1985-039ORDINANCE NO. 85- 39
AN ORDINANCE AUTHORIZING THE ISSUANCE AND SALE OF
$12,550,000 CONVERTIBLE VARIABLE RATE DEMAND
MULTI - FAMILY HOUSING REVENUE BONDS (WINDBROOKE
APARTMENTS PROJECT), SERIES 1985, OF THE VILLAGE
OF BUFFALO GROVE, ILLINOIS, FOR THE PURPOSE OF
MAKING A LOAN TO AMERICAN NATIONAL BANK AND TRUST
COMPANY OF CHICAGO, NOT PERSONALLY BUT AS
TRUSTEE, EDWARD ZALE AND ROBERTA ZALE
(COLLECTIVELY, THE "OWNERS "), IN ORDER TO FINANCE
THE ACQUISITION, CONSTRUCTION AND IMPROVEMENT OF
CERTAIN MULTI - FAMILY RESIDENTIAL RENTAL
FACILITIES TO BE LOCATED IN SAID VILLAGE;
AUTHORIZING THE EXECUTION AND DELIVERY OF AN
INDENTURE OF TRUST SECURING SAID SERIES 1985
BONDS; AUTHORIZING THE EXECUTION AND DELIVERY OF
A LOAN AGREEMENT AMONG SAID VILLAGE AND THE
OWNERS; AUTHORIZING THE EXECUTION AND DELIVERY OF
A MORTGAGE AND SECURITY AGREEMENT, AN ASSIGNMENT
OF RENTS AND LEASES, AN ASSIGNMENT OF
CONSTRUCTION DOCUMENTS AND A COLLATERAL AGREEMENT
TO SECURE SAID SERIES 1985 BONDS; AUTHORIZING THE
EXECUTION AND DELIVERY OF A TENDER AGENT
AGREEMENT; AUTHORIZING THE EXECUTION AND DELIVERY
OF A REGULATORY AGREEMENT IN CONNECTION WITH SUCH
FACILITIES; AUTHORIZING THE EXECUTION AND
DELIVERY OF A BOND PURCHASE AGREEMENT AMONG SAID
VILLAGE, THE OWNERS AND THE INITIAL PURCHASER OF
THE SERIES 1985 BONDS; AUTHORIZING THE EXECUTION
AND DELIVERY OF AN OFFICIAL STATEMENT AND
RATIFYING AND CONFIRMING THE CIRCULATION OF A
PRELIMINARY OFFICIAL STATEMENT RELATING TO THE
SERIES 1985 BONDS; AUTHORIZING THE EXECUTION AND
DELIVERY OF VARIOUS DOCUMENTS IN CONNECTION WITH
THE FOREGOING; REPEALING ALL ORDINANCES,
RESOLUTIONS OR PORTIONS THEREOF IN CONFLICT WITH
THE PROVISIONS HEREOF; PROVIDING FOR AN EFFECTIVE
DATE; AND CONCERNING RELATED MATTERS.
WHEREAS, the Village of Buffalo Grove, Cook and Lake
Counties, Illinois (the "Issuer ") is a duly constituted and
existing municipality within the meaning of Section 1 of
Article VII of the 1970 Constitution of the State of Illinois
(the "State "), is a "home rule unit" under Section 6(a) of
Article VII of said Constitution, and is a political
subdivision of the State; and
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WHEREAS, under the provisions of Chapter 3.24 of the
Village of Buffalo Grove Municipal Code, as amended (the "Act ")
adopted under the authority of Section 6(a) of Article VII of
the 1970 Constitution of the State, the Issuer is authorized to
issue its revenue bonds for the purpose, among others, of
financing the cost of acquiring, constructing, improving and
equipping "multi- family housing projects" (as that term is
defined in the Act); and
WHEREAS, pursuant to such authorization, the Issuer
has determined to finance the acquisition, construction and
improvement of nineteen apartment buildings containing 236 one
and two bedroom apartments and certain facilities functionally
related and subordinate thereto including a swimming pool,
cabana and parking (the "Project "), to be located within the
boundaries of the Issuer and to be owned by American National
Bank and Trust Company of Chicago, not personally but as
Trustee under a Trust Agreement dated July 18, 1985 and known
as Trust No. 64638; and
WHEREAS, the Issuer finds that it is proper, necessary
and desirable to issue the Series 1985 Bonds (herein defined)
for the purpose of providing funds to finance the acquisition,
construction and improvement of the Project and to authorize
such actions as might be required in connection therewith; and
WHEREAS, the Issuer finds that the issuance of the
Series 1985 Bonds to finance the acquisition, construction and
improvement of the Project will comply with the requirements of
the Act and will further the public purposes to be served by
the issuance of bonds under the Act by alleviating the shortage
within the Issuer of decent, safe and sanitary housing,
including housing which persons of low and moderate income can
afford, and thereby improving the public health, safety, and
general welfare of the Issuer and its inhabitants; and
WHEREAS, on July 9, 1985, the Village President of the
Issuer held a public hearing on the financing of the Project
pursuant to public notice duly published in the Buffalo Grove
Herald on June 21, 1985, and approved the Bonds as the
applicable elected representative of the Issuer as required by
the Tax Equity and Fiscal Responsibility Act of 1982; and
WHEREAS, it is necessary for the Issuer to execute and
deliver a Loan Agreement dated as of July 1, 1985 (the Loan
"Agreement "), among the Issuer and the Owners; and
WHEREAS, it is necessary for the Issuer to execute and
deliver an Indenture of Trust dated as of July 1, 1985 (the
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"Indenture "), to
as trustee for
Trustee "); and
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LaSalle National Bank, of Chicago, Illinois,
the holders of the Series 1985 Bonds, (the "Bond
WHEREAS, it is necessary for the Issuer to execute and
deliver a Mortgage and Security Agreement (the "Mortgage ") from
the Owners to the Issuer, an Assignment of Rents and Leases
(the "Assignment of Rents ") from the Owners to the Issuer, an
Assignment of Construction Documents (the "Assignment of
Construction Documents ") from the Owners to the Issuer, and a
Collateral Agreement (the "Collateral Agreement ") among the
Issuer, the Bond Trustee, the Owner and Northwestern Savings
and Loan Association (the "Credit Facility Issuer ".), each dated
as of July 1 , 1985, in order to secure the Series 1985 Bonds;
and
WHEREAS, it is necessary for the Issuer to execute and
deliver a Tender Agent Agreement dated as of July 1, 1985 (the
"Tender Agent Agreement ") among the Issuer, the Owners, the
Bond Trustee, Manufacturers Hanover Trust Company, of New York,
New York (the "Tender Agent "), the Credit Facility Issuer and
the Remarketing Agent (as defined in the Indenture); and
WHEREAS, it is necessary for the Issuer to execute and
deliver a Bond Purchase Agreement (the. "Bond Purchase
Agreement "), dated July 16, 1985 with respect to the sale of
the Series 1985 Bonds, among the Issuer, the Owners and
Prudential -Bache Securities, Inc., of Chicago, Illinois (the
"Purchaser "); and
WHEREAS, it is necessary and desirable for the Issuer
to execute and deliver a Declaration of Restrictive Covenants
and Regulatory Agreement dated as of July 1, 1985 (the
"Regulatory Agreement ") among the Issuer, the Owners and the
Bond Trustee with respect to the Project; and
WHEREAS, it is necessary and desirable for the Issuer
to authorize the execution and delivery of an Official
Statement (the "Official Statement ") and to ratify and confirm
the circulation of a preliminary Official Statement (the
"Preliminary Official Statement ") relating to the Series 1985
Bonds; and
WHEREAS, it is necessary for the Issuer to authorize
the execution and delivery of other certificates, documents and
papers and the performance of acts necessary or desirable in
connection with the issuance and sale of the Series 1985 Bonds
and the implementation of this Bond Ordinance; and
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WHEREAS, there have been prepared and presented to,
and are before this Board of Trustees, the Preliminary Official
Statement dated July _, 1985 and drafts dated July 15, 1985 of
the following documents:
1. Form of proposed Loan Agreement;
2. Form of proposed Indenture;
3. Form of Series 1985 Bonds (contained in the
Indenture);
4. Form of proposed Mortgage;
5. Form of proposed Assignment of Rents;
6. Form of proposed Assignment of Construction
Documents;
7. Form of proposed Collateral Agreement;
8. Form of proposed Tender Agent Agreement;
9.
Form
of
proposed
Regulatory Agreement;
10.
Form
of
proposed
Bond Purchase Agreement; and
WHEREAS, the Act and all documents to be signed by the
Issuer provide that the Series 1985 Bonds shall not constitute
nor give rise to a general obligation of the Issuer or be a
charge against its taxing powers and that the Series 1985 Bonds
will be payable only from the revenues and receipts derived
from the Loan Agreement and secured only by the pledge and
assignment under the Loan Agreement and the Indenture of such
revenues and of a note (the "Note ") of the Owners in the same
principal amount as the aggregate principal amount of the
Series 1985 Bonds and by the Mortgage, the Assignment of Rents,
the Assignment of Construction Documents, the Collateral
Agreement, and a direct -pay letter of credit (the "Letter of
Credit ") to be dated the date of issuance and delivery of the
Series 1985 Bonds issued to the Bond Trustee by the Credit
Facility Issuer for the account of the Owners;
NOW, THEREFORE, BE IT ORDAINED BY THE PRESIDENT AND
BOARD OF TRUSTEES OF THE VILLAGE OF BUFFALO GROVE, COOK AND
LAKE COUNTIES, ILLINOIS, AS FOLLOWS:
Section 1. Findings; Public Benefits. The President
and Board of Trustees of the Issuer hereby find and determine:
(1) that the Project described in the Loan Agreement to be
acquired, constructed and :improved with the proceeds of the
Series 1985 Bonds herein authorized is a "multi- family housing
project" as that phrase is used in the Act, and (2) that
acquisition, construction and improvement of the Project will
further the public purposes to be served by the issuance of
Bonds under the Act by alleviating the shortage within the
Issuer of decent, safe and sanitary housing, including housing
which persons of low and moderate income can afford, and
thereby improving the public health, safety, and general
welfare of the Issuer and its inhabitants.
Section 2. Authorization of Series 1985 Bonds. In
order to pay the cost of acquiring, constructing and improving
the Project, there are hereby authorized to be issued, sold and
delivered $12,550,000 aggregate principal amount of the
Issuer's Convertible Variable Rate Demand Multi - Family Housing
Revenue Bonds (Windbrooke Apartments Project), Series 1985 (the
"Series 1985 Bonds ").
Section 3. Terms of the Series 1985 Bonds. The
Series 1985 Bonds shall be designated "Convertible Variable
Rate Demand Multi - Family Housing Revenue Bonds (Windbrooke
Apartments Project), Series 1985," shall be issuable as
fully- registered bonds in the denomination of $5,000 or, any
integral multiple thereof, shall be numbered "R -1" and upwards
as provided in the Indenture, and may be exchanged for other
fully registered Series 1985 Bonds of the denomination of
$5,000 or any integral multiple thereof, subject to the
conditions and limitations set forth in the Indenture.
The Series 1985 Bonds shall be dated as of the date of
the first authentication and delivery of the Series 1985 Bonds,
except as otherwise provided in the Indenture, and shall
mature, subject to prior redemption, upon the terms and
conditions set forth in the Indenture, on July 1, 2009.
The principal of, premium, if any, and interest on the
Series 1985 Bonds shall be payable in any coin or currency of
the United States of America which, at the respective dates of
payment thereof, is legal tender for the payment of public and
private debts, and such principal, premium, if any, and
interest shall be payable to the registered owner thereof.
Payment of the principal of and premium, if any, on the Series
1985 Bonds shall be made only upon presentation and surrender
thereof, as the same become due, at the principal corporate
trust office of the Bond Trustee. Interest on the Series 1985
Bonds shall be paid (i) by check or draft mailed on the
Interest Payment Date (defined below) to the registered owner
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thereof as of the close of business on the Record Date (as
defined in the Indenture) immediately preceding such Interest
Payment Date, at their addresses as they appear on the
registration books of the Issuer maintained by the Bond Trustee
or at such other addresses as are furnished to the Bond Trustee
in writing by such registered owner by the close of business on
the Record Date with respect to an Interest Payment Date, or
(ii) during any Variable Rate Period (as defined in the
Indenture), by wire transfer on the Interest Payment Date to
such registered owner as of the close of business on the Record
Date next preceding an Interest Payment Date if such registered
owner shall provide written notice to the Bond Trustee by the
close of business on such Record Date of such wire transfer
addresses within the continental United States of America as
such registered owner shall specify (provided, that such wire
transfer shall only be made with respect to an owner of
$1,000,000 or more in aggregate principal amount of the Bonds
as of the close of business on such Record Date), except that
defaulted interest shall be paid as provided in the Indenture.
The Series 1985 Bonds shall bear interest from and
including the date thereof until payment of the principal or
redemption price thereof shall have been made or provided for
in accordance with the provisions of the Indenture, whether at
maturity, upon redemption or otherwise. Interest on the Series
1985 Bonds shall be paid on each Interest Payment Date. During
a Variable Rate Period, interest on the Series 1985 Bonds shall
be computed upon the basis of a 365 or 366 -day year, as
applicable, for the number of days actually elapsed. During a
Fixed Rate Period, interest on the Series 1985 Bonds shall be
computed upon the basis of a 360 -day year consisting of twelve
(12) thirty (30) day months.
"Interest Payment Date" means (i) during a Variable
Rate Period, the first Business Day (as defined in the
Indenture) of each calendar month, commencing August 1, 1985
and through and including the day next succeeding the last day
of such Variable Rate Period; and (ii) during a Fixed Rate
Period (as defined in the Indenture), the day next succeeding
the last day of such Fixed Rate Period, and either
semi - annually on each January 1 and July 1, commencing on the
January 1 or July 1 next succeeding the first day of such Fixed
Rate Period or quarterly on each January 1, April 1, July 1,
and October 1, commencing on the first such date next
succeeding the first day of such Fixed Rate Period, as provided
in the Indenture.
For the First Interest Period beginning on the date of
issuance and delivery of the Series 1985 Bonds and ending on
July 31, 1985, the Series 1985 Bonds shall bear interest at a
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rate equal to five percent (5.0%) per annum. Thereafter and
prior to the first conversion, if any, of the interest rate on
the Bonds to a Fixed Interest Rate, the Series 1985 Bonds shall
bear interest at the Variable Interest Rate. The interest so
payable on an Interest Payment Date for an Interest Period
during a Variable Rate Period shall be based upon the Variable
Interest Rate in effect during each Variable Interest Period or
portion thereof during such Interest Period. In the case of
the first Interest Payment Date, the interest so payable on
such date shall be based upon the interest rate on the Series
1985 Bonds during the First Interest Period.
The Variable Interest Rate shall the lesser of
eighteen percent (18 %) per annum and a rate determined by the
Remarketing Agent on each Determination Date (defined below) to
be the interest rate which, when borne by the Series 1985
Bonds, would be the interest rate necessary but which would not
exceed the interest rate necessary to enable the Remarketing
Agent to sell such Series 1985 Bonds on such date at 100% of
the principal amount thereof. If, however, for any reason such
rate is held to be invalid or unenforceable by a court of law
for any Variable Interest Period, the Variable Interest Rate
for such Variable Interest Period shall be not more than one
hundred twenty percent (120 %) nor less than eighty percent
(80 %) of the Interest Index (defined below) for such Variable
Interest Period and shall be the interest rate determined by
the Remarketing Agent to be the minimum rate necessary to
enable the Remarketing Agent to sell the Series 1985 Bonds on
such date at 100% of the principal amount thereof; provided,
however, that if for any reason such latter rate cannot be
established or is held to be invalid or unenforceable by a
court of law for any Variable Interest Period, the Variable
Interest Rate for such Variable Interest Period shall be
determined by the Remarketing Agent and shall be equal to
sixty -five percent (65 %) of the yield applicable to 13 -week
United States Treasury bills on the basis of the average per
annum discount rate at which such 13 -week Treasury bills shall
have been sold (i) at the most recent Treasury auction during
the next preceding Interest Period (or, with respect to the
Variable Interest Period next succeeding the First Interest
Period, during the First Interest Period) or (ii) if no such
auction shall have been conducted during the next preceding
Variable Interest Period or the First Interest Period, as
appropriate, at the most recent Treasury auction conducted
prior to the next preceding Variable Interest Period or the
First Interest Period, as appropriate. The Variable Interest
Rate so established on a Determination Date shall be the
Variable Interest Rate applicable to the Series 1985 Bonds and
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shall remain in effect for a period (a "Variable Interest
Period ") commencing on such Determination Date to but not
including the earlier of (1) the next succeeding Determination
Date, or (2) the date, if any, on which the interest rate on
the Bonds is converted to a Fixed Interest Rate.
The term "Determination Date" includes the first day
of each Interest Period during a Variable Rate Period,
commencing August 1, 1985, and any Business Day on which a Bond
is required to be purchased pursuant to Bondholder demand.
In the event that it shall become necessary during any
Variable Interest Period to determine the Variable Interest
Rate with reference to an Interest Index as described above,
the Indexing Agent (as defined in the Indenture) shall
promptly, upon notice given by the Owners or Credit Facility
Issuer, determine and make available to the Bond Trustee, the
Owners, the Credit Facility Issuer and the Remarketing Agent an
Interest Index for such Variable Interest Period and thereafter
shall determine for each succeeding Variable Interest Period an
Interest Index as of the first day of each such Variable
Interest Period. Each Interest Index shall be the average of
thirty -day yield evaluations at par of securities (whether or
not actually issued), the interest on which is exempt from
federal income taxation, of not less than twenty (20) Component
Issuers (described herein) selected by,the Indexing Agent which
shall include, without limitation, issuers of commercial paper,
project notes, bond anticipation notes and tax anticipation
notes. So long as the Series 1985 Bonds are rated by either
Moody's (as defined in the Indentue) or S &P (as defined in the
Indenture) in either of its two (2) highest long -term debt
rating categories, each of the Component Issuers must either
(a) have outstanding securities rated by either Moody's or S &P
in its highest note or commercial paper rating category, or (b)
have outstanding securities rated by either Moody's or S &P in
either of its two (2) highest long -term debt rating categories
and either (i) have no outstanding notes or commercial paper or
(ii) have outstanding notes or commercial paper, none of which
is rated by either Moody's or S &P. In the event that the
Series 1985 Bonds are not rated by either Moody's or S&P in
either of the two (2) highest long -term debt rating categories
of such rating agency (but are rated otherwise by such rating
agency), each of the Component Issuers must either (a) have
outstanding securities rated by such rating agency in its note
or commercial paper rating category correlative, in the
judgment of the Indexing Agent, to the long -term debt rating
category in which the Series 1985 Bonds are rated by such
rating agency or (b) have outstanding securities rated by such
rating agency in the same,long -term debt rating category as the
Series 1985 Bonds are rated by such rating agency and either
(i) have no outstanding notes or cammercial paper or (ii) have
outstanding notes or commercial paper, none of which is rated
by such rating agency. The specific issuers included in the
Component Issuers may be changed from time to time by the
Indexing Agent in its discretion, subject to the other
requirements of this paragraph. In the event that the Bonds
are rated by neither Moody's nor S &P, or in the event that the
Indexing Agent no longer computes or fails to compute the
Interest Index and no successor thereto permitted hereunder can
be appointed by the Issuer, the Interest Index during each
Variable Interest Period shall be determined by the Remarketing
Agent and shall be equal to sixty -five percent (65 %) of the
yield applicable to 13 -week United States Treasury bills
determined on the basis of the average per annum discount rate
at which such 13 -week Treasury bills shall have been sold at
the most recent Treasury auction during the immediately
preceding Variable Interest Period (or, with respect to the
Variable Interest Period next succeeding the First Interest
Period, during the First Interest Period), or, if no such
auction shall have been conducted during the immediately
preceding Variable Interest Period, the Interest Index during
such Variable Interest Period shall be the same as for such
preceding Variable Interest Period (provided that if no such
auction shall have been conducted during the First Interest
Period, at the most recent Treasury auction prior to the First
Interest Period).
The computation of the Interest Index by the Indexing
Agent or the Remarketing Agent, as the case may be, and the
determination of the Variable Interest Rate by the Remarketing
Agent, shall be conclusive and binding.upon the owners of the
Series 1985 Bonds, the Issuer, the Owners, the Credit Facility
Issuer, the Bond Trustee and the Remarketing Agent.
Notwithstanding any other provisions of the Indenture,
during the period that the inital Credit Facility (as defined
in the Indenture) is effective and securing the Series 1985
Bonds, the Series 1985 Bonds may not bear interest at a rate
exceeding ten percent (10 %) per annum for any Interest Period
without the written consent of the initial Credit Facility
Issuer, which may be granted or withheld in its sole
discretion. If for any Interest Period during such period the
Series 1985 Bonds would under the provisions of the Indenture
bear interest at a rate in excess of ten percent (10 %) per
annum and the aforementioned written consent of the initial
Credit Facility Issuer has not been filed with the Bond Trustee
on or before the first day of such Interest Period, the Series
1985 Bonds shall bear interest for such Interest Period at the
rate of ten percent (10 %) per annum.
ME
The Series 1985 Bonds shall be executed, shall
otherwise be in such form, shall be subject to such provisions
for mandatory and optional redemption and mandatory and
optional tender for purchase, and shall be subject to such
other terms and conditions as are set forth in the Indenture as
executed and delivered.
As provided in the Indenture, pending the preparation
of definitive Series 1985 Bonds, the Issuer may execute and the
Bond Trustee or Authenticating Agent may authenticate and
deliver temporary Series 1985 Bonds which are printed,
lithographed, typewritten, mimeographed or otherwise produced,
in any denomination, substantially of the tenor of the
definitive Series 1985 Bonds in lieu of which they are issued,
in registered form, and with such appropriate insertions,
omissions, substitutions and other variations as the officers
executing such Series 1985 Bonds may determine, as evidenced by
their execution of such temporary Series 1985 Bonds.
If temporary Series 1985 Bonds are issued, the Issuer
will cause definitive Series 1985 Bonds to be prepared without
unreasonable delay. After the preparation of definitive Series
1985 Bonds, the temporary Series 1985 Bonds shall be
exchangeable for definitive Series 1985 Bonds upon surrender of
the temporary Series 1985 Bonds at the principal corporate
trust office of the Bond Trustee or of the Authenticating Agent
without charge to the owner of such temporary Series 1985
Bonds. Upon surrender for cancellation of any one or more
temporary Series 1985 Bonds, the Issuer shall execute and the
Bond Trustee or Authenticating Agent shall authenticate and
deliver in exchange therefor a like principal amount of
definitive Series 1985 Bonds of authorized form and
denomination. Until so exchanged, temporary Series 1985 Bonds
shall in all respects be entitled to the security and benefits
of the Indenture; and interest thereon, when and as payable,
shall be paid to the owners of temporary Series 1985 Bonds as
provided in the Indenture for definitive Series 1985 Bonds.
Section 4. Limited Liability. The Series 1985 Bonds
shall not be general obligations of the Issuer, the State of
Illinois or any political subdivision thereof but shall be
limited obligations payable solely out of the income and
revenues derived from the Project No holder of any Series
1985 Bonds shall have the right to compel any exercise of
taxing power of the Issuer, the State of Illinois or any
political subdivision thereof to pay the Series 1985 Bonds or
the interest or premium, if any, thereon, and the Series 1985
Bonds shall not constitute an indebtedness of the Issuer, the
State of Illinois or any political subdivision thereof or a
loan of credit thereof within the meaning of any constitutional
or statutory provision.
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No recourse shall be had for the payment of the
principal of, or premium, if any,, or interest on any of the
Series 1985 Bonds or for any claim based thereon or upon any
obligation, covenant or agreement in the Indenture contained,
against any past, present or future officer, employee or agent
of the Issuer, or any incorporator, officer, director, member,
employee or agent of any successor to the Issuer, as such,
either directly or through the Issuer or any successor to the
Issuer, under any rule of law or equity, statute or
constitution or by the enforcement of any assessment or penalty
or otherwise, and all such liability of any such incorporator,
officer, director, member, employee or agent as such shall be
expressly waived and released as a condition of and in
consideration for the execution of the Indenture and the
issuance of any of the Series 1985 Bonds.
Section 5. Forms of Documents. Forms of the Loan
Agreement, the Indenture, the Series 1985 Bonds, the Mortgage,
the Assignment of Rents, the Assignment of Construction
Documents, the Collateral Agreement, the Tender Agent
Agreement, the Regulatory Agreement, the Preliminary Official
Statement and the Bond Purchase Agreement are on file in the
office of the Village Clerk, are before this meeting and are by
this reference incorporated into this Bond Ordinance, and the
Village Clerk is hereby directed to insert them into the
minutes of the Board of Trustees and to retain them on file.
Section 6. Sale of the Series 1985 Bonds; Delivery.
Sale of the Series 1985 Bonds to the Purchaser is hereby
ratified and confirmed. The Village President and Village
Clerk or Deputy Village Clerk are hereby authorized and
directed to execute, attest and seal the Series 1985 Bonds on
behalf of the Issuer and to deliver the Series 1985 Bonds to
the Purchaser upon payment to the Issuer of the purchase price
for the Series 1985 Bonds (the price of $12,361,750) in
accordance with the terms of the Indenture. Receipt by the
Bond Trustee of the proceeds of sale of the Series 1985 Bonds
shall constitute payment to the Issuer of the purchase price of
the Series 1985 Bonds.
Section 7. Loan Agreement. In order.to provide for
the loan of the proceeds of the Series 1985 Bonds to acquire,
construct and improve the Project and the payment by the Owners
of an amount sufficient to pay the principal of and premium, if
any, and interest on the Series 1985 Bonds, the Village
President and Village Clerk or Deputy Village Clerk shall
execute and deliver in the name and on behalf of the Issuer the
Loan Agreement in substantially the form submitted to this
Board of Trustees, which is hereby approved in all respects,
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with such changes therein as shall be approved by the officers
so executing such document, their approval to be evidenced by
their signing of such document.
Section 8. Acceptance of Note. In connection with
the Series 1985 Bonds, the Issuer accepts as security for the
Series 1985 Bonds the Note of the Owners and authorizes the
Village President to endorse the Note, without recourse, to the
Bond Trustee pursuant to the assignment made by the Issuer to
the Bond Trustee in the Indenture. The Note shall be in
substantially the form attached to the Loan Agreement.
Section 9. Indenture; Appointment of Bond Trustee,
Registrar and Paying Agent; Appointment of Remarketing Agent
and Indexing Agent. In order to secure the Series 1985 Bonds
by providing for the assignment of the Note and of certain of
the Issuer's rights under the Loan Agreement, Mortgage,
Assignment of Construction Documents, Assignment of Rents, and
Collateral Agreement to the Bond Trustee, the Village President
and Village Clerk or Deputy Village Clerk shall execute,
acknowledge and deliver in the name and on behalf of the Issuer
the Indenture in substantially the form submitted to this Board
of Trustees, which is hereby approved in all respects, with
such changes therein as shall be approved by the officers so
executing such document, their approval to be evidenced by
their signing of such document.
LaSalle National Bank, of Chicago, Illinois, is hereby
appointed as Bond Trustee, Registrar and Paying Agent under the
Indenture.
Prudential -Bache Securities, Inc., of New York, New
York, is hereby appointed as Remarketing Agent under the
Indenture.
Prudential -Bache Securities, Inc., of New York, New
York, is hereby appointed as Indexing Agent under the Indenture.
Section 10. Mortgage and Assignments; Collateral
Agreement. In order to further secure the Series 1985 Bonds,
the Village President and Village Clerk or Deputy Village Clerk
shall execute, acknowledge and deliver in the name and on
behalf of the Issuer the Mortgage, the Assignment of Rents, the
Assignment of Construction Documents, and the Collateral
Agreement, each in substantially the respective forms submitted
to this Board of Trustees, which are hereby approved in all
respects with such changes therein as shall be approved by the
officers so executing such respective documents, their approval
to be evidenced by their signing of such documents.
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Section 11. Tender Agent Agreement; Regulatory
Agreement; Tender Agent and Authenticating Agent. The Village
President and Village Clerk or Deputy Village Clerk shall
execute and deliver in the name and on behalf of the Issuer the
Tender Agent Agreement and the Regulatory Agreement in
substantially the forms submitted to this Board of Trustees,
which are hereby approved in all respects with such changes
therein as shall be approved by the officers so executing such
respective documents, their approval to be evidenced by their
signing of such documents.
The Issuer hereby approves the appointment of
Manufacturers Hanover Trust Company, of New York, New York, as
Tender Agent and Authenticating Agent under the Indenture and
the Tender Agent Agreement.
Section 12. Bond Purchase Agreement. The Village
President and Village Clerk or Deputy Village Clerk shall
execute and deliver in the name and on behalf of the Issuer the
Bond Purchase Agreement in substantially the form submitted to
this Board of Trustees, which is hereby approved in all
respects with such changes therein as shall be approved by the
officers so executing such document, their approval to be
evidenced by their signing of such document.
Section 13. Financing Statements. To evidence the
security interests created by the various documents herein
contemplated, the Village President and Village Clerk or Deputy
Village Clerk are hereby authorized and directed to execute and
deliver on behalf of the Issuer as debtor a financing statement
or financing statements wherein the Bond Trustee is the secured
party covering the Loan Agreement, the Note, the Mortgage, the
Assignment of Rents, the Assignment of Construction Documents,
and the Collateral Agreement, and all other and further rights
and interests pledged and assigned to the Bond Trustee under
the Loan Agreement and the Indenture.
Section 14. Arbitrage. The Issuer recognizes that
the purchasers and holders from time to time of the Series 1985
Bonds (including the Purchaser) will have accepted them on, and
paid therefor a price which reflects, the understanding that
interest thereon is exempt from Federal income taxation under
laws in force at the time the Series 1985 Bonds shall have been
delivered, except with respect to the interest on any
Series 1985 Bond for any period during which such Series 1985
Bond is held by any person who is a "substantial user" of the
Project or a "related person" within the meaning of
Section 103(b)(6)(C) of the Code. In this connection, the
Village President and Village Clerk or Deputy Village Clerk and
-13-
other appropriate officials of the Issuer are hereby authorized
and directed to execute such certificates as shall be necessary
to establish that the Series 1985 Bonds are not "arbitrage
bonds" within the meaning of Section 103(c) of the Code, and
any lawful regulations promulgated or proposed thereunder,
including Sections 1.103 -13 and 1.103 -14 of the Income Tax
Regulations (26 CFR Part 1) as the same presently exist, or may
from time to time hereafter be amended, supplemented or
revised. The Issuer covenants to and for the benefit of the
holders of the Series 1985 Bonds from time to time (including
the Purchaser) that no use will be made of the proceeds of the
issue and sale of the Series 1985 Bonds or any other funds or'
accounts of the Issuer which might be deemed to be available
proceeds of the Series 1985 Bonds purchant to the provisions of
Section 103(c) of the Code and the applicable regulations
(proposed or promulgated) under which, if such use had been
reasonably expected on the date of delivery of and payment for
the Series 1985 Bonds, the Series 1985 Bonds would be
classified as "arbitrage bonds" within the meaning of Section
103(c) of the Code. Pursuant to such covenant, the Issuer
obligates itself to comply throughout the term of the issue of
the Series 1985 Bonds with the requirements of the Code and any
regulations promulgated hereunder. The Issuer further
covenants that it will neither take any action nor omit to take
any action the taking or omission of which would render
interest on the Series 1985 Bonds subject to Federal income
taxation. Any certificate given under this section shall be
considered a representation of the Issuer under this Bond
Ordinance, and an executed copy of any such certificate shall
be filed in the office of the Village Clerk.
Section 15. General. The Village President and
Village Clerk or Deputy Village Clerk and all other officers of
the Issuer are hereby authorized and directed, in the name and
on behalf of the Issuer, to execute any and all certificates
and other matters, and do any and all things deemed by them
necessary or desirable in order to carry out the purposes of
this Bond Ordinance (including the preambles hereto), the
acquisition of the Project by the Owners, the issuance and sale
of the Series 1985 Bonds and the securing of the Series 1985
Bonds under and pursuant to the Indenture.
Section 16. Ratification of Proceedings. All
proceedings, resolutions and actions of the Issuer and its
officers and agents taken in connection with the issuance and
sale of the Series 1985 Bonds are hereby ratified, confirmed
and approved.
Section 17. Execution of Bond Ordinance. Immediately
after its passage, this Bond Ordinance shall be signed by the
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0
Village President and attested by the Village Clerk,
be placed in the corporate records of the Issuer.
and shall
Section 18. Severability. It is hereby declared that
all parts of this Bond Ordinance (except Section 4) are
severable and that if any section, paragraph, clause or
provision of this Bond Ordinance shall, for any reason, be held
to be invalid or unenforceable, the invalidity or
unenforceability of any such section, paragraph, clause or
provision shall not affect the - remaining provisions of this
Bond Ordinance.
Section 19. Conflicting Ordinances, etc.. All
ordinances, resolutions and regulations or parts thereof
heretofore adopted or passed which are in conflict with any of
the provisions of this Bond Ordinance are, to the extent of
such conflict, hereby repealed.
Section 20. Effective Date. This Bond Ordinance
shall become effective and shall be in full force immediately
upon its adoption.
PASSED AND APPROVED this 15th day of July, 1985.
Village President
ATTEST:
(► l
CJ Village Clerk
AYES: 6 - Marienthal, O'Reilly, Glover, Reid, Shields, Kowalski
NAYES: 0 - None
ABSENT: 0 - None
-15-
\\ Tr
ORDINANCE NO. 85- 39
AN ORDINANCE AUTHORIZING THE ISSUANCE AND SALE OF
$12,550,000 CONVERTIBLE VARIABLE RATE DEMAND
MULTI - FAMILY HOUSING REVENUE BONDS (WINDBROOKE
APARTMENTS PROJECT), SERIES 1985, OF THE VILLAGE
OF BUFFALO GROVE, ILLINOIS, FOR THE PURPOSE OF
MAKING A LOAN TO AMERICAN NATIONAL BANK AND TRUST
COMPANY OF CHICAGO, NOT PERSONALLY BUT AS
TRUSTEE, EDWARD ZALE AND' ROBERTA ZALE
(COLLECTIVELY, THE "OWNERS "), IN ORDER TO FINANCE
THE ACQUISITION, CONSTRUCTION AND IMPROVEMENT OF
CERTAIN MULTI - FAMILY RESIDENTIAL RENTAL
FACILITIES TO BE LOCATED IN SAID VILLAGE;
AUTHORIZING THE EXECUTION AND DELIVERY OF AN
INDENTURE OF TRUST SECURING SAID SERIES 1985
BONDS; AUTHORIZING THE EXECUTION AND DELIVERY OF
A LOAN AGREEMENT AMONG SAID VILLAGE AND THE
OWNERS; AUTHORIZING THE EXECUTION AND DELIVERY OF
A MORTGAGE AND SECURITY AGREEMENT, AN ASSIGNMENT
OF RENTS AND LEASES, AN ASSIGNMENT OF
CONSTRUCTION DOCUMENTS. AND A COLLATERAL AGREEMENT
TO SECURE SAID SERIES 1985 BONDS; AUTHORIZING THE
EXECUTION AND DELIVERY OF A TENDER AGENT
AGREEMENT; AUTHORIZING THE EXECUTION AND DELIVERY
OF A REGULATORY AGREEMENT IN CONNECTION WITH SUCH
FACILITIES; AUTHORIZING THE EXECUTION AND
DELIVERY OF A BOND PURCHASE AGREEMENT AMONG SAID
VILLAGE, THE OWNERS AND THE.INITIAL PURCHASER OF
THE SERIES 1985 BONDS; AUTHORIZING THE EXECUTION
AND DELIVERY OF AN OFFICIAL STATEMENT AND
RATIFYING AND CONFIRMING THE CIRCULATION OF A
PRELIMINARY OFFICIAL STATEMENT RELATING TO THE
SERIES 1985 BONDS; AUTHORIZING THE EXECUTION AND
DELIVERY OF VARIOUS DOCUMENTS IN CONNECTION WITH
THE FOREGOING; REPEALING ALL ORDINANCES,
RESOLUTIONS OR PORTIONS THEREOF IN CONFLICT WITH
THE PROVISIONS HEREOF; PROVIDING FOR AN EFFECTIVE
DATE; AND CONCERNING RELATED MATTERS.
WHEREAS, the Village of Buffalo Grove, Cook and Lake
Counties, Illinois (the "Issuer ") is a duly constituted and
existing municipality within the meaning of Section 1 of
Article VII of the 1970 Constitution of the State of Illinois
(the "State "), is a "home rule unit" under Section 6(a) of
Article VII of said Constitution, and is a political
subdivision of the State; and
WHEREAS, under the provisions of Chapter 3.24 of the
Village of Buffalo Grove Municipal Code, as amended (the "Act ")
adopted under the authority of Section 6(a) of Article VII of
the 1970 Constitution of the State, the Issuer is authorized to
issue its revenue bonds for the purpose, among others, of
financing the cost of acquiring, constructing, improving and
equipping "multi- family housing projects" (as that term is
defined in the Act); and
WHEREAS, pursuant to such authorization, the Issuer
has determined to finance the acquisition, construction and
improvement of nineteen apartment buildings containing 236 one
and two bedroom apartments and certain facilities functionally
related and subordinate thereto including a swimming pool,
cabana and parking (the "Project "), to be located within the
boundaries of the Issuer and to be owned by American National
Bank and Trust Company of Chicago, not personally but as
Trustee under a Trust Agreement dated July 18, 1985 and known
as Trust No. 64638; and
WHEREAS, the Issuer finds that it is proper, necessary
and desirable to issue the Series 1985 Bonds (herein defined)
for the purpose of providing funds to finance the acquisition,
construction and improvement of the Project and to authorize
such actions as might be required in connection therewith; and
WHEREAS, the Issuer finds that the issuance of the
Series 1985 Bonds to finance the acquisition, construction and
improvement of the Project will comply with the requirements of
the Act and will further the public purposes to be served by
the issuance of bonds under the Act by alleviating the shortage
within the Issuer of decent, safe and sanitary housing,
including housing which persons of low and moderate income can
afford, and thereby improving the public health, safety, and
general welfare of the Issuer and its inhabitants; and
WHEREAS, on July 9, 1985, the Village President of the
Issuer held a public hearing on the financing of the Project
pursuant to public notice duly published in the Buffalo Grove
Herald on June 21, 1985, and approved the Bonds as the
applicable elected representative of the Issuer as required by
the Tax Equity and Fiscal Responsibility Act of 1982; and
WHEREAS, it is necessary for the Issuer to execute and
deliver a Loan Agreement dated as of July 1, 1985 (the Loan
"Agreement "), among the Issuer and the Owners; and
WHEREAS, it is necessary for the Issuer to execute and
deliver an Indenture of Trust dated as of July 1, 1985 (the
-2-
"Indenture "), to LaSalle National Bank, of Chicago, Illinois,
as trustee for the holders of the Series 1985 Bonds, (the "Bond
Trustee "); and
WHEREAS, it is necessary for the Issuer to execute and
deliver a Mortgage and Security Agreement (the "Mortgage ") from
the Owners to the Issuer, an Assignment of Rents and Leases
(the "Assignment of Rents ") from the Owners to the Issuer, an
Assignment of Construction Documents (the "Assignment of
Construction Documents ") from the Owners to the Issuer, and a
Collateral Agreement (the "Collateral Agreement ") among the
Issuer, the Bond Trustee, the Owner and Northwestern Savings
and Loan Association (the "Credit Facility Issuer "), each dated
as of July 1 , 1985, in order to secure the Series 1985 Bonds;
and
WHEREAS, it is necessary for the Issuer to execute and
deliver a Tender Agent Agreement dated as of July 1, 1985 (the
"Tender Agent Agreement ") among the Issuer, the Owners, the
Bond Trustee, Manufacturers Hanover Trust Company, of New York,
New York (the "Tender Agent "), the Credit Facility Issuer and
the Remarketing Agent (as defined in the Indenture); and
WHEREAS, it is necessary for the Issuer to execute and
deliver a Bond Purchase Agreement (the "Bond Purchase
Agreement "), dated July 16, 1985 with respect to the sale of
the Series 1985 Bonds, among the Issuer, the Owners and
Prudential -Bache Securities, Inc., of Chicago, Illinois (the
"Purchaser "); and
WHEREAS, it is necessary and desirable for the Issuer
to execute and deliver a Declaration of Restrictive Covenants
and Regulatory Agreement dated as of July 1, 1985 (the
"Regulatory Agreement ") among the Issuer, the Owners and the
Bond Trustee with respect to the Project; and
WHEREAS, it is necessary and desirable for the Issuer
to authorize the execution and delivery of an Official
Statement (the "Official Statement ") and to ratify and confirm
the circulation of a preliminary Official Statement (the
"Preliminary Official Statement ") relating to the Series 1985
Bonds; and
WHEREAS, it is necessary for the Issuer to authorize
the execution and delivery of other certificates, documents and
papers and the performance of acts necessary or desirable in
connection with the issuance and sale of the Series 1985 Bonds
and the implementation of this Bond Ordinance; and
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WHEREAS, there have been prepared and presented to,
and are before this Board of Trustees, the Preliminary Official
Statement dated July , 1985 and drafts dated July 15, 1985 of
the following documents:
1. Form of proposed Loan Agreement;
2. Form of proposed Indenture;
3. Form of Series 1985 Bonds (contained in the
Indenture);
4. Form of proposed Mortgage;
5. Form of proposed Assignment of Rents;
6. Form of proposed Assignment of Construction
Documents;
7.
Form
of
proposed
Collateral Agreement;
8.
Form
of
proposed
Tender Agent Agreement;
9.'
Form
of
proposed
Regulatory Agreement;
10.
Form
of
proposed
Bond Purchase Agreement; and
WHEREAS, the Act and all documents to be signed by the
Issuer provide that the Series 1985 Bonds shall not constitute
nor give rise to a general obligation.of the Issuer or be a
charge against its taxing powers and that the Series 1985 Bonds
will be payable only from the revenues and receipts derived
from the Loan Agreement and secured only by the pledge and
assignment under the Loan Agreement and the Indenture of such
revenues and of a note (the "Note ") of the Owners in the same
principal amount as the aggregate principal amount of the
Series 1985 Bonds and by the Mortgage, the Assignment of Rents,
the Assignment of Construction Documents, the Collateral
Agreement, and a direct -pay letter of credit (the "Letter of
Credit ") to be dated the date of issuance and delivery of the
Series 1985 Bonds issued to the Bond Trustee by the Credit
Facility Issuer for the account of the Owners;
NOW, THEREFORE, BE IT ORDAINED BY THE PRESIDENT AND
BOARD OF TRUSTEES OF THE VILLAGE OF BUFFALO GROVE, COOK AND
LAKE COUNTIES, ILLINOIS, AS FOLLOWS:
Section 1. Findings; Public Benefits. The President
and Board of Trustees of the Issuer hereby find and determine:
1XI''m
(1) that the Project described in the Loan Agreement to be
acquired, constructed and improved with the proceeds of the
Series 1985 Bonds herein authorized is a "multi- family housing
project" as that phrase is used in the Act, and (2) that
acquisition, construction and improvement of the Project will
further the public purposes to be served by the issuance of
Bonds under the Act by alleviating the shortage within the
Issuer of decent, safe and sanitary housing, including housing
which persons of low and moderate income can afford, and
thereby improving the public health, safety, and general
welfare of the Issuer and its inhabitants.
Section 2. Authorization of Series 1985 Bonds. In
order to pay the cost of acquiring, constructing and improving
the Project, there are hereby authorized to be issued, sold and
delivered $12,550,000 aggregate principal amount of the
Issuer's Convertible Variable Rate Demand Multi- Family Housing
Revenue Bonds (Windbrooke Apartments Project), Series 1985 (the
"Series 1985 Bonds ").
Section 3. Terms of the Series 1985 Bonds. The
Series 1985 Bonds shall be designated "Convertible Variable
Rate Demand Multi- Family Housing Revenue Bonds (Windbrooke
Apartments Project), Series 1985," shall be issuable as
fully- registered bonds in the denomination of $5,000 or. any
integral multiple thereof, shall be numbered "R -1" and upwards
as provided in the Indenture, and may be exchanged for other
fully registered Series 1985 Bonds of the denomination of
$5,000 or any integral multiple thereof, subject to the
conditions and limitations set forth in the Indenture.
The Series 1985 Bonds shall be dated as of the date of
the first authentication and delivery of the Series 1985 Bonds,
except as otherwise provided in the Indenture, and shall
mature, subject to prior redemption, upon the terms and
conditions set forth in the Indenture, on July 1, 2009.
The principal of, premium, if any, and interest on the
Series 1985 Bonds shall be payable in any coin or currency of
the United States of America which, at the respective dates of
payment thereof, is legal tender for the payment of public and
private debts, and such principal, premium, if any, and
interest shall be payable to the registered owner thereof.
Payment of the principal of and premium, if any, on the Series
1985 Bonds shall be made only upon presentation and surrender
thereof, as the same become due, at the principal corporate
trust office of the Bond Trustee. Interest on the Series 1985
Bonds shall be paid (i) by check or draft mailed on the
Interest Payment Date (defined below) to the registered owner
-5-
thereof as of the close of business. on the Record Date (as
defined in the Indenture) immediately preceding such Interest
Payment Date, at their addresses as they appear on the
registration books of the Issuer maintained by the Bond Trustee
or at such other addresses as are furnished to the Bond Trustee
in writing by such registered owner by the close of business on
the Record Date with respect to an Interest Payment Date, or
(ii) during any Variable Rate Period (as defined in the
Indenture), by wire transfer on the Interest Payment Date to
such registered owner as of the close of business on the Record
Date next preceding an Interest Payment Date if such registered
owner shall provide written notice to the Bond Trustee by the
close of business on such Record Date of such wire transfer
addresses within the continental United States of America as
such registered owner shall specify (provided, that such wire
transfer shall only be made with respect to an owner of
$1,000,000 or more in aggregate principal amount of the Bonds
as of the close of business on such Record Date), except that
defaulted interest shall be paid as provided in the Indenture.
The Series 1985 Bonds shall bear interest.from and
including the date thereof until payment of the principal or
redemption price thereof shall have been made or provided for
in accordance with the provisions of the Indenture, whether at
maturity, upon redemption or otherwise. Interest on the Series
1985 Bonds shall be paid on each Interest Payment Date. During
a Variable Rate Period, interest on the Series 1985 Bonds shall
be computed upon the basis of a 365 or 366 -day year, as
applicable, for the number of days actually elapsed. During a
Fixed Rate Period, interest on the Series 1985 Bonds shall be
computed upon the basis of a 360 -day year consisting of twelve
(12) thirty (30) day months.
"Interest Payment Date" means (i) during a Variable
Rate Period; the first Business Day (as defined in the
Indenture) of each calendar month, commencing August 1, 1985
and through and including the day next succeeding the last day
of such Variable Rate Period; and (ii) during a Fixed Rate
Period (as defined in the Indenture), the day next succeeding
the last day of such Fixed Rate Period, and either
semi - annually on each January 1 and July 1, commencing on the
January 1 or July 1 next succeeding the first day of such Fixed
Rate Period or quarterly on each January 1, April 1, July 1,
and October 1, commencing on the first such date next
succeeding the first day of such Fixed Rate Period, as provided
in the Indenture.
For the First Interest Period beginning on the date of
issuance and delivery of the Series 1985 Bonds and ending on
July 31, 1985, the Series 1985 Bonds shall bear interest at a
EME
rate equal to five percent (5.0%) per annum. Thereafter and
prior to the first conversion, if any, of the interest rate on
the Bonds to a Fixed Interest Rate, the Series 1985 Bonds shall
bear interest at the Variable Interest Rate. The interest so
payable on.an Interest Payment Date for an Interest Period
during a Variable Rate Period shall be based upon the Variable
Interest Rate in effect during each Variable Interest Period or
portion thereof during such Interest Period. In the case of
the fir -.st Interest Payment Date, the interest so payable on
such date shall be based upon the interest rate on the Series
1985 Bonds during the First Interest Period.
The Variable Interest Rate shall the lesser of
eighteen percent (18 %) per annum and a rate determined by the
Remarketing Agent on each Determination Date (defined below) to
be the interest rate which, when borne by the Series 1985
Bonds, would be the interest rate necessary but which would not
exceed the interest rate necessary to enable the Remarketing
Agent to sell such Series 1985 Bonds on such date at 100% of
the principal amount thereof. If, however, for any reason such
rate is held to be invalid or unenforceable by a court of law
for any Variable Interest Period, the Variable Interest Rate
for such Variable Interest Period shall be not more than one
hundred twenty percent (120 %) nor less than eighty percent
(80 %) of the Interest Index (defined below) for such Variable
Interest Period and shall be the interest rate determined by
the Remarketing Agent to be the minimum rate necessary to
enable the Remarketing Agent to sell the Series 1985 Bonds on
such date at 100% of the principal amount thereof; provided,
however, that if for any reason such latter rate cannot be
established or is held to be invalid or unenforceable by a
court of law for any Variable Interest Period, the Variable
Interest Rate for such Variable Interest Period shall be
determined by the Remarketing Agent and shall be equal to
sixty -five percent (65 %) of the yield applicable to 13 -week
United States Treasury bills on the basis of the average per
annum discount rate at which such 13 -week Treasury bills shall
have been sold (i) at the most recent Treasury auction during
the next preceding Interest Period (or, with respect to the
Variable Interest Period next succeeding the First Interest
Period, during the First Interest Period) or (ii) if no such
auction shall have been conducted during the next preceding
Variable Interest Period or the First Interest Period, as
appropriate, at the most recent Treasury auction conducted
prior to the next preceding Variable Interest Period or the
First Interest Period, as appropriate. The Variable Interest
Rate so established on a Determination Date shall be the
Variable Interest Rate applicable to the Series 1985 Bonds and
-7-
shall remain in effect for a period (a "Variable Interest
Period ") commencing on such Determination Date to but not
including the earlier of (1) the next succeeding Determination
Date, or (2) the date, if any, on which the interest rate on
the Bonds is converted to a Fixed Interest Rate.
The term "Determination Date" includes the first day
of each Interest Period during a Variable Rate Period,
commencing August 1, 1985, and any Business Day on which a Bond
is required to be purchased pursuant to Bondholder demand.
In the event that it shall become necessary during any
Variable Interest Period to determine the Variable Interest
Rate with reference to an Interest Index as described above,
the Indexing Agent (as defined in the Indenture) shall
promptly, upon notice given by the Owners or Credit Facility
Issuer, determine and make available to the Bond Trustee, the
Owners, the Credit Facility Issuer and the Remarketing Agent an
Interest Index for such Variable Interest Period and thereafter
shall determine for each succeeding Variable Interest Period an
Interest Index as of the first day of each such Variable
Interest Period. Each Interest Index shall be the average of
thirty -day yield evaluations at par of securities (whether or
not actually issued), the interest on which is exempt from
federal income taxation, of not less than twenty (20) Component
Issuers (described herein) selected by.the Indexing Agent which
shall include, without limitation, issuers of commercial paper,
project notes, bond anticipation notes and tax anticipation
notes. So long as the Series 1985 Bonds are rated by either
Moody's (as defined in the Indentue) or S &P (as defined in the
Indenture) in either of its two (2) highest long -term debt
rating categories, each of the Component Issuers must either
(a) have outstanding securities rated by either Moody's or S &P
in its highest note or commercial paper rating category, or (b)
have outstanding securities rated by either Moody's or S &P in
either of its two (2) highest long -term debt rating categories
and either (i) have no outstanding notes or commercial paper or
(ii) have outstanding notes or commercial paper, none of which
is rated by either Moody's or S &P. In the event that the
Series 1985 Bonds are not rated by either Moody's or S &P in
either of the two (2) highest long -term debt rating categories
of such rating agency (but are rated otherwise by such rating
agency), each of the Component Issuers must either (a) have
outstanding securities rated by such rating agency in its note
or commercial paper rating category correlative, in the
judgment of the Indexing Agent, to the long -term debt rating
category in which the Series 1985 Bonds are rated by such
rating agency or (b) have outstanding securities rated by such
rating agency in the same long -term debt rating category as the
5111
Series 1985 Bonds are rated by such rating agency and either
(i) have no outstanding notes or commercial paper or (ii) have
outstanding notes or commercial paper, none of which is rated
by such rating agency. The specific issuers included in the
Component Issuers may be changed from time to time by the
Indexing Agent in its discretion, subject to the other
requirements of this paragraph. In the event that the Bonds
are rated by neither Moody's nor S &P, or in the event that the
Indexing.Agent no longer computes or fails to compute the
Interest Index and no successor thereto permitted hereunder can
be appointed by the Issuer, the Interest Index during each
Variable Interest Period shall be determined by the Remarketing
Agent and shall be equal to sixty -five percent (65 %) of the
yield applicable to 13 -week United States Treasury bills
determined on the basis of the average per annum discount rate
at which such 13 -week Treasury bills shall have been sold at
the most recent Treasury auction during the immediately
preceding Variable Interest Period (or, with respect to the
Variable Interest Period next succeeding the First Interest
Period, during the First Interest Period), or, if no such
auction shall have been conducted during the immediately
preceding Variable Interest Period, the Interest Index during
such Variable Interest Period shall be the same as for such
preceding Variable Interest Period (provided that if no such
auction shall have been conducted during the First Interest
Period, at the most recent Treasury auction prior to the First
Interest Period).
The computation of the Interest Index by the Indexing
Agent or the Remarketing Agent, as the case may be, and the
determination of the Variable Interest Rate by the Remarketing
Agent, shall be conclusive and binding.upon the owners of the
Series 1985 Bonds, the Issuer, the Owners, the Credit Facility
Issuer, the Bond Trustee and the Remarketing Agent.
Notwithstanding any other provisions of the Indenture,
during the period that the inital Credit Facility (as defined
in the Indenture) is effective and securing the Series 1985
Bonds, the Series 1985 Bonds may not bear interest at a rate
exceeding ten percent (10 %) per annum for any Interest Period
without the written consent of the initial Credit Facility
Issuer, which may be granted or withheld in its sole
discretion. If for any Interest Period during such period the
Series 1985 Bonds would under the provisions of the Indenture
bear interest at a rate in excess of ten percent (10 %) per
annum and the aforementioned written consent of the initial
Credit Facility Issuer has not been filed with the Bond Trustee
on or before the first day of such Interest Period, the Series
1985 Bonds shall bear interest for such Interest Period at the
rate of ten percent (10 %) per annum.
The Series 1985 Bonds shall be executed, shall
otherwise be in such form, shall be subject to such provisions
for mandatory and optional redemption and mandatory and
optional tender for purchase, and shall be subject to such
other terms and conditions as are set forth in the Indenture as
executed and delivered.
As provided in the Indenture, pending the preparation
of definitive Series 1985 Bonds, the Issuer may execute and the
Bond Trustee or Authenticating Agent may authenticate and
deliver temporary Series 1985 Bonds 'which are printed,
lithographed, typewritten, mimeographed or otherwise produced,
in any denomination, substantially of the tenor of the
definitive Series 1985 Bonds in lieu of which they are issued,
in registered form, and with such appropriate insertions,
omissions, substitutions and other variations as the officers
executing such Series 1985 Bonds may determine, as evidenced by
their execution of such temporary Series 1985 Bonds.
If temporary Series 1985 Bonds are issued, the Issuer
will cause definitive Series 1985 Bonds to be prepared without
unreasonable delay. After the preparation of definitive Series
1985 Bonds, the temporary Series 1985 Bonds shall be
exchangeable for definitive Series 1985 Bonds upon surrender of
the temporary Series 1985 Bonds at the principal corporate
trust office of the Bond Trustee or of the Authenticating Agent
without charge to the owner of such temporary Series 1985
Bonds. Upon surrender for cancellation of any one or more
temporary Series 1.985 Bonds, the Issuer shall execute and the
Bond Trustee or Authenticating Agent shall authenticate and
deliver in exchange therefor a like principal amount of
definitive Series 1985 Bonds of authorized form and
denomination. Until so exchanged, temporary Series 1985 Bonds
shall in all respects be entitled to the security and benefits
of the Indenture; and interest thereon, when and as payable,
shall be paid to the owners of temporary Series 1985 Bonds as
provided in the Indenture for definitive Series 1985 Bonds.
Section 4. Limited Liability. The Series 1985 Bonds
shall not be general obligations of the Issuer, the State of
Illinois or any political subdivision thereof but shall be
limited obligations payable solely out of the income and
revenues derived from the Project. No holder of any Series
1985 Bonds shall have the right to compel any exercise of
taxing power of the Issuer, the State of Illinois or any
political subdivision thereof to pay the Series 1985 Bonds or
the interest or premium, if any, thereon, and the Series 1985
Bonds shall not constitute an indebtedness of the Issuer, the
State of Illinois or any political subdivision thereof or a
loan of credit thereof within the meaning of any constitutional
or statutory provision.
-10-
. A
No recourse shall be had for the payment of the
principal of, or premium, if any., or interest on any of the
Series 1985 Bonds or for any claim based thereon or upon any
obligation, covenant or agreement in the Indenture contained,
against any past, present or future officer, employee or agent
of the Issuer, or any incorporator, officer, director, member,
employee or agent of any successor to the Issuer, as such,
either directly or through the Issuer or any successor to the
Issuer, under any rule of law or equity, statute or
constitution or by the enforcement of any assessment or penalty
or otherwise, and all such liability of any such incorporator,
officer, director, member, employee or agent as such shall be
expressly waived and released as a condition of and in
consideration for the execution of the Indenture and the
issuance of any of the Series 1985 Bonds.
Section 5. Forms of Documents. Forms of the Loan
Agreement, the Indenture, the Series 1985 Bonds, the Mortgage,
the Assignment of Rents, the Assignment of Construction
Documents, the Collateral Agreement, the Tender Agent
Agreement, the Regulatory Agreement, the Preliminary Official
Statement and the Bond Purchase Agreement are on file in the
office of the Village Clerk, are before this meeting and are by
this reference incorporated into this Bond Ordinance, and the
Village Clerk is hereby directed to insert them into the
minutes of the Board of Trustees and to retain them on file.
Section 6. Sale of the Series 1985 Bonds; Delivery.
Sale of the Series 1985 Bonds to the Purchaser is hereby
ratified and confirmed. The Village President and Village
Clerk or Deputy Village Clerk are hereby authorized and
directed to execute, attest and seal the Series 1985 Bonds on
behalf of the Issuer and to deliver the Series 1985 Bonds to
the Purchaser upon payment to the _Issuer of the purchase price
for the Series 1985 Bonds (the price of $12,361,750) in
accordance with the terms of the Indenture.- Receipt by the
Bond Trustee of the proceeds of sale of the Series 1985 Bonds
shall constitute payment to the Issuer of the purchase price of
the Series 1985 Bonds.
Section 7. Loan Agreement. In order.to provide for
the loan of the proceeds of the Series 1985 Bonds to acquire,
construct and improve the Project and the payment by the Owners
of an amount sufficient to pay the principal of and premium, if
any, and interest on the Series 1985 Bonds, the Village
President and Village Clerk or Deputy Village Clerk shall
execute and deliver in the name and on behalf of the Issuer the
Loan Agreement in substantially the form submitted to this
Board of Trustees, which is hereby approved in all respects,
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with such changes therein as shall be approved by the officers
so executing such document, their approval to be evidenced by
their signing of such document.
Section 8. Acceptance of Note. In connection with
the Series 1985 Bonds, the Issuer accepts as security for the
Series 1985 Bonds the Note of the Owners and authorizes the
Village President to endorse the Note, without recourse, to the
Bond Trustee pursuant to the assignment made by the Issuer to
the Bond Trustee in the Indenture. The Note shall be in
substantially the form attached to the Loan Agreement.
Section 9. Indenture; Appointment of Bond Trustee,
Registrar and Paying Agent; Appointment of Remarketing Agent
and Indexing Agent. In order to secure the Series 1985 Bonds
by providing for the assignment of the Note and of certain of
the Issuer's rights under the Loan Agreement, Mortgage,
Assignment of Construction Documents, Assignment of Rents, and
Collateral Agreement to the Bond Trustee, the Village President
and Village Clerk ..or Deputy Village Clerk shall execute,
acknowledge and deliver in the name and on behalf of the Issuer
the Indenture in substantially the form submitted to this Board
of Trustees, which is hereby approved in all respects, with
such changes therein as shall be approved by the officers so
executing such document, their approval to be evidenced by
their signing of such document.
LaSalle National Bank, of Chicago, Illinois, is hereby
appointed as Bond Trustee, Registrar and Paying Agent under the
Indenture.
Prudential -Bache Securities, Inc., of New York, New
York, is hereby appointed as Remarketing Agent under the
Indenture.
Prudential -Bache Securities, Inc., of New York, New
York, is hereby appointed as Indexing Agent under the Indenture.
Section 10. Mortgage and Assignments; Collateral
Agreement. In order to further secure the Series 1985 Bonds,
the Village President and Village Clerk or Deputy Village Clerk
shall execute, acknowledge and deliver in the name and on
behalf of the Issuer the Mortgage, the Assignment of Rents, the
Assignment of Construction Documents, and the Collateral
Agreement, each in substantially the respective forms submitted
to this Board of Trustees, which are hereby approved in all
respects with such changes therein as shall be approved by the
officers so executing such respective documents, their approval
to be evidenced by their signing of such documents.
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Section 11. Tender Agent Agreement; Regulatory
Agreement; Tender Agent and Authenticating Agent. The Village
President and Village Clerk or Deputy Village Clerk shall
execute and deliver in the name and on behalf of the Issuer the
Tender Agent Agreement and the Regulatory Agreement in
substantially the forms submitted to this Board of Trustees,
which are hereby approved in all respects with such changes
therein as shall be approved by the officers so executing such -
respective documents, their approval to be evidenced by their
signing of such documents.
The Issuer hereby approves the appointment of
Manufacturers Hanover Trust Company, of New York, New York, as
Tender Agent and Authenticating Agent under the Indenture and
the Tender Agent Agreement.
Section 12. Bond Purchase Agreement. The Village
President and Village Clerk or Deputy Village Clerk shall
execute and deliver in the name and on behalf of the Issuer the
Bond Purchase Agreement in substantially the form submitted to
this Board of Trustees, which is hereby approved in all
respects with such changes therein as shall be approved by the
officers so executing such document, their approval to be
evidenced by their signing of such document.
Section 13. Financing Statements. To evidence the
security interests created by the various documents herein
contemplated, the Village President and Village Clerk or Deputy
Village Clerk are hereby authorized and directed to execute and
deliver on behalf of the Issuer as debtor a financing statement
or financing statements wherein the Bond Trustee is the secured
party covering the Loan Agreement, the Note, the Mortgage, the
Assignment of Rents, the Assignment of Construction Documents,
and the Collateral Agreement, and all other and further rights
and interests pledged and assigned to the Bond Trustee under
the Loan Agreement and the Indenture.
Section 14. Arbitrage. The Issuer recognizes that
the purchasers and holders from time to time of the Series 1985
Bonds (including the Purchaser) will have accepted them on, and
paid therefor a price which reflects, the understanding that
interest thereon is exempt from Federal income taxation under
laws in force at the time the Series 1985 Bonds shall have been
delivered, except with respect to the interest on any
Series 1985 Bond for any period during which such Series 1985
Bond is held by any person who is a "substantial user" of the
Project or a "related person" within the meaning of
Section 103(b)(6)(C) of the Code. In this connection, the
Village President and Village Clerk or Deputy Village Clerk and
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other appropriate officials of the Issuer are hereby authorized
and directed to execute such certifi -cater as shall be necessary
to establish that the Series 1985 Bonds are not "arbitrage
bonds" within the meaning of Section 103(c) of the Code, and
any lawful regulations promulgated or proposed thereunder,
including Sections 1.103 -13 and 1.103 -14 of the Income Tax
Regulations (26 CFR Part 1) as the same presently exist, or may
from time to time hereafter be amended, supplemented or
revised.. _ The Issuer covenants to and for the benefit of the
holders of the Series 1985 Bonds from, time to time (including
the Purchaser) that no use will be made of the proceeds of the
issue and sale of the Series 1985 Bonds or any other funds or
accounts of the Issuer which might be deemed to be available
proceeds of the Series 1985 Bonds purchant to the provisions of
Section 103(c) of the Code and the applicable regulations
(proposed or promulgated) under which, if such use had been
reasonably expected on the date of delivery of and payment for
the Series 1985 Bonds, the Series 1985 Bonds would be
classified as "arbitrage bonds" within the meaning of Section
103(c) of the Code. Pursuant to such covenant, the Issuer
obligates itself to comply throughout the term of the issue of
the Series 1985 Bonds with the requirements of the Code and any
regulations promulgated hereunder. The Issuer further
covenants that it will neither take any action nor omit to take
any action the taking or omission of which would render
interest on the Series 1985 Bonds subject to Federal income
taxation. Any certificate given under . this section shall be
considered a representation of the Issuer under this Bond
Ordinance, and an executed copy of any such certificate shall
be filed in the office of the Village Clerk.
Section 15. General. The Village President and
Village Clerk or Deputy Village Clerk and all other officers of
the Issuer are hereby authorized and.directed, in the name and
on behalf of the Issuer, to execute any and all certificates
and other matters, and do any and all things deemed by them
necessary or desirable in order to carry out the purposes of
this Bond Ordinance (including the preambles hereto), the
acquisition of the Project by the Owners, the issuance and sale
of the Series 1985 Bonds and the securing of the Series 1985
Bonds under and pursuant to the Indenture.
Section 16. Ratification of Proceedings. All
proceedings, resolutions and actions of the Issuer and its
officers and agents taken in connection with the issuance and
sale of the Series 1985 Bonds are hereby ratified, confirmed
and approved.
Section 17. Execution of Bond Ordinance. Immediately
after its passage, this Bond Ordinance shall be signed by the
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Village President and attested by the Village Clerk, and shall
be placed in the corporate records of the Issuer.
Section 18. Severability. It is hereby declared that
all parts of this Bond Ordinance (except Section 4) are
severable and that if any section, paragraph, clause or
provision of this Bond Ordinance shall, for any reason, be held
to be invalid or unenforceable, the invalidity or.
unenforceability of any such section, paragraph, clause or
provision shall not affect the remaining provisions of this
Bond Ordinance.
Section 19. Conflicting Ordinances, etc.. All
ordinances, resolutions and regulations or parts thereof
heretofore adopted or passed which are in conflict with any of
the provisions of this Bond Ordinance are, to the extent of
such conflict, hereby repealed.
Section 20. Effective Date. This Bond Ordinance
shall become effective and shall be in full force immediately
upon its adoption.
PASSED AND APPROVED this 15th day of July, 1985.
Village President
ATTEST:
Village, ; .lerk
AYES: 6 - Marienthal, O'Reilly, Glover, Reid, Shields, Kowalski
NAYES: 0 - None
ABSENT: 0 - None
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