R-42-04 06/15/2004MINUTES of a regular public meeting of the President and Board of
Trustees of the Village of Lemont, Cook, DuPage and Will
Counties, Illinois, held at the Village Hall, located at 418 Main
Street, in said Village at 7:30 o'clock P.M., on the 14th day of
June, 2004.
The President called the meeting to order and directed the Village Clerk to call the roll.
Upon roll call, the following answered present: John F. Piazza
President, and Trustees
and Virgilio
Blatzer, Coules, Reaves, Rosendahl, Stapleton,
The following were absent: 0
The President and Board of Trustees then discussed financing the acquisition of a portion
of an industrial project located in the Village and considered a resolution providing for the
issuance of Sales Tax Revenue Bonds (Long Run Marketplace Project), Series 2004, of the
Village of Lemont, Cook, DuPage and Will Counties, Illinois.
Thereupon, Trustee Reaves presented the following resolution:
A RESOLUTION authorizing and providing for the issue of $3,320,000
Sales Tax Revenue Bonds (Long Run Marketplace Project), Series 2004,
of the Village of Lemont, Cook, DuPage and Will Counties, Illinois, for
the purpose of defraying the financing of the acquisition and construction
of an industrial project in said Village, prescribing all the details of said
bonds, and providing for the collection, segregation and distribution of a
portion of the sales taxes derived from said project.
(the "Bond Resolution ") which was before the President and Board of Trustees in words and
figures as follows.
Trustee Reaves moved and Trustee coules seconded the motion
that the Bond Resolution as presented be adopted.
A discussion of the matter followed.
1585129.03.03
2112134Lemont03/PMCurtner:6/ 14/04
The Village President directed that the roll be called for a vote upon the motion to adopt
the resolution.
Upon the roll being called, the following Trustees voted AYE: Blatzer,
Coules, Reaves, Rosendahl, Stapleton, Virgilio
and the following Trustees voted NAY: 0
WHEREUPON, the Village President declared the motion carried and the resolution
adopted.
Other business was duly transacted at said meeting.
Upon motion duly made and carried, the meeting adjourned.
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Charlene Smollen
Village Clerk
TABLE OF CONTENTS
SECTION HEADING PAGE
PREAMBLES 1
SECTION 1. DEFINITIONS 3
SECTION 2. INCORPORATION OF PREAMBLES 7
SECTION 3. DETERMINATION TO ISSUE BONDS 7
SECTION 4. ANNEXATION AGREEMENT RATIFIED AND CONFIRMED 7
SECTION 5. BOND DETAILS 7
SECTION 6. REDEMPTION 8
SECTION 7. REDEMPTION PROCEDURE 8
SECTION 8. EXECUTION; AUTHENTICATION 12
SECTION 9. BOOK -ENTRY SYSTEM; REGISTRATION OF BONDS; PERSONS
TREATED AS OWNERS 13
SECTION 10. FORM OF BOND 17
SECTION 11. BONDS LIMITED OBLIGATIONS; PLEDGED SALES TAX REVENUES
PLEDGED 23
SECTION 12. CREATION OF PLEDGED SALES TAX ACCOUNT AND ACCOUNTS
THEREOF 24
SECTION 13. FLOW OF FUNDS 24
SECTION 14. GENERAL COVENANTS 27
SECTION 15. ISSUANCE OF PARITY BONDS 28
SECTION 16. SALE OF BONDS 28
SECTION 17. USE OF PROCEEDS 29
SECTION 18. PAYMENT AND DISCHARGE; REFUNDING 29
SECTION 19. NOT PRIVATE ACTIVITY BONDS; NO REIMBURSEMENT 30
SECTION 20. GENERAL ARBITRAGE COVENANTS; NO REIMBURSEMENT 31
SECTION 21. ARBITRAGE REBATE 32
SECTION 22. FURTHER TAX COVENANTS 32
SECTION 23. REGISTERED FORM 33
SECTION 24. QUALIFIED TAX - EXEMPT OBLIGATIONS 33
SECTION 25. OPINION OF COUNSEL EXCEPTION 33
SECTION 26. CONTINUING DISCLOSURE UNDERTAKING 34
SECTION 27. DUTIES OF TRUSTEE 34
SECTION 28. RIGHTS OF TRUSTEE 35
SECTION 29. INDIVIDUAL RIGHTS OF TRUSTEE 36
SECTION 30. TRUSTEE'S DISCLAIMER 36
SECTION 31. ELIGIBILITY OF TRUSTEE 36
SECTION 32. REPLACEMENT OF TRUSTEE 36
SECTION 33. SUCCESSOR TRUSTEE BY MERGER 37
SECTION 34. COMPENSATION 38
SECTION 35. DEFINITION OF EVENTS OF DEFAULT; REMEDIES 38
SECTION 36. NOTICES OF DEFAULT 39
SECTION 37. TERMINATION OF PROCEEDINGS BY TRUSTEE 39
SECTION 38. RIGHT OF HOLDERS TO CONTROL PROCEEDINGS 40
SECTION 39. RIGHT OF HOLDERS TO INSTITUTE SUIT 40
SECTION 40. SUITS BY TRUSTEE 41
SECTION 41. REMEDIES CUMULATIVE 41
SECTION 42. WAIVER OF DEFAULT 42
SECTION 43. APPLICATION OF MONIES AFTER DEFAULT 42
SECTION 44. THIS RESOLUTION A CONTRACT 43
SECTION 45. SUPPLEMENTAL RESOLUTIONS 44
SECTION 46. EFFECT OF CONSENTS 46
SECTION 47. SIGNING BY TRUSTEE OF AMENDMENTS AND SUPPLEMENTS 46
SECTION 48. NOTICES 46
SECTION 49. BONDHOLDERS' CONSENTS 47
SECTION 50. LIMITATION OF RIGHTS 48
SECTION 51. TRUSTEE COVENANTS 48
SECTION 52. SEVERABILITY 49
SECTION 53. REPEALER 49
SECTION 54. PUBLICATION 50
RESOLUTION NO. a_42-01.-1
A RESOLUTION authorizing and providing for the issue of
$3,320,000 Sales Tax Revenue Bonds (Long Run Marketplace
Project), Series 2004, of the Village of Lemont, Cook, DuPage and
Will Counties, Illinois, for the purpose of defraying the financing
of the acquisition and construction of a portion of an industrial
project in said Village, prescribing all the details of said bonds, and
providing for the collection, segregation and distribution of a
portion of the sales taxes derived from said project.
PREAMBLES
WHEREAS, the Village of Lemont, Cook, DuPage and Will Counties, Illinois (the
"Village "), is a duly organized municipality and is operating pursuant to the Illinois Municipal
Code, as supplemented and amended (the "Municipal Code "), and particularly as supplemented
by the Local Government Debt Reform Act, as amended, and by the other Omnibus Bond Acts,
as amended (collectively, the "Act "); and
WHEREAS, the Village has heretofore entered into that certain Annexation Agreement
dated the 27th day of March, 1999 (the "Agreement "), with Standard Bank and Trust Company,
not personally but as Trustee under Trust Agreement dated December 8, 1985, and known as
Trust #15089, and Ryan Companies US Inc., a Minnesota corporation (the "Developer "),
pursuant to which Developer agreed, inter alia, to improve certain vacant real property located in
the Village and defined in said Agreement as the "Commercial Tract" (collectively, the
"Development "); and
WHEREAS, the Development is a capital project including one or more buildings and
other structures suitable for use by any commercial enterprise, including but not limited to use as
a commercial facility and including public utilities and access roads, and accordingly the
Development constitutes an "industrial project" as defined in Section 11 -74 -1 et seq. of the
Municipal Code (the "IRB Act "); and
WHEREAS, incidental to the Agreement the President and Board of Trustees of the
Village (the "Corporate Authorities") have heretofore and it hereby is expressly determined that
it is desirable and necessary and in the best interests of the Village and its residents and
taxpayers that the Village reimburse the Developer for a portion of the Developer's cost of the
Development, to -wit: the construction and installation of certain public infrastructure
improvements, including but not limited to watermain and sanitary sewer system improvements,
roadway improvements and traffic signalization (together with engineering, legal, financial and
other professional fees, land and rights in land, printing, interest capitalization and other related
costs of issuance being, collectively, the "Project "); and
WHEREAS, as provided in the Agreement the cost of the Project is $3,222,000, plus
interest thereon; and
WHEREAS, the Corporate Authorities have determined that it is advisable, necessary and
in the best interests of public health, safety and welfare to achieve a debt service savings by
issuing its industrial project revenue bonds pursuant to the IRB Act in order to pay the Developer
said sum as reimbursement for the costs of the Project; and
WHEREAS, the Corporate Authorities have heretofore and it hereby expressly is
determined that the Village will receive distributions by the State of sales taxes derived from the
Development (the "Incremental Sales Taxes "), or substitute taxes therefor, which Incremental
Sales Taxes constitute revenues and income of the Development; and
WHEREAS, the Incremental Sales Taxes constitute taxes of general applicability; and
WHEREAS, there are insufficient funds on hand and lawfully available to pay costs of the
Project, and such costs are expected to be defrayed by up to $3,320,000 proceeds of industrial
revenue bonds (the "2003 Bonds ") payable from said Incremental Sales Taxes and issued at this
time pursuant to the Act; and
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WHEREAS, the Village has heretofore issued no obligations which are secured, in whole
or in part, by the Incremental Sales Taxes; and
WHEREAS, pursuant to and in accordance with the provisions of the IRB Act, the Village
is authorized to issue its industrial project revenue bonds in the aggregate principal amount of
$3,320,000 for the purpose of paying the costs of the Project, and it is determined to be advisable
to issue $3,320,000 thereof at this time:
NOW, THEREFORE, Be It Resolved by the President and Board of Trustees of the Village
of Lemont, Cook, DuPage and Will Counties, Illinois, as follows:
Section 1. Definitions. The following words and terms used in this Resolution shall
have the following meanings unless the context or use clearly indicates another or different
meaning is intended:
"Accounting" mean the annual accounting so defined in Section 13 of this Resolution.
"Act" means the Illinois Municipal Code, as supplemented and amended (65 ILCS 5/1 -1
et seq.), and in particular, Division 74 of Article 11 thereof, as supplemented by the Local
Government Debt Reform Act, as amended, and the other Omnibus Bond Acts, as amended.
"Additional Sales Taxes" means, as of any Accounting, the additional amount, if any, of
Sales Taxes required to establish a credit balance in the Bond Fund sufficient to pay the Principal
Requirement and the Interest Requirement, provided, however, that such additional amount, if
any, of Sales Taxes so required to be deposited in the Bond Fund in any Bond Year shall not
exceed 150% of the Principal Requirement and the Interest Requirement for that Bond Year.
"Bond" or "Bonds" means one or more, as applicable, of the $3,320,000 Sales Tax
Revenue Bonds (Long Run Marketplace Project), Series 2004, authorized to be issued by this
Resolution.
"Bond Counsel" means Chapman and Cutler LLP, Chicago, Illinois.
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"Bond Fund" means the Bond and Interest Account created in Section 13 hereof.
"Bond Register" means the books of the Village kept by the Trustee to evidence the
registration and transfer of the Bonds.
"Bond Year" means a twelve -month period beginning January 2 of the calendar year and
ending on January 1 of the subsequent calendar year.
"Code" means the Internal Revenue Code of 1986, as amended.
"Corporate Authorities" means the President and Board of Trustees of the Village.
"Depository" means The Depository Trust Company, New York, New York, or a
successor duly qualified to act as a securities depository as contemplated hereunder, or assigns.
"Development" means the industrial project so defined in the preambles hereto.
"Government Securities" means bonds, note, certificates of indebtedness, treasury bills
or other securities constituting direct obligations of the United States of America and all
securities or obligations, the prompt payment of principal of and interest on which is guaranteed
by a pledge of the full faith and credit of the United States of America.
"Incremental Sales Taxes" means distributions to the Village by the State of that portion
of the Sales Taxes derived from the Development, or substitute taxes therefor.
"Insurer" means the issuer of a municipal bond insurance policy or a financial guaranty
relating to the Bonds.
"Interest Requirement" means for any Bonds or Parity Bonds and for any Bond Year, the
aggregate amount of interest on such Bonds or Parity Bonds having a Stated Maturity during
such Bond Year.
"Outstanding Bonds" means Bonds and Parity Bonds which are outstanding and unpaid;
provided, however, such term shall not include Bonds or Parity Bonds (i) which have matured
and for which moneys are on deposit with proper paying agents, or are otherwise properly
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available, sufficient to pay all principal thereof and interest thereon, or (ii) the provision for
payment of which has been made by the Village by the deposit in an irrevocable trust or escrow
of funds or direct, full faith and credit obligations of the United States of America, the principal
of and interest on which will be sufficient to pay at maturity or as called for redemption all the
principal of and interest on such Bonds or Parity Bonds.
"Parity Bonds" means bonds or any other obligation to be issued subsequent in time to
the Bonds and which will share ratably and equally in the Pledged Sales Tax Revenues with the
Bonds.
"Pledged Sales Tax Account" means the Pledged Sales Tax Account of the Village
created under this Resolution.
"Pledged Sales Tax Revenues" means, collectively, the Incremental Sales Taxes and the
Additional Sales Taxes.
"Principal Requirement" means for any Bonds or Parity Bonds and for any Bond Year,
the aggregate amount of principal of such Bonds or Parity Bonds having a Stated Maturity
during such Bond Year.
"Project" means the public infrastructure component of the Development so defined in
the preambles hereto.
"Purchase Price" means $3,283,480.00 (being par net of $36,250.00 underwriters'
discount), plus accrued interest.
"Purchaser" means Bernardi Securities, Inc., Chicago, Illinois
"Reform Act" means the Local Government Debt Reform Act, as supplemented and
amended (30 ILCS 350/1 et seq.).
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"Representation Letter" means such letter or written agreement as shall be necessary to
effectuate a book -entry system for the Bonds and as shall be entered into by and between the
Village and the Depository.
"Resolution" means this resolution, adopted on the 14`h day of June, 2004, by the
Corporate Authorities, as from to time supplemented and amended.
"Sales Taxes" means distributions to the Village of sales taxes collected pursuant to the
Retailers' Occupation Tax Act, the Service Occupation Tax Act, the Service Use Tax Act, and
the Use Tax Act, each as amended, or substitute taxes therefor.
"State" means the State of Illinois.
"Stated Maturity" with respect to any Bond or Parity Bond or any interest thereon means
the date specified in such Bond or Parity Bond as the fixed date on which the principal of such
Bond or Parity Bond or such interest is payable, whether by maturity, mandatory redemption or
otherwise.
"Tax- exempt" means, with respect to the Bonds, the status of interest paid and received
thereon as not includible in the gross income of the owners thereof under the Code for federal
income tax purposes except to the extent that such interest is taken into account in computing an
adjustment used in determining the alternative minimum tax for certain corporations and in
computing the "branch profits tax" imposed on certain foreign corporations.
"Trustee" means Amalgamated Bank of Chicago, Chicago, Illinois, or a successor
designated as trustee, bond registrar and paying agent hereunder or successors or assigns so
designated hereunder.
"Village" means the Village of Lemont, Cook, DuPage and Will Counties, Illinois.
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Section 2. Incorporation of Preambles The Corporate Authorities hereby find that all
of the recitals contained in the preambles to this Resolution are full, true and correct and do
incorporate them into this Resolution by this reference.
Section 3. Determination to Issue Bonds. It is necessary and in the best interests of the
Village to finance the acquisition and construction of the Project, all as provided for and in
accordance with the provisions of the Act, and it is hereby expressly found and determined that
financing the acquisition and construction of the Project and the issuance of the Bonds to pay the
costs thereof are in the best interests of the Village and its residents and are expressly authorized
under the Act.
Section 4. Annexation Agreement Ratified and Confirmed. The terms and provisions
of the Agreement are hereby expressly ratified and confirmed.
Section 5. Bond Details. For the purpose of providing for the Project, there shall be
issued and sold the Bonds in the principal amount of $3,320,000. The Bonds shall each be
designated "Sales Tax Revenue Bond (Long Run Marketplace Project), Series 2004," shall be
dated June 15, 2004 (the "Dated Date"); and shall also bear the date of authentication thereof.
The Bonds shall be in fully registered form, shall be in denominations of $5,000 each, and
authorized integral multiples thereof (but no single Bond shall represent principal maturing on
more than one date), and shall be numbered 1 and upward. The Bonds shall bear interest and
shall mature serially on January 1 of each of the years and in the amounts as follows (subject to
right of prior redemption as hereinafter stated):
YEAR OF PRINCIPAL
MATURITY AMOUNT ($) RATE ( %)
2005 265,000 1.75
2006 225,000 2.45
2007 240,000 2.90
2008 255,000 3.30
2009 280,000 3.50
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YEAR OF PRINCIPAL
MATURITY AMOUNT ($) RATE ( %)
2010 295,000 3.85
2011 320,000 4.15
2012 345,000 4.25
2013 370,000 4.35
2014 405,000 4.45
2015 320,000 4.60
Each Bond shall bear interest from the later of its Dated Date or the most recent interest
payment date to which interest has been paid or duly provided for until the principal amount of
such Bond is paid or duly provided for, such interest (computed upon the basis of a 360 -day year
of twelve 30 -day months), being payable on January 1 and July 1 of each year, commencing on
January 1, 2005. Interest on each Bond shall be paid by check or draft of the Trustee, payable
upon presentation in lawful money of the United States of America, to the person in whose name
such Bond is registered at the close of business on the 15th day of the month next preceding the
interest payment date, or as otherwise may be agreed to by the Village and CEDE & Co., as
nominee, or successor, for so long as the Bonds are held by the Depository in book -entry only
form as provided for same. The principal of and premium (if any) on the Bonds shall be payable
upon presentation in lawful money of the United States of America at the principal office
maintained for the purpose by the Trustee.
Section 6. Redemption. The Bonds maturing on and after January 1, 2015, are subject
to redemption prior to maturity at the option of the Village, from any available monies, on
January 1, 2014, and any date thereafter, in whole or in part, and if in part in such principal
amounts and from such maturities as the Village shall determine, and within any maturity by lot,
at a redemption price of par plus accrued interest to the date fixed for redemption.
Section 7. Redemption Procedure. The Village shall, at least 45 days prior to the
redemption date (unless a shorter time period shall be satisfactory to the Trustee), notify the
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Trustee of such redemption date and of the maturities and principal amounts of Bonds to be
redeemed. For purposes of any redemption of less than all of the Bonds of a single maturity, the
particular Bonds or portions of Bonds to be redeemed shall be selected by lot not more than 60
days prior to the redemption date by the Trustee for the Bonds of such maturity by such method
of lottery as the Trustee shall deem fair and appropriate; provided, that such lottery shall provide
for the selection for redemption of Bonds or portions thereof so that any $5,000 Bond or $5,000
portion of a Bond shall be as likely to be called for redemption as any other such $5,000 Bond or
$5,000 portion.
The Trustee shall promptly notify the Village and the Trustee in writing of the Bonds or
portions of Bonds selected for redemption and, in the case of any Bond selected for partial
redemption, the principal amount thereof to be redeemed.
Unless waived by the registered owner of Bonds to be redeemed, official notice of any
such redemption shall be given by the Trustee on behalf of the Village by mailing the redemption
notice by first class mail not less than 30 days and not more than 60 days prior to the date fixed
for redemption to each registered owner of the Bond or Bonds to be redeemed at the address
shown on the Bond Register or at such other address as is furnished in writing by such registered
owner to the Trustee.
All official notices of redemption shall include at least the information as follows:
(a) the redemption date;
(b) the redemption price;
(c) if less than all of the outstanding Bonds of a particular maturity are to be
redeemed, the identification (and, in the case of partial redemption of Bonds within such
maturity, the respective principal amounts) of the Bonds to be redeemed;
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(d) a statement that on the redemption date the redemption price will become
due and payable upon each such Bond or portion thereof called for redemption and that
interest thereon shall cease to accrue from and after said date; and
(e) the place where such Bonds are to be surrendered for payment of the
redemption price, which place of payment shall be the principal corporate trust office of
the Trustee.
Such additional notice as may be agreed upon with the Depository shall also be given as
long as any Bonds are held by the Depository.
Prior to any redemption date, the Village shall deposit with the Trustee an amount of
money sufficient to pay the redemption price of all the Bonds or portions of Bonds which are to
be redeemed on that date.
Official notice of redemption having been given as aforesaid, the Bonds or portions of
Bonds so to be redeemed shall, on the redemption date, become due and payable at the
redemption price therein specified, and from and after such date (unless the Village shall default
in the payment of the redemption price), such Bonds or portions of Bonds shall cease to bear
interest. Neither the failure to mail such redemption notice, nor any defect in any notice so
mailed, to any particular registered owner of a Bond, shall affect the sufficiency of such notice
with respect to other registered owners. Notice having been properly given, failure of a
registered owner of a Bond to receive such notice shall not be deemed to invalidate, limit or
delay the effect of the notice or redemption action described in the notice. Such notice may be
waived in writing by a registered owner of a Bond entitled to receive such notice, either before or
after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by
registered owners shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.
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Upon surrender of such Bonds for redemption in accordance with said notice, such Bonds
shall be paid by the Trustee at the redemption price. The procedure for the payment of interest
due as part of the redemption price shall be as herein provided for payment of interest otherwise
due. Upon surrender for any partial redemption of any Bond, there shall be prepared for the
registered owner a new Bond or Bonds of like tenor, of authorized denominations, of the same
maturity, and bearing the same rate of interest in the amount of the unpaid principal.
If any Bond or portion of a Bond called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until paid or duly provided for, bear interest
from the redemption date at the rate borne by the Bond or portion of Bond so called for
redemption. All Bonds which have been redeemed shall be canceled and destroyed by the
Trustee and shall not be reissued.
In addition to the foregoing notice, further notice shall be given by the Trustee on behalf
of the Village as set out below, but no defect in said further notice nor any failure to give all or
any portion of such further notice shall in any manner defeat the effectiveness of a call for
redemption if notice thereof is given as above prescribed.
Each further notice of redemption given hereunder shall contain the information required
above for an official notice of redemption plus (a) the CUSIP numbers of all Bonds being
redeemed; (b) the date of issue of the Bonds as originally issued; (c) the rate of interest borne by
each Bond being redeemed; (d) the maturity date of each Bond being redeemed; and (e) any
other descriptive information needed to identify accurately the Bonds being redeemed.
Each further notice of redemption shall be sent at least 35 days before the redemption
date by registered or certified mail or overnight delivery service to all registered securities
depositories then in the business of holding substantial amounts of obligations of types
comprising the Bonds (such depositories now including Depository Trust Company of New
York, New York, and Depository Trust Company of Philadelphia, Pennsylvania) and to one or
more national information services, chosen in the discretion of the Trustee, that disseminate
notice of redemption of obligations such as the Bonds.
Each further notice of redemption shall be published one time in a financial newspaper or
journal which regularly carries notices of redemption of other obligations similar to the Bonds,
such publication to be made at least 30 days prior to the date fixed for redemption.
Upon the payment of the redemption price of Bonds being redeemed, each check or other
transfer of funds issued for such purpose shall bear the CUSIP number identifying, by issue and
maturity, the Bonds being redeemed with the proceeds of such check or other transfer.
As part of their respective duties hereunder, the Trustee and Trustee shall prepare and forward to
the Village a statement as to notice given with respect to each redemption together with copies of
the notices as mailed and published.
Section 8. Execution; Authentication. The Bonds shall be executed on behalf of the
Village with the manual or duly authorized facsimile signature of the President and attested with
the manual or duly authorized facsimile signature of the Village Clerk, as they may determine,
and shall have impressed or imprinted thereon the corporate seal or facsimile thereof of the
Village. In case any officer whose signature shall appear on any Bond shall cease to be such
officer before the delivery of such Bond, such signature shall nevertheless be valid and sufficient
for all purposes, the same as if such officer had remained in office until delivery.
All Bonds shall have thereon a certificate of authentication substantially in the form
hereinafter set forth duly executed by the Trustee as authenticating agent of the Village and
showing the date of authentication. No Bond shall be valid or obligatory for any purpose or be
entitled to any security or benefit under this Resolution unless and until such certificate of
authentication shall have been duly executed by the Trustee by manual signature, and such
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certificate of authentication upon any such Bond shall be conclusive evidence that such Bond has
been authenticated and delivered under this Resolution. The certificate of authentication on any
Bond shall be deemed to have been executed by it if signed by an authorized officer of the
Trustee, but it shall not be necessary that the same officer sign the certificate of authentication on
all of the Bonds issued hereunder.
Section 9. Book -Entry System; Registration of Bonds; Persons Treated as Owners.
(a) Book Entry System. The Bonds shall be initially issued in the form of a separate single fully
registered Bond for each maturity. Upon initial issuance, the ownership of each such Bond shall
be registered in the Bond Register therefor in the name of CEDE & Co., or any successor thereto,
as nominee of the Depository. All of the outstanding Bonds from time to time shall be registered
in the Bond Register in the name of CEDE & Co., as nominee of the Depository. Any Designated
Officer is authorized to execute and deliver on behalf of the Village a Representation Letter.
Without limiting the generality of the authority given to such Designated Officer with respect to
entering into such Representation Letter, it may contain provisions relating to (a) payment
procedures, (b) transfers of the Bonds or of beneficial interest therein, (c) redemption notices or
procedures unique to the Depository, (d) additional notices or communications, and
(e) amendment from time to time to conform with changing customs and practices with respect
to securities industry transfer and payment practices.
With respect to Bonds registered in the Bond Register in the name of CEDE & Co., as
nominee of the Depository, the Village and the Trustee shall have no responsibility or obligation
to any broker - dealer, bank or other financial institutions for which the Depository holds Bonds
from time to time as securities depository (each such broker - dealer, bank or other financial
institution being referred to herein as a "Depository Participant ") or to any person on behalf of
whom such a Depository Participant holds an interest in the Bonds. Without limiting the
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meaning of the immediately preceding sentence, the Village and the Trustee shall have no
responsibility or obligation with respect to (a) the accuracy of the records of the Depository,
CEDE & Co., or any Depository Participant with respect to any ownership interest in the Bonds,
(b) the delivery to any Depository Participant or any other person, other than a registered owner
of a Bond as shown in the Bond Register, or any notice with respect to the Bonds, including any
notice of redemption, or (c) the payment to any Depository Participant or any other person, other
than a registered owner of a Bond as shown in the Bond Register, of any amount with respect to
principal of or interest on the Bonds.
No person other than a registered owner of a Bond as shown in the Bond Register shall
receive a Bond certificate with respect to any Bond. Upon delivery by the Depository to the
Trustee of written notice to the effect that the Depository has determined to substitute a new
nominee in place of CEDE & Co., and subject to the provisions hereof with respect to the
payment of interest to the registered owners of Bonds at the close of business on the 15th day of
the month next preceding the applicable interest payment date, the name "CEDE & Co." in this
Resolution shall refer to such new nominee of the Depository.
In the event that (a) the Village determines that the Depository is incapable of
discharging its responsibilities described herein and in the Representation Letter, (b) the
agreement among the Village, the Trustee and the Depository evidenced by the Representation
Letter shall be terminated for any reason, or (c) the Village determines that it is in the best
interests of the beneficial owners of the Bonds that they be able to obtain certificated Bonds, the
Village shall notify the Depository of the availability of Bond certificates, and the Bonds shall no
longer be restricted to being registered in the Bond Register in the name of CEDE & Co., as
nominee of the Depository. The Village may determine that the Bonds shall be registered in the
name of and deposited with a successor depository operating a book -entry system, as may be
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acceptable to the Village, or such depository's agent or designee, and if the Village does not
select such alternate book -entry system, then the Bonds may be registered in whatever name or
names registered owners of Bonds transferring or exchanging Bonds shall designate, in
accordance with the provisions hereof. Notwithstanding any other provision of this Resolution
to the contrary, so long as any Bond is registered in the name of CEDE & Co., as nominee of the
Depository, all payments with respect to principal of and interest on such Bond and all notices
with respect to such Bond shall be made and given, respectively, in the manner provided in the
Representation Letter.
In the event that the Bonds ever become generally registrable, as aforesaid, the Village
Treasurer may, in his or her discretion at such time, designate a bank with trust powers or trust
company, duly authorized to do business as a bond registrar, paying agent, or both, to act in one
or both such capacities hereunder, in the event that the Village Treasurer shall determine it to be
advisable. Notice shall be given to the registered owners of any such designation in the same
manner, as near as may be practicable, as for a notice of redemption of Bonds, and as if the date
of such successor taking up its duties were the redemption date.
(b) Registration of Bonds. The Village shall cause the Bond Register to be kept at the
principal office maintained for the purpose by the Trustee, which is hereby constituted and
appointed the registrar of the Village. The Village is authorized to prepare, and the Trustee or
such other agent as the Village may designate shall keep custody of, multiple Bond blanks
executed by the Village for use in the transfer and exchange of Bonds.
Upon surrender for transfer of any Bond at the principal office maintained for the purpose
by the Trustee, duly endorsed by, or accompanied by a written instrument or instruments of
transfer in form satisfactory to the Trustee and duly executed by, the registered owner or his
attorney duly authorized in writing, the Village shall execute and the Trustee shall authenticate,
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date and deliver in the name of the transferee or transferees a new fully registered Bond or Bonds
of the same maturity and rate of interest of authorized denominations, for a like aggregate
principal amount. Any fully registered Bond or Bonds may be exchanged at said office of the
Trustee for a like aggregate principal amount of Bond or Bonds of the same maturity and rate of
interest of other authorized denominations. The execution by the Village of any fully registered
Bond shall constitute full and due authorization of such Bond; and the Trustee shall thereby be
authorized to authenticate, date and deliver such Bond; provided, however, the principal amount
of Outstanding Bonds of each maturity authenticated by the Trustee shall not at any one time
exceed the authorized principal amount of Bonds for such maturity less the amount of such
Bonds which have been paid.
The Trustee shall not be required to transfer or exchange any Bond during the period
from the fifteenth day of the month next preceding an interest payment date to such interest
payment date, or to transfer or exchange any Bond after notice calling such Bond for redemption
has been mailed, or to transfer or exchange any Bond during a period of fifteen days next
preceding mailing of a notice of redemption of any Bonds.
The person in whose name any Bond shall be registered shall be deemed and regarded as
the absolute owner thereof for all purposes, and payment of the principal of or interest on any
Bond shall be made only to or upon the order of the registered owner thereof or his legal
representative. All such payments shall be valid and effectual to satisfy and discharge the
liability upon such Bond to the extent of the sum or sums so paid.
No service charge shall be made for any transfer or exchange of Bonds, but the Village or
the Trustee may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of Bonds except in the
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case of the issuance of a Bond or Bonds for the unredeemed portion of a Bond surrendered for
redemption.
Section 10. Form of Bond. The Bonds shall be in substantially the form hereinafter set
forth; provided, however, that if the text of the Bond is to be printed in its entirety on the front
side of the Bond, then paragraph [2] and the legend, "See Reverse Side for Additional
Provisions ", shall be omitted and paragraphs [6] through [ 13] shall be inserted immediately after
paragraph [1].
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Registered
No.
(Form of Bond - Front Side)
UNITED STATES OF AMERICA
STATE OF ILLINOIS
COUNTIES OF C OOK, DUPAGE AND WILL
VILLAGE OF LEMONT
SALES TAX REVENUE BOND (LONG RUN MARKETPLACE PROJECT)
SERIES 2004
See Reverse Side for
Additional Provisions
Interest
Rate:
Registered
$
Maturity Dated
Date: January 1, Date: June 15, 2004 CUSIP
Registered Owner: CEDE & Co.
Principal Amount:
[1] KNOW ALL PERSONS BY THESE PRESENTS, that the Village of Lemont, Cook,
DuPage and Will Counties, Illinois, a municipality and political subdivision of the State of
Illinois (the "Village "), hereby acknowledges itself to owe and for value received promises to
pay to the Registered Owner identified above, or registered assigns as hereinafter provided, on
the Maturity Date identified above, the Principal Amount identified above and to pay interest
(computed on the basis of a 360 -day year of twelve 30 -day months) on such Principal Amount
from the later of the Dated Date of this Bond identified above or from the most recent interest
payment date to which interest has been paid at the Interest Rate per annum identified above,
such interest to be payable on January 1 and July 1 of each year, commencing January 1, 2005,
except as the hereinafter stated provisions for redemption may and shall become applicable
hereto. Both principal of and premium (if any) on this Bond are payable in lawful money of the
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United States of America upon presentation at the principal office maintained for the purpose by
Amalgamated Bank of Chicago, in Chicago, Illinois, as Trustee, bond registrar and paying agent
(the "Trustee"). Payment of interest shall be made to the Registered Owner hereof as appearing
on the registration books of the Village maintained by the Trustee at the close of business on the
15th day of the month next preceding the interest payment date and shall be paid by check or
draft of the Trustee, payable upon presentation in lawful money of the United States of America,
mailed to the address of such Registered Owner as it appears on such registration books or at
such other address furnished in writing by such Registered Owner to the Trustee, or as otherwise
may be agreed to by the Village and CEDE & CO., as nominee, or successor, for so long as the
Bonds are held by the Depository in book -entry only form as provided for same.
[2] Reference is hereby made to the further provisions of this Bond set forth on the
reverse hereof, and such further provisions shall for all purposes have the same effect as if set
forth at this place.
[3] It is hereby certified and recited that all acts, conditions and things required to be
done precedent to and in the issuance of this Bond have been done and have happened and have
been performed in regular and due form of law and that provision has been made for depositing
into the Pledged Sales Tax Account the Pledged Sales Tax Revenues, and to comply with all the
covenants of and to maintain the accounts created by the Resolution.
[4] The Village has designated each of the Bonds as a "qualified tax - exempt
obligation" pursuant to Section 265(6)(3) of the Internal Revenue Code of 1986, as amended.
[5] This Bond shall not be valid or become obligatory for any purpose until the
certificate of authentication hereon shall have been manually signed by the Trustee.
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[6] IN WITNESS WHEREOF, the Village of Lemont, Cook, DuPage and Will Counties,
Illinois, by its President and Board of Trustees, has caused this Bond to be executed with the
manual or duly authorized facsimile signature of its President and attested by the manual or duly
authorized facsimile signature of its Village Clerk and its corporate seal or a facsimile thereof to
be impressed or reproduced hereon, all as appearing hereon and as of the Dated Date identified
above.
Attest:
illage Clerk, Village of Lemont,
Cook, DuPage and Will Counties, Illinois
(SEAL)
Date of Authentication:
CERTIFICATE
OF
AUTHENTICATION
This Bond is one of the Bonds
described in the within mentioned
Resolution and is one of the Sales Tax
Revenue Bonds (Long Run Marketplace
Project), Series 2004, of the Village of
Lemont, Cook, DuPage and Will Counties,
Illinois.
AMALGAMATED BANK OF CHICAGO, as Trustee
By
Authorized Officer
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Il
t, Villa :eof mrnt,
uPage and W 1 Counties,
Trustee: AMALGAMATED BANK OF
CHICAGO
[Form of Bond - Reverse Side]
VILLAGE OF LEMONT, COOK, DUPAGE AND WILL COUNTIES
SALES TAX REVENUE BOND, SERIES 2004
[7] This bond and the bonds of the series of which it forms a part ( "Bond" and
"Bonds" respectively) are of an authorized issue of Three Million Three Hundred Twenty
Thousand Dollars ($3,320,000) of like Dated Date and tenor except as to maturity, rate of
interest and provisions for redemption. The Bonds are payable solely and only from (i) the
distributions to the Village by the State of Sales Taxes derived from the Development (the
"Incremental Sales Taxes ") and (ii) that additional amount, if any, of Sales Taxes which, as of
any Accounting, is required to establish a credit balance in the Bond Fund sufficient to pay the
Principal Requirement and Interest Requirement (the "Additional Sales Taxes ") (the Incremental
Sales Taxes and the Additional Sales Taxes being, collectively, the "Pledged Sales Tax
Revenues "), and are issued under authority of the provisions of the Illinois Municipal Code, as
supplemented and amended, and particularly as supplemented by the Local Government Debt
Reform Act, as amended, and the other Omnibus Bond Acts, as amended (collectively, the
"Act "), for the purpose of paying a part of the costs of financing the cost of acquiring and
constructing an industrial project in and for the Village. The Bonds are issued pursuant to a
resolution passed by the President and Board of Trustees of the Village on the 14th day of June,
2004 (the "Resolution"), to which reference is hereby expressly made for further definitions and
terms and to all the provisions of which the holder by the acceptance of this Bond assents. NO
HOLDER OF THIS BOND HAS THE RIGHT TO COMPEL ANY EXERCISE OF TAXING POWER OF
THE VILLAGE TO PAY THIS BOND OR THE INTEREST THEREON. THIS BOND HAS BEEN
ISSUED UNDER THE PROVISIONS OF DIVISION 74 OF ARTICLE 11 OF THE ILLINOIS
MUNICIPAL CODE, AS AMENDED, AND IT DOES NOT CONSTITUTE AN INDEBTEDNESS OF THE
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VILLAGE WITHIN THE MEANING OF ANY CONSTITUTIONAL OR STATUTORY PROVISION OR
LIMITATION.
[8] Under the Act and the Resolution, the Pledged Sales Tax Revenues shall be
deposited into the Pledged Sales Tax Account, which shall be used only and is hereby pledged
for paying the principal of and interest on the Bonds. Parity Bonds may be issued pursuant to the
terms of the Resolution.
[9] Outstanding Bonds issued and authenticated pursuant to the Resolution are
co -equal as to the lien on the Pledged Sales Tax Revenues for their payment and share ratably,
without any preference, priority, or distinction, the one over the other, as to the source or method
of payment and security of the Outstanding Bonds.
[10] The Bonds coming due on January 1, 2015, and thereafter are subject to
redemption prior to maturity at the option of the Village on January 1, 2014, and any date
thereafter, from any available monies, in whole or in part as provided in the Resolution, at a
redemption price of par plus accrued interest to the date fixed for redemption.
[11] This Bond is transferable by the Registered Owner hereof in person or by his
attorney duly authorized in writing at the principal office maintained for the purpose by the
Trustee in Chicago, Illinois, but only in the manner, subject to the limitations and upon payment
of the charges provided in the Resolution, and upon surrender and cancellation of this Bond.
Upon such transfer a new Bond or Bonds of authorized denominations of the same maturity and
rate of interest and for the same aggregate principal amount will be issued to the transferee in
exchange therefor.
[12] The Bonds are issued in fully registered form in the denomination of $5,000 each
or authorized integral multiples thereof. This Bond may be exchanged at the principal office
maintained for the purpose by the Trustee for a like aggregate principal amount of Bonds of the
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same maturity and rate of interest of other authorized denominations upon the terms set forth in
the Resolution.
[13] The Village, the Trustee and the Trustee may deem and treat the Registered
Owner hereof as the absolute owner hereof for the purpose of receiving payment of or on
account of principal hereof, premium, if any, hereon and interest due hereon and for all other
purposes, and neither the Village, the Trustee nor the Trustee shall be affected by any notice to
the contrary.
(ASSIGNMENT)
FOR VALUE RECEIVED, the undersigned sells, assigns and transfers unto
(Name and Address of Assignee)
the within Bond and does hereby irrevocably constitute and appoint
as attorney to transfer the said Bond on the books kept for registration thereof with full power of
substitution in the premises.
Dated:
Signature Guaranteed:
NOTICE: The signature to this assignment must correspond with the name of the registered
owner as it appears upon the face of the within Bond in every particular, without
alteration or enlargement or any change whatever.
Section 11. Bonds Limited Obligations; Pledged Sales Tax Revenues Pledged. The
Bonds shall be payable solely from the Pledged Sales Tax Revenues, and shall not constitute an
indebtedness of the Village within the meaning of any constitutional or statutory limitation. No
holder of any Bond shall have the right to compel any exercise of taxing power of the Village to
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pay any Bond or the interest thereon. The Village hereby expressly pledges the Pledged Sales
Tax Revenues to the payment of the principal of and interest on the Bonds.
Section 12. Creation of Pledged Sales Tax Account and Accounts Thereof.
Commencing the first month following the issuance of any of the Bonds, the Incremental Sales
Taxes shall be set aside as collected and be immediately transferred to the Trustee for deposit
into a separate and segregated trust account, which account is hereby expressly created and is
designated as the "Pledged Sales Tax Account" (the "Pledged Sales Tax Account ") of the
Village, which constitutes a trust fund for the sole purpose of carrying out the covenants, terms,
and conditions of this Resolution, and shall be used only in paying the principal of and interest
on all bonds of the Village which by their terms are payable solely from the Pledged Sales Tax
Revenues, and providing for the establishment of and expenditure from the respective accounts
as hereinafter described.
Section 13. Flow of Funds. There shall be and there are hereby expressly created
separate accounts in the Pledged Sales Tax Account to be known as the "Bond and Interest
Account" and the "Surplus Revenue Account," to which there shall be credited on or before the
first day of each month by the financial officer of the Village, without any further official action
or direction, in the order in which said accounts are hereinafter mentioned and without
commingling with any other funds of the Village, all moneys held in the Pledged Sales Tax
Account, in accordance with the following provisions:
(a) Bond and Interest Account:
There shall be credited to the Bond and Interest Account and held, in cash and
investments, a fractional amount of the interest becoming due on the next succeeding
interest payment date on all Outstanding Bonds and also a fractional amount of the
principal becoming due of the next succeeding principal maturity date of all of the
Outstanding Bonds until there shall have been accumulated and held, in cash and
investments, in the Bond and Interest Account on or before the month preceding such
maturity date of interest or maturity date of principal, an amount sufficient to pay the
Principal Requirement or Interest Requirement, or both.
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In computing the fractional amount to be set aside each month in the Bond and Interest
Account, the fraction shall be so computed that a sufficient amount will be set aside in
said Account and will be available for the prompt payment of the Principal Requirement
and the Interest Requirement and shall be not less than one -fifth of the interest becoming
due on the next succeeding interest payment date and not less than one -tenth of the
principal becoming due on the next succeeding principal payment date on all Outstanding
Bonds until there is sufficient money in said Account to pay the Principal Requirement
and the Interest Requirement, or both.
Credits to the Bond and Interest Account may be suspended in any Bond Year at such
time as there shall be a sufficient sum, held in cash and investments, in said Account to
meet principal and interest requirements in said Account for the balance of such Bond
Year, but such credits shall again be resumed at the beginning of the next Bond Year.
All moneys in said Account shall be used only for the purpose of paying interest on and
principal of Outstanding Bonds.
Not later than each June 1 and each December 1, commencing on December 1, 2004, the
Trustee shall conduct an accounting (an "Accounting") to determine the credit balance on
deposit in the Bond and Interest Account. If, upon any Accounting, the credit balance on
deposit in said Account shall be insufficient to pay principal of or interest on the Bonds
or both, coming due on the next succeeding interest payment date, the Trustee shall so
notify (which notification may be telephonic but shall be promptly confirmed in writing)
the Village Treasurer of the amount necessary to establish such credit balance (any such
amount being "Additional Sales Taxes "). The Village hereby expressly covenants and
agrees to transfer Additional Sales Taxes to the Trustee for deposit in the Bond and
Interest Account on or before the fifth day prior to the next succeeding interest payment
date.
(b) Surplus Revenue Account:
Commencing with the December 1, 2004, Accounting, and incidental to each Accounting
thereafter, the Trustee shall next credit the balance of the Incremental Sales Taxes to the
Surplus Revenue Account; provided, however, that incidental to each Accounting the
Trustee and the Treasurer shall reconcile the amount of Incremental Sales Tax deposited
into the Pledged Sales Tax Account to date for the then current Bond Year according to
official verification by the State of Illinois, or in the event that the State is unable or
unwilling to provide such verification, as confirmed by the Independent certified public
accountant employed by the Village, of the actual amount of Sales Taxes paid to the
Village and derived from the Development for such period. Upon receipt of each such
reconciliation, Incremental Sales Taxes on deposit in and to the credit of the Village
Account shall be immediately released from the pledge of this Resolution upon each such
deposit and the Trustee shall promptly transmit such balance to the Village, and the
Village may use such funds upon receipt for any lawful corporate purpose. It is hereby
expressly covenanted and agreed that upon any such release and transfer such
Incremental Sales Taxes shall no longer be deemed to be "Pledged Sales Tax Revenues"
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under this Resolution, and no registered owner of any Bond shall have the power to
compel the Village to apply such Incremental Sales Taxes to the payment of principal of,
premium, if any, or interest on the Bonds.
(c) Investments:
Money to the credit of the Pledged Sales Tax Account may be invested pursuant to any
authorization granted to municipal corporations by Illinois statute or court decision.
Monies to the credit of the Bond and Interest Account and the Surplus Revenue Account
may be invested from time to time by the Trustee at the direction of the Treasurer of the
Village (which may be telephonic but shall be promptly confirmed in writing) in
(1) direct full faith and credit obligations of the United States of America ( "U.S.
Bonds"); (2) certificates of participation in a trust or trusts receipts from a trust
comprised solely of U.S. Bonds; (3) shares in a money market or mutual fund comprised
solely of U.S. Bonds or agreements to repurchase such obligations; (4) obligations
unconditionally guaranteed as to both principal and interest by the United States
Government; (5) obligations which are tax - exempt under Section 103(a) of the Code, or
successor code or provision, if rated at the time of purchase (as double A or above) by a
nationally recognized rating service for municipal bonds; (6) certificates of deposit or
time deposits, provided such bank is insured by the Federal Deposit Insurance
Corporation or a successor corporation to the Federal Deposit Insurance Corporation, and
provided further that the principal of such deposits in excess of the insured amount is
secured by a pledge of obligations as described in clauses (1), (2) or (4) above in the full
principal amount of such excess. Such investments must also be legal and proper
investments for the Village under authorizations then granted to the Village by Illinois
law. Monies in the Bond and Interest Account and in the Surplus Revenue Account shall
be held in separate and segregated accounts.
Such investments may be sold from time to time by the Trustee at the direction of the
Treasurer of the Village as funds may be needed for the purpose for which said respective
accounts have been created.
Investments in the Bond and Interest Account shall mature or be subject to redemption at
the option of the holder thereof prior to the time when needed, and, in any event, within
one year. Investments in the Surplus Revenue Account shall mature or be subject to
redemption at the option of the holder thereof prior to the time when needed, and, in any
event, within 45 days.
All interest on any funds so invested shall be credited to the Pledged Sales Tax Account
and is hereby deemed and allocated as expended with the next expenditure(s) of money
from the Pledged Sales Tax Account.
Moneys in any of said accounts shall be invested by the Treasurer, if necessary, in
investments restricted as to yield, which investments may be in United States Treasury
Obligations - State and Local Government Series, if available, and to such end the
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Treasurer shall refer to any investment restrictions covenanted by the Village or any
officer thereof as part of the transcript of proceedings for the issuance of the Bonds, and
to appropriate opinions of counsel.
(d) Transfers:
Any amounts to the credit of the Accounts in excess of the then current requirement
therefor may be transferred by the Corporate Authorities to such other Account or
Accounts of the Pledged Sales Tax Account as they may in their sole discretion
designate.
Section 14. General Covenants. The Village covenants and agrees with the holders of
the Outstanding Bonds, so long as there are any Outstanding Bonds, as follows:
A. The Village will punctually pay or cause to be paid from the Pledged Sales
Tax Account the principal of and interest on the Bonds in strict conformity with the terms
of the Bonds and this Resolution, and it will faithfully observe and perform all of the
conditions, covenants and requirements thereof and hereof.
B. The Village will pay and discharge, or cause to be paid and discharged, from
the Pledged Sales Tax Account any and all lawful claims which, if unpaid, might become
a lien or charge upon the Pledged Sales Tax Revenues, or any part thereof, or upon any
funds in the hands of the Trustee, or which might impair the security of the Bonds.
Nothing herein contained shall require the Village to make any such payment so long as
the Village in good faith shall contest the validity of said claims.
C. The Village will keep, or cause to be kept, proper books of record and
accounts, separate from all other records and accounts of the Village, in which complete
and correct entries shall be made of all transactions relating to the Pledged Sales Tax
Revenues and the Pledged Sales Tax Account.
D. The Village will preserve and protect the security of the Bonds and the
rights of the registered owners of the Bonds, and will warrant and defend their rights
against all claims and demands of all persons. From and after the sale and delivery of
any of the Bonds by the Village, the Bonds shall be incontestable by the Village.
E. The Village will adopt, make, execute and deliver any and all such further
ordinances, resolutions, instruments and assurances as may be reasonably necessary or
proper to carry out the intention of, or to facilitate the performance of, this Resolution,
and for the better assuring and confirming unto the registered owners of the Bonds of the
rights and benefits provided in this Resolution.
F. As long as any Bonds are Outstanding, the Village will continue to deposit
and apply the Pledged Sales Tax Revenues as provided herein. The Village covenants
and agrees with the purchasers of the Bonds and with the registered owners thereof that
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so long as any Bonds remain Outstanding, the Village will take no action or fail to take
any action which in any way would adversely affect the ability of the Village to allocate
or collect the Pledged Sales Tax Revenues. The Village and its officers will comply with
all present and future applicable laws in order to assure that the Pledged Sales Tax
Revenues may be collected and deposited into the Pledged Sales Tax Account and to the
credit of the respective Accounts thereof, as provided herein.
Section 15. Issuance of Parity Bonds. As long as there are any Outstanding Bonds, no
obligations or bonds of any kind shall be issued which are payable from the Pledged Sales Tax
Revenues except upon compliance with one of the options set out below:
(a) Parity Bonds may be issued for any lawful corporate purpose upon
compliance with the following conditions:
(i) The amounts required to be credited monthly to the respective
accounts described in subsection (a) of Section 13 of this Resolution must have
been credited in full up to the date of the delivery of such Parity Bonds.
(ii) The Pledged Sales Tax Revenues for the last completed Fiscal Year
prior to the issuance of the Parity Bonds (as shown by the audit of an independent
certified public accountant) must equal at least 125% of Maximum Annual Debt
Service computed immediately after the issuance of the proposed Parity Bonds,
but only for those Fiscal Years in which the Outstanding Bonds immediately prior
to such issuance will continue to be Outstanding as provided herein.
(b) Parity Bonds may be issued to refund Outstanding Bonds if the Parity Bonds
so issued (i) do not exceed the principal amount of the Outstanding Bonds to be refunded,
(ii) do not bear interest at a rate in excess of the Outstanding Bonds to be refunded, and
(iii) do not mature earlier than any Outstanding Bonds not to be refunded.
(c) Parity Bonds may be issued to refund Outstanding Bonds in order to avoid
default in the payment of principal of or interest on Outstanding Bonds; provided, they
are issued to avoid such default within three months of the date thereof.
(d) Bonds or other obligations may be issued payable from the Pledged Sales
Tax Revenues subordinate to the Outstanding Bonds. Such subordinate bonds shall be
payable from the Surplus Account created in Section 13 of this Resolution.
All bonds issued under this Section shall mature as to principal on January 1 and as to
interest on January I and /or July 1.
Section 16. Sale of Bonds. As soon as may be after this Resolution becomes effective,
the Bonds shall be executed and delivered to the Treasurer of the Village and be by him
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delivered to the Purchaser thereof, upon receipt of the Purchase Price; the contract for the sale of
the Bonds heretofore entered into is hereby expressly approved, ratified and confirmed, it being
hereby expressly found and determined that no person holding any office of the Village either by
election or appointment, is in any manner financially interested either directly in his own name
or indirectly in the name of any other person, association, trust or corporation in said contract
with the purchaser for the purchase of the Bonds. The Designated Officials and any other
officers of the Village as shall be appropriate, shall be and are hereby authorized and directed to
approve or execute, or both, such documents of sale of the Bonds as may be necessary,
including, without limitation, a Preliminary Official Statement and Official Statement, and
closing documents.
Section 17. Use of Proceeds. The proceeds derived from the sale of the Bonds shall be
used as follows:
(a) Accrued interest and that amount designated as capitalized interest, if any,
shall be credited to the Bond and Interest Account.
(b) The sum necessary shall be deposited into a separate fund, hereby created,
designated the "2003 Expense Fund" to be used to pay expenses of issuance.
Disbursements from such fund shall be made from time to time upon the direction of the
Corporate Authorities. Any excess in said fund shall be paid into the Bond and Interest
Fund on the date which is six months from the date of issuance of the Bonds.
(c) The sum balance of the proceeds shall be used to prepay all sums due and
owing the Developer under the Agreement, which payment shall be made on a date
which is not later than the date which is ninety (90) days after the date of issuance of the
Bonds.
Section 18. Payment and Discharge; Refunding. The Bonds may be discharged,
payment provided for, and the Village's liability terminated as follows:
(a) Discharge of Indebtedness. If (i) the Village shall pay or cause to be paid to
the registered owners of the Bonds the principal, premium, if any, and interest to become
due thereon at the times and in the manner stipulated therein and herein, (ii) all fees and
expenses of the Trustee shall have been paid, and (iii) the Village shall keep, perform and
observe all and singular the covenants and promises in the Bonds and in this Resolution
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expressed as to be kept, performed and observed by it or on its part, then these presents
and the rights hereby granted shall cease, determine and be void. If the Village shall pay
or cause to be paid to the registered owners of all Outstanding Bonds of a particular
series, or of a particular maturity within a series, the principal, premium, if any, and
interest to become due thereon at the times and in the manner stipulated therein and
herein, such Bonds shall cease to be entitled to any lien, benefit or security under this
Resolution, and all covenants, agreements and obligations of the Village to the holders of
such Bonds shall thereupon cease, terminate and become void and discharged and
satisfied.
(b) Provision for Payment. Bonds for the payment or redemption of which
sufficient monies or sufficient Government Securities shall have been deposited with the
Trustee (whether upon or prior to the maturity or the redemption date of such Bonds) or a
similar institution having fiduciary capability shall be deemed to be paid within the
meaning of this Resolution and no longer outstanding under this Resolution; provided,
however, that if such Bonds are to be redeemed prior to the maturity thereof, notice of
such redemption shall have been duly given as provided in this Resolution or
arrangements satisfactory to the Trustee shall have been made for the giving thereof.
Government Securities shall be considered sufficient only if said investments are not
redeemable prior to maturity at the option of the issuer and mature and bear interest in
such amounts and at such times as will assure sufficient cash to pay currently maturing
interest and to pay principal and redemption premiums if any when due on the Bonds.
The Village may at any time surrender to the Trustee for cancellation by it any
Bonds previously authenticated and delivered hereunder, which the Village may have
acquired in any manner whatsoever, and such Bonds, upon such surrender and
cancellation, shall be deemed to be paid and retired.
(c) Termination of Village's Liability. Upon the discharge of indebtedness
under paragraph (a) hereof, or upon the deposit with the Trustee or similar institution
having fiduciary capability of sufficient money and Government Securities (such
sufficiency being determined as provided in paragraph (b) hereof) for the retirement of
any particular Bond or Bonds, all liability of the Village in respect of such Bond or
Bonds shall cease, determine and be completely discharged and the holders thereof shall
thereafter be entitled only to payment out of the money and the proceeds of the
Government Securities deposited with the Trustee or similar institution as aforesaid for
their payment.
Section 19. Not Private Activity Bonds; No Reimbursement. A. None of the bonds is a
"private activity bond" as deemed in Section 141(a) of the Code. In support of such conclusion,
the Village certifies, represents and covenants as follows:
(i) No portion of the Project is to be used, directly or indirectly, in any activity
to be carried on by any nongovernmental person.
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(ii) No direct or indirect payments are to be made on any Bond with respect to
any private business use by any person other than a state or local governmental unit.
(iii) None of the proceeds of the Bonds is to be used, directly or indirectly, to
make or finance loans to persons other than a state or local governmental unit.
B. None of the proceeds of the Bonds will be used to reimburse the Village for an
expenditure of the Village paid prior to the delivery of the Bonds.
Section 20. General Arbitrage Covenants; No Reimbursement. The Village represents
and certifies as follows with respect to the Bonds:
A. Except for the Bond and Interest Account the Village has not created or
established and will not create or establish any sinking fund, reserve fund or any other
similar fund to provide for the payment of the Bonds. The Bond and Interest Account
has been established and will be funded in a manner primarily to achieve a proper
matching of tax revenues and debt service, and will be collectively depleted at least
annually to an amount not in excess of 1/12 the particular annual debt service on the
Bonds. Money deposited therein will be spent within a 13 -month period beginning on
the date of deposit, and investment earnings therein will be spent or withdrawn within a
one -year period beginning on the date of receipt.
B. The investment of proceeds or funds related to the Bonds by the Village
officers at a yield which is restricted to a lower yield than otherwise obtainable in order to
meet any covenants relating to the Tax - exempt status of the Bonds, as advised by Bond
Counsel, or as otherwise determined to be necessary for such purpose, is expressly
authorized and directed.
The Village also certifies and further covenants with the Purchaser and the registered
owners of the Bonds from time to time Outstanding that moneys on deposit in any fund or
account in connection with the Bonds, whether or not such moneys were derived from the
proceeds of the sale of the Bonds or from any other source, will not be used in a manner which
will cause the Bonds to be "arbitrage bonds" within the meaning of Code Section 148 and any
lawful regulations promulgated thereunder, as the same presently exist or may from time to time
hereafter be amended, supplemented or revised.
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Section 21. Arbitrage Rebate. The Village represents and certifies as follows with
respect to the requirements of Section 148(0 of the Code, relating to the rebate of "excess
arbitrage profits" (the "Rebate Requirement ") to the United States:
A. Unless an applicable exception to the Rebate Requirement is available to the
Village, the Village will meet the Rebate Requirement.
B. Relating to applicable exceptions, the Village Treasurer or the President is
hereby authorized to make such elections under the Code as either such officer shall
deem reasonable and in the best interests of the Village. If such election may result in a
"penalty in lieu of rebate" as provided in the Code, and such penalty is incurred (the
"Penalty"), then the Village shall pay such Penalty.
C. The officers of the Village shall cause to be established, at such time and in
such manner as they may deem necessary or appropriate hereunder, a "2003 Sales Tax
Revenue Bonds Rebate [or Penalty, if applicable] Fund" (the "148 Compliance Fund ")
for the Bonds, and such officers shall further, not less frequently than annually, cause to
be transferred to the 148 Compliance Fund the amount determined to be the accrued
liability under the Rebate Requirement or Penalty. Said officers shall cause to be paid to
the U.S., without further order or direction from the Corporate Authorities, from time to
time as required, amounts sufficient to meet the Rebate Requirement or to pay the
Penalty.
D. Interest earnings in the Bond and Interest Account are hereby authorized to
be transferred, without further order or direction from the Corporate Authorities, from
time to time as required, to the 148 Compliance Fund for the purposes herein provided;
and proceeds of the Bonds and other funds of the Village are also hereby authorized to be
used to meet the Rebate Requirement or to pay the Penalty, but only if necessary after
application of investment earnings as aforesaid and only as appropriated by the Board.
Section 22. Further Tax Covenants. The Village agrees to comply with all provisions
of the Code which, if not complied with by the Village, would cause the Bonds not to be Tax -
exempt. In furtherance of the foregoing provisions, but without limiting their generality, the
Village agrees: (a) through its officers, to make such further specific covenants, representations
as shall be truthful, and assurances as may be necessary or advisable; (b) to comply with all
representations, covenants and assurances contained in certificates or agreements as may be
prepared by Bond Counsel; (c) to consult with Bond Counsel and to comply with such advice as
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may be given; (d) to pay to the United States, if necessary, such sums of money representing
required rebates of excess arbitrage profits relating to the Bonds; (e) to file such forms,
statements and supporting documents as may be required and in a timely manner; and (f) if
deemed necessary or advisable by its officers, to employ and pay fiscal agents, financial
advisors, attorneys and other persons to assist the Village in such compliance.
Section 23. Registered Form. The Village recognizes that Section 149 of the Code
requires the Bonds to be issued and to remain in fully registered form in order to be and remain
Tax - exempt. In this connection, the Village agrees that it will not take any action to permit the
Bonds to be issued in, or converted into, bearer or coupon form.
Section 24. Qualified Tax- exempt Obligations. The Village recognizes the provisions
of Section 265(b)(3) of the Code which provide that a "qualified tax - exempt obligation" as
therein defined may be treated by certain financial institutions as if it were acquired on August 7,
1986, for certain purposes. The Village hereby designates each of the Bonds as may be from
time to time outstanding for purposes of Section 265(b)(3) of the Code as a "qualified tax -
exempt obligation" as provided therein.
In support of such designation, the Village certifies, represents and covenants as follows:
A. None of the Bonds is a "private activity bond" as defined in Section 141(a)
of the Code.
B. Including the Bonds, the Village (including any entities subordinate thereto)
has not and does not reasonably expect to issue in excess of $10,000,000 in "qualified
tax - exempt obligations" during calendar year 2003.
C. Including the Bonds, not more than $10,000,000 of obligations issued by the
Village (including any entities subordinate thereto) during the calendar year 2003 have
been to date or will be designated by the Village for purposes of said Section 265(b)(3).
Section 25. Opinion of Counsel Exception. The Village reserves the right to use or
invest moneys in connection with the Bonds in any manner, or to use, treat or contract with
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respect to the Project, notwithstanding the covenants in Sections 19 to 24 herein, provided it
shall first have received an opinion from Bond Counsel (or another firm of attorneys of
nationally recognized standing relating to Tax - exempt bonds) to the effect that use or investment
of such moneys, or use of the Project, as contemplated will not result in any adverse effect on the
Tax - exempt status of interest on the Bonds.
Section 26. Continuing Disclosure Undertaking. The Designated Officers are hereby
authorized, empowered and directed to execute and deliver the Continuing Disclosure
Undertaking (the "Continuing Disclosure Undertaking") in customary same form as provided by
Bond Counsel and approved by the Village Attorney, or with such changes therein as the
individual executing the Continuing Disclosure Undertaking on behalf of the Village shall
approve, his execution thereof to constitute conclusive evidence of his approval of such changes.
When the Continuing Disclosure Undertaking is executed and delivered on behalf of the Village
as herein provided, the Continuing Disclosure Undertaking will be binding on the Village and
the officers, employees and agents of the Village, and the officers, employees and agents of the
Village are hereby authorized, empowered and directed to do all such acts and things and to
execute all such documents as may be necessary to carry out and comply with the provisions of
the Continuing Disclosure Undertaking as executed. Notwithstanding any other provision of this
Resolution, the sole remedies for failure to comply with the Continuing Disclosure Undertaking
shall be the ability of the beneficial owner of any Bond to seek mandamus or specific
performance by court order, to cause the Village to comply with its obligations under the
Continuing Disclosure Undertaking.
Section 27. Duties of Trustee. (a) The Trustee shall exercise its rights and powers and
use the same degree of care and skill in their exercise as a prudent person would exercise or use
under the circumstances in the conduct of such person's own affairs.
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(b) The Trustee need perform only those duties that are specifically set forth in this
Resolution and no others. In the absence of bad faith on its part, the Trustee may conclusively
rely, as to the truth of the statements and the correctness of the opinions expressed, upon
certificates or opinions furnished to the Trustee and conforming to the requirements of this
Resolution. However, the Trustee shall examine the certificates and opinions to determine
whether they conform to the requirements of this Resolution.
(c) The Trustee may not be relieved from liability for its own gross negligent action, its
own gross negligent failure to act or its own willful misconduct, except that
(1) this paragraph does not limit the effect of paragraph (b) of this Section,
(2) the Trustee shall not be liable for any error of judgment made in good faith
by a responsible officer of the Trustee, unless it is proved that the Trustee was negligent
in ascertaining the pertinent facts,
(3) no provision of this Resolution shall require the Trustee to expend or risk its
own funds or otherwise incur any financial liability in the performance of any of its
duties hereunder or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it.
(d) Every provision of this Resolution that in any way relates to the Trustee is subject to
all the paragraphs of this Section.
(e) The Trustee may refuse to perform any duty or exercise any right or power, or to
make any payment on any Bond to any holder of such Bond, unless it receives indemnity
satisfactory to it against any loss, liability or expense.
(f) The Trustee shall not be liable for interest on any cash held by it except as the
Trustee may agree with the Village or as set forth herein.
Section 28. Rights of Trustee. Subject to the foregoing Section:
(a) The Trustee may rely on any document reasonably believed by it to be
genuine and to have been signed or presented by the proper person. The Trustee need not
investigate any fact or matter stated in the document.
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(b) Before the Trustee acts or refrains from acting, it may require a certificate of
an appropriate officer or officers of the Village or an opinion of counsel. The Trustee
shall not be liable for any action it takes or omits to take in good faith in reliance on the
certificate or opinion of counsel.
(c) The Trustee may act through agents or co- trustees and shall not be
responsible for the misconduct or negligence of any agent or co- trustee appointed with
due care.
Section 29. Individual Rights of Trustee. The Trustee in its individual or any other
capacity may become the owner or pledgee of Bonds and may otherwise deal with the Village
with the same rights it would have if it were not Trustee. Any paying agent may do the same
with like rights.
Section 30. Trustee's Disclaimer. The Trustee makes no representation as to the
validity or adequacy of this Resolution or the Bonds; it shall not be accountable for the Village's
use of the proceeds from the Bonds paid to the Village, and it shall not be responsible for any
statement in the Bonds other than its certificate of authentication.
Section 31. Eligibility of Trustee. This Resolution shall always have a Trustee that is a
commercial bank with trust powers or a trust company organized and doing business under the
laws of the United States or any state or the District of Columbia, is authorized under such laws
and the laws of the State to exercise corporate trust powers, has its principal office in the State, is
subject to supervision or examination by United States or State authority, and has a combined
capital, surplus and undivided profits of at least $20,000,000 as set forth in its most recent
published annual report of condition. If at any time the Trustee ceases to be eligible in
accordance with this Section, the Trustee shall resign immediately as set forth in Section 32.
Section 32. Replacement of Trustee. The Trustee may resign with thirty (30) days
written notice to the Village, effective upon the execution, acknowledgment and delivery by a
successor Trustee to the Village of appropriate instruments of succession. Provided that no
Event of Default shall have occurred and be continuing, the Village may remove the Trustee and
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appoint a successor Trustee at any time by an instrument or concurrent instruments in writing
delivered to the Trustee; provided, however, that the holders of fifty -one percent (51 %) in
aggregate principal amount of Bonds outstanding at the time may at any time remove the Trustee
and appoint a successor Trustee by an instrument or concurrent instrument in writing signed by
such Bondholders, and further provided that any conflict between the Village and such holders
regarding such removal and appointment shall be resolved in favor of such holders. Such
successor Trustee shall be a corporation authorized under applicable laws to exercise corporate
trust powers and may be incorporated under the laws of the United States or of the State. Such
successor Trustee shall in all respects meet the requirements set forth in Section 31 hereof.
If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any
reason, the Village shall promptly appoint a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment to the retiring
Trustee and to the Village. Immediately thereafter, the retiring Trustee shall transfer all property
held by it as Trustee to the successor Trustee; the resignation or removal of the retiring Trustee
shall then (but only then) become effective, and the successor Trustee shall have all the rights,
powers and duties of the Trustee under this Resolution.
If a successor Trustee does not take office within 60 days after the retiring Trustee
resigns or is removed, the retiring Trustee, the Village or the registered owners of two thirds
(2 /3rds) in principal amount of the Bonds then outstanding may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
Section 33. Successor Trustee by Merger. If the Trustee consolidates with, merges or
converts into, or transfers all or substantially all its assets (or, in the case of a bank or trust
company, its corporate trust assets) to, another corporation, the resulting, surviving or transferee
corporation without any further act shall be the successor Trustee.
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Section 34. Compensation. All fees and expenses of the Trustee shall be paid by the
Village.
Section 35. Definition of Events of Default; Remedies. If one or more of the following
events, herein called "Events of Default ", shall happen, that is to say, in case:
(i) default shall be made in the payment of the principal of or redemption
premium, if any, on any Outstanding Bond when the same shall become due and payable,
either at maturity or by proceedings for redemption or otherwise; or
(ii) default shall be made in the payment of any installment of interest on any
Outstanding Bond when and as such installment of interest shall become due and
payable; or
(iii) default shall be made by the Village in the performance of any obligation in
respect of the Pledged Sales Tax Account and such default shall continue for 30 days
thereafter; or
(iv) the Village shall (1) commence a voluntary case under the Federal
bankruptcy laws, as now or hereafter constituted, or any other applicable Federal or state
bankruptcy, insolvency or other similar law (2) make an assignment for the benefit of its
creditors, (3) consent to the appointment of a receiver of itself or of the whole or any
substantial part of its property, or (4) be adjudicated a bankrupt or any petition for relief
shall be filed in respect of an involuntary case under the Federal bankruptcy laws, as now
or hereafter constituted, or any other applicable Federal or state bankruptcy, insolvency
or other similar law and such order continue in effect for a period of 60 days without stay
or vacation; or
(v) a court of competent jurisdiction shall enter an order, judgment or decree
appointing a receiver of the Village, or of the whole or any substantial part of its
property, or approving a petition seeking reorganization of the Village under the Federal
bankruptcy laws or any other applicable Federal or state law or statute and such order,
judgment or decree shall not be vacated or set aside or stayed within 60 days from the
date of the entry thereof; or
(vi) under the provisions of any other law for the relief or aid of debtors, any
court of competent jurisdiction shall assume custody or control of the Village or of the
whole or any substantial part of its property, and such custody or control shall not be
terminated or stayed within 60 days from the date of assumption of such custody or
control; or
(vii) the Village shall default in the due and punctual performance of any other of
the covenants, conditions, agreements and provisions contained in the Bonds, or this
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Resolution on the part of the Village to be performed, and such default shall continue for
30 days after written notice specifying such default and requiring the same to be
remedied shall have been given to the Village by the Trustee (which may give such
notice whenever it determines that such a default is subsisting and shall give such notice
at the written request of the holders of not less than a majority in principal amount of the
Bonds then outstanding);
then in each and every such case the Trustee may, and upon the written request of the registered
owners of two - thirds (2 /3rds) in principal amount of the Bonds affected by the Event of Default
and then outstanding hereunder shall, proceed to protect and enforce its rights and the rights of
the holders of the Bonds by a suit, action or special proceeding in equity or at law, by mandamus
or otherwise, either for the specific performance of any covenant or agreement contained herein
or in aid or execution of any power herein granted or for any enforcement of any proper legal or
equitable remedy as the Trustee, being advised by counsel, shall deem most effectual to protect
and enforce the rights aforesaid.
During the continuance of an Event of Default, all Pledged Sales Tax Revenues received
by the Trustee under this Resolution from the Village shall be applied by the Trustee in
accordance with the terms of Section 43 of this Resolution.
Section 36. Notices of Default. Promptly after the occurrence of an Event of Default or
the occurrence of an event which, with the passage of time or the giving of notice or both, would
constitute an Event of Default, the Trustee shall mail to the Bondholders at the address shown on
the Bond Register and also directly to any beneficial owner of $500,000 or more in aggregate
principal amount of Bonds then Outstanding at such address as the Trustee shall obtain from the
Depository, notice of all Events of Default or such events known to the Trustee unless such
defaults or prospective defaults shall have been cured before the giving of such notice.
Section 37. Termination of Proceedings by Trustee. In case any proceedings taken by
the Trustee on account of any default shall have been discontinued or abandoned for any reason,
or shall have been determined adversely to the Trustee, then and in every such case the Village,
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the Trustee, and the Bondholders shall be restored to their former positions and rights hereunder,
respectively, and all rights, remedies and powers of the Trustee shall continue as though no such
proceeding had been taken.
Section 38. Right of Holders to Control Proceedings. Anything in this Resolution to the
contrary notwithstanding, the registered owners of two - thirds (2 /3rds) in principal amount of the
Bonds, respectively, then outstanding shall have the right, by an instrument in writing executed
and delivered to the Trustee, to direct the method and place of conducting all remedial
proceedings to be taken by the Trustee hereunder in respect of the Bonds, respectively; provided
that such direction shall not be otherwise than in accordance with law and the Trustee shall be
indemnified to its satisfaction against the costs, expenses and liabilities to be incurred therein or
thereby.
Section 39. Right of Holders to Institute Suit. No holder of any of the Bonds shall have
any right to institute any suit, action or proceeding in equity or at law for the execution of any
trust hereunder, or for any other remedy hereunder or on the Bonds unless such holder previously
shall have given to the Trustee written notice of an Event of Default as hereinabove provided,
and unless also the registered owners of two - thirds (2 /3rds) in principal amount of the Bonds,
respectively, then outstanding shall have made written request of the Trustee after the right to
exercise such powers, or right of action, as the case may be, shall have accrued, and shall have
afforded the Trustee a reasonable opportunity either to proceed to exercise the powers
hereinbefore granted, or to institute such action, suit, or proceeding in its name; and unless, also,
there shall have been offered to the Trustee security and indemnity satisfactory to it against the
costs, expenses and liabilities to be incurred therein or thereby, and the Trustee shall have
refused or neglected to comply with such request within a reasonable time; and such notification,
request and offer of indemnity are hereby declared in every such case, at the option of the
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Trustee, to be conditions precedent to the execution of the powers and trusts of this Resolution or
for any other remedy hereunder; it being understood and intended that no one or more holders of
the Bonds shall have any right in any manner whatever by his or their action to affect, disturb or
prejudice the security of this Resolution, or to enforce any right hereunder, except in the manner
herein provided, and that all proceedings at law or in equity shall be instituted, had and
maintained in the manner herein provided and for the equal benefit of all holders of the
outstanding Bonds, respectively.
Nothing in this Section contained shall, however, affect or impair the right of any
Bondholder, which is absolute and unconditional, to enforce the payment of the principal of and
redemption premium, if any, and interest on his Bonds, respectively, out of the Pledged Sales
Tax Account and the accounts therein provided for such payment, or the obligation of the Village
to pay the same, out of said Pledged Sales Tax Account and the accounts therein, at the time and
place in the Bonds expressed.
Section 40. Suits by Trustee. All rights of action under this Resolution, or under any of
the Bonds, enforceable by the Trustee, may be enforced by it without the possession of any of
the Bonds or the production thereof at the trial or other proceeding relative thereto, and any such
suit, or proceeding, instituted by the Trustee shall be brought in its name for the ratable benefit of
the holders of the Bonds affected by such suit or proceeding, subject to the provisions of this
Resolution.
Section 41. Remedies Cumulative. No remedy herein conferred upon or reserved to the
Trustee or the Bondholders is intended to be exclusive of any other remedy or remedies, and
each and every such remedy shall be cumulative, and shall be in addition to every other remedy
given hereunder or now or hereafter existing at law or in equity or by statute.
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Section 42. Waiver of Default. No delay or omission of the Trustee or of any
Bondholder to exercise any right or power accruing upon any default shall impair any such right
or power or shall be construed to be a waiver of any such default, or an acquiescence therein; and
every power and remedy given by this Section to the Trustee and the Bondholders, respectively,
may be exercised from time to time, and as often as may be deemed expedient. In the event any
Event of Default shall be waived by the Bondholders or the Trustee, such waiver shall be limited
to the particular Event of Default so waived and shall not be deemed to waive any other Event of
Default hereunder.
Section 43. Application of Monies After Default. The Village covenants that if an Event
of Default shall happen and shall not have been remedied, the Trustee shall apply all monies,
securities and funds received by the Trustee pursuant to any right given or action taken under the
provisions of this Resolution as follows:
(1) First, to the payment of all reasonable costs and expenses of collection, fees,
and other amounts due to the Trustee hereunder; and thereafter,
(2) All such monies shall be applied as follows:
(A) first, to the payment to the persons entitled thereto of all installments
of interest on Outstanding Bonds then due, in the order of the maturity of such
installments, and, if the amount available shall not be sufficient to pay in full any
particular installment, then to the payment ratably, according to the amounts due
on such installment, to the persons entitled thereto, without any discrimination or
preference;
(B) second, to the payment to the persons entitled thereto of the unpaid
principal, of any of the Outstanding Bonds which shall have become due (other
than Bonds called for redemption for the payment of which monies are held
pursuant to the provisions of this Resolution), in the order of their due dates, with
interest upon such Outstanding Bonds from the respective dates upon which they
became due, and, if the amount available shall not be sufficient to pay in full
Outstanding Bonds due on any particular date, together with such interest, then to
the payment first of such interest, ratably according to the amount of such interest
due on such date, and then to the payment of such principal ratably according to
the amount of such principal due on such date, to the persons entitled thereto
without any discrimination or preference; and
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(C) third, to the payment of the redemption premium, if any, on and the
principal of any Outstanding Bonds called for redemption pursuant to the
provisions of this Resolution.
Whenever monies are to be applied by the Trustee pursuant to the provisions of this paragraph,
such monies shall be applied by the Trustee at such times, and from time to time, as the Trustee
in its sole discretion shall determine, having due regard to the amount of such monies available
for application and the likelihood of additional monies becoming available for such application
in the future. The deposit of such monies with the paying agents, or otherwise setting aside such
monies, in trust for the proper purpose, shall constitute proper application by the Trustee; and the
Trustee shall incur no liability whatsoever to the Village to any Bondholder or to any other
person for any delay in applying any such funds, so long as the Trustee acts with reasonable
diligence, having due regard to the circumstances, and ultimately applies the same in accordance
with such provisions of this Resolution as may be applicable at the time of application by the
Trustee. Whenever the Trustee shall exercise such discretion in applying such funds, it shall fix
the date (which shall be an interest payment date unless the Trustee shall deem another date more
suitable) upon which such application is to be made and upon such date interest on the amounts
of principal paid on such date shall cease to accrue. The Trustee shall give such notice as it may
deem appropriate of the fixing of any such date and of the endorsement to be entered on each
Bond on which payment shall be made, and shall not be required to make payment to the holder
of any unpaid Bond until such Bond shall be presented to the Trustee for appropriate
endorsement, or some other procedure deemed satisfactory by the Trustee.
Section 44. This Resolution a Contract. The provisions of this Resolution shall
constitute a contract between the Village and the registered owners of the Bonds, and no
changes, additions or alterations of any kind shall be made hereto, except as herein provided.
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Section 45. Supplemental Resolutions. Supplemental resolutions may be passed as
follows:
(a) Supplemental Resolutions Not Requiring Consent of Bondholders. The
Village by the Corporate Authorities, and the Trustee from time to time and at any time,
subject to the conditions and restrictions in this Resolution contained, may pass and
accept a resolution or resolutions supplemental hereto, which resolution or resolutions
thereafter shall form a part hereof, for any one or more of the following purposes:
(i) To add to the covenants and agreements of the Village in this
Resolution contained, other covenants and agreements thereafter to be observed
or to surrender, restrict or limit any right or power herein reserved to or conferred
upon the Village;
(ii) To make such provisions for the purpose of curing any ambiguity, or
of curing, correcting or supplementing any defective provision contained in this
Resolution, or in regard to matters or questions arising under this Resolution, as
the Village may deem necessary or desirable and not inconsistent with this
Resolution and which in the opinion of the Trustee shall not adversely affect the
interests of the registered owners of the Bonds;
(iii) To designate one or more bond registrars or paying agents;
(iv) To comply with the provisions of Section 18(c) hereof when money
and the Government Securities designated therein sufficient to provide for the
retirement of Bonds shall have been deposited with the Trustee; and
(v) as to Bonds which are authorized but unissued hereunder:
(1) to change the amount of Bonds authorized, or
(2) to change in any way the terms upon which such Bonds may be
issued or secured.
Any supplemental resolution authorized by the provisions of this Section may be passed
by the Village and accepted by the Trustee without the consent of the registered owners
of any of the Bonds at the time outstanding, but only upon receipt of an opinion of Bond
Counsel if requested pursuant to the provisions of paragraph (t) of this Section 45,
notwithstanding any of the provisions of paragraph (b) of this Section, but the Trustee
shall not be obligated to accept any such supplemental resolution which affects the
Trustee's own rights, duties or immunities under this Ordinance or otherwise.
(b) Supplemental Resolutions Requiring Consent of Bondholders. With the
consent (evidenced as provided in Section 49) of the registered owners of not less than
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66% in aggregate principal amount of the Bonds, respectively, at the time outstanding,
the Village, by the Corporate Authorities may pass, and the Trustee may accept from time
to time and at any time a resolution or resolutions supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the provisions
of this Resolution or of any supplemental resolution; provided that no such modification
or amendment shall extend the maturity or reduce the interest rate on or otherwise alter or
impair the obligation of the Village to pay the principal, interest or redemption premium,
if any, at the time and place and at the rate and in the currency provided therein of any
Bond without the express consent of the registered owner of such Bond or permit the
creation of a preference or priority of any Bond or Bonds over any other Bond or Bonds,
or reduce the percentage of Bonds required for the affirmative vote or written consent to
an amendment or modification, or deprive the registered owners of the Bonds,
respectively, (except as aforesaid) of the right to payment of the Bonds, respectively,
from the Sales Tax Revenues without the consent of the registered owners of all the
Bonds then outstanding. Upon receipt by the Trustee of a certified copy of such
resolution and upon the filing with the Trustee of evidence of the consent of Bondholders
as aforesaid, the Trustee shall accept such supplemental resolution unless such
supplemental resolution affects the Trustee's own rights, duties or immunities under this
Resolution or otherwise, in which case the Trustee may in its discretion, but shall not be
obligated to, accept such supplemental resolution.
It shall not be necessary for the consent of the Bondholders under this paragraph
to approve the particular form of any proposed supplemental resolution, but it shall be
sufficient if such consent shall approve the substance thereof.
(c) Supplemental Resolution to Modify this Resolution. Upon the execution of
any supplemental resolution pursuant to the provisions of this Section, this Resolution
shall be modified and amended in accordance therewith and the respective rights, duties
and obligations under this Resolution of the Village, the Trustee and all registered owners
of Bondholders, respectively, outstanding thereunder shall thereafter be determined,
exercised and enforced hereunder subject in all respects to such modification and
amendments, and all the terms and conditions of any such supplemental resolution shall
be and be deemed to be part of the terms and conditions of this Resolution for any and all
purposes.
(d) Trustee May Rely Upon Opinion of Counsel Re: Supplemental Resolution.
The Trustee may receive an opinion of counsel as conclusive evidence that any
supplemental resolution executed pursuant to the provisions of this Section complies with
the requirements of this Section.
(e) Notation. Bonds authenticated and delivered after the execution of any
supplemental resolution pursuant to the provisions of this Section may bear a notation, in
form approved by the Trustee, as to any matter provided for in such supplemental
resolution, and if such supplemental resolution shall so provide, new bonds so modified
as to conform, in the opinion of the Trustee and the Corporate Authorities, to any
modification of this Resolution contained in any such supplemental resolution, may be
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prepared by the Village, authenticated by the Trustee and delivered without cost to the
registered owners of the Bonds then outstanding, upon surrender for cancellation of such
Bonds, in equal aggregate principal amounts.
(f) Opinion of Counsel. Prior to the adoption of a supplemental resolution
executed pursuant to the provisions of this Section, the Trustee shall give written notice
by mail to the registered owners of all Bonds Outstanding at the addresses as set forth in
the Bond Register of the substance of the proposed supplemental resolution. If within 10
days of the Trustee's mailing such notice any registered owner of the Bonds requests that
an opinion of Bond Counsel be delivered to the effect that such supplemental resolution
will not adversely affect the exclusion from gross income of interest on the Bonds for
federal income tax purposes, such supplemental resolution shall not become effective
until such opinion has been delivered to the Trustee.
Section 46. Effect of Consents. After an amendment or supplement to this Resolution
becomes effective, it will bind every Bondholder. For purposes of determining the total number
of Bondholders' consents, each Bondholder's consent will be effective with respect to the
Bondholder who consented to it and each subsequent holder of a Bond or portion of a Bond
evidencing the same debt as the consenting holder's Bond.
Section 47. Signing by Trustee of Amendments and Supplements. The Trustee will sign
any amendment or supplement to the Resolution or the Bonds authorized hereunder if the
amendment or supplement does not adversely affect the rights, duties, liabilities or immunities of
the Trustee. If it does, the Trustee may, but need not, sign it. In signing an amendment or
supplement, the Trustee will be entitled to receive and (subject to Section 27 of this Resolution)
will be fully protected in relying on an opinion of counsel stating that such amendment or
supplement is authorized by this Resolution.
Section 48. Notices. (a) Any notice, request, direction, designation, consent,
acknowledgment, certification, appointment, waiver or other communication required or
permitted by this Resolution or the Bonds must be in writing except as expressly provided
otherwise in this Resolution or the Bonds.
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(b) Any notice or other communication shall be sufficiently given and deemed given
when delivered by hand or mailed by first -class mail, postage prepaid, addressed as follows: if
to the Village, to Village of Lemont, 418 Main Street, Lemont, Illinois 60439, Attention:
Village Clerk; if to the Trustee, to [NameTrustee], Chicago, Illinois , Attention:
Corporate Trust Administration. Any addressee may designate additional or different addresses
for purposes of this Section.
(c) Any notice or other communication required to any Bondholder shall be sufficiently
given and deemed given when delivered by hand or mailed by first -class mail, postage prepaid,
addressed to such Bondholder at the address set forth in the Bond Register.
(d) Any notice or other communication required to be given directly to any owner of
$500,000 or more in aggregate principal amount of Bonds then outstanding shall be sufficiently
given and deemed given when delivered by hand or mailed by first -class mail, postage prepaid,
to such owner at the address provided by the Depository.
Section 49. Bondholders' Consents. Any consent or other instrument required by this
Resolution to be signed by Bondholders may be in any number of concurrent documents and
may be signed by a Bondholder by the holder's agent appointed in writing. Proof of the
execution of such instrument or of the instrument appointing an agent and of the ownership of
Bonds, if made in the following manner, shall be conclusive for any purposes of this Resolution
with regard to any action taken by the Trustee under the instrument:
(a) The fact and date of a person's signing an instrument may be proved by the
certificate of any officer in any jurisdiction who by law has power to take
acknowledgments within that jurisdiction that the person signing the writing
acknowledged before the officer the execution of the writing, or by an affidavit of any
witness to the signing.
(b) The fact of ownership of Bonds, the amount or amounts, numbers and other
identification of such Bonds and the date of holding shall be proved by the registration
books kept pursuant to this Resolution.
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Any action, consent or other instrument shall be irrevocable and shall bind any
subsequent owner of such Bond or any Bond delivered in substitution therefor.
For purposes of determining consent under this Resolution of holders of the Bonds, the
outstanding principal amount of the Bonds shall be deemed to exclude the Bonds owned by or
under the control of the Village.
Section 50. Limitation of Rights. Nothing expressed or implied in this Resolution or the
Bonds shall give any person other than the Trustee, the Village, or the Bondholders any right,
remedy or claim under or with respect to this Resolution.
Section 51. Trustee Covenants. If requested by the Trustee, the Designated Officers are
authorized to execute a Trustee's agreement between the Village and the Trustee with respect to
the obligations and duties of the Trustee hereunder. Such duties shall include the following:
(a) to act as Trustee, authenticating agent, paying agent and transfer agent as
provided herein;
(b) to maintain a list of Bondholders as set forth herein and to furnish such list
to the Village upon request, but otherwise to keep such list confidential to the extent
permitted by law;
(c) to give notice, if any, of redemption of Bonds as provided herein;
(d) to cancel and/or destroy Bonds which have been paid at maturity or upon
earlier redemption or submitted for exchange or transfer;
(e) to furnish the Village at least annually a certificate with respect to Bonds
cancelled and/or destroyed; and
(f) to furnish the Village at least annually an audit confirmation of Bonds paid,
Outstanding Bonds and payments made with respect to interest on the Bonds.
The Village Clerk is hereby directed to file a certified copy of this Resolution with the
Trustee.
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The Village covenants with respect to the Trustee, and the Trustee further covenants and
agrees as follows:
A. The Village shall at all times retain a bond registrar with respect to the
Bonds; it will maintain at the designated office(s) of such bond registrar a place or places
where Bonds may be presented for payment, registration, transfer or exchange; and it will
require that the Trustee properly maintain the Bond Register and perform the other duties
and obligations imposed upon it by this Resolution in a manner consistent with the
standards, customs and practices of the municipal securities industry.
B. The Trustee shall signify its acceptance of the duties and obligations
imposed upon it by this Resolution by executing the certificate of authentication on any
Bond, and by such execution the Trustee shall be deemed to have certified to the Village
that it has all requisite power to accept and has accepted such duties and obligations not
only with respect to the Bond so authenticated but with respect to all the Bonds. Any
Trustee shall be the agent of the Village and shall not be liable in connection with the
performance of its duties except for its own negligence or willful wrongdoing. Any
Trustee shall, however, be responsible for any representation in its certificate of
authentication on Bonds.
C. The Village may remove the Trustee at any time. In case at any time the
Trustee shall resign, shall be removed, shall become incapable of acting, or shall be
adjudicated a bankrupt or insolvent, or if a receiver, liquidator, or conservator of the
Trustee or of the property thereof shall be appointed, or if any public officer shall take
charge or control of the Trustee or of the property or affairs thereof, the Village
covenants and agrees that it will thereupon appoint a successor Trustee. The Village
shall give notice of any such appointment made by it to each registered owner of any
Bond within twenty days after such appointment in the same manner, or as nearly the
same as may be practicable, as for a redemption of Bonds. Any Trustee appointed under
the provisions of this Section shall be a bank, trust company, or national banking
association maintaining its principal corporate trust office in Illinois, and having capital
and surplus and undivided profits in excess of $10,000,000.
Section 52. Severability. If any section, paragraph, clause or provision of this
Resolution shall be held invalid, the invalidity of such section, paragraph, clause or provision
shall not affect any of the other provisions of this Resolution.
Section 53. Repealer. All resolutions or orders, or parts thereof, in conflict with the
provisions of this Resolution are to the extent of such conflict hereby repealed.
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Section 54. Resolution Immediately Effective. This resolution shall be published in
pamphlet form by order of the Corporate Authorities and shall be immediately effective upon its
passage and approval.
PASSED by the Corporate Authorities on the 14th day of June, 2004.
APPROVED: this 14th day of June, 2004.
AYES:
President
Blatzer Coules, Reaves, Rosenda apleton Virgi11io
NAYS: 0
ABSENT:
PUBLISHED in pamphlet form on June 1 2004.
RECORDED in the Municipal Records on June 14, 2004.
Attest:
(SEAL)
Village Clerk
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STATE OF ILLINOIS )
) SS
COUNTY OF COOK )
CERTIFICATION OF RESOLUTION AND MINUTES
AND OF PUBLICATION IN PAMPHLET FORM
I, the undersigned, do hereby certify that I am the duly qualified and acting Village Clerk
of the Village of Lemont, Cook, DuPage and Will Counties, Illinois (the "Village "), and as such
officer I am the keeper of the books, records, files, and journal of proceedings of the Village and
of the President and Board of Trustees (the "Corporate Authorities") thereof.
I do further certify that the foregoing constitutes a full, true and complete transcript of the
minutes of the legally convened meeting of the Corporate Authorities held on the 14`h day of
June, 2004, insofar as same relates to the adoption of a resolution numbered 42 -04 and entitled:
A RESOLUTION authorizing and providing for the issue of
$3,320,000 Sales Tax Revenue Bonds (Long Run Marketplace
Project), Series 2004, of the Village of Lemont, Cook, DuPage and
Will Counties, Illinois, for the purpose of defraying the financing
of the acquisition and construction of a portion of an industrial
project in said Village, authorizing the execution of an escrow
agreement, prescribing all the details of said bonds, and providing
for the collection, segregation and distribution of a portion of the
sales taxes derived from said project.
a true, correct and complete copy of which said resolution as adopted at said meeting appears in
the foregoing transcript of the minutes of said meeting.
I do further certify that the deliberations of the Corporate Authorities on the adoption of
said resolution were taken openly; that the vote on the adoption of said resolution was taken
openly; that said meeting was held at a specified time and place convenient to the public; that
notice of said meeting was duly given to all of the news media requesting such notice of said
meeting was duly given to all of the news media requesting such notice; that an agenda for said
meeting was posted not later than the close of business on the last business day of the Village
which ended at least 48 hours prior to the time of said meeting at the location where said meeting
was held; that said agenda described or made specific reference to said resolution; that a true,
correct and complete copy of said agenda as so posted is attached hereto; that said meeting was
called and held in strict accordance with the provisions of the Open Meetings Act of the State of
Illinois, as amended; and that the Corporate Authorities have complied with all of the applicable
provisions of said Act and their procedural rules in the adoption of said resolution.
I do further certify that at j. jicia,M. on the 15 day of June, 2004, said resolution was
duly published in pamphlet form by authority of the Corporate Authorities and that from and
after said time and date copies of said resolution as published were available in sufficient number
for public inspection at my office as Village Clerk.
IN WITNESS WHEREOF, I have hereunto affixed my official signature and the seal of the
Village, this 15 day of June, 2004.
(SEAL)
Village Clerk to Attach Meeting Agenda
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Village Clerk