of Registrar, Paying Agent and Tender Agent hereunder in accordance with the Fiscal Agency Agreement. Unless the county exercises its right under Section 8.1(c) of this ordinance to remove the Registrar, any successor fiscal agent under the Fiscal Agency Agreement will serve as Registrar, Paying Agent and Tender Agent under this ordinance. Notwithstanding anything to the contrary in the Fiscal Agency Agreement, the fiscal agent acting as Registrar, Tender Agent or Paying Agent will not seek any indemnity or other security as a condition precedent to drawing on any Liquidity Facility or Credit Enhancement, making any payment of principal of, interest on or the Purchase Price for any Bonds, or effecting any mandatory purchase or redemption of any Bonds.
(c) Removal of Registrar. The county may remove the Registrar at any time at the option of the Finance Director upon prior notice to the Notice Parties and appointment by the Finance Director on behalf of the county of a successor Registrar on terms and conditions to be set forth in a written agreement between the county and such successor Registrar. Any successor Registrar must be a trust company or commercial bank with trust powers. No resignation or removal of the Registrar will be effective until a successor is appointed and the successor Registrar accepts the duties of the Registrar hereunder and, if acting as Tender Agent or Paying Agent, it receives the Credit Enhancement and Liquidity Facility, together with all other funds then held by the Registrar, Paying Agent and Tender Agent.
SECTION 8.2. Appointment of Remarketing Agent.
(a) Initial Remarketing Agent. The county hereby appoints Goldman, Sachs & Co. as initial Remarketing Agent to remarket Bonds pursuant to this ordinance and perform the other duties of the Remarketing Agent described hereunder. On behalf of the county, the Finance Director is authorized to execute and deliver the Remarketing Agreement in substantially the form attached as Attachment B to this ordinance, with such changes as may be approved by bond counsel to the county. The Remarketing Agent will keep such books and records as are consistent with prudent industry practice and make such books and records available for inspection by the Notice Parties at all reasonable times.
(b) Removal or Resignation of Remarketing Agent. The Remarketing Agent may at any time resign and be discharged of the duties and obligations with respect to the Bonds created by this ordinance as set forth in the Remarketing Agreement. The Remarketing Agent may suspend its remarketing efforts as set forth in the Remarketing Agreement. The county council authorizes the Finance Director to remove the Remarketing Agent at any time, in accordance with the Remarketing Agreement, when the Finance Director, in consultation with the county's financial advisors, determines that such removal is necessary or beneficial to the county. Any successor Remarketing Agent will be appointed by the Finance Director, must be a member of the Financial Industry Regulatory Authority, must have a capitalization of at least $50,000,000, must be authorized by law to perform all the duties set forth in this ordinance and must be acceptable to the Credit Provider and Liquidity Provider. The council authorizes and directs the Finance Director and all other proper officers, agents, attorneys and employees of the county to cooperate with any successor Remarketing Agent in preparing and executing such additional agreements, certificates, and other documentation on behalf of the county as may be necessary or advisable in providing for replacement of the Remarketing Agent.
The delivery to the Registrar of a certificate of the Finance Director setting forth the effective date of the appointment of a successor Remarketing Agent and the name of such successor will be conclusive evidence that (i) if applicable, the predecessor Remarketing Agent has been removed in accordance with the provisions of this ordinance and (ii) such successor has been appointed and is qualified to act as Remarketing Agent under the terms of this ordinance.
(c) Merger or Consolidation. If the Remarketing Agent consolidates with, merges or converts into, or transfers all or substantially all of its assets (or, in the case of a bank, national banking association or trust company, its corporate assets) to, another corporation, the resulting, surviving or transferee corporation without any further act will be the successor Remarketing Agent.
ARTICLE IX
SALE OF BONDS; OFFICIAL STATEMENT;
CREDIT ENHANCEMENT AND LIQUIDITY FACILITY
SECTION 9.1. Sale of Bonds. The Bonds will be sold by negotiated sale to the Underwriter. The Finance Director will determine the aggregate principal amount of the Bonds, which may not exceed $50,000,000, and, in consultation with the county's financial advisors, whether the Bonds will be issued as Tax-Exempt Bonds or Tax-Benefited Bonds. The Finance Director is hereby authorized to negotiate and execute on behalf of the county a bond purchase contract for the sale of the Bonds to the Underwriter on terms consistent with this ordinance. The bond purchase contract will be substantially in the form attached as Attachment C to this ordinance, with such changes as the Finance Director deems reasonable and approved by counsel to the county. The Finance Director and all other proper officers, agents, attorneys and employees of the county are hereby authorized and directed to do everything necessary for the prompt execution and delivery of the Bonds to the Underwriter and for the proper application and use of the proceeds of sale thereof, all in accordance with the bond purchase contract and this ordinance.
SECTION 9.2. Official Statement. The county hereby authorizes and directs the Finance Director to review and approve the information contained in the official statement for the Bonds and hereby authorizes the Underwriter's distribution of the official statement in connection with the sale of the Bonds.
SECTION 9.3. Credit Enhancement and Liquidity Facility.
(a) Approval of Liquidity Facility. The county hereby accepts the offer from State Street Bank to provide a standby bond purchase agreement as the initial Liquidity Facility for the Bonds. The Finance Director and all other proper officers, agents, attorneys and employees of the county are hereby authorized and directed to cooperate with State Street Bank in preparing the Liquidity Facility and such additional agreements, certificates, and other documentation on behalf of the county as may be necessary or advisable in providing for delivery of the Liquidity Facility. The Finance Director is hereby authorized to execute and deliver the Liquidity Facility in substantially the form attached as Attachment D to this ordinance, with such changes as the Finance Director deems reasonable and approved by counsel to the county.
(b) Extensions of Expiration Date or Alternate Credit Enhancements or Alternate Liquidity Facilities. The county council authorizes the Finance Director, in consultation with the county's financial advisors, to obtain a Credit Enhancement for the Bonds if at any time that appears necessary or desirable. In that event, the Finance Director and all other proper officers, agents, attorneys and employees of the county are hereby authorized and directed to cooperate with the proposed Credit Provider to prepare the Reimbursement Agreement or Credit Enhancement, as applicable, and such additional agreements, certificates, and other documentation on behalf of the county as may be necessary or advisable in providing for delivery of the Credit Enhancement.
As long as the Bonds remain outstanding, the county council authorizes the Finance Director to obtain one or more extensions of the Expiration Date of any Credit Enhancement or Liquidity Facility or to obtain an Alternate Credit Enhancement or Alternate Liquidity Facility at any time and from time to time when the Finance Director, in consultation with the county's financial advisors, determines that any such extension or substitution is necessary or beneficial to the county. The council authorizes and directs the Finance Director and all other proper officers, agents, attorneys and employees of the county to cooperate with the Credit Provider, the Liquidity Provider, or the providers of any Alternate Credit Enhancement or Alternate Liquidity Facility in preparing and executing such additional agreements, certificates, and other documentation on behalf of the county as may be necessary or advisable in providing for any such extension or substitution.
ARTICLE X
AMENDMENTS
SECTION 10.1. Amendments without Owners' Consent. This ordinance may be amended or supplemented from time to time, without the consent of the Owners by a supplemental ordinance passed by the county council for one or more of the following purposes:
(a) to add additional covenants of the county or to surrender any right or power herein conferred upon the county; or
(b) to cure any ambiguity or to cure, correct or supplement any defective (whether because of any inconsistency with any other provision hereof or otherwise) provision of this ordinance or to make any other provisions with respect to matters or questions arising under this ordinance, provided such action may not impair the security hereof or adversely affect the interests of the Owners; or
(c) to provide or modify procedures permitting Owners to utilize a certificated system of registration for Bonds; or
(d) to modify, alter, amend, supplement or restate this ordinance in any and all respects necessary, desirable or appropriate in connection with the delivery of an Alternate Credit Enhancement or Alternate Liquidity Facility (other than modifying notice provisions to Owners of the Bonds); or
(e) to modify, alter, amend, supplement or restate this ordinance in any and all respects necessary, desirable or appropriate to satisfy the requirements of any Rating Agency to obtain or retain a rating on the Bonds as the county deems necessary, provided that such action may not impair the security hereof or materially adversely affect the interests of the Owners; or
(f) for any purpose, (i) on any Mandatory Purchase Date and (ii) at any time during the Daily Mode or the Weekly Mode, provided that notice of such amendment is given by first class mail to each Owner of Bonds at least 30 days prior to the effective date of such amendment.
SECTION 10.2. Amendments with Owners' Consent. This ordinance may be amended from time to time by a supplemental ordinance; provided, that (a) no amendment may be made that affects the rights of some but fewer than all of the Owners of the Outstanding Bonds without the consent of the Owners of 51% in aggregate principal amount of the Bonds so affected, and (b) without the consent of the Owners of all Outstanding Bonds affected thereby, no amendment may be made that alters the interest rates or premium on or principal amount of any Bonds, the Maturity Date, Interest Payment Dates, purchase upon tender or redemption provisions of any Bonds or this Section 10.2. Notwithstanding any provision of this Section 10.2 to the contrary, so long as no event of default has occurred under the Credit Enhancement, any provision of this ordinance may be amended with the consent solely of the Credit Provider for such Credit Enhancement.
SECTION 10.3. Consent of Credit Provider and Liquidity Provider Required. Any amendment or supplement to this ordinance must require the prior written consent of the Credit Provider and Liquidity Provider if the rights of the Credit Provider or the Liquidity Provider, as the case may be, will be adversely affected thereby.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1. Specific Authorization. In addition to the authority granted to the Finance Director elsewhere in this ordinance, the Finance Director may, in his or her discretion, without further action by the county council, (a) authorize conversions from one Mode to another and execute agreements and certificates as necessary or desirable to effect such conversions, and (b) execute a continuing disclosure undertaking on behalf of the county when necessary to comply with the Rule.
SECTION 11.2. Acts of Owners. Any action to be taken by Owners may be evidenced by one or more concurrent written instruments of similar tenor signed or executed by such Owners in person or by an agent appointed in writing. The fact and date of the execution by any Person of any such instrument may be proved by acknowledgment before a notary public or other officer empowered to take acknowledgments or by an affidavit of a witness to such execution or by any other method satisfactory to the Registrar. Any action by the Owner of any Bond will bind all future Owners of the same Bond or of any Bond issued upon the exchange or registration of transfer thereof in respect of anything done or suffered by the county or the Registrar in pursuance thereof.
SECTION 11.3. Notices to Notice Parties. Except as otherwise specifically provided for in this ordinance, all notices required by the terms hereof to be given to the Registrar, the county or the Owners of the Bonds will be deemed given, if given in writing and mailed by first-class mail, postage prepaid, and
(a) if to the Registrar, Tender Agent or Paying Agent, addressed to The Bank of New York Mellon, at 101 Barclay Street, 7W, New York, NY 10286, Attention: Corporate Trust Registrar Administration;
(b) if to the county, addressed to King County, Office of the Director, Finance and Business Operations Division, at 500 Fourth Avenue, Room 600, Seattle, WA 98104, Attention: Treasury Services;
(c) if to the Credit Provider, addressed to it at the address set forth in the Reimbursement Agreement;
(d) if to the Liquidity Provider, addressed to it at the address set forth in the Reimbursement Agreement;
(e) if to the Remarketing Agent, addressed to it at the address set forth in the Remarketing Agreement; and
(f) if to any owner of a Bond, addressed to such owner at the address set forth in the Bond Register; or, as to the county or the Registrar, as any of them will from time to time designate by notice in writing to the others.
SECTION 11.4. Notice to Rating Agencies. At such time as (i) there is a change in the Registrar, Tender Agent, Paying Agent, Remarketing Agent, Credit Provider, or Liquidity Provider, or any successors thereto, (ii) any amendment is made to this ordinance, a Credit Enhancement or a Liquidity Facility, (iii) a Credit Enhancement or Liquidity Facility expires or terminates or is extended or replaced, (iv) the county issues additional Multi-Modal LTGO/Sewer Revenue Bonds, or (v) whenever there is (A) a conversion of the Bonds from one Interest Rate Mode to another, (B) a redemption or defeasance of the Bonds, (C) a mandatory tender for purchase of the Bonds in the event of nonreinstatement of interest after an interest drawing on the Credit Enhancement or Liquidity Facility, (D) the occurrence of an event of default under a Liquidity Facility, or (E) an acceleration of the county's obligations under a Liquidity Facility, the county will give written notice of the same to Moody's at 7 World Trade Center, 250 Greenwich Street, New York, NY 10007, Attention: Public Finance Group - Full Support Group; and to S&P, 55 Water Street, New York, NY 10041, Attention: Municipal Structured Finance Group. In addition, copies of all notices required to be given under this ordinance will likewise be given to the Rating Agencies at the addresses set forth in the preceding sentence, and the county will provide to any Rating Agency any other information reasonably requested by the Rating Agency to maintain the ratings of the Bonds.
SECTION 11.5. Legal Investments. The county reserves the right to purchase Bonds at any time as a legal investment for funds of the county including but not limited to funds held by the county for the investment pool established pursuant to K.C.C. Chapter 4.10.
SECTION 11.6. Severability. In case any one or more of the provisions of this ordinance or of the Bonds is, for any reason, held to be illegal or invalid, such illegality or invalidity will not affect any other provisions of this ordinance or of such Bonds, and this ordinance and the Bonds will be construed and enforced to the end that the transactions contemplated hereby be effected and the obligations contemplated hereby be enforced as if such illegal or invalid provisions had not been contained therein.
SECTION 11.7. Effective Date. This ordinance will be effective 10 days after its enactment, in accordance with Article II of the county charter.