Drafter
Clerk 06/04/2013
title
AN ORDINANCE authorizing the issuance and sale of multi-modal limited tax general obligation refunding bonds in an original aggregate principal amount not to exceed $42,500,000 to obtain funds to refund, redeem and retire all of the county's outstanding Multi-Modal Limited Tax General Obligation Bonds, 2009, Series A; authorizing the form, terms, maturity, and interest rate modes for the bonds; authorizing the covenants and conditions under which the bonds will be issued; and approving an agreement to sell the bonds to Banc of America Preferred Funding Corporation.
Body
PREAMBLE:
The county has previously issued its Multi-Modal Limited Tax General Obligation Bonds, 2009, Series A. The county has an opportunity to refund, redeem and retire all or a portion of those bonds, thereby modifying the covenants and other terms of the bonds to be refunded.
It is deemed necessary and advisable that the county now authorize the issuance and sale of its multi-modal limited tax general obligation refunding bonds in an original aggregate principal amount not to exceed $42,500,000 to undertake such refunding, redemption and retirement.
BE IT ORDAINED BY THE COUNCIL OF KING COUNTY:
SECTION 1. Definitions. As used in this ordinance, the following terms and phrases shall have the following meanings unless the context clearly indicates that another meaning is intended (singular definitions herein shall be deemed to include the plural thereof and vice versa):
"Accounts" means, collectively, the Remarketing Proceeds Account, County Purchase Account and Liquidity Facility Purchase Account established within the Purchase Fund.
"Affiliate" means, with respect to a specified Person, another Person that directly or indirectly through one or more intermediaries, controls, or is controlled by or is under common control with, the specified Person.
"Agreement" means, (a) during the Initial Period, the Continuing Covenant Agreement between the county and Banc of America Preferred Funding Corporation, dated the Date of Issue, as the same may be amended, supplemented, restated or otherwise modified from time to time, and (b) during any Index Rate Period other than the Initial Period, any agreement designated as such between the county and the Bank.
"Alternate Credit Enhancement" or "Alternate Liquidity Facility" means a letter of credit, insurance policy, line of credit, surety bond, standby purchase agreement or other security or liquidity instrument, as the case may be, issued in accordance with the terms hereof as a replacement or substitute for any Credit Enhancement or Liquidity Facility, as applicable, then in effect.
"Alternate Rate" means, on any Rate Determination Date, for any Mode, a rate per annum equal to 110% of (a) the SIFMA Index most recently available as of the date of determination, or (b) if such index is no longer available, or if the SIFMA Index is no longer published, the S&P Weekly High Grade Index, or if neither the SIFMA Index nor the S&P Weekly High Grade Index is published, the index determined to equal the prevailing rate determined by the Remarketing Agent for tax-exempt state and local government bonds meeting criteria determined in good faith by the Remarketing Agent to be comparable under the circumstances to the criteria used by SIFMA to determine the SIFMA Index just prior to when SIFMA stopped publishing the SIFMA Index. The Registrar shall make the determinations required by this definition, upon notification from the county, if there is no Remarketing Agent, if the Remarketing Agent fails to make any such determination or if the Remarketing Agent has suspended its remarketing efforts in accordance with the Remarketing Agreement; provided, however, that if neither the SIFMA Index nor the S&P Weekly High Grade Index is available, the county shall designate in writing the index for the Registrar to use.
"Applicable Factor" means during any Index Rate Period during which the Bonds bear interest at the LIBOR Index Rate, 70%, or such other percentage as may be established as the Applicable Factor for that Index Rate Period pursuant to Section 13.A.1 of this ordinance.
"Applicable Spread" means
(a) During the Initial Period, 47.5 basis points (0.475%), which Applicable Spread is subject to the ratings assigned to the LTGO Debt (the "LTGO Rating") by Moody's, S&P and Fitch, currently Aa1 by Moody's, AAA by S&P and AA+ by Fitch. If any LTGO Rating is changed, the Applicable Spread will be determined as set forth in the following schedule; provided, that if there are LTGO Ratings assigned by multiple Rating Agencies and there is a split among such LTGO Ratings, the lowest LTGO Rating will prevail for purposes of determining the Applicable Spread; and provided further, that if Moody's, S&P or Fitch shall have downgraded its LTGO Rating to below "BBB-" (or its equivalent), "Baa3" (or its equivalent), or "BBB-" (or its equivalent), respectively, or suspended or withdrawn its rating, then the Applicable Spread shall not be determined and the Bonds shall bear interest at the Default Rate as set forth in Section 11.C.3 of this ordinance:
LTGO Ratings Assigned by Moody's / S&P / Fitch |
Applicable Spread |
|
|
AA+ / Aa1 / AA+ and above |
0.475% |
AA / Aa2 / AA |
0.525% |
AA- / Aa3 / AA- |
0.575% |
A+ / A1 / A+ |
0.675% |
A / A2 / A |
0.775% |
A- / A3 / A- |
0.875% |
BBB+ / Baa1 / BBB+ |
1.025% |
BBB / Baa2 / BBB |
1.175% |
BBB- / Baa3 / BBB- |
1.325% |
Below Investment Grade |
Default Rate |
Rating withdrawn or suspended |
Default Rate |
References in this definition of Applicable Spread are to rating categories used by the Rating Agencies as of the Date of Issue, and in the event of the adoption of any new or changed rating system, including, without limitation, any recalibration or realignment of the LTGO Ratings in connection with the adoption of a "global" rating scale, the rating categories referred to above shall be deemed to refer to the rating categories under the new rating system that most closely approximates the requirements set forth herein.
Any change in the Applicable Spread shall apply to the Index Rate for the immediately succeeding Index Interest Period after any applicable LTGO Rating occurs.
(b) During any Index Rate Period other than the Initial Period, (1) the number of basis points determined by the Market Agent on or before the first day of such Index Rate Period and designated by the county in accordance with Section 13.A.1. of this ordinance (which may include a schedule for the Applicable Spread based upon the LTGO Ratings as described in clause (a) of this definition) that, when added to (x) the SIFMA Index or (y) the product of the LIBOR Index multiplied by the Applicable Factor (and multiplied by the Margin Rate Factor), as applicable, would equal the minimum interest rate per annum that would enable the Bonds to be sold on such date at a price equal to the principal amount thereof (without regard to accrued interest, if any, thereon), or (2) the number of basis points or schedule of basis points set forth in the applicable extension or replacement Agreement approved by the Finance Director pursuant to Section 36 of this ordinance.
"Authorized Denominations" means (a) with respect to Bonds in an Index Rate Mode, a Daily Mode or Weekly Mode, $100,000 and any integral multiple of $5,000 in excess thereof, (b) with respect to Bonds in a Flexible Mode, $100,000 and any integral multiple of $1,000 in excess thereof, and (c) with respect to Bonds in a Term Rate Mode or a Fixed Rate Mode, $5,000 and any integral multiple thereof.
"Automatic Termination Event" means an event of default set forth in a Reimbursement Agreement between the county and a Liquidity Provider that would result in the immediate and automatic termination or suspension of the Liquidity Facility prior to its stated expiration date without prior notice from the Liquidity Provider to the Registrar
"Available Amount" means the amount available under any Credit Enhancement or Liquidity Facility, as applicable, to pay the principal of and interest on the Bonds and/or the Purchase Price of the Bonds, as applicable.
"Bank" means, during any Index Rate Period:
(a) If the Bonds are not then held under a Book-Entry System, (1) the Owner of the Bonds if there is only one Owner of all of the Bonds, or (2) the Owners owning a majority of the aggregate principal amount of the Bonds then Outstanding if there is more than one Owner of the Bonds; or
(b) If the Bonds are then held under a Book-Entry System, (1) the Beneficial Owner of the Bonds if there is only one Beneficial Owner of all of the Bonds; or (2) the Beneficial Owners who are the beneficial owners of a majority of the aggregate principal amount of the Bonds then Outstanding if there is more than one Beneficial Owner of the Bonds. The initial Bank is Banc of America Preferred Funding Corporation.
"Bank Purchase Date" means (a) during the Initial Period, the Initial Bank Purchase Date, (b) during any other Index Rate Period, the date designated by the county pursuant to Section 13.A.1. of this ordinance, and (c) during any Index Rate Period, the date that is seven calendar days (or if that seventh calendar day is not a Business Day, the next Business Day) after the date on which the Registrar receives written notice from the Bank under the applicable Agreement advising the Registrar of the occurrence and continuance of an Event of Default and directing the Registrar to cause a mandatory tender of the Bonds (including any Unremarketed Index Rate Bonds) by reason of the Event of Default.
"Beneficial Owner" means, when the Bonds are held in a Book-Entry System, any Person who acquires a beneficial ownership interest in a Bond held by the Securities Depository. When the Bonds are not held in a Book-Entry System, Beneficial Owner means Owner for purposes of this ordinance.
"Bond Counsel" means any firm of nationally recognized municipal bond attorneys selected by the county and experienced in the issuance of municipal bonds and matters relating to the exclusion of the interest thereon from gross income for federal income tax purposes.
"Bonds" means the King County, Washington, Multi-Modal Limited Tax General Obligation Refunding Bonds, 2013, authorized to be issued in an original aggregate principal amount not to exceed $42,500,000 pursuant to Section 3 of this ordinance.
"Book-Entry System" means the system maintained by a Securities Depository described in Section 3 of this ordinance.
"Business Day" means any business day other than (a) a Saturday or Sunday, (b) a day on which the Bank, the Calculation Agent, the Registrar or the Remarketing Agent, if any, are required or authorized to be closed, (c) a day on which the office of the Credit Provider or Liquidity Provider, if any, at which it will pay draws or advances are required or authorized to be closed, or (d) a day on which The New York Stock Exchange is closed.
"Calculation Agent" means, (a) during the Initial Period, Bank of America, N.A, and (b) during any other Index Rate Period, the Bank, the Registrar or any other Person appointed by the county, with the Bank's consent, to serve as Calculation Agent for the Bonds.
"Code" means the federal Internal Revenue Code of 1986, as amended, together with corresponding and applicable regulations and revenue rulings issued or amended with respect thereto by the United States Treasury Department or the Internal Revenue Service.
"Conversion Date" means (a) with respect to the Bonds in a particular Mode, the day on which another Mode for the Bonds begins, or (b) or, in the case of Index Rate Bonds, an Index Rate Conversion Date.
"Conversion Notice" means the notice from the county to the other Notice Parties of the county's intention to change the Mode with respect to the Bonds.
"County Bonds" means Bonds purchased with funds advanced by the county and deposited into the County Purchase Account pursuant to Section 23.C. of this ordinance, and held by the Registrar for and on behalf of the county or any nominee for (or any Person who owns such Bonds for the sole benefit of) the county.
"County Purchase Account" means the account of that name established within the Purchase Fund pursuant to Section 23 of this ordinance.
"Credit Enhancement" means any letter of credit, insurance policy, surety bond, line of credit or other instrument, if any, that secures or guarantees the payment of principal of and interest on the Bonds.
"Credit Provider" means any bank, insurance company, pension fund or other financial institution that provides a Credit Enhancement or Alternate Credit Enhancement for the Bonds.
"Current Mode" shall have the meaning specified in Section 13.A.1. of this ordinance.
"Daily Mode" means the Mode during which the Bonds bear interest at the Daily Rate.
"Daily Rate" means the per annum interest rate on any Bond in the Daily Mode determined pursuant to Section 8.A. of this ordinance.
"Daily Rate Period" means the period during which a Bond in the Daily Mode bears interest at a Daily Rate, which shall be from the Business Day upon which a Daily Rate is set to, but excluding, the next succeeding Business Day.
"Date of Issue" means the date on which the Bonds are issued and delivered to the Bank as the initial purchaser thereof in return for payment of the purchase price therefor.
"Default Rate" has the meaning set forth in the Agreement.
"Delayed Remarketing Period" has the meaning specified in Section 24.B. of this ordinance.
"Determination of Taxability" means and shall be deemed to have occurred on the first to occur of the following:
(a) The date when the county files any statement, supplemental statement or other tax schedule, return or document that discloses that an Event of Taxability has in fact occurred;
(b) The date when any current or former Owner or Beneficial Owner notifies the county that it has received a written opinion by a nationally recognized firm of attorneys of substantial expertise on the subject of taxexempt municipal finance to the effect that an Event of Taxability has occurred (the "Notification Date"), unless (1) within 90 days after the Notification Date, the county delivers to such Owner or Beneficial Owner written evidence that the county has requested a ruling or determination letter from the Commissioner or any District Director of the Internal Revenue Service (or any other governmental official exercising the same or a substantially similar function from time to time) to the effect that, after taking into consideration such facts as form the basis for the opinion that an Event of Taxability has occurred, an Event of Taxability has not occurred, and (2) not later than 180 days after the Notification Date, the county delivers to such Owner or Beneficial Owner such ruling or determination letter to that effect;
(c) The date when the county is advised in writing by the Commissioner or any District Director of the Internal Revenue Service (or any other government official or agent exercising the same or a substantially similar function from time to time) that, based upon filings of the county, or upon any review or audit of the county or upon any other ground whatsoever, an Event of Taxability has occurred; or
(d) The date when the county receives notice from any current or former Owner or Beneficial Owner of a Bond that the Internal Revenue Service (or any other government official or agency exercising the same or a substantially similar function from time to time) has assessed as includable in the gross income of such current or former Owner or Beneficial Owner the interest on the Bond due to the occurrence of an Event of Taxability;
provided, however, that no Determination of Taxability shall occur under subparagraph (c) or (d) above unless the county has been afforded the opportunity, at its expense, to contest any such assessment, and, further, no Determination of Taxability shall occur until such contest, if made, has been finally determined; and provided further, however, that upon demand from the current or former Owner or Beneficial Owner, the county shall promptly reimburse such Owner or Beneficial Owner for any payments, including any taxes, interest, penalties or other charges, that such Owner or Beneficial Owner has been obligated to make as a result of the Determination of Taxability.
"Direct DTC Participant" has the meaning set forth in the Letter of Representations.
"DTC" means The Depository Trust Company, a limited purpose trust company organized under the laws of the State of New York, and any successor thereto.
"DTC Participants" means those broker-dealers, banks and other financial institutions for which DTC holds bonds or other securities as securities depository.
"Electronic Means" means telecopy, facsimile transmission, etransmission or other similar electronic means of communication providing evidence of transmission.
"Escrow Account" means the account of that name created in the Refunding Fund pursuant to Section 27 of this ordinance.
"Escrow Agent" means the corporate trustee chosen to serve as such pursuant to Sections 27 and 28 of this ordinance.
"Event of Default" has the meaning set forth in the Agreement.
"Event of Taxability" means (a) a change in law or fact or the interpretation thereof, or the occurrence or existence of any fact, event or circumstance (including, without limitation, any action of the county, or the county's failure to act, or the county's making any misrepresentation herein or in any certificate required to be given in connection with the issuance, sale or delivery of the Bonds) that has the effect of causing interest paid or payable on the Bonds to become included, in whole or in part, in the gross income of the current or former Owner or Beneficial Owner for federal income tax purposes; or (b) the entry of any decree or judgment by a court of competent jurisdiction, or the taking of any official action by the Internal Revenue Service or the Department of the Treasury, which decree, judgment or action is final under applicable procedural law and has the effect of causing interest paid or payable on the Bonds to become includable, in whole or in part, in the gross income of a current or former Owner or Beneficial Owner of a Bond for federal income tax purposes with respect to the Bonds.
"Excess Interest" has the meaning set forth in Section 11.C.4. of this ordinance.
"Expiration Date" means the stated expiration date of any Credit Enhancement or Liquidity Facility, as it may be extended from time to time as provided in the Credit Enhancement or in the Liquidity Facility or Reimbursement Agreement, as applicable, or any earlier date on which the Credit Enhancement or the Liquidity Facility may terminate at the direction of the county, expire or be cancelled.
"Favorable Opinion of Bond Counsel" means, with respect to any action the occurrence of which requires such an opinion, an Opinion of Bond Counsel, which, in the discretion of such Bond Counsel, may be based upon, and subject to the same exceptions and qualifications as, the approving Opinion of Bond Counsel delivered in connection with the original issuance of the Bonds, to the effect that the action proposed to be taken is authorized or permitted by this ordinance and will not, in and of itself, result in the inclusion of interest on the Bonds in gross income for federal income tax purposes.
"Finance Director" means the director of the finance and business operations division of the department of executive services of the county or any other county officer who succeeds to the duties now delegated to that office or the designee of such officer.
"Fiscal Agency Agreement" means the agreement of that name dated February 1, 2011, as amended, between the State of Washington and The Bank of New York Mellon, and any amendments and supplements thereto and replacements thereof.
"Fitch" means Fitch Ratings, Inc., and its successors and assigns, except that if such entity shall be dissolved or liquidated or shall no longer perform the functions of a securities rating agency, then the term "Fitch" shall be deemed to refer to any other nationally recognized securities rating agency selected by the county after consultation with the Remarketing Agent.
"Fixed Rate" means the per annum interest rate on any Bond in the Fixed Rate Mode determined pursuant to Section 10 of this ordinance.
"Fixed Rate Bond" means a Bond in the Fixed Rate Mode.
"Fixed Rate Mode" means the Mode during which the Bonds bear interest at the Fixed Rate.
"Fixed Rate Period" means, for the Bonds in the Fixed Rate Mode, the period from the Conversion Date upon which the Bonds were converted to the Fixed Rate Mode to, but excluding, the Maturity Date for the Bonds.
"Flexible Mode" means the Mode during which the Bonds bear interest at the Flexible Rate.
"Flexible Rate" means the per annum interest rate on a Bond in the Flexible Mode determined for such Bond pursuant to Section 7 of this ordinance. The Bonds in the Flexible Mode may bear interest at different Flexible Rates.
"Flexible Rate Bond" means a Bond in the Flexible Mode.
"Flexible Rate Period" means the period of from one to 270 calendar days (which period must end on a day preceding a Business Day) during which a Flexible Rate Bond shall bear interest at a Flexible Rate, as established by the Remarketing Agent pursuant to Section 7 of this ordinance. The Bonds in the Flexible Mode may be in different Flexible Rate Periods.
"Government Obligations" means "government obligations," as defined in chapter 39.53 RCW, as now in existence or hereafter amended.
"Index Interest Period" means (a) for an Index Rate Period during which the Bonds bear interest at the LIBOR Index Rate, each LIBOR Interest Period during such Index Rate Period; and (b) for an Index Rate Period during which the Bonds bear interest at the SIFMA Index Rate, each SIFMA Index Interest Period during such Index Rate Period.
"Index Rate" means the LIBOR Index Rate or the SIFMA Index Rate, as applicable.
"Index Rate Bonds" means Bonds that bear interest at an Index Rate.
"Index Rate Conversion Date" means (a) the date on which the Bonds begin to bear interest at an Index Rate, or (b) if the Bonds have previously borne interest at an Index Rate during an Index Rate Period then ending, the Bank Purchase Date occurring at the end of the then ending Index Rate Period.
"Index Rate Mode" means the Mode during which the Bonds bear interest at an Index Rate.
"Index Rate Period" means (a) the Initial Period and (b) each period thereafter from and including an Index Rate Conversion Date to but excluding the earliest of (1) the immediately succeeding Bank Purchase Date, (2) the immediately succeeding Conversion Date, or (3) the Maturity Date.
"Indirect DTC Participant" has the meaning set forth in the Letter of Representations.
"Initial Bank Purchase Date" means the Interest Payment Date immediately preceding the date that is three years after the Date of Issue.
"Initial Period" means the initial Index Rate Period commencing on the Date of Issue and ending on the first to occur of (a) the Initial Bank Purchase Date, (b) the Conversion Date next succeeding the Date of Issue (provided that the Bank shall have consented thereto in writing), (c) the Maturity Date, or (d) a Bank Purchase Date of the type described in clause (c) of the definition of Bank Purchase Date.
"Interest Accrual Period" means the period during which a Bond accrues interest payable on the next Interest Payment Date applicable thereto. Each Interest Accrual Period shall commence on and include the last Interest Payment Date to which interest has been paid (or, if no interest has been paid, from the Date of Issue) and shall run to, but exclude, the Interest Payment Date on which interest is to be paid. If, at the time of authentication of any Bond, interest is in default or overdue on the Bonds, such Bond shall bear interest from the date to which interest has previously been paid in full or made available for payment in full on Outstanding Bonds.
"Interest Payment Date" means each date on which interest is to be paid and is: (a) with respect to the Bonds in the Flexible Mode, each Mandatory Purchase Date applicable thereto; (b) with respect to the Bonds in the Daily Mode, Weekly Mode or Index Rate Mode, the first Business Day of each calendar month; (c) with respect to the Bonds in a Term Rate Mode or a Fixed Rate Mode, the first day of the sixth calendar month following the month in which such Term Rate Mode or Fixed Rate Mode takes effect, and the first day of each sixth calendar month thereafter or, upon the receipt by the Registrar of a Favorable Opinion of Bond Counsel, any other six-month interval chosen by the county (beginning with the first such day which is at least three calendar months after the Conversion Date) and, with respect to a Term Rate Period, the final day of the current Interest Period if other than a regular six-month interval; (d) with respect to Unremarketed Index Rate Bonds, the dates set forth in the Agreement for the payment of interest on Unremarketed Index Rate Bonds; (e) (without duplication as to any Interest Payment Date listed above) each Maturity Date; and (f) with respect to any Liquidity Provider Bonds, the dates set forth in the Reimbursement Agreement.
"Interest Period" means, for the Bonds in a particular Mode, the period of time that the Bonds bear interest at the rate per annum that becomes effective at the beginning of such period, and includes a Flexible Rate Period, a Daily Rate Period, a Weekly Rate Period, an Index Rate Period, a Term Rate Period and a Fixed Rate Period.
"Investor Letter" means an investment letter in substantially the form attached as Attachment C to this ordinance.
"Issuance Costs Account" means the account of that name created in the Refunding Fund pursuant to Section 27 of this ordinance.
"Letter of Representations" means the Blanket Issuer Letter of Representations heretofore entered into by the county with DTC, or any similar agreement or document relating to a successor to DTC as Securities Depository.
"LIBOR Index" means the London interbank offered rate for U.S. dollar deposits for a one-month period, which rate appears on the display designated Reuters Screen LIBOR01 Page (or such other page as may replace Reuters Screen LIBOR01 Page or such other service or services nominated by the British Bankers' Association for the purposes of displaying London interbank offered rates for United States dollar deposits), determined as of approximately 11:00 a.m., London time, on each Rate Determination Date for effect on the next succeeding Interest Payment Date, or if that rate is not available, another rate determined by the Calculation Agent of which the county has received written notice.
"LIBOR Index Rate" means a per annum rate of interest, calculated on each Rate Determination Date, equal to the product of (a) the sum of (1) the Applicable Spread plus (2) the product of (i) the LIBOR Index multiplied by (ii) the Applicable Factor, multiplied by (b) the Margin Rate Factor.
"LIBOR Index Rate Determination Date" means a Rate Determination Date occurring while the Bonds bear interest at the LIBOR Index Rate.
"LIBOR Interest Period" means, for any Index Rate Period during which the Bonds bear interest at the LIBOR Index Rate, the period from (and including) the Index Rate Conversion Date to, but excluding, the next succeeding Interest Payment Date, and thereafter each period from (and including) an Interest Payment Date, to but excluding, the following Interest Payment Date.
"Liquidity Facility" means any letter of credit, line of credit, standby purchase agreement or other instrument then in effect that provides for the payment of the Purchase Price of Bonds upon the tender thereof if remarketing proceeds are insufficient therefor.
"Liquidity Facility Purchase Account" means the account of that name established within the Purchase Fund pursuant to Section 23 of this ordinance.
"Liquidity Provider" means any bank, insurance company, pension fund or other financial institution that provides a Liquidity Facility or Alternate Liquidity Facility for the Bonds.
"Liquidity Provider Bonds" means any Bonds purchased by a Liquidity Provider with funds drawn on or advanced under a Liquidity Facility and deposited into the Liquidity Facility Purchase Account pursuant to Section 23.B, of this ordinance.
"Liquidity Provider Rate" means the rate per annum borne by any Liquidity Provider Bonds, determined in accordance with any Liquidity Facility then in effect.
"London Business Day" means any Business Day on which commercial banks are open for business in London, England.
"Long-Term Mode" means an Index Rate Mode, a Term Rate Mode or a Fixed Rate Mode.
"LTGO Debt" means limited tax general obligation debt of the county, the payment of which is secured by the full faith and credit of the county including, without limitation, debt secured by the legal obligation of the county to levy and collect ad valorem taxes within the constitutional and statutory limitations provided by law without a vote of the people upon all the property within the county subject to taxation.
"Mandatory Purchase Date" means: (a) for a Flexible Rate Bond, the first Business Day following the last day of each Flexible Rate Period for that Bond; (b) for Bonds in the Term Rate Mode, the first Business Day following the last day of each Term Rate Period; (c) any Conversion Date; (d) any Substitution Date; (e) the fifth Business Day prior to any Expiration Date (other than as a result of an Automatic Termination Event); (f) the date specified by the Registrar following the occurrence of an event of default (other than an Automatic Termination Event) under the Reimbursement Agreement, which date shall be a Business Day not more than 25 nor less than 20 days after the Registrar's receipt of written notice of such event of default from the Credit Provider or the Liquidity Provider and in no event later than the day preceding the termination date specified by the Credit Provider or the Liquidity Provider; (g) the date specified by the Registrar following receipt of notice by the Registrar from the Credit Provider that the Credit Enhancement will not be reinstated following a drawing to pay interest on the Bonds (other than interest on Bonds no longer Outstanding after such drawing), which date shall be a Business Day not more than five days after the Registrar's receipt of such notice; (h) for Bonds in the Daily Mode or Weekly Mode, any Business Day specified by the county not less than 20 days after the Registrar's receipt of such notice and in no event later than the day preceding the Expiration Date; and (i) a Bank Purchase Date.
"Margin Rate Factor" means the greater of (a) 1.0 or (b) (A) 1.0 minus the Maximum Federal Corporate Tax Rate multiplied by (B) 1.53846. The effective date of any change in the Margin Rate Factor is the effective date of the decrease or increase (as applicable) in the Maximum Federal Corporate Tax Rate resulting in that change.
"Market Agent" means any Person appointed by the county to serve as market agent in connection with a conversion to an Index Rate Period.
"Maturity Date" means June 1, 2029, and, if established pursuant to Section 13.B.5, of this ordinance upon a change to the Fixed Rate Mode, any Serial Maturity Date.
"Maximum Federal Corporate Tax Rate" means the maximum rate of income taxation imposed on corporations pursuant to Section 11(b) of the Code, as in effect from time to time (or, if as a result of a change in the Code, the rate of income taxation imposed on corporations generally is not applicable to the Bank, the maximum statutory rate of federal income taxation that could apply to the Bank).
"Maximum Rate" means (a) with respect to all Bonds other than Liquidity Provider Bonds, Index Rate Bonds, Unremarketed Bonds and Unremarketed Index Rate Bonds, a rate of interest equal to the lesser of (1) 15% per annum or (2) the per annum interest rate used to calculate the Available Amount under the Liquidity Facility, (b) with respect to Liquidity Provider Bonds, the rate specified in the Reimbursement Agreement, and (c) with respect to Index Rate Bonds and Unremarketed Index Rate Bonds, the rate specified as the "Maximum Interest Rate" in the applicable Agreement. In no event shall such rate(s) exceed the highest rate allowed by law.
"Mode" means, as the context may require, the Flexible Mode, the Daily Mode, the Weekly Mode, the Index Rate Mode, the Term Rate Mode or the Fixed Rate Mode.
"Moody's" means Moody's Investors Service, Inc., and its successors and assigns, except that if such entity shall be dissolved or liquidated or shall no longer perform the functions of a securities rating agency, then the term "Moody's" shall be deemed to refer to any other nationally recognized securities rating agency selected by the county after consultation with the Remarketing Agent.
"MSRB" means the Municipal Securities Rulemaking Board or any successor to its functions.
"New Mode" shall have the meaning specified in Section 13.A, of this ordinance.
"Notice Parties" means the county, the Bank, if any, the Registrar, the Remarketing Agent, if any, the Credit Provider, if any, and the Liquidity Provider, if any.
"Opinion of Bond Counsel" means an opinion in writing of Bond Counsel.
"Opinion of Counsel" means an opinion in writing of a lawyer admitted to practice in any state of the United States.
"Outstanding," when used as of a particular time with reference to Bonds, means all Bonds delivered hereunder except: (a) Bonds cancelled by the Registrar or surrendered to the Registrar for cancellation; (b) Bonds paid or deemed to have been paid within the meaning of this ordinance; and (c) Bonds in lieu of or in substitution for which replacement Bonds have been executed by the county and delivered by the Registrar hereunder; provided, that notwithstanding the foregoing, Liquidity Provider Bonds shall remain Outstanding until the Liquidity Provider is paid all amounts due on such Bonds.
"Owner" means, with respect to any Bond, the registered owner of such Bond, including the Securities Depository, if any, or its nominee.
"Person" means a natural person, corporation, association, partnership, limited liability company, joint venture, trust, organization, business or government or any governmental agency or political subdivision thereof.
"Principal Office" means, with respect to the Registrar, the designated office of the Registrar indicated in Section 39.A, of this ordinance; or such other or additional offices as may be specified to the county by the Registrar.
"Principal Payment Date" means any date upon which the principal amount of Bonds is due hereunder, including the Maturity Date, any Serial Maturity Date, any Redemption Date, or the date the maturity of any Bond is accelerated pursuant to the terms hereof or otherwise.
"Purchase Date" means (a) for a Bond in the Daily Mode or the Weekly Mode, any Business Day selected by the Beneficial Owner of said Bond pursuant to the provisions of Section 15 of this ordinance, and (b) any Mandatory Purchase Date.
"Purchase Fund" means the fund of that name established pursuant to Section 23 of this ordinance.
"Purchase Price" means an amount equal to the principal amount of any Bonds purchased on any Purchase Date, plus accrued interest to the Purchase Date (unless the Purchase Date is an Interest Payment Date, in which case the Purchase Price shall not include accrued interest, which shall be paid in the normal course).
"Purchaser Rate" has the meaning set forth in the Agreement.
"Rate Determination Date" means any date on which the interest rate on Bonds is determined, which, (a) in the case of the Flexible Mode, shall be the first day of an Interest Period; (b) in the case of the Daily Mode, shall be each Business Day commencing with the first day (which must be a Business Day) the Bonds become subject to the Daily Mode; (c) in the case of the Weekly Mode, shall be (1) initially, each Tuesday or, if Tuesday is not a Business Day, then the Business Day next succeeding such Tuesday or such other day as may be established pursuant to Section 8.B, of this ordinance, and (2) not later than the Business Day preceding a Conversion Date, a Substitution Date or a Mandatory Purchase Date specified in clause (h) of the definition of Mandatory Purchase Date; (d) in the case of the Term Rate Mode, shall be a Business Day no earlier than 15 Business Days and no later than the Business Day next preceding the first day of an Interest Period, as determined by the Remarketing Agent; (e) in the case of the Index Rate Mode, shall be, (A) for Bonds bearing interest at the LIBOR Index Rate, the second London Business Day before the first day of each LIBOR Interest Period, and (B) for Bonds bearing interest at the SIFMA Index Rate, the Wednesday preceding each SIFMA Index Interest Period, unless Wednesday is not a Business Day and then the preceding Business Day; and (f) in the case of the Fixed Rate Mode, shall be a date determined by the Remarketing Agent which shall be at least one Business Day prior to the Conversion Date.
"Rating Agency" means (a) Moody's, S&P or Fitch, as applicable; or (b) if any of Moody's, S&P or Fitch does not furnish a rating on the Bonds, then each such nationally recognized rating agency then rating the Bonds.
"Rating Confirmation Notice" means a notice from Moody's, S&P or Fitch, as applicable, confirming that the rating on the Bonds will not be lowered or withdrawn (other than a withdrawal of a short-term rating upon a change to a Long-Term Mode) as a result of the action proposed to be taken.
"Rebate Amount" means the amount, if any, determined to be payable with respect to the Bonds by the county to the United States of America in accordance with Section 148(f) of the Code.
"Record Date" means (a) with respect to Bonds in a Short-Term Mode or an Index Rate Mode, the last Business Day before an Interest Payment Date; and (b) with respect to Bonds in a Long-Term Mode (excepting in an Index Rate Mode), the 15th day (whether or not a Business Day) of the month next preceding each Interest Payment Date.
"Redemption Date" means the date fixed for redemption of Bonds subject to redemption in any notice of redemption given in accordance with the terms hereof.
"Redemption Price" means an amount equal to the principal of and premium, if any, and accrued interest, if any, on the Bonds to be paid on the Redemption Date.
"Refunding Fund" means the special fund established pursuant to Section 27 of this ordinance for the refunding of the 2009A Bonds and the payment of costs and expenses incurred in issuing the Bonds.
"Register" means the registration books maintained by the Registrar for purposes of identifying ownership of the Bonds.
"Registrar" means, initially, the fiscal agency of the State of Washington in New York, New York, or any successor Registrar appointed pursuant to Section 32.B, of this ordinance.
"Reimbursement Agreement" means any reimbursement agreement, credit agreement, line of credit agreement, standby purchase agreement or other agreement, by and between the county and a Credit Provider or Liquidity Provider.
"Remarketing Agent" means any investment banking firm appointed as provided in Section 33 of this ordinance.
"Remarketing Agreement" means any agreement between the county and a Remarketing Agent, as it may be amended or supplemented from time to time in accordance with its terms.
"Remarketing Proceeds Account" means the account of that name established within the Purchase Fund pursuant to Section 23 of this ordinance.
"Rule" means the Securities and Exchange Commission Rule 15c2under the Securities Exchange Act of 1934, as amended.
"S&P" means Standard & Poor's Ratings Services, a Standard & Poor's Financial Services LLC business, and its successors and assigns, except that if such entity shall be dissolved or liquidated or shall no longer perform the functions of a securities rating agency, then the term "S&P" shall be deemed to refer to any other nationally recognized securities rating agency selected by the county after consultation with the Remarketing Agent, if any.
"S&P Weekly High Grade Index" means, for a Rate Determination Date, the level of the "S&P Weekly High Grade Index" (formerly known as the J.J. Kenny Index) maintained by Standard and Poor's Securities Evaluations Inc. for a one-week maturity as published each Wednesday, or if any Wednesday is not a Business Day, on the next succeeding Business Day.
"Securities Depository" means DTC or such other securities depository as the county may designate in a certificate of the county delivered to the Registrar if the Bonds are to be held in a Book-Entry System.
"Serial Bonds" means the Bonds maturing on the Serial Maturity Dates, as determined pursuant to Section 13.B. of this ordinance.
"Serial Maturity Dates" means the dates on which the Serial Bonds mature, as determined pursuant to Section 13.B. of this ordinance.
"Serial Payments" means the payments to be made in payment of the principal of the Serial Bonds on the Serial Maturity Dates.
"Short-Term Mode" means the Daily Mode, the Weekly Mode or the Flexible Mode.
"SIFMA" means the Securities Industry and Financial Markets Association (formerly the Bond Market Association).
"SIFMA Index" means, for any day, the most recently published level of the index that SIFMA (a) compiles from the weekly interest rate resets of tax-exempt (or taxable, if necessitated by a change in law) variable rate demand obligations included in a database maintained by Municipal Market Data, which issues meet specific criteria that SIFMA establishes from time to time, and (b) publishes on Wednesday of each week, or if any Wednesday is not a Business Day, the next succeeding Business Day. If the SIFMA Index is no longer published, then "SIFMA Index" shall mean the S&P Weekly High Grade Index. If the S&P Weekly High Grade Index is no longer published, then "SIFMA Index" shall mean the prevailing rate determined in good faith by the Calculation Agent for tax-exempt state and local government bonds meeting criteria determined in good faith by the Calculation Agent to be comparable under the circumstances to the criteria used by SIFMA to determine the SIFMA Index immediately prior to the date on which SIFMA ceased publication of the SIFMA Index or Standard & Poor's Securities Evaluations Inc. ceased publication of the S&P Weekly High Grade Index, as applicable.
"SIFMA Index Interest Period" means (a) for the Initial Period, the period from (and including) the Date of Issue to, but excluding, the next succeeding Thursday and thereafter each period from Thursday to, but excluding, the following Thursday, and (b) for any subsequent Index Rate Period during which the Bonds bear interest at the SIFMA Index Rate, the period from (and including) the Index Rate Conversion Date to, but excluding, the next succeeding Thursday and thereafter each period from Thursday to, but excluding, the following Thursday.
"SIFMA Index Rate" means a per annum rate of interest, calculated on each Rate Determination Date, equal to the sum of (a) the Applicable Spread plus (b) the SIFMA Index.
"Substitution Date" means the date upon which an Alternate Credit Enhancement or Alternate Liquidity Facility is scheduled to be substituted for the Credit Enhancement or Liquidity Facility then in effect.
"Taxable Date" means the date as of which interest on the Bonds is first includable in gross income of the Owners or Beneficial Owners of the Bonds (including, without limitation, any previous Owner or Beneficial Owner) thereof as a result of an Event of Taxability as such a date is established pursuant to a Determination of Taxability.
"Taxable Rate" means:
(a) For any date on which the SIFMA Index is based upon tax-exempt variable rate demand obligations, an interest rate per annum at all times equal to the product of the Purchaser Rate (with respect to Unremarketed Index Rate Bonds) or the SIFMA Index Rate (in all other cases) then in effect multiplied by 1.54; or
(b) For any date on which the SIFMA Index is based upon taxable variable rate demand obligations, an interest rate per annum at all times equal to (1) the product of the Purchaser Rate (with respect to Unremarketed Index Rate Bonds) then in effect multiplied by 1.54, or (2) the sum of (A) the product of the Applicable Spread then in effect multiplied by 1.54 and (B) the SIFMA Index then in effect.
"Tax Certificate" means the certificate executed by the Finance Director pertaining to the county's expectations in connection with the federal tax treatment of interest on the Bonds
"Tender Notice" means a notice delivered by Electronic Means or in writing that states (a) the principal amount of Bonds to be purchased pursuant to Section 15 of this ordinance, (b) the Purchase Date on which those Bonds are to be purchased, (c) applicable payment instructions with respect to the Bonds being tendered for purchase, and (d) an irrevocable demand for such purchase.
"Tender Notice Deadline" means (a) during the Daily Mode, 11:00 a.m. on any Business Day and (b) during the Weekly Mode, 5:00 p.m. on the Business Day seven days prior to the applicable Purchase Date.
"Term Rate" means the per annum interest rate for the Bonds in the Term Rate Mode determined pursuant to Section 9 of this ordinance.
"Term Rate Mode" means the Mode during which the Bonds bear interest at the Term Rate.
"Term Rate Period" means the period from (and including) the Conversion Date or the Date of Issue, as applicable, to (but excluding) the last day of the first period that the Bonds shall be in the Term Rate Mode as established by the county for the Bonds pursuant to Section 13.A.1. of this ordinance and, thereafter, the period from (and including) the beginning date of each successive Interest Period selected for the Bonds by the county pursuant to Section 9 of this ordinance while it is in the Term Rate Mode to (but excluding) the commencement date of the next succeeding Interest Period, including another Term Rate Period. Except as otherwise provided in this ordinance, an Interest Period for the Bonds in the Term Rate Mode must be at least 180 days in length.
"2009A Bond Legislation" means the 2009A Bond Ordinance and Motion 12927 of the county council.
"2009A Bond Ordinance" means county Ordinance 14167, as amended by county Ordinances 14463, 14745, 14992, 15285, 15604 and 16361.
"2009A Bond Registrar" means the fiscal agency of the State of Washington in New York, New York, in its capacity as registrar for the 2009A Bonds, or any successor registrar therefor appointed pursuant to the 2009A Bond Ordinance.
"2009A Bonds" means the King County, Washington Multi-Modal Limited Tax General Obligation Bonds, 2009, Series A, dated February 26, 2009.
"Unremarketed Bonds" means Bonds other than Index Rate Bonds that cannot be remarketed on a Mandatory Purchase Date.
"Unremarketed Bonds Rate" means the Maximum Rate, provided that in no event shall this rate exceed the highest rate allowed by law.
"Unremarketed Index Rate Bonds" means Index Rate Bonds with respect to which the Bank has not received payment of the Purchase Price, if any, on the applicable Bank Purchase Date.
"Weekly Mode" means the Mode during which the Bonds bear interest at the Weekly Rate.
"Weekly Rate" means the per annum interest rate on the Bonds in the Weekly Mode determined pursuant to Section 8.B. of this ordinance.
"Weekly Rate Period" means the period during which a Bond in the Weekly Mode bears a Weekly Rate, which shall be the period commencing on the day following the Rate Determination Date of each week to and including the Rate Determination Date of the following week, except (a) in connection with a conversion to the Weekly Rate, in which case the first Weekly Rate Period shall be from the Conversion Date to and including the Rate Determination Date of the following week; (b) in the case of a Substitution Date or Mandatory Purchase Date specified in clause (h) of the definition of Mandatory Purchase Date, in which case the Weekly Rate Period prior to the Substitution Date or such Mandatory Purchase Date shall end on the day before the Substitution Date or such Mandatory Purchase Date and a new Weekly Rate Period shall commence on the Substitution Date or such Mandatory Purchase Date and end on the Rate Determination Date of the following week; and (c) in connection with a conversion from the Weekly Mode, the last Weekly Rate Period shall end on the day next preceding the Conversion Date.
SECTION 2. Interpretation.
A. Section References. All references to Section numbers that do not specify the document to which such Section numbers relate shall be deemed to refer to Section numbers in this ordinance.
B. New York City Time. Whenever in this ordinance there is specified a time of day at or by which a certain action must be taken, such time shall be local time in New York City, except as otherwise specifically provided in this ordinance.
C. Performance on Business Days. If the date for making any payment or the last day for the performance of any act or the exercise of any right provided in this ordinance is not a Business Day, the payment may be made or act performed or right exercised on the next succeeding Business Day with the same force and effect as if done on the nominal date provided in this ordinance, except as otherwise specifically provided herein.
SECTION 3. Authorization, Delivery and Registration.
A. Purpose and Authorization of Bonds. The county authorizes the issuance of the Bonds to obtain funds to refund, redeem and retire all of the county's outstanding 2009A Bonds, and to pay the incidental costs and costs related to the sale and issuance of the Bonds.
B. Description. The Bonds will be designated "King County, Washington, Multi-Modal Limited Tax General Obligation Refunding Bonds, 2013," and will be issued in an original aggregate principal amount not to exceed $42,500,000. The Bonds will be dated the date of their authentication and delivery to the Bank and will bear interest at the applicable rate or rates during each applicable Interest Accrual Period until the entire principal amount of the Bonds has been paid. The Bonds will mature on the Maturity Date and be subject to mandatory redemption prior to maturity without premium in the amounts and in the manner set forth in the Agreement.
The Bonds will be issued initially in the Index Rate Mode and shall bear interest at the SIFMA Index Rate from (and including) the Date of Issue to, but excluding, the Initial Bank Purchase Date and may be converted to another Mode (including a subsequent Index Rate Mode) as provided herein. The initial SIFMA Index Rate on the Bonds shall be determined on the Wednesday preceding the Date of Issue by the Calculation Agent with notice to the county. Thereafter, the interest rate to be applicable to the Bonds shall be determined as provided in Section 11.B. and C. of this ordinance until the Mode for the Bonds is changed, as provided herein.
C. Registration Covenant; Registrar. The county covenants that, until all Bonds have been surrendered and canceled, it will maintain a system for recording the ownership of each Bond that complies with the provisions of Section 149 of the Code. The county hereby adopts for the Bonds the system of registration specified and approved by the Washington State Finance Committee. The Registrar shall keep, or cause to be kept, at its corporate trust office, sufficient books for the registration and transfer of the Bonds, which shall at all times be open to inspection by the county. Such Register shall contain the name and mailing address of the Owner (or nominee thereof) of each Bond, and the principal amount and number of Bonds held by each Owner or nominee. So long as any Bonds remain Outstanding, the Registrar shall make all necessary provisions to permit the exchange or registration of transfer of Bonds at its principal corporate trust office. The Registrar is authorized, on behalf of the county, to authenticate and deliver Bonds transferred or exchanged in accordance with the provisions of the Bonds and this ordinance and to carry out all of the Registrar's powers and duties under this ordinance. The Registrar shall be responsible for its representations contained in the Certificate of Authentication on the Bonds.
D. Initial Registration. The Bonds shall be registered initially in the name of Cede & Co., as the nominee of DTC, which is hereby designated as the initial Securities Depository for the Bonds, with one Bond in a denomination corresponding to the total principal amount of the Bonds designated to mature on the Maturity Date.
E. Initial Immobilization of Bonds; Depository Provisions. The Bonds shall initially be held in fully immobilized form by DTC acting as Securities Depository pursuant to the Letter of Representations, which shall govern the arrangements for registering, paying and transferring interests in the Bonds. The county and the Registrar will have no responsibility or obligation to DTC Participants or the persons for whom they act as nominees with respect to the accuracy of any records maintained by DTC or any DTC Participant as to the Bonds, the payment by DTC or any DTC Participant of any amount in respect of the principal or redemption price of or interest on the Bonds, any notice that is permitted or required to be given to Owners under this ordinance (except any such notices as must be given by the county to the Registrar or to DTC), the selection by DTC or by any DTC Participant of any person to receive payment in the event of a partial redemption of the Bonds, or any consent given or other action taken by DTC as the Owner of the Bonds.
While the Bonds are held under a Book-Entry System, transfers of beneficial ownership will be effected pursuant to rules and procedures established by the Securities Depository; provided, that transfers of Index Rate Bonds and Unremarketed Index Rate Bonds are further restricted, as provided in this Section 11.E. of this ordinance and in the Agreement. Specifically, while the Bonds are held by DTC in a Book-Entry System, purchases of the Bonds, in Authorized Denominations, may be made through brokers and dealers, who must be or act through DTC Participants. Registered ownership of such immobilized Bonds, or any portions thereof, may not thereafter be transferred except (i) to any successor Securities Depository or its nominee, provided that any such successor must be qualified under any applicable laws to provide the service proposed to be provided by it; (ii) to any substitute Securities Depository appointed by the county pursuant to Section 3.F. of this ordinance; or (iii) to any person as provided in Section 3.H. of this ordinance.
F. Substitute Depository. Upon the resignation of DTC or its successor (or any substitute Securities Depository or its successor) from its functions as Securities Depository or a determination by the county that it is no longer in the best interests of owners of beneficial interests in the Bonds to continue the system of book-entry transfers through DTC or its successor (or any substitute Securities Depository or its successor), the county may appoint a substitute Securities Depository or terminate the use of a Securities Depository. Any such substitute Securities Depository must be qualified under any applicable laws to provide the services proposed to be provided by it.
G. Issuance of New Bonds to Successor/Substitute Securities Depository. In the case of any transfer pursuant to clause (i) or (ii) of Section 3.E. of this ordinance, the Registrar will, upon receipt of all Outstanding Bonds, together with a written request on behalf of the county, issue a single new Bond registered in the name of such successor or such substitute Securities Depository, or its nominee, as the case may be, all as specified in the written request of the county.
H. Termination of Book-Entry System; Transfer or Exchange of Certificated Bonds. If (i) a Securities Depository resigns and no substitute Securities Depository can be obtained, or (ii) the Finance Director determines that it is in the best interests of the county or the Beneficial Owners of the Bonds that they be able to obtain bond certificates, the ownership of the Bonds may then be transferred to any person or entity as herein provided, and the Bonds will no longer be held in a Book-Entry System. The county will deliver a written request to the Registrar, together with a supply of definitive Bonds, to issue Bonds as herein provided in any Authorized Denomination. Upon receipt of all then Outstanding Bonds by the Registrar, together with a written request on behalf of the county to the Registrar, new Bonds will be issued in such denominations and registered in the names of such persons as are specified in such written request.
Whenever the Bonds are not held in a Book-Entry System, the transfer of ownership of any Bond may be registered and such Bonds may be exchanged, but no transfer of any Bond will be valid unless it is surrendered to the Registrar with the assignment form appearing on the Bond duly executed by the Owner or the Owner's duly authorized agent in a manner satisfactory to the Registrar. Upon surrender, the Registrar will cancel the surrendered Bond and authenticate and deliver, without charge to the Owner or transferee therefor, a new Bond (or Bonds at the option of the new Owner) of the same date and Maturity Date and for the same aggregate principal amount in any Authorized Denomination, naming as Owner the person or persons listed as the assignee on the assignment form appearing on the surrendered Bond, in exchange for the surrendered and canceled Bond. Any Bond may be surrendered to the Registrar and exchanged, without charge, for an equal aggregate principal amount of Bonds of the same date and Maturity Date in any Authorized Denomination. Other than in connection with an optional or mandatory tender for purchase, the Registrar is not obligated to transfer or exchange any Bond during the 15-day period prior to the selection of Bonds for redemption or the Maturity Date or following any publication of notice of redemption. No charge will be imposed upon Owners in connection with any transfer or exchange, except for taxes or governmental charges related thereto.
SECTION 4. Denominations, Method of Payment, Authentication, and Form of Bonds.
A. Registered Ownership. The Bonds shall be issued in the form of fully registered Bonds in Authorized Denominations. Except as may be specifically set forth herein, the Registrar, the Remarketing Agent, if any, and the county may treat the Owner (including a Securities Depository or its nominee, if the Bonds are held in a Book-Entry System) of a Bond as the absolute owner thereof for all purposes, and the county, the Registrar and the Remarketing Agent, if any, will not be affected by any knowledge or notice to the contrary; and payment of the principal of and premium, if any, and interest on such Bond will be made only to such Owner, which payments shall be valid and effectual to satisfy and discharge the liability of such Bond to the extent of the sum or sums so paid. All Bonds at maturity or on earlier redemption paid pursuant to the provisions of this Section 4 of this ordinance shall be cancelled by the Registrar.
B. Method of Payment of Bonds. The principal of and premium, if any, and interest on the Bonds shall be payable in lawful money of the United States of America. Unless otherwise provided in any writing with or from the Securities Depository, if any, the interest on the Bonds shall be paid by the Registrar on each Interest Payment Date by wire transfer of immediately available funds to an account specified by the Owner in an instrument in writing delivered to the Registrar. Any such specified account shall remain in effect until revised by such Owner by an instrument in writing delivered to the Registrar. The principal of each Bond shall be payable on the Principal Payment Date, upon surrender thereof at the Principal Office of the Registrar.
C. Form of Bonds; Execution. The Bonds shall each be in substantially the form set forth in Attachment A to this ordinance, with appropriate or necessary insertions, depending upon the omissions and variations as permitted or required hereby.
The Bonds shall be executed on behalf of the county by the manual or facsimile signatures of the county executive and the clerk of the county council, and the official seal of the county shall be impressed, imprinted or reproduced thereon. The validity of any Bond so executed will not be affected by the fact that one or more of the officers whose signatures appear on that Bond have ceased to hold office at the time of issuance or authentication or at any time thereafter.
D. Authentication. No Bond shall be valid for any purpose hereunder until the certificate of authentication printed thereon is duly executed by the manual signature of an authorized signatory of the Registrar. Such authentication shall be proof that the Owner is entitled to the benefit of the trusts hereby created.
E. Lost, Mutilated or Destroyed Bonds. If any Bond becomes mutilated, the Registrar shall authenticate and deliver a new Bond of like amount, date, interest rate and tenor in exchange and substitution for the Bond so mutilated, upon the owner's paying the expenses and charges of the county and the Registrar in connection therewith and upon surrender to the Registrar of the Bond so mutilated. Every mutilated Bond so surrendered shall be canceled and destroyed by the Registrar.
If any Bond is lost, stolen or destroyed, the Registrar may authenticate and deliver a new Bond of like amount, date, and tenor to the Owner thereof upon the Owner's paying the expenses and charges of the county and the Registrar in connection therewith and upon filing with the Registrar evidence satisfactory to the Registrar that the Bond was actually lost, stolen or destroyed and of his or her ownership thereof, and upon furnishing the county and the Registrar with indemnity satisfactory to the Finance Director and the Registrar.
SECTION 5. Payment of Interest and Principal; Acceptance of Terms and Conditions.
A. Payment of Interest and Principal. The interest on the Bonds shall become due and payable on the Interest Payment Dates in each year to and including the Maturity Date, and on each Redemption Date; provided, that while any Bonds are Liquidity Provider Bonds, they will bear interest at the applicable Liquidity Provider Rate, computed in the manner and payable at the times and in the amounts required under the Liquidity Facility; and provided further, that while any Bonds are Unremarketed Index Rate Bonds, they will bear interest at the applicable Purchaser Rate, computed in the manner and payable at the times and in the amounts required under the Agreement. The interest on each Bond will be paid on each Interest Payment Date for that Bond for unpaid interest accrued during the Interest Accrual Period to the Owner of record of that Bond on the applicable Record Date. The principal of the Bonds shall be paid on the Principal Payment Dates.
B. Acceptance of Terms and Conditions. By the acceptance of its Bond, the Owner and each Beneficial Owner thereof will be deemed to have agreed to all the terms and provisions of such Bond as specified in such Bond and this ordinance including, without limitation, the applicable Interest Periods, interest rates (including any applicable Alternate Rate and Maximum Rate), Purchase Dates, Mandatory Purchase Dates, Purchase Prices, mandatory and optional purchase and redemption provisions applicable to such Bond, and method and timing of purchase, redemption and payment. Such Owner and each Beneficial Owner further agree that if, on any date upon which one of its Bonds is to be purchased, redeemed or paid at maturity or earlier due date, funds are on deposit with the Registrar to pay the full amount due on such Bond, then such Owner or Beneficial Owner shall have no rights under this ordinance other than to receive such full amount due with respect to such Bond and that interest on such Bond shall cease to accrue as of such date.
SECTION 6. Calculation of Interest; Change in Mode; Maximum Rate.
A. Calculation of Interest. When a Short-Term Mode or a SIFMA Index Rate is in effect, interest will be calculated on the basis of a 365/366-day year for the actual number of days elapsed. When a LIBOR Index Rate is in effect, interest will be calculated on the basis of a 360-day year for the actual number of days elapsed. When a Term Rate Mode or Fixed Rate Mode is in effect, interest will be calculated on the basis of a 360-day year comprised of twelve 30-day months. In the absence of manifest error, the determination of interest rates (including any determination of rates in connection with a New Mode) and Interest Periods by the Remarketing Agent and the record of interest rates maintained by the Registrar shall be conclusive and binding upon the Remarketing Agent, the county, the Owners and the Beneficial Owners.
B. Change in Mode. Bonds in any Mode, other than a Fixed Rate Mode, may be changed to any other Mode at the times and in the manner hereinafter provided. After any such change in Mode (other than a change to a Fixed Rate Mode), the Bonds may again be changed to a different Mode at the times and in the manner hereinafter provided. A Fixed Rate Mode must be in effect until the Maturity Date and may not be changed to any other Mode.
C. Maximum Rate. No Bonds may bear interest at an interest rate higher than the Maximum Rate.
SECTION 7. Determination of Flexible Rates and Interest Periods during Flexible Mode. An Interest Period for the Bonds in the Flexible Mode shall be of such duration of from one to 270 calendar days, ending on a day preceding a Business Day or the Maturity Date, as the Remarketing Agent shall determine in accordance with the provisions of this Section 7 of this ordinance. A Flexible Rate Bond can have an Interest Period, and bear interest at a Flexible Rate, different from another Flexible Rate Bond. In making the determinations with respect to Interest Periods, subject to limitations imposed by the second preceding sentence and in Section 6 of this ordinance, on each Rate Determination Date for a Flexible Rate Bond, the Remarketing Agent shall select for such Bond the Interest Period that would result in the Remarketing Agent's being able to remarket such Bond at par in the secondary market at the lowest average interest cost for all Flexible Rate Bonds; provided, however, that if the Remarketing Agent has received notice from the county that the Bonds are to be changed from the Flexible Mode to any other Mode, the Remarketing Agent shall select Interest Periods that do not extend beyond the resulting applicable Mandatory Purchase Date of the Bonds.
Except while the Bonds are registered in a Book-Entry System, in order to receive payment of the Purchase Price, the Owner of any Bond in the Flexible Mode must present such Bond to the Registrar, by 12:00 noon on the Rate Determination Date, in which case, the Registrar shall pay the Purchase Price to such Owner by 3:00 p.m. on the same day.
By 1:00 p.m. on each Rate Determination Date, the Remarketing Agent, with respect to each Bond in the Flexible Mode that is subject to adjustment on such date, shall determine the Flexible Rate(s) for the Interest Periods then selected for such Bond and shall give notice by Electronic Means to the Registrar and the county of the Interest Periods, the Purchase Date(s) and the Flexible Rate(s). The Remarketing Agent shall make the Flexible Rate and Interest Period available after 2:00 p.m. on each Rate Determination Date by telephone or Electronic Means to any Beneficial Owner or Notice Party requesting such information.
SECTION 8. Determination of Daily Rates and Weekly Rates. The interest rate for the Bonds in the Daily Mode or Weekly Mode shall be the rate of interest per annum determined by the Remarketing Agent on and as of the applicable Rate Determination Date as the minimum rate of interest that, in the opinion of the Remarketing Agent under then-existing market conditions, would result in the sale of the Bonds in the Daily Rate Period or Weekly Rate Period, as applicable, at a price equal to the principal amount thereof, plus interest, if any, accrued through the Rate Determination Date during the then current Interest Accrual Period.
A. Daily Rates. During the Daily Mode, the Remarketing Agent shall establish the Daily Rate by 10:00 a.m. on each Rate Determination Date. The Daily Rate for any day during the Daily Mode which is not a Business Day shall be the Daily Rate established on the immediately preceding Rate Determination Date. The Remarketing Agent shall make the Daily Rate available no less frequently than once each week by Electronic Means to each Notice Party requesting such rate.
B. Weekly Rates. During the Weekly Mode, the Remarketing Agent shall establish the Weekly Rate by 4:00 p.m. on each Rate Determination Date. The Weekly Rate shall be in effect during the applicable Weekly Rate Period. The Remarketing Agent shall make the Weekly Rate available no later than 5:00 p.m. on the Business Day following the Rate Determination Date by Electronic Means to each Notice Party requesting such rate. During the Weekly Mode, if permitted by the applicable Remarketing Agreement, the county may change the day of the week specified in clause (c)(1) of the definition of "Rate Determination Date" for the Bonds, subject to the approval of the Remarketing Agent. The Remarketing Agent shall give 30 days' notice of any such change to the Notice Parties.
SECTION 9. Determination of Term Rates. Except as provided in Section 12 of this ordinance, once the Bonds are changed to the Term Rate Mode, the Bonds shall continue in the Term Rate Mode until changed to another Mode in accordance with Section 13 of this ordinance. The Term Rate shall be determined by the Remarketing Agent not later than 4:00 p.m. on the Rate Determination Date, and the Remarketing Agent shall make the Term Rate available by telephone or by Electronic Means after 5:00 p.m. on the Rate Determination Date to any Notice Party requesting such Term Rate. The Term Rate shall be the minimum rate which, in the sole judgment of the Remarketing Agent, would result in a sale of the Bonds at a price equal to the principal amount thereof on the Rate Determination Date for the Interest Period selected by the county in writing delivered to the Remarketing Agent before such Rate Determination Date. If a new Interest Period is not selected by the county prior to a Rate Determination Date, the new Interest Period shall be the same length as the current Interest Period (or such lesser period as shall be necessary to comply with the last sentence of this paragraph). Upon request of any Notice Party, the Registrar shall give notice of such rate by Electronic Means. No Interest Period in the Term Rate Mode may extend beyond the applicable Maturity Date.
SECTION 10. Determination of Fixed Rates. The Remarketing Agent shall determine the Fixed Rate for the Bonds being converted to the Fixed Rate Mode in the manner and at the times as follows: not later than 4:00 p.m. on the applicable Rate Determination Date, the Remarketing Agent shall determine the Fixed Rate (or Fixed Rates, if the Bonds will have Serial Maturity Dates in accordance with Section 13.B.5. of this ordinance). Except as set forth in Section 13.B.5. of this ordinance, the Fixed Rate shall be the minimum interest rate which, in the sole judgment of the Remarketing Agent, will result in a sale of the Bonds at a price equal to the principal amount thereof on the Rate Determination Date. The Remarketing Agent shall make the Fixed Rate available by telephone or by Electronic Means after 5:00 p.m. on the Rate Determination Date to any Notice Party requesting such Fixed Rate. Upon request of any Notice Party, the Registrar shall give notice of such rate by Electronic Means. Subject to Section 13.B.5. of this ordinance, the Fixed Rate so established shall remain in effect until the Maturity Date of such Bonds.
SECTION 11. Index Rate Mode.
A. Index Rate Options. During the Initial Period, the Bonds shall bear interest at the SIFMA Index Rate (subject to adjustment as provided in Section 11.C. of this ordinance). During any Index Rate Period subsequent to the Initial Period, the Bonds shall bear interest at either the LIBOR Index Rate (subject to adjustment as provided in Section 11.C. of this ordinance) or the SIFMA Index Rate (subject to adjustment as provided in Section 11.C. of this ordinance), as shall be established pursuant to Section 13.A.1. of this ordinance. During an Index Rate Period, no conversion is permitted from the LIBOR Index Rate to the SIFMA Index Rate or from the SIFMA Index Rate to the LIBOR Index Rate.
B. Determination of Index Rates. The Calculation Agent shall determine the Index Rate on each Rate Determination Date during an Index Rate Period, and that rate shall become effective on the first day of the Index Interest Period next succeeding the Rate Determination Date and remain in effect from that first day of the Index Interest Period through and including the last day of that Index Interest Period.
The LIBOR Index Rate shall be rounded upward to the fifth decimal place. The SIFMA Index Rate shall be rounded upward to the second decimal place.
If the Index Rate is not determined by the Calculation Agent on a Rate Determination Date, the rate of interest born on the Index Rate Bonds shall be the rate in effect during the immediately preceding Index Interest Period until the Calculation Agent next determines the Index Rate as required hereunder.
Promptly following the determination of any Index Rate, the Calculation Agent shall give notice thereof to the Registrar, the county and any Owner or Beneficial Owner by Electronic Means.
The determination of any Index Rate by the Calculation Agent shall be conclusive and binding upon the county, the Registrar and the Owners or Beneficial Owners absent manifest error.
C. Adjustments to Index Rates.
1. Unremarketed Index Rate Bonds. Notwithstanding any other provision of this ordinance to the contrary, each Unremarketed Index Rate Bond shall bear interest for each day it is an Unremarketed Index Rate Bond at a rate per annum equal to the Purchaser Rate for that day.
2. Taxable Rate. From and after any Taxable Date, the interest rate on Index Rate Bonds and Unremarketed Index Rate Bonds shall be established at a rate at all times equal to the Taxable Rate.
3. Default Rate. Notwithstanding the foregoing provisions of this Section 11 of this ordinance but subject to the interest rate limitations of Section 6.C of this ordinance, upon the occurrence and continuation of an Event of Default, the interest rate for Index Rate Bonds and Unremarketed Index Rate Bonds shall be established at a rate at all times equal to the greater of (a) the Default Rate or (b) the interest rate that otherwise would be applicable to such Bonds but for the provisions of this paragraph, payable on demand to the Bank.
4. Excess Interest. Notwithstanding anything in this ordinance to the contrary, if the rate of interest payable on Index Rate Bonds or on Unremarketed Index Rate Bonds exceeds the Maximum Rate for any Interest Period, then (a) those Bonds shall bear interest at the Maximum Rate during that period and (b) interest on the Bonds at the rate equal to the difference between (i) the rate of interest borne by the Bonds without regard to the Maximum Rate and (ii) the Maximum Rate (the "Excess Interest") will be deferred until the date that the rate of interest borne by those Bonds without regard to the Maximum Rate ceases to exceed the Maximum Rate, at which time that portion of the deferred Excess Interest will be payable with respect to those Bonds as will cause the rate of interest then paid thereon to equal the Maximum Rate, which payments of deferred Excess Interest will continue to apply until all deferred Excess Interest with respect to those Bonds is fully paid.
D. Redemption or Conversion. The county may by written notice to the Bank, at least 60 days prior to the Initial Bank Purchase Date or any subsequent Bank Purchase Date, elect to optionally redeem or convert the Bonds to another Mode (including conversion from one Index Rate Period to another Index Rate Period) to be effective on any interest payment date prior to the Initial Bank Purchase Date or subsequent Bank Purchase Date upon compliance with the applicable provisions hereof. At least 60 days prior to the Initial Bank Purchase Date or any subsequent Bank Purchase Date, the county may request the Bank (i) to elect to retain the Bonds following the Initial Bank Purchase Date as set forth in Section 16 of this ordinance or subsequent Bank Purchase Date, as applicable, or (ii) to provide liquidity or credit enhancement necessary to facilitate the conversion of the Bonds to such new Mode, and the Bank will respond to such request within 60 days after receipt of such request from the county. The Bank may, in its sole and absolute discretion, decide to accept or reject any such request, and no consent shall become effective unless the Bank has consented thereto in writing. If the Bank rejects such request or fails to definitively respond to such request within such 60-day period, the Bank shall be deemed to have refused to grant such request and the county shall be required to repurchase the Bonds on the Initial Bank Purchase Date or subsequent Bank Purchase Date (unless the Bonds are converted to Unremarketed Index Rate Bonds in accordance with the terms of the applicable Agreement) for a purchase price of 100% of the par amount plus accrued interest to the Initial Bank Purchase Date or subsequent Bank Purchase Date, as applicable. The consent of the Bank, if granted, shall be conditioned upon the preparation, execution and delivery of documentation in form and substance satisfactory to the Bank.
E. Limitations on Transfer. Ownership of Index Rate Bonds and Unremarketed Index Rate Bonds may be transferred only as provided in the Agreement.
SECTION 12. Alternate Rates. The following provisions shall apply if (i) the Remarketing Agent fails or is unable to determine the interest rate or Interest Period for the Bonds other than when the Bonds are in the Index Rate Mode, (ii) the method by which the Remarketing Agent determines the interest rate or Interest Period with respect to the Bonds (or the selection by the county of the Interest Periods for Bonds in the Term Rate Mode) shall be held to be unenforceable by a court of law of competent jurisdiction or (iii) if the Remarketing Agent suspends its remarketing effort in accordance with the Remarketing Agreement. These provisions shall continue to apply until such time as the Remarketing Agent (or the county, if applicable) again makes such determinations. In the case of clause (ii) above, the Remarketing Agent (or the county, if applicable) shall again make such determination at such time as there is delivered to the Remarketing Agent and the county an opinion of Bond Counsel to the effect that there are no longer any legal prohibitions against such determinations. The following shall be the methods by which the interest rates and, in the case of the Flexible Mode and the Term Rate Mode, the Interest Periods shall be determined for the Bonds as to which any of the events described in clauses (i), (ii) or (iii) shall be applicable. Such methods shall be applicable from and after the date any of the events described in clauses (i), (ii) or (iii) first become applicable to the Bonds until such time as the events described in clauses (i), (ii) or (iii) are no longer applicable to the Bonds. These provisions shall not apply if the county fails to select an Interest Period for the Bonds in the Term Rate Mode for a reason other than as described in clause (ii) above:
A. Flexible Mode. For Flexible Rate Bonds, the next Interest Period shall be from, and including, the first day following the last day of the current Interest Period for the Bonds to, but excluding, the next succeeding Business Day and thereafter shall commence on each Business Day and extend to, but exclude, the next succeeding Business Day. For each such Interest Period, the interest rate for the Bonds shall be the applicable Alternate Rate in effect on the Business Day that begins an Interest Period.
B. Daily Mode or Weekly Mode. If the Bonds are in the Daily Mode or the Weekly Mode, then the Bonds shall bear interest during each subsequent Interest Period at the Alternate Rate in effect on the first day of such Interest Period.
C. Term Rate Mode. If the Bonds are in the Term Rate Mode, then the Bonds shall automatically convert to Flexible Rate Bonds, with an Interest Period commencing on the first day following the last day of the current Interest Period for the Bonds to, but excluding, the next succeeding Business Day and thereafter shall commence on each Business Day and extend to, but exclude, the next succeeding Business Day. For each such Interest Period, the interest rate for the Bonds shall be the applicable Alternate Rate in effect at the beginning of each such Interest Period.
SECTION 13. Changes in Mode. Subject to the provisions of this Section 13 of this ordinance, and with respect to Index Rate Bonds, subject also to the terms of the applicable Agreement, the county may effect a change in Mode with respect to the Bonds by following the procedures set forth in this Section 13 of this ordinance. If a change in Mode will make the Bonds subject to the Rule, it shall be a condition to the conversion that the county shall have executed a continuing disclosure undertaking satisfying the requirements of such Rule and shall cooperate with the Remarketing Agent, if any, and any Underwriter (as defined in the Rule) in satisfying the requirements of the Rule.
A. Changes to Modes other than to Fixed Rate Mode. All or a portion of the Bonds (other than Bonds in the Fixed Rate Mode) may be changed from one Mode to another Mode (other than the Fixed Rate Mode) or, in the case of Index Rate Bonds, from one Index Rate Period to another Index Rate Period, as follows; provided, that as set forth in Section 13.A.3(d) of this ordinance, no less than all of the Bonds bearing interest at an Index Rate may be converted to a new Mode:
1. Conversion Notice; Notice to Owners. No later than a Business Day that is at least seven (7) Business Days prior to the date on which the Registrar is required to notify the registered owners (or such shorter time as may be agreed to by the county, the Registrar and any Remarketing Agent) preceding the proposed Conversion Date, the county shall give written notice to the Notice Parties of its intention to effect a change in the Mode from the Mode then prevailing (the "Current Mode") to another Mode (the "New Mode") specified in such written notice, and, if the change is to a Term Rate Mode, the length of the initial Interest Period as set by the county. Such notice shall be accompanied by a form of a Favorable Opinion of Bond Counsel. In the case of a change to a Term Rate Mode or from one Term Rate Mode to another Term Rate Mode, the notice to the Notice Parties will also state whether a Liquidity Facility or Credit Enhancement will be in effect with respect to the Bonds following such change and the identity of any provider of such Liquidity Facility or Credit Enhancement. Notice of the proposed change in Mode will be given by the Registrar to the Owners of the Bonds not later than the 20th day next preceding the Conversion Date; provided, however, that no notice need be given for an Index Rate Conversion Date for a conversion from one Index Rate Period to another Index Rate Period if the Owner of the Bonds has elected to retain the Bonds as set forth in Section 16 of this ordinance, or for a Conversion Date occurring on the first Business Day following the last day of a Flexible Rate Period or Term Rate Mode or on a Substitution Date. Such notice shall state: (a) the Mode to which the conversion will be made and the Conversion Date; (b) in the case of a change from any Mode, that the Bonds will be subject to mandatory purchase on the Conversion Date (regardless of whether all of the conditions to the change in the Mode are satisfied) and the Purchase Price of the Bonds; and (c) information with respect to required delivery of bond certificates and payment of Purchase Price, unless a Book-Entry System is in effect. In addition, if the conversion is to an Index Rate Mode from another Mode , such notice shall also state whether such Index Rate shall be a SIFMA Index Rate or a LIBOR Index Rate, the new Bank Purchase Date, the new Applicable Factor, if applicable, and the new Applicable Spread. The new Applicable Spread shall be determined by the Market Agent such that the applicable Index Rate shall be the interest rate per annum (based upon tax-exempt obligations comparable, in the judgment of the Market Agent, to the Bonds and known to the Market Agent to have been priced or traded under the prevailing market conditions) to be the minimum interest rate at which a Person will agree to purchase the Bonds on the Conversion Date at a price (without regard to accrued interest) equal to the principal amount thereof. In addition, if the conversion is to an Index Rate Mode from another Mode, the county shall provide a copy of such notice to the Calculation Agent contemporaneously with the Registrar.
2. Determination of Interest Rates and Interest Periods. The New Mode shall commence on the Conversion Date and the interest rate(s) (together, in the case of a change to the Flexible Mode, with the Interest Period(s)) shall be determined by the Remarketing Agent or, if applicable, the Calculation Agent (or the county in the case of the Interest Period for the Bonds converted to the Term Rate Mode) in the manner provided in Sections 7, 8, 9, 11 and 12 of this ordinance, as applicable. Such determination shall be conclusive and binding upon the county, the Registrar, and the Owners of the Bonds to which such rate will be applicable.
3. Conditions Precedent:
(a) The Conversion Date shall be:
(i) In the case of a change from the Flexible Mode to another Mode, the next Mandatory Purchase Date for all of the Flexible Rate Bonds;
(ii) In the case of a change from the Daily Mode, the Weekly Mode or the Index Rate Mode to another Mode (other than to the Daily Mode or the Weekly Mode), any Interest Payment Date and, in the case of a change from the Daily Mode or the Weekly Mode to the Daily Mode or the Weekly Mode, any Business Day; and
(iii) In the case of a change from the Term Rate Mode to another Mode, or from a Term Rate Period to a Term Rate Period of a different duration, or from an Index Rate Mode to another Mode, or from one Index Rate Period to another Index Rate Period, the Conversion Date shall be limited to any Interest Payment Date on which the Bonds are subject to optional redemption or to the last Interest Payment Date of the current Term Rate Period, as the case may be. Such Bonds shall be purchased on that Conversion Date at a Purchase Price equal to 100% of the principal amount thereof; provided, that if such Bonds would otherwise be subject to optional redemption on such Conversion Date at a Redemption Price of more than 100% of the principal amount thereof, such Bonds shall be purchased at a Purchase Price equal to that Redemption Price.
(b) If the Bonds to be converted are in the Flexible Mode, no Interest Period set after delivery by the county to the Remarketing Agent of the notice of the intention to effect a change in Mode shall extend beyond the day preceding the proposed Conversion Date.
(c) The following items shall have been delivered to the Registrar and the Remarketing Agent, if any, on or prior to each Conversion Date:
(i) A Favorable Opinion of Bond Counsel dated the Conversion Date and addressed to the Notice Parties;
(ii) If there is to be a Liquidity Facility or an Alternate Liquidity Facility or a Credit Enhancement or an Alternate Credit Enhancement delivered in connection with such change, the items required by Section 22.D. of this ordinance; and
(iii) If the Bonds are then rated, a Rating Confirmation Notice, or if the Conversion Date is a Mandatory Purchase Date, a notice from the Rating Agencies of the rating(s) to be assigned the Bonds on such Conversion Date.
(d) It is a condition to the conversion of the Bonds from the Index Rate Mode that all Bonds being converted be remarketed on the Conversion Date.
B. Change to Fixed Rate Mode. At the option of the county, all or any portion of the Bonds bearing interest at a Daily Rate, a Weekly Rate, an Index Rate or a Flexible Rate (in an amount that is an Authorized Denomination for the new Interest Period) may be changed to the Fixed Rate Mode, as follows; provided, that, as set forth in Section 13.A.3.(d) of this ordinance, all of the Bonds bearing interest at an Index Rate must be converted to a new Mode):
1. Conversion Notice. On any Business Day which is at least seven (7) Business Days prior to the date on which the Registrar is required to notify the registered owners (or such shorter time as may be agreed to by the county, the Registrar and the Remarketing Agent, but in any event not less than the 20th day next preceding the Conversion Date) before the proposed Conversion Date, the county shall give written notice to the Notice Parties stating that the Mode will be changed to the Fixed Rate Mode and setting forth the proposed Conversion Date. Such notice shall also state whether or not there shall be Credit Enhancement with respect to the Bonds following such change and, if so, the identity of the Credit Provider. In addition, such notice shall state whether some or all of the Bonds to be converted shall be converted to Serial Bonds and, if so, the applicable Serial Maturity Dates and Serial Payments, all as determined pursuant to Section 13.B.5. of this ordinance. Such notice shall be accompanied by a Favorable Opinion of Bond Counsel.
2. Conversion Date. The Conversion Date shall be:
(a) In the case of a change from the Flexible Mode, the next Mandatory Purchase Date for the Flexible Rate Bonds;
(b) In the case of a change from the Daily Mode, the Weekly Mode or the Index Rate Mode, any Interest Payment Date; and
(c) In the case of a change from the Term Rate Mode, the Conversion Date shall be limited to any Interest Payment Date on which the Bonds are subject to optional redemption or to the next Mandatory Purchase Date for the Term Rate Bonds, as the case may be. Such Bonds shall be purchased on such Conversion Date at a Purchase Price equal to 100% of the principal amount thereof; provided, however, that if such Bonds would otherwise be subject to optional redemption on such Conversion Date at a Redemption Price of more than 100% of the principal amount thereof, such Bonds shall be purchased at a Purchase Price equal to such Redemption Price.
3. Notice to Owners. Not later than the 20th day next preceding the Conversion Date, the Registrar shall mail, in the name of the county, a notice of such proposed change to the Owners of the Bonds stating that the Mode will be changed to the Fixed Rate Mode and the proposed Conversion Date. Such notice shall also state that such Owner is required to tender such Owner's Bonds for purchase on such proposed Conversion Date regardless of whether all of the conditions to the change to the Fixed Rate Mode are satisfied.
4. Determination of Fixed Rate(s). The Fixed Rate (or Fixed Rates, in the case of Serial Bonds) for the Bonds to be converted to the Fixed Rate Mode shall be established by the Remarketing Agent on the Rate Determination Date applicable thereto pursuant to the provisions of Section 10 of this ordinance. Such Fixed Rate shall remain in effect until the Maturity Date of the Bonds.
Such determination shall be conclusive and binding upon the county, the Registrar, the Credit Provider, if any, and the Owners of the Bonds to which such rate will be applicable. Not later than 5:00 p.m. on the date of determination of the Fixed Rate, the Remarketing Agent shall provide notice of such rate to the Registrar by Electronic Means and to the Credit Provider and the county by telephone.
5. Serialization and Sinking Fund; Price. Upon conversion of the Bonds to the Fixed Rate Mode, the Bonds shall be remarketed at par, shall mature on the same Maturity Date(s) and be subject to the same mandatory sinking fund redemption, if any, and special redemption provisions, if any, as set forth in this ordinance for any prior Mode; provided, however, that if the county shall deliver to the Registrar a Favorable Opinion of Bond Counsel, the county may elect to (a) have some of the Bonds be Serial Bonds and some subject to sinking fund redemption even if such Bonds were not Serial Bonds or subject to mandatory sinking fund redemption prior to such change, (b) change the optional redemption dates and/or premiums set forth in Section 14.D. of this ordinance, and/or (c) sell some or all of the Bonds at a premium or a discount to par.
6. General Provisions Applying to Change to Fixed Rate Mode. The change to the Fixed Rate Mode shall not occur unless the following items shall have been delivered to the county, the Registrar, the Credit Provider, if any, and the Remarketing Agent, if any, on or prior to the Conversion Date:
(a) A Favorable Opinion of Bond Counsel dated the Conversion Date and addressed to the county, the Registrar and the Remarketing Agent, if any;
(b) If there is to be Credit Enhancement delivered in connection with such change, the items required by Section 22.D of this ordinance in connection with the delivery of an Alternate Credit Enhancement, and
(c) Notice from the Rating Agencies of the rating(s) to be assigned the Bonds on such Conversion Date.
C. Failure to Satisfy Conditions Precedent to an Interest Rate Conversion. If the conditions described above in Section 13.A. or B. of this ordinance, as applicable, have not been satisfied by the applicable Conversion Date, then the New Mode will not take effect (although, except in the case of a failed conversion from the Index Rate Mode, any mandatory purchase will be made on such date if notice has been sent to the Owners stating that such Bonds would be subject to mandatory purchase on such date). If the failed change in Mode was from the Flexible Mode, the Bonds shall remain in the Flexible Mode with interest rates and Interest Periods to be established by the Remarketing Agent on the failed Conversion Date in accordance with Section 7 of this ordinance. If the failed change in Mode was from the Daily Mode, the Bonds shall remain in the Daily Mode, and if the failed change in Mode was from the Weekly Mode, the Bonds shall remain in the Weekly Mode, in each case with interest rates established in accordance with the applicable provisions of Section 8 of this ordinance on and as of the failed Conversion Date. If the failed change in Mode was from the Term Rate Mode, then the Bonds shall stay in the Term Rate Mode for an Interest Period ending on the following Interest Payment Date for the Bonds in the Term Rate Mode, and the interest rate shall be established by the Remarketing Agent on the failed Conversion Date in accordance with Section 9 of this ordinance. If the failed change in Mode was from the Index Rate Mode, then the Bonds will not be subject to mandatory tender, and the Bonds will remain in the Index Rate Mode, with interest rates established in accordance with the applicable provisions of Section 11 of this ordinance on and as of the failed Conversion Date.
D. Rescission of Election. Notwithstanding anything herein to the contrary, the county may rescind any election by it to change a Mode as described above prior to the Conversion Date by giving written notice thereof to the Notice Parties prior to 10:00 a.m. on the Business Day preceding such Conversion Date. If the Registrar receives notice of such rescission prior to the time the Registrar has given notice to the Owners of the Bonds, then such notice of change in Mode shall be of no force and effect. If the Registrar receives notice from the county of rescission of a Mode change after the Registrar has given notice thereof to the Owners of the Bonds, then if the proposed Conversion Date would have been a Mandatory Purchase Date, such date shall continue to be a Mandatory Purchase Date except if the conversion is from the Index Rate Mode. If the proposed change in Mode was from the Flexible Mode, the Bonds shall remain in the Flexible Mode with interest rates and Interest Periods to be established by the Remarketing Agent on the proposed Conversion Date in accordance with Section 7 of this ordinance. If the proposed change in Mode was from the Daily Mode, the Bonds shall remain in the Daily Mode, and if the proposed change in Mode was from the Weekly Mode, the Bonds shall remain in the Weekly Mode, in each case with interest rates established in accordance with the applicable provisions of Section 8 of this ordinance on and as of the proposed Conversion Date. If the proposed change in Mode was from the Term Rate Mode, then the Bonds shall stay in the Term Rate Mode for an Interest Period ending on the following Interest Payment Date for the Bonds in the Term Rate Mode, and the interest rate shall be established by the Remarketing Agent on the proposed Conversion Date in accordance with Section 9 of this ordinance. If the Remarketing Agent is unable to determine the interest rate on the proposed Conversion Date, the provisions of Section 10 of this ordinance shall apply in effect at the beginning of each such Interest Period. If the proposed change in Mode was from the Index Rate Mode, the Bonds shall remain in the Index Rate Mode, with interest rates established in accordance with the applicable provisions of Section 11 of this ordinance on and as of the proposed Conversion Date.
SECTION 14. Redemption of Bonds.
A. Optional Redemption of Flexible Rate Bonds. Bonds in the Flexible Mode are not subject to optional redemption prior to their respective Purchase Dates. Bonds in the Flexible Mode shall be subject to optional redemption by the county, in whole or in part, in Authorized Denominations, on their respective Purchase Dates at a redemption price equal to the principal amount thereof.
B. Optional Redemption of Bonds in the Daily Mode or the Weekly Mode. Bonds in the Daily Mode or the Weekly Mode shall be subject to optional redemption by the county, in whole or in part (and if in part, with any Liquidity Provider Bonds redeemed first), in Authorized Denominations, on any Business Day, at a redemption price equal to the principal amount thereof, plus accrued interest, if any, to the Redemption Date. Liquidity Provider Bonds shall be redeemed in accordance with the applicable Reimbursement Agreement. So long as a Credit Enhancement is in effect for Bonds in the Daily Mode or Weekly Mode, no optional redemption of such Bonds shall be permitted without (i) the prior written consent of the Credit Provider or (ii) the deposit by the county with the Registrar on or prior to the Redemption Date of funds sufficient to reimburse the Credit Provider for the draw on the Credit Enhancement to pay the Redemption Price for such Bonds.
C. Optional Redemption of Bonds in the Term Rate Mode. Bonds in a Term Rate Mode shall be subject to optional redemption by the county, in whole or in part, in Authorized Denominations, on their individual Mandatory Purchase Dates, at a redemption price equal to the principal amount thereof.
D. Optional Redemption of Bonds in the Fixed Rate Mode. The county, in connection with a change to the Fixed Rate Mode, may establish the optional redemption provisions for the Bonds, in whole or in part, in Authorized Denominations, on any date, at a redemption price equal to the principal amount thereof, plus accrued interest, if any, to the Redemption Date; provided, that notice describing such provisions shall be submitted to the Registrar and the Remarketing Agent, together with a Favorable Opinion of Bond Counsel, addressed to them.
E. Redemption of Index Rate Bonds. Index Rate Bonds are subject to optional redemption by the county, in whole or in part, in Authorized Denominations, on any Interest Payment Date, at a redemption price equal to the principal amount thereof, subject to any limitations or conditions set forth in the applicable Agreement. Unremarketed Index Rate Bonds shall be subject to mandatory redemption by the county on the dates, at the prices and in the amounts set forth in the applicable Agreement.
F. Notice and Effect of Redemption.
1. Timing of Notice. The county shall give the Registrar sufficient notice of any redemption of Bonds to permit the Registrar to give notice to the Securities Depository at least 30 days prior to the proposed Redemption Date for Bonds in any Long-Term Mode and at least 15 days prior to the proposed Redemption Date for Bonds in any ShortTerm Mode. While the Bonds are in certificated form, the Registrar will give written notice of any redemption of Bonds by first-class mail, postage prepaid, not less than 20 days (for Bonds in any Long-Term Mode) or not less than 15 days (for Bonds in any Short-Term Mode) nor more than 60 days before the proposed Redemption Date to the registered owners of Bonds that are to be redeemed at their last addresses shown on the Register. While the Bonds are held in a Book-Entry System, notice of any redemption will be provided in accordance with the operational arrangements of the Securities Depository referred to in the Letter of Representations, and, except as provided in an undertaking to provide continuing disclosure under the Rule, the county will provide no additional published or other notice.
2. Contents of Notice. Each notice of redemption shall state: (a) the Redemption Date, (b) the Redemption Price, (c) the CUSIP numbers, if any, of the Bonds being redeemed, (d) if less than all Outstanding Bonds are to be redeemed, identification information and principal amounts of the Bonds to be redeemed, (e) the dated date of the Bonds, (f) the rate of interest for each Bond being redeemed, (g) that the Bonds are to be surrendered for payment at the principal office of the Registrar, (h) any condition to such redemption, (i) that on the Redemption Date, upon the satisfaction of any such condition, the Redemption Price will become due and payable upon each Bond or portion called for redemption and interest shall cease to accrue from the Redemption Date, (j) the date of the notice, (k) a summary of the substance of Section 14.F.5. of this ordinance, and (l) any other information needed to identify the Bonds being redeemed. The requirements of this Section 14.F. of this ordinance are deemed complied with when notice is mailed, whether or not it is actually received by the Owner.
3. Notice of Redemption on Mandatory Purchase Date. Notwithstanding anything herein to the contrary, no notice of redemption is required to be given for a redemption occurring on a Mandatory Purchase Date.
4. Effect of Redemption. Unless any condition for redemption is not satisfied or such redemption is cancelled as provided in Section 14.F.5. of this ordinance, the county will provide funds to the Registrar that, in addition to other money, if any, held by the Registrar, will be sufficient to redeem on the Redemption Date all Bonds to be redeemed. From the Redemption Date, interest on all such paid and redeemed Bonds will cease to accrue.
5. Cancellation of Redemption. With respect to optional redemptions only, if the Registrar shall not have funds in its possession on the Redemption Date sufficient to pay the Redemption Price of all of the Bonds to optionally redeemed, for any reason (including, but not limited to, failure to issue any refunding obligations intended for such purpose on or prior to the Redemption Date), then the purported optional redemption and any notice thereof shall be void, and such occurrence shall not constitute a default or an Event of Default.
With respect to optional redemptions only, if the county shall have delivered to the Registrar, no later than the fifth Business Day prior to the Redemption Date, written notice of its decision to cancel its prior request for optional redemption, then the purported optional redemption shall be cancelled and any prior notice thereof shall be void, and the Registrar shall return to the county any funds which had been deposited by the county with the Registrar for the purpose of effecting such optional redemption. Immediately upon receipt of the county's cancellation notice, the Registrar shall give or cause to be given written notice of such cancellation, if the Bonds are then held under a Book-Entry Termination System, to the Securities Depository, as the Owner of the Bonds which were to have been redeemed, for the benefit of Beneficial Owners thereof, in accordance with the Letter of Representations, and if the Bonds are not then held in a Book-Entry Termination System, to the respective Owners of any Bonds that were to have been redeemed. Such notice shall be given in any manner which the Registrar reasonably believes will result in delivery of such notice to the intended recipients thereof prior to the Redemption Date; provided, however, that such notice of cancellation shall be effective to cancel such redemption whether or not it is received by such intended recipients, and such occurrence shall not constitute a default or an Event of Default. All notices of cancellation shall be given at the expense of the county.
G. Purchase in Lieu of Redemption. Each Owner and Beneficial Owner, by purchase and acceptance of any Bond, irrevocably grants to the county the option to purchase such Bond pursuant to a mandatory tender for purchase ("purchase in lieu of redemption") on any date that such Bond is subject to optional redemption pursuant to this Section 14 of this ordinance, at a purchase price equal to the then applicable redemption price of such Bond. In the event the county determines to exercise such option, the county shall obtain a Favorable Opinion of Bond Counsel addressed to the county and the Registrar, and shall direct the Registrar to provide notice of purchase in lieu of redemption, such notice to be provided, as and to the extent applicable, in accordance with the provisions of Section 14.F of this ordinance, and to select Bonds subject to purchase in lieu of redemption in the same manner as Bonds called for redemption pursuant to this Section 14 of this ordinance. On the date fixed for purchase in lieu of redemption of any Bond, the county shall pay the Purchase Price of such Bond to the Registrar in immediately available funds, and the Registrar shall pay the same to the Owners of the Bonds being purchased against delivery thereof. No purchase in lieu of redemption of any Bond pursuant to the provisions of this Section 14.G. of this ordinance shall operate to extinguish such Bond or the indebtedness of the county evidenced by such Bond. No Owner or Beneficial Owner may elect to retain a Bond subject to mandatory tender for purchase in lieu of redemption pursuant to the provisions of this Section 14.G. of this ordinance.
SECTION 15. Optional Tenders of Bonds in the Daily Mode or the Weekly Mode. Subject to Section 20 of this ordinance, the Beneficial Owners of Bonds in a Daily Mode or a Weekly Mode may elect to have their Bonds (or portions of those Bonds in amounts equal to an Authorized Denomination) purchased on any Business Day at a price equal to the Purchase Price, upon delivery of a Tender Notice to the Registrar by the Tender Notice Deadline. Immediately upon receipt of a Tender Notice, the Registrar shall notify the Remarketing Agent and provide the Remarketing Agent with a copy of such Tender Notice.
SECTION 16. Mandatory Purchase of Bonds on Mandatory Purchase Date. The Bonds shall be subject to mandatory purchase on each Mandatory Purchase Date; provided, that if the date on which the Bonds are subject to tender for purchase shall be an Index Rate Conversion Date for a conversion from one Index Rate Period to another Index Rate Period, the Bank may elect to retain its Bonds by filing with the Registrar not less than five days prior to the mandatory tender date a written notice identifying such Bonds and the principal amount it wishes to retain. The Registrar shall give notice of such mandatory purchase by mail to the Owners of the Bonds subject to mandatory purchase no less than 20 days prior to the Mandatory Purchase Date described in clauses (c), (d), (e), (f) and (h) of the definition of "Mandatory Purchase Date" in Section 1 of this ordinance and no less than 3 days prior to the Mandatory Purchase Dates described in clauses (g) and (i) of the definition of "Mandatory Purchase Date" in Section 1 of this ordinance. No notice shall be given of the Mandatory Purchase Date at the end of each Interest Period for Flexible Rate Bonds or at the end of the Term Rate Period for Bonds in the Term Rate Mode. Any notice shall state the Mandatory Purchase Date, the Purchase Price, the numbers of the Bonds to be purchased if less than all of the Bonds owned by such Owner are to be purchased, and that interest on Bonds subject to mandatory purchase shall cease to accrue from and after the Mandatory Purchase Date. The failure to mail such notice with respect to any Bond shall not affect the validity of the mandatory purchase of any other Bond with respect to which notice was so mailed. Any notice mailed will be conclusively presumed to have been given, whether or not actually received by any Owner or Beneficial Owner. The Registrar shall also give a copy of such notice to the Rating Agencies.
SECTION 17. Remarketing of Bonds; Notices.
A. Remarketing of Bonds. The Remarketing Agent shall use its best efforts pursuant to the terms and conditions of the Remarketing Agreement to offer for sale at par up to the Maximum Rate:
1. All Bonds or portions thereof as to which notice of tender pursuant to Section 15 of this ordinance has been given;
2. All Bonds required to be purchased on a Mandatory Purchase Date described in clauses (a), (b), (c), (d), (e), (g), (h) or (i) of the definition of "Mandatory Purchase Date" in Section 1 of this ordinance, except Bonds that the Bank has elected to retain as provided in Section 16 of this ordinance in connection with conversion from one Index Rate Period to another Index Rate Period.
3. Any Liquidity Provider Bonds (a) purchased on a Purchase Date described in clause 1 or 2 of this Section 17.A, (b) of this ordinancewith respect to which the Liquidity Provider has provided notice to the Registrar and the Remarketing Agent that it has reinstated the Available Amount, (c) with respect to which an Alternate Liquidity Facility and Alternate Credit Enhancement is in effect (if such Bonds were secured by a Credit Enhancement prior to becoming Liquidity Provider Bonds which Credit Enhancement is no longer in effect), or (d) that are being marketed as Fixed Rate Bonds; and
4. Any County Bonds; provided, however, that the Remarketing Agent will not remarket Bonds held by or for the account of the county, or any Affiliate of the county, without a Favorable Opinion of Bond Counsel addressed to the county, the Registrar and the Remarketing Agent. In connection with the remarketing of any Bonds with respect to which notice of redemption or notice of mandatory purchase has been given, the Remarketing Agent will notify each Person to which such Bonds are remarketed of such notice of redemption or notice of mandatory purchase.
B. Notice of Remarketing; Registration Instructions; New Bonds. On each date on which a Bond is to be purchased:
1. The Remarketing Agent shall notify the Registrar by Electronic Means by 12:00 noon of the principal amount of tendered Bonds it has remarketed or, alternatively, that it has been unable to remarket any of the Bonds;
2. Unless the Remarketing Agent has given notice to the Registrar pursuant to Section 17.B.1. of this ordinance that it has been unable to remarket any of the Bonds, the Remarketing Agent shall notify the Registrar by Electronic Means by 1:00 p.m. of such information as may be necessary to register and deliver Bonds remarketed with respect thereto;
3. The Remarketing Agent shall cause the proceeds of the remarketing by such Remarketing Agent of tendered Bonds to be paid to the Registrar in immediately available funds not later than 12:15 p.m. on the Purchase Date for such Bonds; and
4. If the Bonds are no longer in the Book-Entry System, the Registrar shall authenticate new Bonds for the respective purchasers thereof, which shall be available for pick-up by the Remarketing Agent not later than 2:30 p.m.
C. Draw on Liquidity Facility. On each date on which a Bond is to be purchased, (1) if the Remarketing Agent has given notice to the Registrar pursuant to Section 17.B.1. of this ordinance that it has been unable to remarket any of the Bonds, or (2) if the Registrar has not received from the Remarketing Agent an amount sufficient to pay the Purchase Price of tendered Bonds, by 12:00 noon on the Purchase Date, then the Registrar shall draw on the Liquidity Facility (or if no Liquidity Facility is in effect, request funds from the county) by 12:00 noon in an amount equal to the Purchase Price of all such Bonds that have not been successfully remarketed, requesting payment not later than 2:30 p.m. on the Purchase Date. If a Liquidity Facility is in effect, the Registrar shall also give the county notice by 2:30 p.m. on the Purchase Date if it does not have funds in the Remarketing Proceeds Account and the Liquidity Facility Purchase Account sufficient to pay the Purchase Price of Bonds tendered on such Purchase Date. Any draw on a Liquidity Facility to be made on a Substitution Date shall be on the Liquidity Facility being replaced. In no event shall the Liquidity Facility be drawn on to purchase any Liquidity Provider Bonds or any County Bonds.
SECTION 18. Source of Funds for Purchase of Bonds. By 3:00 p.m. on the date on which a Bond is to be purchased, and except as set forth in Section 20.B. of this ordinance, the Registrar shall purchase tendered Bonds from the tendering Owners at the applicable Purchase Price by wire transfer in immediately available funds. Funds for the payment of such Purchase Price shall be derived solely from the following sources in the order of priority indicated and neither the Registrar nor the Remarketing Agent shall be obligated to provide funds from any other source:
A. Immediately available funds on deposit in the Remarketing Proceeds Account;
B. Immediately available funds on deposit in the Liquidity Facility Purchase Account; and
C. Money of the county on deposit in the County Purchase Account.
If no Liquidity Facility is in effect, then the county shall be obligated to deposit amounts into the County Purchase Account sufficient to pay the Purchase Price to the extent that amounts on deposit in the Remarketing Proceeds Account are insufficient therefor. If a Liquidity Facility is in effect, then the county may, but is not obligated to, deposit amounts into the County Purchase Account sufficient to pay the Purchase Price to the extent that amounts on deposit in the Remarketing Proceeds Account and the Liquidity Facility Purchase Account are insufficient therefor. For purposes of this paragraph, a Liquidity Facility shall be deemed to be in effect so long as the Liquidity Provider is contractually obligated to honor future draws on the Liquidity Facility pursuant to Section 17.C. of this ordinance, even if the Liquidity Provider in fact has failed to honor past draws on the Liquidity Facility and has declared its intent not to honor future draws on the Liquidity Facility or otherwise is in breach of its obligations under the Liquidity Facility.
SECTION 19. Delivery of Bonds. On each date on which a Bond is to be purchased, such Bond shall be delivered as follows:
A. Bonds purchased by the Registrar with funds described in Section 18.A. of this ordinance shall be delivered by the Remarketing Agent to the purchasers of such Bonds by 3:00 p.m.;
B. Bonds purchased by the Registrar with funds described in Section 18.B. of this ordinance shall be registered immediately in the name of the Liquidity Provider or its nominee (which may be the Securities Depository) on or before 3:00 p.m.; and
C. Bonds purchased by the Registrar with funds described in Section 18.C. of this ordinance shall be registered immediately in the name of the county or its nominee on or before 3:00 p.m. Bonds so owned by the county shall continue to be Outstanding under the terms of this ordinance and be subject to all of the terms and conditions of this ordinance and shall be subject to remarketing by the Remarketing Agent.
SECTION 20. Book-Entry Tenders.
A. Notwithstanding any other provision of this ordinance to the contrary, all tenders for purchase during any period in which the Bonds are registered in the name of Cede & Co. (or the nominee of any successor Securities Depository) shall be subject to the terms and conditions set forth in the Letter of Representations and to any regulations promulgated by DTC (or any successor Securities Depository). For so long as the Bonds are registered in the name of Cede & Co., as nominee for DTC, the tender option rights of Owners of Bonds may be exercised only by DTC by giving notice of its election to tender Bonds or portions thereof at the times and in the manner described above. Beneficial Owners will not have any rights to tender Bonds directly to the Registrar. Procedures under which a Beneficial Owner may direct a Direct DTC Participant or DTC, or an Indirect DTC Participant acting through a Direct DTC Participant, to exercise a tender option right in respect of Bonds or portions thereof in an amount equal to all or a portion of such Beneficial Owner's beneficial ownership interest therein shall be governed by standing instructions and customary practices determined by such Direct DTC Participant or Indirect DTC Participant. For so long as the Bonds are registered in the name of Cede & Co., as nominee for DTC, delivery of Bonds required to be tendered for purchase shall be effected by the transfer on the applicable Purchase Date of a book-entry credit to the account of the Registrar of a beneficial interest in such Bonds.
B. Notwithstanding anything expressed or implied herein to the contrary, so long as the Book-Entry System for the Bonds is maintained:
1. There shall be no requirement of physical delivery to or by the Remarketing Agent or the Registrar of:
(a) Any Bonds subject to mandatory or optional purchase as a condition to the payment of the Purchase Price therefor;
(b) Any Bonds that have become Liquidity Provider Bonds; or
(c) Any remarketing proceeds of such Bonds or Liquidity Provider Bonds; and
2. Except as provided in Section 20.B.3. of this ordinance, the Registrar shall have no responsibility for paying the Purchase Price of any tendered Bond or for remitting remarketing proceeds to any person; and
3. The Registrar's sole responsibilities in connection with the purchase and remarketing of a tendered Bond shall be:
(a) To draw upon the applicable Liquidity Facility if the Remarketing Agent notifies the Registrar as provided herein that such Bond has not been remarketed on or before the Purchase Date therefor, which draw shall be in an amount equal to the difference between such Purchase Price and any remarketing proceeds received by the Remarketing Agent in connection with a partial remarketing of such Bond, and to remit the amount so drawn to or upon the order of the Securities Depository for the benefit of the tendering Beneficial Owners; and
(b) To remit any proceeds derived from the remarketing of a Liquidity Provider Bond to the Liquidity Provider.
SECTION 21. Non-Book-Entry Tenders. When the Bonds are not held in a Book-Entry System, the following tender procedures shall be followed:
A. Bonds shall be delivered (with all necessary endorsements) at or before 12:00 noon on the Purchase Date at the Principal Office of the Registrar; provided, however, that payment of the Purchase Price shall be made pursuant to this Section 21 of this ordinance only if the Bond so delivered to the Registrar conforms in all respects to the description thereof in the notice described in this Section 21 of this ordinance. Payment of the Purchase Price with respect to purchases under this Section 21 of this ordinance shall be made to the Owners of tendered Bonds by wire transfer in immediately available funds by the Registrar by 3:00 p.m. on the Purchase Date.
B. If a Bond to be purchased is not delivered by the Owner to the Registrar by 12:00 noon on the date on which that Bond is to be purchased, the Registrar shall hold any funds received for the purchase of those Bonds in the Purchase Fund in trust and shall pay such funds to the former Owners of the Bonds upon presentation of the Bonds. Such undelivered Bonds shall cease to accrue interest as to the former Owners on such Purchase Date and money representing the Purchase Price shall be available against delivery of those Bonds at the Principal Office of the Registrar; provided, however, that any funds which shall be so held by the Registrar and which remain unclaimed by the former Owner of a Bond not presented for purchase for a period of three years after delivery of such funds to the Registrar, shall, to the extent permitted by law, upon request in writing by the county and the furnishing of security or indemnity to the Registrar's satisfaction, be paid to the county free of any trust or lien and thereafter the former Owner of such Bond shall look only to the county and then only to the extent of the amounts so received by the county without any interest thereon, and the Registrar shall have no further responsibility with respect to such money or payment of the Purchase Price of such Bonds. The Registrar shall authenticate a replacement Bond for any undelivered Bond that may then be remarketed by the Remarketing Agent.
C. The Registrar shall hold all Bonds properly tendered to it for purchase hereunder as agent and bailee of, and in escrow for the benefit of, the respective Owners of the Bonds which shall have so tendered such Bonds until money representing the Purchase Price of such Bonds shall have been delivered to or for the account of or to the order of such Owners.
SECTION 22. Credit Enhancement and Liquidity Facility.
A. No Credit Enhancement will initially be provided for the Bonds. From time to time while the Bonds remain Outstanding, the county may elect to provide a Credit Enhancement with respect to the Bonds (but not during an Index Rate Period or Fixed Rate Period). While a Credit Enhancement is in effect with respect to the Bonds, the Registrar shall, on the Business Day preceding each Interest Payment Date and Principal Payment Date, before 4:00 p.m. on such day, draw on the Credit Enhancement in accordance with the terms thereof so as to receive thereunder by 1:00 p.m. on said Interest Payment Date and Principal Payment Date, an amount, in immediately available funds, equal to the amount of interest and principal payable on the Bonds on such Interest Payment Date and Principal Payment Date. The proceeds of such draws shall be applied to pay principal of and interest on the Bonds prior to the application of any other funds held by the Registrar therefor. Such amounts shall be held uninvested and separate and apart from all other funds.
From time to time while the Bonds remain Outstanding, upon delivery to the Registrar of a Favorable Opinion of Bond Counsel, the county may elect to terminate a Credit Enhancement with respect to the Bonds without obtaining an Alternate Credit Enhancement, and such Bonds would then be subject to mandatory tender on the Mandatory Purchase Date described in clause (e) of the definition of "Mandatory Purchase Date" in Section 1 of this ordinance.
B. No Liquidity Facility will initially be provided for the Bonds. While a Liquidity Facility is in effect with respect to the Bonds, on each date on which a Bond is to be purchased, the Registrar, by demand given by Electronic Means before 12:00 noon, shall draw on the Liquidity Facility in accordance with the terms thereof so as to receive thereunder by 2:30 p.m. on such date an amount, in immediately available funds, sufficient, together with the proceeds of the remarketing of Bonds on such date, to enable the Registrar to pay the Purchase Price in connection therewith. The proceeds of such draw shall be paid to the Registrar, who shall deposit said proceeds in the Liquidity Facility Purchase Account pursuant to Section 23.B. of this ordinance.
From time to time while the Bonds remain Outstanding, upon delivery to the Registrar of a Favorable Opinion of Bond Counsel, the county may elect to terminate a Liquidity Facility with respect to the Bonds without obtaining an Alternate Liquidity Facility, and such Bonds would then be subject to mandatory tender on the Mandatory Purchase Date described in clause (e) of the definition of "Mandatory Purchase Date" in Section 1 of this ordinance.
C. Notwithstanding the foregoing provisions of this Section 22 of this ordinance, if a Credit Provider and Liquidity Provider are the same entity, the Registrar shall not draw on the Credit Enhancement with respect to any payments due or made in connection with Liquidity Provider Bonds. In no event shall the Registrar draw on the Credit Enhancement with respect to any payments made or made in connection with Bonds not covered by the Credit Enhancement or Bonds listed on the Register as owned by the county.
D. The county may provide an Alternate Credit Enhancement or Alternate Liquidity Facility on any day on which the Bonds could otherwise be subject to redemption at par not later than the fifth Business Day prior to the Expiration Date of the Credit Enhancement or Liquidity Facility then in effect. The county shall give the Notice Parties written notice of the proposed substitution of an Alternate Credit Enhancement or Alternate Liquidity Facility no less than 2 Business Days prior to the date on which the Registrar is required to provide notice of the proposed substitution to the Owners of the Bonds. The Registrar shall give notice of such Substitution Date in accordance with Section 16 of this ordinance. On or before the Substitution Date, there shall be delivered to the Registrar: (1) the Alternate Credit Enhancement or the Alternate Liquidity Facility in substitution for the Credit Enhancement or Liquidity Facility then in effect, (2) a Favorable Opinion of Bond Counsel, (3) a written Opinion of Counsel for the provider of the Alternate Credit Enhancement or Alternate Liquidity Facility, as applicable, to the effect that such Alternate Credit Enhancement or Alternate Liquidity Facility is a valid, legal and binding obligation of the provider thereof, and (4) unless waived by such entity in a writing delivered to the Registrar, written evidence satisfactory to the Credit Provider and the Liquidity Provider of the provision for purchase from the Liquidity Provider of all Liquidity Provider Bonds, at a price equal to the principal amount thereof plus accrued and unpaid interest, and payment of all amounts due to the Credit Provider and the Liquidity Provider under the Reimbursement Agreement(s) on or before the effective date of such Alternate Credit Enhancement or Alternate Liquidity Facility. Upon the satisfaction of the conditions described in the preceding sentence, the Registrar shall accept such Alternate Credit Enhancement or Alternate Liquidity Facility on the close of business on the Substitution Date and shall surrender the Credit Enhancement or Liquidity Facility then in effect to the provider thereof on the Substitution Date; provided, however, that the Registrar shall not surrender the Credit Enhancement or Liquidity Facility then in effect unless and until the Registrar has received all amounts drawn thereunder. As provided in Section 17.C. of this ordinance, any draw on a Liquidity Facility to be made on a Substitution Date shall be on the Liquidity Facility being replaced. If any condition to the substitution is not satisfied, the substitution shall not occur but the Bonds shall remain subject to mandatory purchase on the proposed Substitution Date.
E. In the event of an extension of the Expiration Date, the county will give to the Notice Parties and Owners of the affected Bonds a written notice of the new Expiration Date at least 21 days prior to the fifth Business Day prior to the Expiration Date in effect prior to the extension.
F. All references in this ordinance to "Liquidity Facility" and "Liquidity Provider" will be disregarded during any period during which a Liquidity Facility is not in effect. All references in this ordinance to "Credit Enhancement" and "Credit Provider" will be disregarded during any period during which a Credit Enhancement is not in effect.
G. Any claim by the Registrar on any amounts drawn under the Credit Enhancement or the Liquidity Facility or on any amounts on deposit in the Purchase Fund and its Accounts shall be subordinate to the lien thereon of the Bonds.
SECTION 23. Purchase Fund. There is hereby established and there shall be maintained with the Registrar a separate fund to be known as the "Purchase Fund." The Registrar shall further establish separate accounts within the Purchase Fund to be known as the "Remarketing Proceeds Account," the "Liquidity Facility Purchase Account" and the "County Purchase Account." All funds in any account within the Purchase Fund shall be held solely for the benefit of Owners of the Bonds.
A. Remarketing Proceeds Account. Upon receipt of the proceeds of a remarketing of a Bond on the date such Bond is to be purchased, the Registrar will deposit those proceeds in the Remarketing Proceeds Account for application to the Purchase Price of that Bond. Notwithstanding the foregoing, upon the receipt of the proceeds of a remarketing of Liquidity Provider Bonds, the Registrar will immediately pay such proceeds to the Liquidity Provider to the extent of any amount owing to the Liquidity Provider.
B. Liquidity Facility Purchase Account. Upon receipt of the proceeds of a draw made under the Liquidity Facility, the Registrar will deposit such money in the Liquidity Facility Purchase Account for application to the Purchase Price of the Bonds to the extent that the money on deposit in the Remarketing Proceeds Account is not sufficient. Any amounts deposited in the Liquidity Facility Purchase Account and not needed with respect to the Purchase Price for any Bonds will be immediately returned to the Liquidity Provider.
C. County Purchase Account. Upon receipt of funds from the county pursuant to Section 18.C. of this ordinance, the Registrar shall deposit those funds in the County Purchase Account for application to the Purchase Price of the Bonds. Any Bonds so purchased shall be "County Bonds," and held by the Registrar for and on behalf of the county or any nominee for (or any Person who owns such Bonds for the sole benefit of) the county. Any amounts deposited in the County Purchase Account and not needed with respect to the Purchase Price for any Bonds will be immediately refunded to the county.
D. No Investment. Amounts held in the Purchase Fund and its Accounts shall be held uninvested and separate and apart from all other funds and accounts.
SECTION 24. Insufficient Funds for Tenders.
A. Except with respect to Index Rate Bonds, if money sufficient to pay the Purchase Price of all tendered Bonds to be purchased on any Purchase Date is not available (1) no purchase shall be consummated on such Purchase Date, (2) all tendered Bonds shall be returned to the Owners thereof, (3) all remarketing proceeds shall be returned to the Remarketing Agent for return to the Persons providing such money, and (4) all proceeds of draws under the Liquidity Facility, if any, shall be returned to the Liquidity Provider.
B. All Unremarketed Bonds shall bear interest at the Unremarketed Bonds Rate during the period of time from and including the applicable Purchase Date to, but excluding, the date that all such tendered Bonds are successfully remarketed (the "Delayed Remarketing Period").
C. The county may direct the conversion of the tendered Bonds to a different Mode during the Delayed Remarketing Period in accordance with Section 13 of this ordinance; provided, that the county shall not be required to comply with the notice requirements described in Section 13 of this ordinance.
D. Subject to the terms of the Remarketing Agreement, the Remarketing Agent shall continue to use its best efforts to remarket all of the tendered Bonds.
E. During the Delayed Remarketing Period, the Registrar may, upon written direction of the county, apply funds provided by the county to the redemption of such tendered Bonds, as a whole or in part on any Business Day during the Delayed Remarketing Period, at a redemption price equal to the principal amount thereof, together with interest accrued thereon to the date fixed for redemption, without premium. The Registrar shall give five Business Days' notice of such redemption to the Owners of the Bonds to be redeemed.
F. During the Delayed Remarketing Period, interest on such tendered Bonds shall be paid to the Owners thereof on the first Business Day of each calendar month occurring during the Delayed Remarketing Period, and also on the last day of the Delayed Remarketing Period.
SECTION 25. Bond Fund. There has heretofore been created in the office of the Finance Director a special fund known as the "King County Limited Tax General Obligation Bond Redemption Fund" to be drawn upon for the purpose of paying the principal of and interest on the limited tax general obligation bonds of the county. There is hereby authorized to be created within said fund a special account for the Bonds to be known as the "Multi-Modal Limited Tax General Obligation Refunding Bond Redemption Account, 2013" (the "Bond Fund").
The taxes hereafter levied for the purpose of paying principal of and interest on the Bonds and other funds to be used to pay the Bonds shall be deposited in the Bond Fund no later than the date such funds are required for the payment of principal of and interest on the Bonds; provided, however, that if the payment of principal of and interest on the Bonds is required prior to the receipt of such levied taxes, the county may make an interfund loan to the Bond Fund pending actual receipt of such taxes. The Bond Fund shall be drawn upon for the purpose of paying the principal of and interest on the Bonds. Money in the Bond Fund not needed to pay the interest or principal next coming due may temporarily be deposited in such institutions or invested in such obligations as may be lawful for the investment of county funds. The Bond Fund shall be a second tier fund in accordance with Ordinance 7112 and K.C.C. chapter 4.10.
SECTION 26. Pledge of Taxation and Credit. The county hereby irrevocably covenants and agrees, for as long as any of the Bonds are Outstanding and unpaid, that each year it will include in its budget and levy an ad valorem tax within the constitutional and statutory tax limitations provided by law without a vote of the people upon all the property within the county subject to taxation in an amount that will be sufficient, together with all other revenues, taxes and money of the county legally available for such purposes, to pay the principal of and interest on the Bonds as the same shall become due.
The county hereby irrevocably pledges that the annual tax provided for herein to be levied for the payment of such principal and interest shall be within and as a part of the tax levy to counties without a vote of the people, and that a sufficient portion of each annual levy to be levied and collected by the county prior to the full payment of the principal of and interest on the Bonds will be and is hereby irrevocably set aside, pledged and appropriated for the payment of the principal of and interest on the Bonds.
The full faith, credit and resources of the county are hereby irrevocably pledged for the annual levy and collection of said taxes and for the prompt payment of the principal of and interest on the Bonds as the same shall become due.
SECTION 27. Refunding Fund: Escrow Account and Issuance Costs Account. There is hereby authorized to be created a special fund of the county to be maintained with a corporate trustee selected by the Finance Director (herein called the "Escrow Agent"), which will be known as the "King County, Washington Multi-Modal Limited Tax General Obligation Bonds, 2009, Series A, Refunding Fund" (herein called the "Refunding Fund"). The Refunding Fund shall consist of an Escrow Account and an Issuance Costs Account. The Refunding Fund is to be drawn upon for the purpose of paying the redemption price of the 2009A Bonds equal to the principal amount thereof plus accrued interest to their redemption on the Date of Issue, and paying costs and expenses incurred in issuing the Bonds.
Funds deposited in the Refunding Fund and its accounts shall not be invested. Money other than proceeds of the Bonds may be deposited into the Refunding Fund and its accounts; provided, however, that proceeds of the Bonds shall be accounted for separately for purposes of the arbitrage rebate computations required to be made under the Code. For purposes of such computations, Bond proceeds shall be deemed to have been expended first, and then any other funds.
SECTION 28. Application of Bond Proceeds; Refunding Plan. All of the proceeds from the sale of the Bonds shall be paid to the Escrow Agent for deposit into the Escrow Account and the Issuance Costs Account of the Refunding Fund. The exact amounts of proceeds from the sale of the Bonds to be deposited into (a) the Escrow Account and applied to the refunding, redemption and retirement of the 2009A Bonds, and (b) the Issuance Costs Account and applied to pay the incidental costs and the costs related to the sale and issuance of the Bonds, shall be determined by the Finance Director upon the sale of the Bonds.
The county hereby conditionally calls the 2009A Bonds for redemption on the Date of Issue in accordance with the provisions of the 2009A Bond Legislation; provided, that such call for redemption shall become irrevocable only after the final establishment and funding of the Refunding Fund and its accounts.
The Escrow Agent is hereby authorized and directed to work with the 2009A Bond Registrar to provide for the giving of notice of the redemption of the 2009A Bonds in accordance with the 2009A Bond Legislation. The Finance Director is authorized and requested to provide the Escrow Agent with whatever assistance is necessary to accomplish such redemption. Any costs of publication of such notice shall be an expense of the county.
The Escrow Agent is hereby authorized and directed to pay to the 2009A Bond Registrar sums sufficient to pay, when due, the redemption price of the 2009A Bonds equal to the principal amount thereof plus accrued interest to their redemption on the Date of Issue. All such sums shall be paid from the Bond proceeds deposited with said Escrow Agent pursuant to this section. All such sums so paid shall be charged to the Escrow Account of the Refunding Fund. All monies deposited with the Escrow Agent shall be held and applied in accordance with the provisions of this ordinance and with the laws of the State of Washington for the benefit of the owners of the 2009A Bonds.
The county will take such actions as are found necessary to see that all necessary and proper fees, compensation and expenses of the Escrow Agent for refunding, redemption and retirement of the 2009A Bonds shall be paid when due.
The Finance Director is authorized and directed to select a corporate trustee to serve as Escrow Agent and to obtain from the Escrow Agent an agreement setting forth the duties, obligations and responsibilities of the Escrow Agent in connection with the refunding, redemption and retirement of the 2009A Bonds as provided herein and stating that such provisions for the payment of the fees, compensation and expenses of such Escrow Agent are satisfactory to it. In order to carry out the purposes of this section, the Finance Director is authorized and directed to execute and deliver to the Escrow Agent such agreement when the provisions thereof have been fixed and determined.
SECTION 29. Defeasance. If money and/or noncallable Government Obligations maturing at such time or times and bearing interest to be earned thereon in amounts (together with such money, if necessary) sufficient to redeem and retire, refund or defease part or all of Bonds in a Long-Term Mode in accordance with their terms, are set aside in a special account of the county to effect such refunding, redemption and retirement, and such money and the principal of and interest on such Government Obligations are irrevocably set aside and pledged for such purpose, then no further payments need be made into the Bond Fund for the payment of the principal of and interest on the Bonds so provided for, and such Bonds shall cease to be entitled to any lien, benefit or security of this ordinance except the right to receive the money so set aside and pledged, and such Bonds shall be deemed not to be Outstanding hereunder. Bonds in any Short-Term Mode may not be defeased.
SECTION 30. Federal Tax Law Covenants. The county shall comply with the provisions of this section unless, in the Opinion of Bond Counsel, such compliance is not required.
The county hereby covenants that it will not make any use of the proceeds from the sale of the Bonds (or of any other funds of the county that may be deemed to be proceeds of the Bonds pursuant to Section 148 of the Code and the applicable regulations thereunder) that will cause the Bonds to be "arbitrage bonds" within the meaning of said Section 148 of the Code and said regulations. The county will comply with the applicable requirements of Section 148 of the Code (or any successor provision thereof applicable to the Bonds) and the applicable regulations thereunder throughout the term of the Bonds. In particular, the county will compute, if necessary, and pay the Rebate Amount, if any, to the United States of America at the times and in the amounts necessary to meet the requirements of the Code, as set forth in the Tax Certificate for the Bonds.
The county further covenants that it will not take any action or permit any action to be taken that would cause the Bonds to constitute "private activity bonds" under Section 141 of the Code that are not "qualified bonds," as defined in said Section 141 of the Code.
SECTION 31. Other Covenants and Warranties. The county makes the following additional covenants and warranties:
A. The county has full legal right, power and authority to adopt this ordinance, to sell, issue and deliver the Bonds as provided herein, and to carry out and consummate all other transactions contemplated by this ordinance.
B. By all necessary official action prior to or concurrently herewith, the county has duly authorized and approved the execution and delivery of, and the performance by the county of its obligations contained in the Bonds and this ordinance and the consummation by it of all other transactions necessary to effectuate this ordinance in connection with the issuance of the Bonds, and such authorizations and approvals are in full force and effect and have not been amended, modified or supplemented in any material respect.
C. This ordinance constitutes a legal, valid and binding obligation of the county.
D. When issued, sold, authenticated and delivered, the Bonds will constitute legal, valid and binding general obligations of the county.
E. The county will maintain or cause to be maintained a system of registration of the Bonds that complies with the applicable provisions of the Code until all of the Bonds shall have been surrendered and canceled.
F. The adoption of this ordinance, and compliance on the county's part with the provisions contained herein, will not conflict with, constitute a breach of, or constitute a default under, any constitutional provisions, law, administrative regulation, judgment, decree, loan agreement, indenture, bond, note, resolution, ordinance, motion, agreement or other instrument to which the county is a party or to which the county or any of its property or assets are otherwise subject.
G. The county finds and covenants that the Bonds are issued within all statutory and constitutional debt limitations applicable to the county.
SECTION 32. Registrar.
A. Fiscal Agency Agreement. The Registrar shall serve as registrar, paying agent and tender agent for the Bonds and shall perform such duties in accordance with the Fiscal Agency Agreement. Unless the county exercises its right under 32.B of this ordinance to remove the Registrar, any successor fiscal agent under the Fiscal Agency Agreement shall serve as Registrar under this ordinance. Notwithstanding anything to the contrary in the Fiscal Agency Agreement, the Registrar shall not seek any indemnity or other security as a condition precedent to drawing on any Liquidity Facility or Credit Enhancement, making any payment of principal of, interest on or the Purchase Price for any Bonds, or effecting any mandatory purchase or redemption of any Bonds.
B. Removal of Registrar. The county may remove the Registrar at any time at the option of the Finance Director upon prior notice to the Notice Parties and appointment by the Finance Director on behalf of the county of a successor Registrar on terms and conditions to be set forth in a written agreement between the county and such successor Registrar. Any successor Registrar must be a trust company or commercial bank with trust powers. No resignation or removal of the Registrar shall be effective until a successor is appointed and the successor Registrar accepts the duties of the Registrar hereunder and receives the Credit Enhancement and Liquidity Facility, together with all other funds then held by the Registrar.
SECTION 33. Remarketing Agent.
A. Finance Director to Appoint Remarketing Agent. If necessary or desirable to comply with provisions of this ordinance, the Finance Director may appoint a Remarketing Agent to remarket Bonds and perform other duties of the Remarketing Agent described in this ordinance. Any Remarketing Agent must be a member of the Financial Industry Regulatory Authority, have a capitalization of at least $50,000,000, be authorized by law to perform all the duties set forth in this ordinance and be acceptable to the Credit Provider and Liquidity Provider, if any. The Finance Director is authorized to execute and deliver a Remarketing Agreement with the Remarketing Agent on behalf of the county. The county council authorizes and directs the Finance Director and all other proper officers, agents, attorneys and employees of the county to cooperate with the Remarketing Agent in preparing and executing such additional agreements, certificates, and other documentation on behalf of the county as shall be necessary or advisable in providing for appointment of the Remarketing Agent. The Remarketing Agent shall keep such books and records as are consistent with prudent industry practice and make such books and records available for inspection by the Notice Parties at all reasonable times.
B. Resignation or Removal of Remarketing Agent. The Remarketing Agent may at any time resign and be discharged of the duties and obligations with respect to the Bonds created by this ordinance as set forth in the Remarketing Agreement. The Remarketing Agent may suspend its remarketing efforts as set forth in the Remarketing Agreement. The county council authorizes the Finance Director to remove the Remarketing Agent at any time, in accordance with the Remarketing Agreement, when the Finance Director, in consultation with the county's financial advisors, determines that such removal is necessary or beneficial to the county. Any successor Remarketing Agent shall be appointed by the Finance Director, shall be a member of the Financial Industry Regulatory Authority, shall have a capitalization of at least $50,000,000, shall be authorized by law to perform all the duties set forth in this ordinance and shall be acceptable to the Credit Provider and Liquidity Provider, if any. The county council authorizes and directs the Finance Director and all other proper officers, agents, attorneys and employees of the county to cooperate with any successor Remarketing Agent in preparing and executing such additional agreements, certificates, and other documentation on behalf of the county as shall be necessary or advisable in providing for replacement of the Remarketing Agent.
The delivery to the Registrar of a certificate of the Finance Director setting forth the effective date of the appointment of a successor Remarketing Agent and the name of such successor shall be conclusive evidence that (1) if applicable, the predecessor Remarketing Agent has been removed in accordance with the provisions of this ordinance and (2) such successor has been appointed and is qualified to act as Remarketing Agent under the terms of this ordinance.
C. Merger or Consolidation. If the Remarketing Agent consolidates with, merges or converts into, or transfers all or substantially all of its assets (or, in the case of a bank, national banking association or trust company, its corporate assets) to, another corporation, the resulting, surviving or transferee corporation without any further act shall be the successor Remarketing Agent.
SECTION 34. Calculation Agent.
A. Appointment of Calculation Agent. During the Initial Period, the Calculation Agent shall be Bank of America, N.A. During any other Index Rate Period, the Calculation Agent shall be the Registrar or such other Person meeting the requirements set forth in this Section 34.A. of this section as the Finance Director may appoint, with the Bank's consent, to perform the duties of the Calculation Agent described in this ordinance. The Calculation Agent shall be a corporation duly organized under the laws of the United States of America or any state or territory thereof and shall be authorized by law to perform all the duties imposed upon it by this ordinance and may be the Registrar, the Bank, the Liquidity Provider, the Credit Provider or any other Person, but may not be the county or an Affiliate of the county. Any Calculation Agent which is not also the Bank or the Registrar shall designate its principal office and signify its acceptance of the duties and obligations imposed upon it hereunder by a written instrument of acceptance delivered to the county and the Registrar in which the Calculation Agent will agree to perform all calculations and provide all notices required of the Calculation Agent under this ordinance.
B. Resignation or Removal of Calculation Agent. The Calculation Agent may at any time resign and be discharged of the duties and obligations created by this ordinance by giving at least 60 days' written notice to the county, the Registrar, the Bank, any Remarketing Agent, any Liquidity Provider and any Credit Provider. The Calculation Agent may be removed by the county at any time by giving at least 15 days' written notice to the Registrar, the Bank, any Remarketing Agent, any Liquidity Provider and any Credit Provider; provided, that such resignation or removal shall not be effective until a successor Calculation Agent assumes such position in accordance with the provisions hereof. Upon receipt of such notice of resignation or removal, during any Mode in which the services of a Calculation Agent are required under this ordinance, the county will diligently seek to appoint a successor Calculation Agent to assume the duties of the Calculation Agent on the effective date of the prior Calculation Agent's resignation. In the event that the county shall fail to appoint a successor Calculation Agent in a timely manner when required under this ordinance, the Registrar shall either (1) appoint a Calculation Agent to act as such, or (2) petition any court of competent jurisdiction for the appointment of a successor Calculation Agent, and such court may thereupon, after such notice, if any, as it may deem proper, appoint such successor Calculation Agent; provided however, that during the pendency of any such petition the Registrar shall itself act as Calculation Agent, service in any such case shall commence on the effective date of the resignation of the prior Calculation Agent and to remain in effect until a successor Calculation Agent assumes such position in accordance with the provisions of this ordinance.
SECTION 35. Credit Enhancement and Liquidity Facility. The county council authorizes the Finance Director to obtain a Credit Enhancement or Liquidity Facility or to obtain an Alternate Credit Enhancement or Alternate Liquidity Facility at any time and from time to time when the Finance Director, in consultation with the county's financial advisors, determines that obtaining any such instruments is necessary or beneficial to the county. The county council authorizes and directs the Finance Director and all other proper officers, agents, attorneys and employees of the county to cooperate with any such Credit Provider or Liquidity Provider, or the providers of any Alternate Credit Enhancement or Alternate Liquidity Facility, in preparing and executing such agreements, certificates, and other documentation on behalf of the county as shall be necessary or advisable in providing for any such instrument.
SECTION 36. Sale of Bonds. The Bonds shall be sold by negotiated sale to the Bank in an original aggregate principal amount not to exceed $42,500,000 pursuant to the Agreement in substantially the form set forth as Attachment B to this ordinance. The county council authorizes the Finance Director to determine the exact original aggregate principal amount of the Bonds and the date of the sale of the Bonds, and to execute and deliver the Agreement on behalf of the county, with such changes as may be consistent with this ordinance. The Finance Director and all other proper officers, agents, attorneys and employees of the county are hereby authorized and directed to do everything necessary for the prompt execution and delivery of the Bonds to the Bank and for the proper application and use of the proceeds of sale thereof, all in accordance with the Agreement and this ordinance.
SECTION 37. Extension or Replacement of Agreement. The Finance Director is hereby authorized to negotiate (A) one or more extensions of the Agreement or (B) the purchase of the Bonds by an Owner other than the Bank pursuant to a subsequent Agreement with that Owner, on terms and conditions acceptable to the Finance Director.
SECTION 38. Amendments.
A. Amendments without Owners' Consent. This ordinance may be amended or supplemented from time to time, without the consent of the Owners by a supplemental ordinance passed by the county council for one or more of the following purposes:
1. To add additional covenants of the county or to surrender any right or power herein conferred upon the county;
2. To cure any ambiguity or to cure, correct or supplement any defective (whether because of any inconsistency with any other provision hereof or otherwise) provision of this ordinance or to make any other provisions with respect to matters or questions arising under this ordinance, provided such action shall not impair the security hereof or adversely affect the interests of the Owners;
3. To provide or modify procedures permitting the Bonds to be held in a Book-Entry System or Owners to utilize a certificated system of registration for Bonds;
4. To modify, alter, amend, supplement or restate this ordinance in any and all respects necessary, desirable or appropriate in connection with the delivery of an Alternate Credit Enhancement or Alternate Liquidity Facility (other than modifying notice provisions to Owners of the Bonds);
5. To modify, alter, amend, supplement or restate this ordinance in any and all respects necessary, desirable or appropriate to satisfy the requirements of any Rating Agency to obtain or retain a rating on the Bonds as the county deems necessary; provided, that such action shall not impair the security hereof or materially adversely affect the interests of the Owners; or
6. For any purpose, (1) on any Mandatory Purchase Date and (2) at any time during the Daily Mode or the Weekly Mode; provided, that notice of such amendment is given by first class mail to each Owner of Bonds at least 30 days prior to the effective date of such amendment.
B. Amendments with Owners' Consent. This ordinance may be amended from time to time by a supplemental ordinance; provided, that (1) no amendment shall be made that affects the rights of some but fewer than all of the Owners of the Outstanding Bonds without the consent of the Owners of a majority in aggregate principal amount of the Bonds so affected, and (2) without the consent of the Owners of all Outstanding Bonds affected thereby, no amendment shall be made that alters the interest rates or premium on or principal amount of any Bonds, the Maturity Date, Interest Payment Dates, purchase upon tender or redemption provisions of any Bonds or this Section 38.B. of this ordinance Notwithstanding any provision of this Section 38 of this ordinance to the contrary, so long as no event of default has occurred under the Credit Enhancement, any provision of this ordinance may be amended with the consent solely of the Credit Provider for such Credit Enhancement.
C. Amendments on Mandatory Purchase Date. The Owner of a Bond shall be deemed to have consented to any amendment proposed to become effective on any Mandatory Purchase Date for such Bond so long as the Purchase Price is paid in full on such Mandatory Purchase Date.
D. Consent of Credit Provider and Liquidity Provider Required. Any amendment or supplement to this ordinance shall require the prior written consent of the Credit Provider and Liquidity Provider if the rights of the Credit Provider or the Liquidity Provider, as the case may be, will be adversely affected thereby.
SECTION 39. Acts of Owners. Any action to be taken by Owners may be evidenced by one or more concurrent written instruments of similar tenor signed or executed by such Owners in person or by an agent appointed in writing. The fact and date of the execution by any Person of any such instrument may be proved by acknowledgment before a notary public or other officer empowered to take acknowledgments or by an affidavit of a witness to such execution or by any other method satisfactory to the Registrar. Any action by the Owner of any Bond shall bind all future Owners of the same Bond or of any Bond issued upon the exchange or registration of transfer thereof in respect of anything done or suffered by the county or the Registrar in pursuance thereof.
SECTION 40. Specific Authorization. In addition to the authority granted to the Finance Director elsewhere in this ordinance, the Finance Director may, in his or her discretion, without further action by the county council, (1) authorize conversions from one Mode to another and execute agreements and certificates as necessary or desirable to effect such conversions, and (2) execute a continuing disclosure undertaking on behalf of the county when necessary to comply with the Rule.
SECTION 41. Notices to Notice Parties. Except as otherwise specifically provided for in this ordinance, all notices required by the terms hereof to be given to the Registrar, the county or the Owners of the Bonds shall be deemed given, if given in writing and mailed by first-class mail, postage prepaid, and
A. If to the Registrar, addressed to The Bank of New York Mellon, at 101 Barclay Street, 7W, New York, NY 10286, Attention: Corporate Trust Registrar Administration;
B. If to the county, addressed to King County, Office of the Director, Finance and Business Operations Division, at 500 Fourth Avenue, Room 600, Seattle, WA 98104, Attention: Treasury Services;
C. If to the Credit Provider, addressed to it at the address set forth in the Reimbursement Agreement;
D. If to the Liquidity Provider, addressed to it at the address set forth in the Reimbursement Agreement;
E. If to the Remarketing Agent, addressed to it at the address set forth in the Remarketing Agreement;
F. If to the Bank, addressed to it at the address set forth in the Agreement; and
G. If to any Owner of a Bond, addressed to such Owner at the address set forth in the Register; or, as to the county or the Registrar, as any of them shall from time to time designate by notice in writing to the others.
SECTION 42. Notice to Rating Agencies. So long as the Bonds bear a rating from any Rating Agency, at such time as there is a change in the Registrar, any Remarketing Agent, any Credit Provider, or any Liquidity Provider, or any successors thereto, any amendment is made to this ordinance, or a Credit Enhancement or Liquidity Facility expires or terminates or is extended or replaced, or whenever there is (A) a conversion of the Bonds from one Mode to another, (B) a redemption or defeasance of the Bonds, or (C) a mandatory tender for purchase of the Bonds in the event of nonreinstatement of interest after an interest drawing on the Credit Enhancement or Liquidity Facility, the county shall give written notice of the same to Moody's at 7 World Trade Center, 250 Greenwich Street, New York, NY 10007, Attention: Public Finance Group - Full Support Group; to S&P at 55 Water Street, New York, NY 10041, Attention: Municipal Structured Finance Group; and to Fitch at One State Street Plaza, New York, NY 10004, Attention: Municipal Structured Finance. In addition, so long as the Bonds bear a rating from any Rating Agency, copies of all notices required to be given under this ordinance shall likewise be given to such Rating Agency at the addresses set forth in the preceding sentence, and the county shall provide to any Rating Agency any other information reasonably requested by the Rating Agency to maintain the ratings of the Bonds.
SECTION 43. Legal Investments. The county reserves the right to purchase Bonds at any time as a legal investment for funds of the county including but not limited to funds held by the county for the investment pool established pursuant to K.C.C. chapter 4.10.
SECTION 44. Severability. In case any one or more of the provisions of this ordinance or of the Bonds shall, for any reason, be held to be illegal or invalid, such illegality or invalidity shall not affect any other provisions of this ordinance or of such Bonds, and this ordinance and the Bonds shall be construed and enforced to the end that
the transactions contemplated hereby be effected and the obligations contemplated hereby be enforced as if such illegal or invalid provisions had not been contained therein.