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S-692 - 05/22/1990 - NOTE - Ordinances p ORDINANCE NO. 5-692 AN ORDINANCE AUTHORIZING THE ISSUANCE OF A $462,024.89 REFUNDING NOTE OF THE VILLAGE OF OAK BROOK, DUPAGE AND COOK COUNTIES, ILLINOIS WHEREAS, the Village of Oak Brook, DuPage and Cook Counties, Illinois (the "Village" ) , acting by its President and Board of Trustees (the "Corporate Authorities" ) , borrowed $522,000 to acquire golf course maintenance equipment and to construct and install an approximate 7,300 sq. ft. maintenance building (collectively, the "Project" ) ; and W�REAS, the Village negotiated and received a proposal (the "Proposal" ) from Oak Brook Bank, Oak Brook, Illinois (the "Lender" ) , in connection with the issuance under and pursuant to Ordinance No. 5-672, passed and approved May 23, 1989 (the "Prior Ordinance" ) of a $522,000 Note (the "Prior Note" ) , to finance the Project; and WBERREASI the Village has insufficient funds to repay the Prior Note and related costs and, therefore, must borrow money and issue its $462,024.89 Note (the "Note" ) under this ordinance for such purposes; and W�REAS, the Village desires to issue and sell the Note to the Lender in order to repay the Prior Note; and - WBEREAS, for convenience of reference only this ordinance is divided into numbered sections with headings, which shall not define or limit the provisions hereof, as follows; Page Preambles . . . . . . 1 Section 1. Authority and Purpose. . . . . . . . . . . . 2 Section 2 . Authorization and Terms of the Note. . . 3 Section 3 . Note and Security Agreement. . . . . . . . 3 Section 4. Execution and Delivery . . . . . . - Section 5 . Transfer, Exchange and Registration. . . . . 4 Section 6. Registrar. . . . . . . . . . . . . . . . . . 5 Section 7. Security Agreement . . • . . • . • • . . • 5 Section 8. Form of Note and Security Agreement. . . . . 6 Section 9 . Debt Service Fund. . . . . . . . . . 6 Section 10. Note Proceeds Fund . . . . . . . . . . . 6 Section 11. Exception from Arbitrage Rebate. . . . . . 6 Section 12. Investment Regulations . . . . . . . 7 Section 13 . Tax Covenants. . . . • . . . . . • • • 7 Section 14. Bank Qualified Note. . • . • • • • 8 Section 15. Ordinance to Constitute. a Contract . . . . 8 Section 16. Publication. . . . . • . . • 8 Section 17. Effective Date . . . . . . . . • • - NOW, THEREFORE, BE IT ORDAINED BY THE PRESIDENT AMID BOARD OF TRUSTEES OF THE VILLAGE OF OAK BROOK, DUPAGE AND COOK COUNTIES, ILLINOIS, AS FOLLOWS: Section 1. Authority and Purpose. This ordinance is adopted pursuant to the Constitution and laws of the State of Illinois, including Section 8-1-3 . 1 of the Illinois Municipal Code (Section 8-1-3 . 1 of Chapter 24 of the Illinois Revised Statutes) (collectively, as supplemented and amended, the "Act" ) , for the purpose of refunding the Prior Note (the "Refunding") , which was issued for the purpose of financing the Project, to be made or undertaken by the Village of Oak Brook, Illinois. Section 2. Authorization and Terms of the Note. To meet all or a part of the cost of the Refunding, there is hereby appropriated the sum of $462,024.89, to be derived from the proceeds of the Note 'herein described. For the purpose of financing such appropriation, the Note of the Village shall be issued and sold in an aggregate principal amount of not to exceed $462,024.89. The Note shall be in substantially the form generally used by the Lender for similarly sized loans, modified to conform to this ordinance. The Note shall be dated as of the issuance, sale and delivery thereof. Pursuant to and an accordance with the Act, the Note shall mature within one year of the date of issuance thereof. The Note shall bear interest on the outstanding principal balance thereof at the rate of 6.85% per annum from its date, or from the date drawn upon, as the case may be, computed on the basis of a 360-day year consisting of twelve 30-day months. If for any reason the Note shall lose its tax-exempt status under Section 103 of the Internal Revenue Code of 1986, as amended, it shall bear interest at a rate equal to the Lender' s Index Rate Floating (subject to the statutory interest rate limit, the "Taxable Rate") . The Note shall bear interest on overdue principal, and to the extent lawful on overdue interest, at the Lender' s Index Rate Floating plus four percent (4%) (subject to the statutory interest rate limit, the "Overdue Rate") . The principal of and premium, if any, and interest on the Note shall be payable in lawful money of the United States of America in eleven (11) equal monthly installments of $7, 500 each (based upon an approximate amortization of principal over 60 months) , with a twelfth (12th). installment equal to the principal balance plus accrued interest. The Note shall mature on or before May 15, 1991. Monthly installments on the Note shall be payable by check or draft of the Village mailed to the registered owner of record of the Note appearing on the registration books maintained by the Village' s Treasurer, the registrar on behalf of the Village for such purpose, at the principal municipal office of such registrar. Principal and interest payments on the Note shall be paid by check or draft (or other agreeable method of payment) by t Village without the requirement of presentment, demand or notice, directly to the Lender. F i I -2 The Note shall be subject to prepayment prior to maturity at the option of the Village, without any required notice, in whole or in part at any time at a prepayment price equal to the principal amount to be so prepaid, plus accrued interest on the Note to the prepayment date, duly noted by the Lender on the Note. Section-3. Note and Security Agreement. The President shall be and is authorized to execute and deliver a Note purchase contract and a security agreement in the Lender' s standard form therefor, which shall effect a security interest in the facilities constituting the ' Project under the Uniform Commercial Code -- Secured Transactions, as and to the extent applicable (the "Security Agreement" ) , for and on behalf of the Village and, together with other appropriate officials of the Village, is hereby authorized and directed to do and perform, or cause to be done or performed for or on behalf of the Village, each and every thing necessary for the issuance of the Note, including the proper execution, delivery and performance of a Note purchase contract and the Security Agreement and appropriate certificates in connection with the Village' s tax covenants made and contained in Sections 13 and 14 hereof and related matters. The foregoing shall not abrogate or impair the application of Section 9-104(e) of the Illinois Uniform Commercial Code to the transactions hereby contemplated. Section 4. Execution and Delivery. The Note shall be executed in the name of the Village by the manual or authorized facsimile signature of its President, and the corporate seal of the Village, or a facsimile thereof, shall be thereon impressed, affixed or otherwise reproduced and attested _: by the manual or authorized facsimile signature of its Village Clerk. In case any officer whose signature, or a facsimile of whose signature, shall appear on the Note shall cease to hold such office before the issuance of such Note, such Note shall nevertheless be valid and sufficient for all purposes, the same as if the person whose signature, or a facsimile thereof, appears on such Note had not ceased to hold such office. Any Note may be signed, sealed or attested on behalf of the Village by any person who, on the date of such act, shall hold the proper office, notwithstanding that at the date of such Note such person may not hold such office. No recourse shall be had for the payment of any Note against the President or any member of the Board of Trustees or any officer or employee of the Village (past, present or future) who executes the Note, or on any other basis. Other than when the Lender is the registered owner of 100% of the outstanding Note, the Note shall bear thereon a certificate of authentication executed manually by the registrar; and in such cases the Note shall not be entitled to any right or benefit under this ordinance or shall be valid or obligatory of any purpose until such certificate of authentication shall have been duly executed by the registrar. -3- Section S. Transfer, Exchange and Registration. The Note shall be negotiable, subject to the provisions for registration of transfer contained herein. The Note shall be transferable only upon the registration books maintained by the registrar on behalf of the Village for that purpose at the principal office of the registrar, by the registered owner thereof in person or by such registered owner' s attorney duly authorized in writing, upon presentation thereof together with a written instrument of transfer satisfactory to the registrar and duly executed by the registered owner or such registered owner' s duly authorized attorney. Upon presentation to effect transfer— of any such Note, the registrar shall record the transfer on a register therefor. The holder of the Note shall report all participations therein to the registrar. For every such exchange or registration of transfer of the Note, the Village or the registrar may make a charge sufficient to reimburse it for any tax, fee or other governmental charge required to be paid with respect to such exchange or transfer, which sum or sums shall be paid by the person requesting such exchange or transfer as a condition precedent to the exercise of the privilege of making such exchange or transfer. No other charge shall be made for the privilege of making such transfer or exchange. The provisions of the Illinois Bond Replacement Act shall govern the replacement of a lost, destroyed or defaced Note. The Village and the registrar may deem and treat the person in whose name the Note shall be registered upon the registration books as the absolute owner of the Note, whether '< such Note shall be overdue or not, for the purpose of receiving payment of, or on account of, the principal of, premium, if any, or interest thereon and for all other purposes whatsoever, and all such payments so made to any such registered owner or upon ,. such registered owner' s order shall be valid and effectual to satisfy and discharge the liability upon such Note to the extent of the sum or sums so paid, and neither the Village nor the registrar shall be affected by any notice to the contrary. Section 6. Registrar. The Village covenants that it shall at all times retain a registrar with respect to the Note and shall cause to be maintained at the office of such registrar t a place where the Note may be presented for registration of transfer, that it shall require that the registrar maintain proper registration books and that it shall require the registrar to perform the other duties and obligations imposed upon it by this ordinance in a manner consistent with the standards, customs -sa and practices of the municipal securities business. Other than with respect to the Treasurer, the Village may enter into appropriate agreements with the registrar in connection with the foregoing. Any such registrar shall signify its acceptance of the duties and obligations imposed upon it by this ordinance'. The registrar by executing a certificate of authentication on the Note shall be deemed to have certified to the Village that it has -4- all requisite power to accept, and has accepted, such duties and obligations not only with respect to the Note so authenticated. The registrar is to be the agent of the Village for such purpose and shall not be liable in connection with the performance of its duties except for its own negligence or default. The registrar shall, however, be responsible for any representation in its certificate of authentication on the Note. The Village may remove the registrar at any time. In case at any time the registrar shall resign or shall be removed or shall become incapable of" acting, or shall be adjudged a bankrupt or insolvent, or if a receiver, liquidator or conservator of the bond registrar, or of its property, shall be appointed, or if any public officer shall take charge or control of the registrar or of its properties or affairs, the Village covenants and agrees that it will thereupon appoint a successor registrar. The Village shall mail or cause to be mailed notice ! of any such appointment made by it to the registered owner of the Note within twenty (20) days after such appointment. Other than in respect of the Treasurer, any registrar appointed under the provisions of this Section shall be a bank, trust company, national banking association or other qualified professional with respect to such matters, maintaining its principal office in the State of Illinois. A form of assignment for the Note is suggested as follows: ASSIGNMENT i For value received the undersigned sells, assigns and transfers unto [Name, Address and Social Security Number or FEIN of Assignee] the attached Note of the Village of Oak Brook, Illinois, issued # f under Ordinance No. , and hereby irrevocably constitutes and appoints attorney to ! transfer the Note on the books kept for registration thereof, with full power of substitution in the premises. Dated Signature Guarantee: y Section 7. Security Agreement. The Note shall be an obligation of the Village, described in Section 8-1-3 . 1 of the Illinois Municipal Code. The Note shall be secured by a security interest in the facilities constituting the Project, as effected by the Security Agreement. To the extent any equipment constituting the Project has a title, the Lender' s security interest therein shall be appropriately shown on the title and filed with the Secretary of State. The Security Agreement dated May 23, 1989, by and between the Village and the Lender shall -5- remain in full force and effect, applicable to the Note, or may be supplemented or replaced by a similar security agreement. Section S. Form of Note and the Security Agreement. The Note shall be issued as a fully registered instrument, and the Note and the Security Agreement shall be in substantially the form as generally used by the Lender, with appropriate insertions and modifications to comply with the provisions of this ordinance and with the blanks to be appropriately completed when the Notes and the Security Agreement are prepared for delivery. The Note shall state on its face that it is a "qualified tax-exempt obligation" under Section 265(b) (3 ) of the Code and that it is issued under and pursuant to and incorporates the terms and provisions of this ordinance. Section 9. Debt Service Fund. All moneys available, appropriated and set aside to pay the principal of and interest on the Note, and all other moneys to be used for the payment of the principal of and interest on the Note, unless paid immediately to the registered owner of the Note, shall be timely deposited in the "Debt Service Fund of 1989", established under the Prior Ordinance and which is hereby continued as a special fund of the Village and shall be administered as a bona fide debt service fund under the Internal Revenue Code of 1986, as amended. Section 10. Note Proceeds Fund. All of the proceeds of sale of the Note shall be deposited in the "Note Proceeds Fund of 1989", established under the Prior Ordinance and which is hereby directed to be continued as a special fund of the Village under this ordinance. Moneys in the Note Proceeds Fund shall be used for the purposes specified in Section 1 of this ordinance k . and for the payment of costs of issuance of the Note, but may hereafter be reappropriated and used for other lawful purposes. Before any such reappropriation of Note proceeds shall be made, r, there shall be filed with the Village Clerk an opinion of Evans & wr Froehlich or other nationally recognized bond counsel ("Bond Counsel") to the effect that such reappropriation will not adversely affect the tax-exempt status of the Note under Section 103 of the Internal Revenue Code of 1986, as amended. Section 11. Exception from Arbitrage Rebate. The Village does not reasonably expect to issue more than $5,000,000 of tax-exempt obligations in the year of the issuance of the Note within the meaning of the small issuer exception under Section 148(f) (4) (C) of the Internal Revenue Code of 1986, as amended. Section 12. Investment Regulations. No investment shall be made of any moneys in the Debt Service Fund of 1989 or the Note Proceeds Fund of 1989 except in accordance with the tax covenants set forth in Sections 13 and 14 of this ordinance. All income derived from such investments in respect of moneys or securities in any Fund shall be credited in each case to the Fund in which such moneys or securities are held. -6- Any moneys in any Fund that are subject to investment yield restrictions may be invested in United States Treasury Securities, State and Local Government Series, pursuant to the regulations of the United States Treasury Department, Bureau of Public Debt. The Village' s Treasurer and agents designated by such officer are hereby authorized to submit, on behalf of the Village, subscriptions for such United States Treasury Securities and- to request redemption of such United States Treasury Securities. Section 13. Tax Covenants. The Village shall not take, or omit to take, any action lawful and within its power to take, which action or omission would cause interest on the Note become subject to federal income taxes in addition to federal income taxes to which interest on such Note is subject on the date of original issuance thereof. -- The Village shall not permit any of the proceeds of the Note, or any facilities financed with such proceeds, to be used in any manner that would cause the Note to constitute a "private activity bond" within the meaning of Section 141 of the Internal Revenue Code of 1986, as amended. The Village shall not permit any of the proceeds of the Note or other moneys to be invested in any manner that would cause the Note to constitute an "arbitrage bond" within the meaning of Section 148 of the Internal Revenue Code of 1986, as amended. The Village shall comply with the provisions of Section 148(f) of the Internal Revenue Code of 1986, as amended, relating to the rebate of certain investment earnings at periodic intervals to the United States of America to the extent that there shall have been filed with the Village Clerk an opinion of Bond Counsel to the effect that such compliance is necessary to preserve the exclusion from gross income for federal income tax purposes of interest on the Note under Section 103 of the Internal Revenue Code of 1986, as amended. Section 14. Bank Qualified Note. Pursuant to Section 265(b) (3 ) of the Internal Revenue Code of 1986, as amended, the Village hereby designates the Note as a "qualified tax-exempt obligation" as defined in Section 265(b) (3) of the Internal Revenue Code of 1986, as amended. The Village represents that the reasonably anticipated amount of tax-exempt obligations that will be issued by the Village and all subordinate entities of the Village during the calendar year in which the Note are issued will not exceed $10,000,000 (and reasonably not to exceed $5,000,000) within the meaning of Section 265(b) (3) of the Internal Revenue Code of 1986, as amended. The Village covenants that it will not designate and issue more than $10,000,000 (and reasonably not to exceed $5,000,000) aggregate principal amount of tax-exempt obligations in such calendar year. For purposes of this Section 14, the term -7- "tax-exempt obligations" includes "qualified 501(c) (3) bonds" (as defined in the Section 145 of the Internal Revenue Code of 1986, as amended) but does not include other "private activity bonds" (as defined in Section 141 of the Internal Revenue Code of 1986, as amended) . Section 15. Ordinance to Constitute a Contract. The provisions of this ordinance shall constitute a contract between the Village and the registered owners of the Note. Any pledge made in this ordinance and the provisions, covenants and agreements herein set forth to be perf6rmed by or on behalf of the Village shall be for the equal benefit, protection and security of the registered owners of any part or all of the Note. The Note, and any participation therein, shall be of equal rank without preference, priority or distinction of any of the Note over any other thereof except as expressly provided in or pursuant to this ordinance. This ordinance shall constitute full authority for the issuance of the Note, and to the extent that the provisions of this ordinance conflict with the provisions of any other ordinance or resolution of the Village the provisions of this ordinance shall control. If any section, paragraph or provision of this ordinance shall be held to be invalid or unenforceable for any reason, the invalidity or unenforceability of such section, paragraph or provision shall not affect any of the remaining provisions of this ordinance. Section 16. Publication. This ordinance shall be immediately published in pamphlet form under Section 1-2-4 of the Illinois Municipal Code. Section 17. Effective Date. This ordinance shall become effective 10 days its passage, approval and publication as required by law. Adopted this 22nd day of May 1990, by roll call p vote as follows: Trustees Bartecki, Bushy, Maher, Payovich Ayes (names) Rush, Winters and President Cerne Nays (names) : None Other (Abstain, Absent, etc. ) (names) : None PASSED: May 22 1.990 (SEAL) Approve Attest: President Village Clerk -8- CERTIFICATE I, Linda K. Gonella, Village Clerk of the Village of Oak Brook, DuPage and Cook Counties, Illinois, hereby certify that the foregoing Ordinance No. S-692 "An Ordinance Authorizing the Issuance of a $462,024.89 Refunding Note of the Village of Oak Brook, DuPage and Cook Counties, Illinois, " is a true copy of an original ordinance which was duly adopted by the recorded affirmative votes of not less than four of the members of the Corporate Authorities of the Village of a meeting thereof which was duly noticed, -called held at 7:30 p.m. May 22 1990, as a regular meeting of the President and Board of Trustees at the Village Hall, at which a quorum was present and acting throughout, and that such copy has been compared by me with the original ordinance signed by the President of the Village on May 22, 1990, and recorded in the ordinance book of the Village i " and that it is a correct transcript thereof and of the whole of such ordinance, and that such ordinance has not been altered, amended, repealed or revoked, but is in full force and effect. t IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the Village of Oak Brook, Illinois, as of this 22nd day of May 1990. J Village Clerk (SEAL)