HomeMy WebLinkAboutResolution No. 4234, Sewer System Revenue Bonds.pdfCommission Memorandum
REPORT TO: Honorable Mayor and City Commission
FROM: Anna Rosenberry, Finance Director
Chris Kukulski, City Manager
SUBJECT: Resolution No. 4234 - RESOLUTION RELATING TO $1,973,000 SEWER
SYSTEM REVENUE BONDS CONSISTING OF $390,700 SUBORDINATE LIEN TAXABLE
SERIES 2010A BOND, $359,300 SERIES 2010B BOND, AND $1,223,000 SERIES 2010C
BOND; AUTHORIZING THE ISSUANCE AND FIXING THE TERMS AND CONDITIONS
THEREOF.
MEETING DATE: January 19, 2010
AGENDA ITEM TYPE: Consent
RECOMMENDATION: Adopt Resolution No. 4234.
BACKGROUND: On December 28, 2009 the City awarded the bid for construction of the
City's Water Reclamation Facility (WRF) – Administration and Lab Building. We awarded the
construction contract in the amount of $1,680,000 to Williams Brother Construction. Other
project costs are detailed below (debt service reserve, bond counsel, contingency.)
This element of the WRF project is to be financed by three bonds issued by the State’s Water
Pollution Control Revolving Fund (SRF) program. The program will issue the city:
· $390,700 in ARRA “loan forgiveness” (Series 2010A Bond),
· $359,300 in ARRA low-interest loan at 1.75% (Series 2010B Bond),
· And $1,223,000 in standard SRF loan at 3.75% (Series 2010C Bond).
City of Bozeman - Admin Building-Wastewater project Dec 28, 2009
Administrative/Finance Costs
Source:
ARRA
Forgiveness
$390,700 (A)
Source:
ARRA Loan
1.75%
$359,300 (B)
Source:
SRF Loan
3.75%
$1,250,000 (C)
Source:
Local Total:
Debt Service Reserve 21,810.00 87,225.00 - 109,035.00
Interim Interest - -
Bond Counsel & Related costs 1,980.00 1,821.00 6,199.00 - 10,000.00
ADMIN/FINANCE COSTS:1,980.00 23,631.00 93,424.00 - 119,035.00
Engineering/Arch. Design - - - - -
Construction Engr. Services - -
Construction 388,720.00 335,669.00 955,611.00 - 1,680,000.00
Contingency 173,965.00 - 173,965.00
ACTIVITY COSTS 388,720.00 335,669.00 1,129,576.00 - 1,853,965.00
TOTAL PROJECT COSTS 390,700.00 359,300.00 1,223,000.00 - 1,973,000.00
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Details of these three bonds:
o 20 year loans, drawn down for construction as needed. We will draw all of Series
2010A, and 2010B. We will draw as much of 2010C as necessary, depending on our
utilization of the project contingency.
o MUST Comply with ARRA requirements to receive Loan Forgiveness on Series
2010A and 1.75% interest rate on Series 2010B. If not, these loans will all be
payable at 3.75%. (Section 5.1.2, and 5.1.3)
o Series 2010A is a Taxable Bond, due to the requirements of the ARRA Loan
Forgiveness structuring. Series 2010B and 2010C are Tax-Exempt Status. (Section
10.6)
o Series 2010B 1.75% and Series 2010C 3.75% are fixed rates of interest. (Section
5.1.3, and 5.1.4)
o First payment due-date of July 1, 2010. (Section 5.1)
o Payments averaging $110,000 per year, combined for all Series.
o Required Debt Service Reserve: approx $109,035. (Article 9, page 32)
o Pledging of Net Revenues of the Wastewater Fund; no free services, and
commitment to charge a sufficient amount to system users (Section 8.1)
o Prepayment of the Bonds is allowed, if prior approval is granted by DNRC. (Section
5.3)
o Arbitrage Rebate Requirements will be an ongoing compliance issue, handled by the
Finance Department. (Section 10.4)
Bond Coverage: The bond requires that “Net Revenues of the Wastewater Fund be equal to a
minimum of 125% of the Required Annual Debt Service” amount ($109,035 x 125%), or
$136,294. Our projected net revenues for the coming year are $2.1 Million, significantly higher
than the minimum requirements of the bond.
Once this resolution is adopted, the bond will be executed and the loan closed by the Mayor, the
City Manager, and the Finance Director on February 10, 2010.
FISCAL EFFECTS: The effect of this bond resolution is to allow the City to borrow
$1,582,300 and receive $390,700 in additional “loan forgiveness/grant” for construction of the
Administration and Lab Building at the WRF. Actual funding is scheduled to occur on February
10, 2010. These loans will obligate the Wastewater Fund to make annual payments of
approximately $110,000 each year for the next 20 years. These payments will come from the
wastewater rates that customers pay each month.
Bond documents and Bond Counsel fees are estimated at $10,000, and will be paid from the
proceeds of the loan.
This borrowing is in accordance with the City's Wastewater Rate Study and the recently adopted
rate increases of 10.2% for FY10 and 10.2% for FY11.
ALTERNATIVES: As suggested by the City Commission.
Attachments: Resolution No. 4234
Draft Debt Service Schedule
Report compiled on: January 14, 2010
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DRAFT 01/13/10
CERTIFICATE AS TO RESOLUTION AND ADOPTING VOTE
I, the undersigned, being the duly qualified and acting recording officer of the City of
Bozeman, Montana (the “City”), hereby certify that the attached resolution is a true copy of
Resolution No. , entitled: “RESOLUTION RELATING TO $1,973,000 SEWER
SYSTEM REVENUE BONDS (DNRC WATER POLLUTION CONTROL STATE REVOLVING
LOAN PROGRAM), CONSISTING OF $390,700 SUBORDINATE LIEN TAXABLE SERIES
2010A BOND, $359,300 SERIES 2010B BOND, AND $1,223,000 SERIES 2010C BOND;
AUTHORIZING THE ISSUANCE AND FIXING THE TERMS AND CONDITIONS THEREOF”
(the “Resolution”), on file in the original records of the City in my legal custody; that the Resolution
was duly adopted by the City Commission of the City at its regular meeting on January 19, 2010, and
that the meeting was duly held by the City Commission and was attended throughout by a quorum,
pursuant to call and notice of such meeting given as required by law; and that the Resolution has not
as of the date hereof been amended or repealed.
I further certify that, upon vote being taken on the Resolution at said meeting, the following
Commissioners voted in favor thereof:
; voted against the same:
; abstained from voting thereon: ; or were absent:
.
WITNESS my hand officially this _____ day of January, 2010.
____________________________________ Clerk of the Commission
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SUPPLEMENTAL RESOLUTION12
Relating to
$1,973,000
SEWER SYSTEM REVENUE BONDS
(DNRC WATER POLLUTION CONTROL STATE REVOLVING LOAN PROGRAM)
CONSISTING OF $390,700 SUBORDINATE LIEN TAXABLE SERIES 2010A BOND, $359,300 SERIES 2010B BOND,
AND
$1,223,000 SERIES 2010C BOND
CITY OF BOZEMAN, MONTANA
Adopted: January 19, 2010
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i
TABLE OF CONTENTS
(For convenience only, not a part of this Supplemental Resolution)
Page
Recitals................................................................................................................................ 1
ARTICLE I
DEFINITIONS, RULES OF CONSTRUCTION AND APPENDICES
Section 1.1. Definitions........................................................................................... 2
Section 1.2. Other Rules of Construction................................................................ 8 Section 1.3. Appendices.......................................................................................... 8
ARTICLE II
AUTHORIZATION, FINDINGS, REPRESENTATIONS AND COVENANTS
Section 2.1. Authorization and Findings................................................................. 8
Section 2.2. Representations.................................................................................... 9 Section 2.3. Covenants............................................................................................ 12
Section 2.4. Covenants Relating to the Tax-Exempt
Status of the State Bonds..................................................................... 14
Section 2.5. Maintenance of System; Liens ............................................................ 15
Section 2.6. Maintenance of Existence; Merger Consolidation, Etc.; Disposition of Assets.......................................... 15
ARTICLE III
USE OF PROCEEDS; THE 2010 Project
Section 3.1. Use of Proceeds................................................................................... 16
Section 3.2. The 2010 Project.................................................................................. 17 Section 3.3. 2010 Project Representations and Covenants...................................... 18
Section 3.4. Completion or Cancellation or Reduction of
Costs of the 2010 Project..................................................................... 19
ARTICLE IV
THE LOAN
Section 4.1. The Loan; Disbursement of Loan........................................................ 19
Section 4.2. Commencement of Loan Term............................................................ 22
Section 4.3. Termination of Loan Term.................................................................. 22
Section 4.4. Loan Closing Submissions.................................................................. 22
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ARTICLE V
REPAYMENT OF 2010 LOANS
Section 5.1. Repayment of 2010 Loans................................................................... 22
Section 5.2. Additional Payments............................................................................ 27 Section 5.3. Prepayments......................................................................................... 27 Section 5.4. Obligations of Borrower Unconditional.............................................. 28
Section 5.5. Limited Liability.................................................................................. 28
Section 5.6. Reallocation of 2010 Loans................................................................. 28
ARTICLE VI
INDEMNIFICATION OF DNRC AND DEQ ................................................................... 29
ARTICLE VII
ASSIGNMENT
Section 7.1. Assignment by Borrower..................................................................... 29
Section 7.2. Assignment by DNRC......................................................................... 30 Section 7.3. State Refunding Bonds........................................................................ 30
ARTICLE VIII
THE SERIES 2010 BONDS
Section 8.1. Net Revenues Available...................................................................... 30
Section 8.2. Issuance and Sale of the Series 2010 Bonds........................................ 30 Section 8.3. Terms................................................................................................... 31
Section 8.4. Negotiability, Transfer and Registration ............................................. 31
Section 8.5. Execution and Delivery....................................................................... 31
Section 8.6. Form..................................................................................................... 32
Section 8.7 2010 Acquisition and Construction Account....................................... 32
ARTICLE IX
SECURITY FOR THE SERIES 2010 BONDS ................................................................. 32
ARTICLE X
TAX MATTERS
Section 10.1. Use of 2010 Project........................................................................... 33 Section 10.2. General Covenant.............................................................................. 33
Section 10.3. Arbitrage Certification ...................................................................... 33
Section 10.4. Arbitrage Rebate Exemption ............................................................ 33
Section 10.5. Information Reporting ...................................................................... 34
Section 10.6. “Qualified Tax-Exempt Obligations”............................................... 34
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ARTICLE XI
CONTINUING DISCLOSURE ......................................................................................... 34
ARTICLE XII
IMPLEMENTATION
Section 12.1. Clean Water Act................................................................................ 35 Section 12.2. Implementation of Original Resolution Section 6.7......................... 35
ARTICLE XIII
MISCELLANEOUS
Section 13.1. Notices.............................................................................................. 35 Section 13.2. Binding Effect................................................................................... 36
Section 13.3. Severability....................................................................................... 36
Section 13.4. Amendments..................................................................................... 36
Section 13.5. Applicable Law................................................................................. 36 Section 13.6. Captions; References to Sections...................................................... 36 Section 13.7. No Liability of Individual Officers, Directors or Trustees ............... 36
Section 13.8. Payments Due on Holidays............................................................... 36
Section 13.9. Right of Others To Perform Borrower’s Covenants......................... 37
Section 13.10. Authentication of Transcript............................................................. 37 Section 13.11. Effective Date................................................................................... 37
APPENDIX A – Description of the 2010 Project.................................................................. A-1
APPENDIX B-1 – Form of Series 2010A Bond ................................................................... B-1-1
APPENDIX B-2 – Form of Series 2010B Bond.................................................................... B-2-1
APPENDIX B-3 – Form of Series 2010C Bond.................................................................... B-3-1 APPENDIX C – Additional Representations and Covenants................................................ C-1
APPENDIX D – ARRA Certificate and Request.................................................................. D-1
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DRAFT 01/13/10
RESOLUTION NO. 4234
RESOLUTION RELATING TO $1,973,000 SEWER SYSTEM
REVENUE BONDS (DNRC WATER POLLUTION CONTROL STATE REVOLVING LOAN PROGRAM), CONSISTING OF
$390,700 SUBORDINATE LIEN TAXABLE SERIES 2010A
BOND, $359,300 SERIES 2010B BOND, AND $1,223,000
SERIES 2010C BOND; AUTHORIZING THE ISSUANCE AND
FIXING THE TERMS AND CONDITIONS THEREOF
WHEREAS, pursuant to the Water Pollution Control State Revolving Fund Act, Montana
Code Annotated, Title 75, Chapter 5, Part 11, as amended (the “State Act”), the State of Montana
(the “State”) has established a revolving loan program (the “Program”) to be administered by the
Department of Natural Resources and Conservation of the State of Montana, an agency of the
State (the “DNRC”), and by the Department of Environmental Quality of the State of Montana, an agency of the State (the “DEQ”), and has provided that a water pollution control state
revolving fund (the “Revolving Fund”) be created within the state treasury and all federal, state
and other funds for use in the Program be deposited into the Revolving Fund, including, but not
limited to, all federal grants for capitalization of a state water pollution control revolving fund
under the Federal Water Pollution Control Act (the “Clean Water Act”), all repayments of assistance awarded from the Revolving Fund, interest on investments made on money in the
Revolving Fund and payments of principal of and interest on loans made from the Revolving
Fund; and
WHEREAS, the State Act provides that funds from the Program shall be disbursed and
administered for the purposes set forth in the Clean Water Act and according to rules adopted by the DEQ and the DNRC; and
WHEREAS, one-time funding has been made available to the Program under the
American Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5 (2009) (“ARRA”), a
portion of which funding may be disbursed to eligible borrowers for eligible projects, upon
satisfaction of certain terms and conditions specified in ARRA, Program documents, and herein; and
WHEREAS, the City of Bozeman, Gallatin County, Montana (the “Borrower”) has
applied to the DNRC for the 2010 Loans (as hereinafter defined) from the Revolving Fund to
enable the Borrower to finance, refinance or reimburse itself for the costs of the 2010 Project (as
hereinafter defined) which will carry out the purposes of the Clean Water Act and be implemented in accordance with ARRA; and
WHEREAS, the Borrower is authorized under applicable laws, ordinances and
regulations to adopt this Supplemental Resolution and to issue the Series 2010 Bonds (as
hereinafter defined) to evidence the 2010 Loans (as hereinafter defined) for the purposes set forth
herein; and
WHEREAS, the DNRC will fund the 2010A Loan (as hereinafter defined) and the 2010B
Loan (as hereinafter defined) with funds provided by the United States Environmental Protection
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Agency under ARRA, and will fund the 2010C Loan [in part, directly or indirectly, with
proceeds of State Bonds (as hereinafter defined) and in part, directly or indirectly with funds
provided by the United States Environmental Protection Agency].
2
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA, AS FOLLOWS:
ARTICLE I
DEFINITIONS, RULES OF CONSTRUCTION AND APPENDICES
Section 1.1 Definitions. Unless a different meaning clearly appears from the context, terms used with initial capital letters but undefined in this Supplemental Resolution shall have the meanings given them in the Resolution, the Indenture, or as follows:
“Accountant” or “Accountants” means an independent certified public accountant or a
firm of independent certified public accountants satisfactory to the DNRC.
“Acquisition and Construction Account” means the account created in the Sewer System Fund pursuant to Section 11.2 of the Original Resolution.
“Act” means Montana Code Annotated, Title 7, Chapter 7, Parts 44 and 45, as heretofore
and hereafter amended or supplemented.
“Additional Bonds” means any Bonds issued pursuant to Article X of the Original
Resolution excluding Section 10.4 thereof.
“Administrative Expense Surcharge” means, (i) in respect of the 2010C Loan, in any
event, and (ii) in respect of the 2010A Loan and the 2010B Loan, upon the delivery of an ARRA
Noncompliance Statement as provided by this Supplemental Resolution, a surcharge equal to
seventy-five hundredths of one percent (0.75%) per annum on the outstanding principal amount
of the 2010 Loans from the date of each advance thereof, payable by the Borrower on a Payment Date.
“ARRA” means the American Recovery and Reinvestment Act of 2009, Pub. L. No. 111-
5 (2009), and all regulations, rules, and interpretations issued by the EPA thereunder.
“ARRA Bonds” means, collectively, the Series 2010A Bond and the Series 2010B Bond.
“ARRA Certificate and Request” means the certificate and request substantially in the form of the attached Appendix D delivered by the DNRC to the Borrower following the final
advance of principal of the 2010B Loan, to be completed, executed and delivered by the
Borrower to the DNRC pursuant to Section 5.1.2 of this Supplemental Resolution.
“ARRA Forgiveness Statement” means a written statement delivered to the Borrower by
the DNRC that the Borrower’s obligation to repay the principal of the Series 2010A Bond is forgiven.
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3
“ARRA Noncompliance Statement” means a written statement delivered to the Borrower
by the DNRC that the Borrower’s obligation to repay the principal of the Series 2010A Bond is
not forgiven.
“ARRA Statement” means an ARRA Forgiveness Statement or an ARRA Noncompliance Statement.
“Authorized DNRC Officer” means the Director of the DNRC or his or her designee.
“Bond Counsel” means any Counsel nationally recognized as experienced in matters
relating to the issuance by states or political subdivisions of tax-exempt obligations selected by
the Borrower and acceptable to the DNRC.
“Bonds” means the Series 2010B Bond, the Series 2010C Bond, and any Additional
Bonds; “Bonds” does not include the Series 2010A Bond.
“Borrower” means the City.
“Business Day” means any day which is not a Saturday or Sunday, a legal holiday in the
State or a day on which banks in Montana are authorized or required by law to close.
“City” means the City of Bozeman, Montana and its permitted successors or assigns
hereunder.
“Closing” means the date of delivery of the Series 2010 Bonds to the DNRC.
“Code” means the Internal Revenue Code of 1986, as amended.
“Collateral Documents” means any security agreement, guaranty or other document or agreement delivered to the DNRC securing the obligations of the Borrower under this
Supplemental Resolution and the Series 2010 Bonds. If no Collateral Documents secure such
obligations, any reference to Collateral Documents in this Supplemental Resolution shall be
without effect.
“Commission” means the City Commission of the City of Bozeman, Montana.
“Committed Amount” means the amount of the 2010 Loans committed to be lent by the
DNRC to the Borrower pursuant to Section 4.1 of this Supplemental Resolution, as such amount
may be reduced pursuant to Sections 3.2 and 3.4 of this Supplemental Resolution.
“Construction Contract” means the binding contract for construction of the 2010 Project
entered into between the Borrower and the construction contractor in compliance with all laws of the State, including those regarding the construction of public projects.
“Consultant” means a nationally recognized consultant or firm of consultants, or an
independent engineer or firm of independent engineers, or an Accountant, which in any case is
qualified and has skill and experience in the preparation of financial feasibility studies or
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projections for facilities similar to the System or the 2010 Project, selected by the Borrower and
satisfactory to the DNRC.
4
“Counsel” means an attorney duly admitted to practice law before the highest court of
any state and satisfactory to the DNRC.
“Debt” means, without duplication, (1) indebtedness of the Borrower for borrowed
money or for the deferred purchase price of property or services; (2) the obligation of the
Borrower as lessee under leases which should be recorded as capital leases under generally
accepted accounting principles; and (3) obligations of the Borrower under direct or indirect
guarantees in respect of, and obligations (contingent or otherwise) to purchase or otherwise acquire, or otherwise to assure a creditor against loss in respect of, indebtedness or obligations of
others of the kinds referred to in clause (1) or (2) above.
“DEQ” means the Department of Environmental Quality of the State of Montana, an
agency of the State, or any successor to its powers, duties and obligations under the State Act or
the EPA Agreements.
“DNRC” means the Department of Natural Resources and Conservation of the State of
Montana, an agency of the State, and any successor to its powers, duties and obligations under
the State Act.
“EPA” means the Environmental Protection Agency, an agency of the United States of
America, and any successor to its functions under the Clean Water Act.
“EPA Agreements” means all capitalization grant agreements and other written
agreements between the DEQ, DNRC and the EPA concerning the Program.
“EPA Capitalization Grant” means a grant of funds to the State by the EPA under Title
VI of the Clean Water Act and any grant made available by the EPA for deposit in the Revolving
Fund pursuant to Section 205(m) of the Clean Water Act or pursuant to ARRA.
“Estimated Completion Date” means ______________, 2011, the date by which it is
estimated by the Borrower that the 2010 Project will be substantially completed.
“Fund” means the Sewer System Fund established pursuant to Section 11.1 of the
Original Resolution.
“Green Infrastructure” means the portion of the 2010 Project that addresses green infrastructure, water or energy efficiency improvements, or other environmentally innovative
activities, as described more particularly in ARRA and EPA policies or guidelines.
“Governmental Unit” means governmental unit as such term is used in Section 145(a) of
the Code.
“Indenture” means the Indenture of Trust, dated as of June 1, 1991, between the Board of Examiners of the State and the Trustee, as such may be supplemented or amended from time to
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time in accordance with the provisions thereof, pursuant to which, among other things, the State
Bonds are to be or have been issued.
5
“Loan Loss Reserve Surcharge” means, (i) in respect of the 2010C Loan, in any event,
and (ii) in respect of the 2010A Loan and the 2010B Loan, upon the delivery of an ARRA Noncompliance Statement as provided by this Supplemental Resolution, a surcharge equal to one percent (1.00%) per annum on the outstanding principal amount of the 2010 Loans from the date
of each advance thereof, payable by the Borrower on a Payment Date.
“Loan Repayments” means periodic installments of principal and interest by Borrower in
repayment of the Series 2010B Bond and Series 2010C Bond, and if the DNRC delivers an ARRA Noncompliance Statement, of the Series 2010A Bond, at the rates and times specified in Article V.
“Operating Account” means the account created in the Sewer System Fund pursuant to
Section 11.3 of the Original Resolution.
“Original Resolution” means Resolution No. 4220 of the City adopted on November 16, 2009.
“Payment Date” means, with respect the Series 2010 Bonds, each January 1 and July 1
during the term of the Series 2010 Bonds on which a payment of interest or principal and interest
is due, as determined under the Resolution.
“Program” means the Water Pollution Control State Revolving Fund Program established by the State Act.
“Project” means an improvement, betterment, reconstruction or extension of the System,
including the 2010 Project.
“Public Entity” means a State agency, city, town, municipality, irrigation district, county
water and sewer district, a soil conservation district or other public body established by State law or an Indian tribe that has a federally recognized governing body carrying out substantial
governmental duties and powers over any area.
“Regulations” means the Treasury Department, Income Tax Regulations, as amended or
any successor regulation thereto, promulgated under the Code or otherwise applicable to the
Series 2010 Bonds.
“Replacement and Depreciation Account” means the Account created in the Sewer
System Fund pursuant to Section 11.6 of the Original Resolution.
“Reserve Account” means the account created in the Sewer System Fund pursuant to
Section 11.5 of the Original Resolution.
“Reserve Requirement” means, as of the date of calculation, an amount equal to the maximum principal of and interest payable on outstanding Bonds in the current or any future
fiscal year (giving effect to mandatory sinking fund redemption, if any).
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“Resolution” means the Original Resolution, as supplemented by this Supplemental
Resolution and other supplemental resolutions.
“Revenue Bond Account” means the account created in the Sewer System Fund pursuant
to Section 11.4 of the Original Resolution.
“Series 2010 Bonds” means, collectively, the Series 2010A Bond, the Series 2010B
Bond, and the Series 2010C Bond.
“Series 2010A Bond” means the $390,700 Subordinate Lien Sewer System Revenue
Bond (DNRC Water Pollution Control State Revolving Loan Program), Taxable Series 2010A,
issued to the DNRC to evidence the 2010A Loan.
“Series 2010B Bond” means the $359,300 Sewer System Revenue Bond (DNRC Water
Pollution Control State Revolving Loan Program), Series 2010B, issued to the DNRC to
evidence the 2010B Loan.
“Series 2010C Bond” means the $1,223,000 Sewer System Revenue Bond (DNRC Water
Pollution Control State Revolving Loan Program), Series 2010C, issued to the DNRC to evidence the 2010C Loan.
“Sewer System Fund” means the fund created by Section 11.1 of the Original Resolution.
“State” means the State of Montana.
“State Bonds” means the State’s General Obligation Bonds (Water Pollution Control
State Revolving Fund Program), issued or to be issued pursuant to the Indenture.
“State Act” means Montana Code Annotated, Title 75, Chapter 5, Part 11, as amended
from time to time.
“Subordinate Obligations” means the Series 2010A Bond and any other subordinate
obligations issued under Section 10.4 of the Original Resolution
“Supplemental Resolution” means this Resolution No. _______ of the Borrower adopted on January 19, 2010.
“Surplus Account” means the account created in the Sewer System Fund pursuant to
Section 11.7 of the Original Resolution.
“Surplus Net Revenues” shall mean that portion of the Net Revenues in excess of the
current requirements of the Operating Account, the Revenue Bond Account and the Reserve Account.
“System” means the existing sewer system of the Borrower and all extensions,
improvements and betterments thereof hereafter constructed and acquired, including, without
limitation, the 2010 Project.
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“Trustee” means U.S. Bank National Association, in Seattle, Washington, or any
successor trustee under the Indenture.
“2010A Committed Amount” means the amount of the 2010A Loan committed to be lent
by the DNRC to the Borrower pursuant to Section 4.1 of this Supplemental Resolution, as such amount may be reduced pursuant to Section 3.2 and Section 3.4 of this Supplemental Resolution.
“2010B Committed Amount” means the amount of the 2010B Loan committed to be lent
by the DNRC to the Borrower pursuant to Section 4.1 of this Supplemental Resolution, as such
amount may be reduced pursuant to Section 3.2 and Section 3.4 of this Supplemental Resolution.
“2010C Committed Amount” means the amount of the 2010C Loan committed to be lent by the DNRC to the Borrower pursuant to Section 4.1 of this Supplemental Resolution, as such amount may be reduced pursuant to Section 3.2 and Section 3.4 of this Supplemental Resolution.
“2010B First Advance” means the first advance of funds of the 2010 Loans from the
proceeds of the 2010B Loan by the DNRC to the Borrower in an amount of at least $50,001.
“2010C First Advance” means the first advance of funds of the 2010C Loan by the DNRC to the Borrower.
“2010 Loans” or “Loan” means, collectively, the 2010A Loan, 2010B Loan, and the
2010C Loan made to the Borrower by the DNRC pursuant to the Program in the maximum
amount of the Committed Amount to provide funds to pay all or a portion of the costs of the
2010 Project, to fund a deposit to the Reserve Account and to pay costs of issuance of the Series 2010 Bonds.
“2010A Loan” means the loan made to the Borrower by the DNRC pursuant to the
Program in the maximum amount of the 2010A Committed Amount to provide funds to pay a
portion of the costs of the 2010 Project payable under the Program.
“2010B Loan” means the loan made to the Borrower by the DNRC pursuant to the Program in the maximum amount of the 2010B Committed Amount to provide funds to pay a
portion of the costs of the 2010 Project payable under the Program, to fund deposits to the
Reserve Account, and to pay costs of issuance of the Series 2010 Bonds.
“2010C Loan” means the loan made to the Borrower by the DNRC pursuant to the
Program in the maximum amount of the 2010C Committed Amount to provide funds to pay a portion of the costs of the 2010 Project payable under the Program, to fund deposits to the
Reserve Account, and to pay costs of issuance of the Series 2010 Bonds.
“2010 Project” means the designing and engineering of the facilities, improvements and
activities financed, refinanced or the cost of which is being reimbursed to the Borrower with
proceeds of the 2010 Loans, described in Appendix A hereto.
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“Undisbursed Committed Amount” means any undisbursed Committed Amount which is
not required to pay costs of the 2010 Project upon completion thereof as provided in Section 3.4
of this Supplemental Resolution.
Section 1.2 Other Rules of Construction. For all purposes of this Supplemental Resolution, except where the context clearly indicates otherwise:
(a) All accounting terms not otherwise defined herein have the meanings assigned to
them in accordance with generally accepted government accounting standards.
(b) Terms in the singular include the plural and vice versa.
(c) All references to time shall refer to Helena, Montana time, unless otherwise provided herein.
(d) All references to mail shall refer to first-class mail postage prepaid.
(e) Words of the masculine gender shall be deemed and construed to include correlative
words of the feminine and neuter genders.
(f) “Or” is not exclusive, but is intended to permit or encompass one, more or all of the alternatives conjoined.
Section 1.3 Appendices. Attached to this Supplemental Resolution and hereby made a
part hereof are the following Appendices:
Appendix A: a description of the 2010 Project;
Appendix B-1: the form of the Series 2010A Bond;
Appendix B-2: the form of the Series 2010B Bond;
Appendix B-3: the form of the Series 2010C Bond;
Appendix C: additional agreements and representations of the Borrower; and
Appendix D: ARRA Certificate and Request.
ARTICLE II
AUTHORIZATION, FINDINGS, REPRESENTATIONS AND COVENANTS
Section 2.1 Authorization and Findings.
(a) Authorization. Under the provisions of the Act, the Borrower is authorized to issue
and sell its revenue bonds payable during a term not exceeding forty years from their date of issue, to provide funds for the reconstruction, improvement, betterment and extension of the
System or to refund its revenue bonds issued for such purpose; provided that the bonds and the
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interest thereon are to be payable solely out of the net income and revenues to be derived from
rates, fees and charges for the services, facilities and commodities furnished by the undertaking,
and are not to create any obligation for the payment of which taxes may be levied except to pay
for services provided by the undertaking to the Borrower.
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(b) The System. The Borrower, pursuant to the Act and other laws of the State has
established and presently owns and operates the System.
(c) The 2010 Project. After investigation of the facts and as authorized by the Act, this
Commission has determined it to be necessary and desirable and in the best interests of the
Borrower to acquire and construct the 2010 Project.
(d) Outstanding Bonds. There are currently no outstanding bonds or indebtedness of the
Borrower that are payable from or secured by revenues of the System in that no Bonds or other
indebtedness have been issued under the Resolution.
(e) Series 2010 Bonds. Based on a certificate executed or to be executed by the Mayor,
the Director of Finance, and the Clerk of the Commission, or any of them, it is hereby determined that the Borrower is authorized to issue the Series 2010A Bond in the maximum
principal amount of $390,700, the Series 2010B Bond in the maximum principal amount of
$359,300 and the Series 2010C Bond in the maximum principal amount of $1,223,000 pursuant
to Section 10.3 of the Original Resolution, with the Series 2010B Bond and the Series 2010C
Bond payable from and secured by the Net Revenues. For purposes of the foregoing certificate, principal of and interest on the 2010A Loan are disregarded and interest on the Series 2010B
Bonds is assumed to be 1.75%. The Borrower acknowledges and agrees that if it fails to deliver
timely an acceptable ARRA Certificate and Request as provided in Section 5.1 of this
Supplemental Resolution as determined in the sole and complete discretion of the DNRC, or the
2010 Project or work thereon is otherwise determined not to comply with ARRA, then principal and interest and surcharges will become due and owing on the Series 2010A Bond and the Series
2010B Bond as provided in Section 5.1 of this Supplemental Resolution, and the Borrower shall
thereupon, and in any event no later than three (3) months after delivery of an ARRA
Noncompliance Statement, to the extent required by Section 6.7 of the Original Resolution,
implemented as provided in Section 12.2 hereof, adjust its schedule of fees, rates, and charges applicable to the System to cause Net Revenues and Surplus Net Revenues to be produced in an
amount at least equal to that required by the Resolution.
(f) The total cost of the 2010 Project and costs of issuance and funding the reserve is
estimated to be $1,973,000, which will be paid from proceeds of the Series 2010 Bonds.
Section 2.2 Representations. The Borrower represents as follows:
(a) Organization and Authority. The Borrower:
(1) is duly organized and validly existing as a municipal corporation of the State;
(2) has all requisite power and authority and all necessary licenses and permits
required as of the date hereof to own and operate the System and to carry on its current
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activities with respect to the System, to adopt this Supplemental Resolution and to enter
into the Collateral Documents and to issue the Series 2010 Bonds and to carry out and
consummate all transactions contemplated by the Supplemental Resolution, the Series
2010 Bonds and the Collateral Documents;
(3) is a Governmental Unit and a Public Entity; and
(4) has taken all proper action to authorize the execution, delivery and
performance of its obligations under this Supplemental Resolution, the Series 2010
Bonds and the Collateral Documents and the incurrence of the Debt evidenced by the
Series 2010 Bonds in the maximum amount of the Committed Amount.
(b) Litigation. There is no litigation or proceeding pending, or to the knowledge of the
Borrower threatened, against or affecting the Borrower in any court or before or by any
governmental authority or arbitration board or tribunal that, if adversely determined, would
materially and adversely affect the existence, corporate or otherwise, of the Borrower, or the
ability of the Borrower to make all payments and otherwise perform its obligations under the Resolution, the Series 2010 Bonds and the Collateral Documents, or the financial condition of
the Borrower, or the transactions contemplated by the Resolution, the Series 2010 Bonds and the
Collateral Documents or the validity and enforceability of the Resolution, the Series 2010 Bonds
and the Collateral Documents. No referendum petition has been filed with respect to any
resolution or other action of the Borrower relating to the 2010 Project, the Series 2010 Bonds or any Collateral Documents and the period for filing any such petition will have expired before
issuance of the Series 2010 Bonds.
(c) Borrowing Legal and Authorized. The adoption of this Supplemental Resolution, the
execution and delivery of the Series 2010 Bonds and the Collateral Documents and the
consummation of the transactions provided for in this Supplemental Resolution, the Series 2010 Bonds and the Collateral Documents and compliance by the Borrower with the provisions of the
Resolution, the Series 2010 Bonds and the Collateral Documents:
(1) are within the powers of the Borrower and have been duly authorized by all
necessary action on the part of the Borrower; and
(2) do not and will not result in any breach of any of the terms, conditions or provisions of, or constitute a default under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the Borrower pursuant to any
ordinance, resolution, indenture, loan agreement or other agreement or instrument (other
than the Resolution and any Collateral Documents) to which the Borrower is a party or
by which the Borrower or its property may be bound, nor will such action result in any violation of the provisions of any laws, ordinances, governmental rules or regulations or
court or other governmental orders to which the Borrower, its properties or operations are
subject.
(d) No Defaults. No event has occurred and no condition exists that, upon execution and
delivery of the Series 2010 Bonds and the Collateral Documents, would constitute a default under the Resolution or the Collateral Documents. The Borrower is not in violation of any term
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of any agreement, bond resolution, trust indenture, charter or other instrument to which it is a
party or by which it or its property may be bound which violation would materially and
adversely affect the transactions contemplated hereby or the compliance by the Borrower with
the terms hereof or of the Series 2010 Bonds and the Collateral Documents.
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(e) Governmental Consent. The Borrower has obtained or made all permits, findings and
approvals required to the date of adoption of this Supplemental Resolution by any governmental
body or officer for the making and performance by the Borrower of its obligations under this
Supplemental Resolution, the Series 2010 Bonds and the Collateral Documents (including any
necessary water rate increase) or for the 2010 Project, the financing or refinancing thereof or the reimbursement of the Borrower for the costs thereof. No consent, approval or authorization of,
or filing, registration or qualification with, any governmental authority (other than those, if any,
already obtained) is required on the part of the Borrower as a condition to adopting this
Supplemental Resolution, issuing the Series 2010 Bonds or entering into the Collateral
Documents and the performance of the Borrower’s obligations hereunder and thereunder. If a utility board or commission manages or controls the System, such board or commission has
agreed with the DNRC to abide by the terms of the Resolution and the Collateral Documents,
including approving any necessary sewer rate increases.
(f) Binding Obligation. The Resolution, the Series 2010 Bonds and any Collateral
Document to which the Borrower is a party are the valid and binding special, limited obligations and agreements of the Borrower, enforceable against the Borrower in accordance with their
terms, except to the extent that the enforceability thereof may be limited by laws relating to
bankruptcy, moratorium, reorganization, insolvency or similar laws affecting creditors’ rights
and general principles of equity.
(g) The 2010 Project. The 2010 Project consists and will consist of the facilities, improvements and activities described in Appendix A, as such Appendix A may be amended
from time to time in accordance with the provision of Article III of this Supplemental
Resolution.
(h) Full Disclosure. There is no fact that the Borrower has not specifically disclosed in
writing to the DNRC that materially and adversely affects or (so far as the Borrower can now foresee), except for pending or proposed legislation or regulations that are a matter of general
public information, that will materially and adversely affect the properties, operations and
finances of the System, the Borrower’s status as a Public Entity and Governmental Unit, its
ability to own and operate the System in the manner it is currently operated or the Borrower’s
ability to perform its obligations under the Resolution, the Series 2010 Bonds and the Collateral Documents and to pledge any revenues or other property pledged to the payment of the Series
2010 Bonds.
(i) Compliance With Law. The Borrower:
(1) is in compliance with all laws, ordinances, governmental rules and regulations
and court or other governmental orders, judgments and decrees to which it is subject and which are material to the properties, operations and finances of the System or its status as
a Public Entity and Governmental Unit; and
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(2) has obtained all licenses, permits, franchises or other governmental
authorizations necessary to the ownership of the System and the operation thereof and
agrees to obtain all such licenses, permits, franchises or other governmental
authorizations as may be required in the future for the System and the operation thereof, which failure to obtain might materially and adversely affect the ability of the Borrower
to conduct the operation of the System as presently conducted or the condition (financial
or otherwise) of the System or the Borrower’s ability to perform its obligations under the
Resolution, the Series 2010 Bonds and the Collateral Documents.
Section 2.3 Covenants.
(a) Insurance. In addition to the requirements of Section 2.2 of the Original Resolution,
the Borrower at all times shall keep and maintain with respect to the System property and
casualty insurance and liability insurance with financially sound and reputable insurers, or self-
insurance as authorized by State law, against such risks and in such amounts, and with such
deductible provisions, as are customary in the State in the case of entities of the same size and type as the Borrower and similarly situated and shall carry and maintain, or cause to be carried
and maintained, and pay or cause to be paid timely the premiums for all such insurance. All such
insurance policies shall name the DNRC as an additional insured to the extent permitted under
the policy or program of insurance of the Borrower. Each policy must provide that it cannot be
cancelled by the insurer without giving the Borrower and the DNRC 30 days’ prior written notice. The Borrower shall give the DNRC prompt notice of each insurance policy it obtains or
maintains to comply with this Section 2.3(a) and of each renewal, replacement, change in
coverage or deductible under or amount of or cancellation of each such insurance policy and the
amount and coverage and deductibles and carrier of each new or replacement policy. Such
notice shall specifically note any adverse change as being an adverse change. The Borrower shall deliver to the DNRC at Closing a certificate providing the information required by this
Section 2.3(a).
(b) Right of Inspection and Notice of Change of Location. The DNRC, the DEQ and the
EPA and their designated agents shall have the right at all reasonable times during normal
business hours and upon reasonable notice to enter into and upon the property of the Borrower for the purpose of inspecting the System or any or all books and records of the Borrower relating
to the System.
(c) Further Assurance. The Borrower shall execute and deliver to the DNRC all such
documents and instruments and do all such other acts and things as may be necessary or required
by the DNRC to enable the DNRC to exercise and enforce its rights under the Resolution, the Series 2010 Bonds and the Collateral Documents and to realize thereon, and record and file and
re-record and refile all such documents and instruments, at such time or times, in such manner
and at such place or places, all as may be necessary or required by the DNRC to validate,
preserve and protect the position of the DNRC under the Resolution, the Series 2010 Bonds and
the Collateral Documents.
(d) Maintenance of Security, if Any; Recordation of Interest.
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(1) The Borrower shall, at its expense, take all necessary action to maintain and
preserve the lien and security interest of the Resolution and the Collateral Documents so
long as any amount is owing under the Resolution or the Series 2010 Bonds;
(2) The Borrower shall forthwith, after the execution and delivery of the Series 2010 Bonds and thereafter from time to time, cause the Resolution and any Collateral Documents granting a security interest in revenues or real or personal property and any
financing statements or other notices or documents relating thereto to be filed, registered
and recorded in such manner and in such places as may be required by law in order to
perfect and protect fully the lien and security interest hereof and thereof and the security interest in them granted by the Resolution and, from time to time, shall perform or cause to be performed any other act required by law, including executing or causing to be
executed any and all required continuation statements and shall execute or cause to be
executed any further instruments that may be requested by the DNRC for such perfection
and protection; and
(3) Except to the extent it is exempt therefrom, the Borrower shall pay or cause to
be paid all filing, registration and recording fees incident to such filing, registration and
recording, and all expenses incident to the preparation, execution and acknowledgment of
the documents described in subparagraph (2), and all federal or state fees and other
similar fees, duties, imposts, assessments and charges arising out of or in connection with the execution and delivery of the Series 2010 Bonds and the Collateral Documents and
the documents described in subparagraph (2).
(e) Additional Agreements. The Borrower covenants to comply with all representations,
covenants, conditions and agreements, if any, set forth in Appendix C hereto.
(f) Financial Information. This Section 2.3(f) supplements, and is not intended to limit, the requirements in Section 2.2(f) of the Original Resolution. The Borrower agrees that for each
fiscal year it shall furnish to the DNRC and the DEQ, promptly when available, in addition to
those matters specified in Section 2.2(f) of the Original Resolution:
(1) the preliminary budget for the System, with items for the 2010 Project shown
separately; and
(2) when adopted, the final budget for the System, with items for the 2010 Project
shown separately.
(g) 2010 Project Accounts. The Borrower shall maintain 2010 Project accounts in
accordance with generally accepted government accounting standards, and as separate accounts,
as required by Section 602(b)(9) of the Clean Water Act.
(h) Records. After reasonable notice from the EPA or the DNRC, the Borrower shall
make available to the EPA or the DNRC such records as the EPA or the DNRC reasonably
requires to review and determine compliance with the Clean Water Act, as provided in
Section 606(e) of the Clean Water Act.
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(i) Compliance with Clean Water Act and ARRA. The Borrower has complied and
shall comply with all conditions and requirements of the Clean Water Act pertaining to the 2010
Loans and the 2010 Project. The Borrower understands and agrees that the 2010A Loan and the
2010B Loan are being made with funds made available to the DNRC under ARRA. The Borrower has complied and shall comply with all requirements of ARRA applicable to the 2010
Loans.
(j) Program Covenant. The Borrower agrees that neither it nor any “related person”
to the Borrower (within the meaning of Section 147(a)(2) of the Code) shall, whether pursuant to
a formal or informal arrangement, acquire bonds issued by the State under the Indenture in an amount related to the amount of the Series 2010 Bonds.
Section 2.4 Covenants Relating to the Tax-Exempt Status of the State Bonds.
(a) The Borrower covenants and agrees that it will not use or permit to be used any of the
proceeds of the Series 2010 Bonds or any other funds of the Borrower in respect of the 2010
Project or the Series 2010 Bonds, directly or indirectly, in a manner that would cause, or take any other action that would cause, any State Bond to be an “arbitrage bond” within the meaning of
Section 148 of the Code or would otherwise cause the interest on the State Bonds to be included
in gross income for purposes of federal income taxation.
(b) The Borrower agrees that it will not enter into, or allow any “related person” (as
defined in Section 147(a)(2) of the Code) to enter into, any arrangement, formal or informal, for the purchase of the State Bonds or any other obligations of the DNRC in an amount related to the
amount of the Loan or the portion of the Loan derived directly or indirectly from proceeds of the
State Bonds or that would otherwise cause any State Bond to be an “arbitrage bond” within the
meaning of Section 148 of the Code.
(c) The Borrower shall not use or permit the use of the 2010 Project directly or indirectly in any trade or business carried on by any Person who is not a Governmental Unit. For the
purpose of this subparagraph, use as a member of the general public (within the meaning of the
Regulations) shall not be taken into account and any activity carried on by a Person other than a
natural person shall be treated as a trade or business.
(d) Any portion of the 2010 Project being refinanced or the cost of which is being reimbursed was acquired by and is now and shall, during the term of the Loan, be owned by the
Borrower and not by any other Person. Any portion of the 2010 Project being financed shall be
acquired by and shall, during the term of the Loan, be owned by the Borrower and not by any
other Person. Notwithstanding the previous two sentences, the Borrower may transfer the 2010
Project or a portion thereof to another Governmental Unit which is also a Public Entity if such transfer is otherwise permitted under the Resolution and if such organization agrees with the
DNRC to comply with Section 2.3(h), Section 2.3(i) and Section 2.4 of this Supplemental
Resolution and if the DNRC receives an Opinion of Bond Counsel that such transfer will not
violate the State Act or the Clean Water Act or adversely affect the exclusion of interest on the
State Bonds from gross income or purposes of federal income taxation. In addition, except as otherwise provided in the Resolution or in any Collateral Documents, the Borrower may sell or
otherwise dispose of any portion of the 2010 Project which has become obsolete or outmoded or
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is being replaced or for other reasons is not needed by the Borrower or beneficial to the general
public or necessary to carry out the purposes of the Clean Water Act.
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(e) At the Closing of the 2010 Loans, the DNRC will, if necessary to obtain the Opinion
of Bond Counsel described in Section 7.05(a) of the Indenture, deliver to the Borrower instructions concerning compliance by the Borrower with the arbitrage rebate requirements of Section 148 of the Code (the “Arbitrage Rebate Instructions”). The Borrower shall comply with
the Arbitrage Rebate Instructions, if any, delivered to it by the DNRC at Closing, as such
Instructions may be amended or replaced by the DNRC from time to time. The Arbitrage Rebate
Instructions may be amended or replaced by new Arbitrage Rebate Instructions delivered by the DNRC and accompanied by an Opinion of Bond Counsel to the effect that the use of said amended or new Arbitrage Rebate Instructions will not adversely affect the excludability of
interest on the State Bonds or any Additional State Bonds (except State Bonds the interest on
which the State did not intend to be excluded from gross income for federal income tax
purposes) from gross income of the recipients thereof for federal income tax purposes.
(f) The Borrower agrees that during the term of the 2010 Loans it will not contract with
or permit any Private Person to manage the 2010 Project or any portion thereof except according
to a written management contract and upon delivery to the DNRC of an opinion of Bond Counsel
to the effect that the execution and delivery of such management contract will not violate the
State Act or the Clean Water Act or adversely affect the exclusion of interest on State Bonds from gross income or purposes of federal income taxation.
(g) The Borrower may not lease the 2010 Project or any portion thereof to any Person
other than a Nonexempt Person which agrees in writing with the Borrower and the State not to
cause any default to occur under the Resolution; provided the Borrower may lease all or any
portion of the 2010 Project to a Nonexempt Person pursuant to a lease which in the Opinion of Bond Counsel delivered to the DNRC will not cause the interest on the State Bonds to be
included in gross income for purposes of federal income taxation.
(h) The Borrower shall not change the use or nature of the 2010 Project if (i) such change
will violate the Clean Water Act, or (ii) so long as the State Bonds are outstanding unless, in the
Opinion of Bond Counsel delivered to the DNRC, such change will not result in the inclusion in gross income of interest on the State Bonds for federal income tax purposes.
Section 2.5 Maintenance of System; Liens. The Borrower shall maintain the System,
including the 2010 Project, in good condition and make all necessary renewals, replacements,
additions, betterments and improvements thereto. The Borrower shall not grant or permit to exist
any lien on the 2010 Project or any other property making up part of the System, other than liens securing Debt where a parity or senior lien secures the Series 2010 Bonds; provided that this
Section 2.5 shall not be deemed to be violated if a mechanic’s or contractor’s lien is filed against
any such property so long as the Borrower uses its best efforts to obtain the discharge of such
lien and promptly reports to the DNRC the filing of such lien and the steps it plans to take and
does take to discharge of such lien.
Section 2.6 Maintenance of Existence; Merger, Consolidation, Etc.; Disposition of
Assets. The Borrower shall maintain its corporate existence, except that it may consolidate with
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or merge into another Governmental Unit or permit one or more Governmental Units to
consolidate with or merge into it or may transfer all or substantially all of its assets to another
Governmental Unit and then dissolve if the surviving, resulting or transferee entity (if other than
the Borrower) (i) is a Public Entity and (ii) assumes in writing all of the obligations of the Borrower under the Resolution, the Series 2010 Bonds and the Collateral Documents, and (a)
such action does not result in any default in the performance or observance of any of the terms,
covenants or agreements of the Borrower under the Resolution, the Series 2010 Bonds and the
Collateral Documents, (b) such action does not violate the State Act or the Clean Water Act and
does not adversely affect the exclusion of interest on the Series 2010 Bonds or the State Bonds from gross income for federal income tax purposes and (c) the Borrower delivers to the DNRC
on the date of such action an Opinion of Bond Counsel that such action complies with this
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Section 2.6.
Other than pursuant to the preceding paragraph, the Borrower shall not transfer the
System or any portion thereof to any other Person, except for property which is obsolete, outmoded, worn out, is being replaced or otherwise is not needed for the operation of the System, unless the provisions of (a) and (b) of the preceding paragraph are satisfied and the
Borrower delivers to the DNRC an Opinion of Bond Counsel to that effect and, in addition, the
DNRC consents to such transfer.
ARTICLE III
USE OF PROCEEDS; THE 2010 Project
Section 3.1 Use of Proceeds. The Borrower shall apply the proceeds of the 2010
Loans from the DNRC solely as follows:
(a) The Borrower shall apply the proceeds of the 2010 Loans solely to the financing, refinancing or reimbursement of the costs of the 2010 Project as set forth in Appendix A hereto
and this Section 3.1. The 2010 Loans will be disbursed in accordance with ARTICLE IV hereof
and Article VII of the Indenture. If the 2010 Project has not been completed prior to Closing, the
Borrower shall, as quickly as reasonably possible, complete the 2010 Project and expend
proceeds of the 2010 Loans to pay the costs of completing the 2010 Project.
(b) No portion of the proceeds of the 2010 Loans shall be used to reimburse the Borrower
for costs paid prior to the date of adoption of this Supplemental Resolution of a Project the
construction or acquisition of which occurred or began earlier than March 7, 1985. In addition,
if any proceeds of the Loan are to be used to reimburse the Borrower for 2010 Project costs paid
prior to the date of adoption of this Supplemental Resolution, the Borrower shall have complied with Section 1.150-2 of the Regulations in respect of such costs.
(c) Any Debt to be refinanced with proceeds of the Loan was incurred after March 7,
1985 for a Project the construction or acquisition of which began after March 7, 1985. No
proceeds of the Loan shall be used for the purpose of refinancing an obligation the interest on
which is exempt from federal income tax or excludable from gross income for purposes of federal income taxation unless the DNRC has received an Opinion of Bond Counsel, satisfactory
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to it, to the effect that such refinancing will not adversely affect the exclusion of interest on the
State Bonds from gross income for purposes of federal income taxation.
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Section 3.2 The 2010 Project. Set forth in Appendix A to this Supplemental
Resolution is a description of the 2010 Project, which describes the property which has been or is to be acquired, installed, constructed or improved and the other activities, if any to be funded from the Loan (the 2010 Project may consist of more than one facility or activity), and an
estimated budget relating to the 2010 Project, including the amount of proceeds of the 2010A
Loan and the 2010B Loan estimated to be applied to Green Infrastructure. The 2010 Project may
be changed and the description thereof in Appendix A may be amended from time to time by the Borrower but only after delivery to the DNRC of the following:
(a) A certificate of the Borrower setting forth the amendment to Appendix A and stating
the reason therefor, including statements whether the amendment would cause an increase or
decrease in the cost of the 2010 Project, an increase or decrease in the amount of Loan proceeds
which will be required to complete the 2010 Project and providing whether the change will delay the full execution and delivery of the Construction Contract;
(b) A certificate of Independent Consultant that the change to the 2010 Project in no way
adversely affects or diminishes the eligibility of the 2010 Project for ARRA funding or the
various attributes of the 2010 Project as that relates to ARRA (such as, for example, the amount
of green construction);
(c) A written consent to such change in the 2010 Project by an Authorized DNRC
Officer;
(d) An Opinion or Opinions of Bond Counsel stating that the 2010 Project, as constituted
after such amendment, is, and was at the time the State Bonds were issued, eligible for financing
under the State Act and is, and was at the time the Series 2010 Bonds was issued, eligible for financing under the Act, such amendment will not violate the State Act or the Act and such
amendment will not adversely affect the exclusion of interest on the State Bonds or the Series
2010 Bonds from gross income for purposes of federal income taxation. Such an Opinion of
Bond Counsel shall not be required for amendments which do not affect the type of facility to be
constructed or activity to be financed; and
(e) In the event the change to the 2010 Project has the effect of reducing the amount of
the Committed Amount, the written consent of the Borrower to reallocation of the Committed
Amount between the 2010A Loan and the 2010B Loan, if required by the DNRC, as described in
Section 5.6 below.
The Borrower acknowledges and agrees that an increase in the principal amount of the 2010 Loans may be made only upon an application to the DEQ, the DNRC and the Trustee, in
such form as the DEQ shall specify, which is approved by the DEQ and the DNRC, in their sole
and absolute discretion, and adoption by the governing body of the Borrower of a resolution
amendatory of or supplementary to the Resolution authorizing the additional loan and delivery of
written certifications by officers of the Borrower to the DEQ, the DNRC and the Trustee to the effect that all representations and covenants contained in the resolution as it may be so amended
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or supplemented are true as of the date of closing of the additional loan and compliance with
applicable tests for the incurrence of such Debt. No assurance can be given that any additional
loan funds will be available under the Program at the time of any such application or thereafter.
The Borrower acknowledges and agrees that neither the DEQ, the DNRC, the Trustee nor any of their agents, employees or representatives shall have any liability to the Borrower and have made
no representations to the Borrower as to the sufficiency of the 2010 Loans to pay costs of the
2010 Project or as to the availability of additional funds under the Program to increase the
principal amount of the Loan.
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Section 3.3 2010 Project Representations and Covenants. The Borrower hereby represents to and covenants with the DNRC that:
(a) construction of the 2010 Project did not commence prior to February 17, 2009, and
the Construction Contract relating to the 2010 Project has been fully executed and delivered;
(b) all construction of the 2010 Project has complied and will comply with all federal and
state standards, including, without limitation, EPA regulations and standards and the requirements of ARRA;
(c) all future construction of the 2010 Project will be done only pursuant to fixed price
construction contracts. The Borrower shall obtain a performance and payment bond from the
contractor for each construction contract in the amount of 100% of the construction price and
ensure that such bond is maintained until construction is completed to the Borrower’s, the DNRC’s and the DEQ’s satisfaction;
(d) all future construction of the 2010 Project will be done in accordance with plans and
specifications on file with the DNRC and the DEQ, provided that changes may be made in such
plans and specifications with the written consent of an Authorized DNRC Officer and the DEQ;
(e) the iron, steel, and manufactured goods used in the 2010 Project comply with the “buy American” requirements of Section 1605 of ARRA, as those requirements are further
interpreted by applicable EPA guidance;
(f) all laborers and mechanics employed by contractors and subcontractors on the 2010
Project have been and will be paid wages at rates not less than those prevailing on projects of a
character similar in the locality as determined by the United States Secretary of Labor in accordance with subchapter IV of chapter 31 of title 40, United States Code;
(g) the 2010 Project is a project of the type permitted to be financed under the Act, the
State Act and the Program and Title VI of the Clean Water Act;
(h) the Borrower will undertake the 2010 Project promptly after the Closing Date and
will cause the 2010 Project to be completed as promptly as practicable with all reasonable dispatch, except only as completion may be delayed by a cause or event not reasonably within
the control of the Borrower; it is estimated by the Borrower that the 2010 Project will be
substantially completed by the Estimated Completion Date; and
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(i) the Borrower agrees to provide information regarding jobs created and retained as a
result of the 2010 Project and such other information regarding the 2010 Project, including
information for the website www.montanarecovery.gov, to the DNRC and the DEQ upon the
request for such information by the DNRC or the DEQ or both, and to post signage at the site of the 2010 Project that designates the 2010 Project as an ARRA funded project.
Section 3.4 Completion or Cancellation or Reduction of Costs of the 2010 Project.
(a) Upon completion of the 2010 Project, the Borrower shall deliver to the DNRC a
certificate stating that the 2010 Project is complete and stating the amount, if any, of the
Undisbursed Committed Amount. If Appendix A describes two or more separate projects as making up the 2010 Project, a separate completion certificate shall be delivered for each.
(b) If all or any portion of the 2010 Project is cancelled or cut back or its costs are
reduced or for any other reason the Borrower will not require the full Committed Amount, the
Borrower shall promptly notify the DNRC in writing of such fact and the amount of the
Undisbursed Committed Amount.
(c) If there is any Undisbursed Committed Amount, the DNRC reserves the right under
Section 5.6 below to reallocate the amount equal to the Committed Amount as reduced by the
Undisbursed Committed Amount between the 2010A Loan and the 2010B Loan, as more
particularly provided in Section 5.6.
ARTICLE IV
THE LOAN
Section 4.1 The Loan; Disbursement of Loan.
(a) The DNRC has agreed to lend to the Borrower, from time to time as the requirements
of this Section 4.1 are met, an amount up to (i) $390,700 (the “2010A Committed Amount”), (ii) $359,300 (the “2010B Committed Amount”), and (iii) $1,223,000 (the “2010C Committed
Amount”) for the purposes of financing, refinancing or reimbursing the Borrower for a portion of
the costs of the 2010 Project; provided the DNRC shall not be required to loan any proceeds of
the State Bonds to the Borrower after the Estimated Completion Date. The Committed Amount
may be reduced as provided in Section 3.2 and Section 3.4 of this Supplemental Resolution and subject to the operation of Section 5.6
(b) The DNRC intends to disburse the 2010 Loans through the Trustee. In consideration
of the issuance of the Series 2010 Bonds by the Borrower, the DNRC shall make, or cause the
Trustee to make, a disbursement of all or a portion of the 2010 Loans upon receipt of the
following documents:
(1) an Opinion of Bond Counsel as to the Series 2010A Bond and an opinion of
Bond Counsel as to the validity and enforceability of the Series 2010B Bond and 2010C
Bond and the security therefor and stating in effect that interest on the Series 2010B
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Bond and the Series 2010C Bond is not includable in gross income of the owner thereof
for purposes of federal income taxation, in form and substance satisfactory to the DNRC;
(2) the Series 2010A Bond, the Series 2010B Bond, and the Series 2010C Bond,
fully executed and authenticated;
(3) a certified copy of the Original Resolution and this Supplemental Resolution;
(4) any other security instruments or documents required by the DNRC or DEQ
as a condition to their approval of the 2010 Loans;
(5) if all or part of a Loan is being made to refinance a Project or reimburse the
Borrower for the costs of a Project paid prior to the Closing, evidence, satisfactory to the DNRC and the Bond Counsel referred to in (1) above, (A) that the acquisition or construction of the Project was begun no earlier than March 7, 1985 or the debt was
incurred no earlier than March 7, 1985, (B) of the Borrower’s title to the Project, (C) of
the costs of such Project and that such costs have been paid by the Borrower and (D) if
such costs were paid before adoption of this Supplemental Resolution that the Borrower has complied with Section 1.150-2 of the Regulations;
(6) the items required by the Indenture for the portion of the 2010 Loans to be
disbursed at Closing; and
(7) such other certificates, documents and other information as the DNRC, the
DEQ or the Bond Counsel giving the opinion referred to in subparagraph (1) may require (including any necessary arbitrage rebate instructions).
(c) In order to obtain a disbursement of a portion of the 2010 Loans to pay costs of the
2010 Project, the Borrower shall submit to the DNRC and the Trustee a signed request for
disbursement on the form prescribed by the DNRC, with all attachments required by such form.
The Borrower may obtain disbursements only for costs which have been legally incurred and are due and payable. All Loan disbursements will be made to the Borrower only upon proof that
cost was incurred.
(d) From and after the 2010B First Advance, the 2010 Loans shall be disbursed, subject
to the other terms and conditions of this Supplemental Resolution, in the following order:
(1) First, at the Closing, the 2010B First Advance will be advanced from the 2010B Loan.
(2) Second, after the 2010B First Advance has been disbursed to
the Borrower, the entire amount of the 2010A Loan may then be disbursed to the
Borrower as and when needed. For the avoidance of doubt, any amounts of the
2010 Loans to be disbursed at Closing in excess of the 2010B First Advance will be disbursed as proceeds of the 2010A Loan to the extent of the 2010A
Committed Amount.
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(3) Third, after the entire principal amount of the 2010A Loan has
been disbursed to the Borrower, the remaining amount of the 2010B Loan, if any,
will be disbursed to the Borrower as and when needed.
(4) Fourth, only after the full amount of the 2010A Loan and 2010B Loan has been disbursed to the Borrower, the Borrower may apply to the costs of the 2010 Project any other funds available to it, including grants or other
funds, and including amounts under the 2010C Loan, which will be disbursed to
the Borrower, starting with the 2010C First Advance, as and when needed.
(e) The Borrower shall submit the request for the 2010B First Advance and the 2010C First Advance in the form required by the DNRC so that it is received in sufficient time for the DNRC to process the information by the date desired by the Borrower for the making of the
2010B First Advance and the 2010C First Advance, respectively. The Borrower shall not be
entitled to, and the DNRC shall have no obligation to make, the 2010B First Advance or the
2010C First Advance or any subsequent advance of amounts under the 2010B Loan or the 2010C Loan until such time as the Borrower shall have set aside and funded the Reserve Account in an amount then required to satisfy the Reserve Requirement.
(f) For refinancings, a disbursement schedule complying with the requirements of the
Clean Water Act shall be established by the DNRC and the Borrower at Closing. The Trustee
shall disburse 2010 Loan amounts directly to the holder of the debt being refinanced according to such schedule. If the Borrower should repay all or a portion of the debt to be refinanced from
other sources or should otherwise not need any portion of the 2010 Loan which was to have been
used to refinance such debt, it shall inform the DNRC and the Trustee of such fact pursuant to
Section 3.4(b) and a new disbursement schedule shall be drawn up by the DNRC. The DNRC
shall obtain a receipt from the holder of the debt being refinanced for each disbursement made to pay or prepay a portion of such debt.
(g) If all or a portion of the 2010 Loans is made to reimburse a Borrower for Project costs
paid by it prior to Closing, the Borrower shall present at Closing the items required by Section
4.1(b) relating to such costs. The Trustee shall disburse such amounts to the Borrower pursuant
to a disbursement schedule complying with the requirements of the Clean Water Act established by the DNRC and the Borrower at the Closing.
(h) Notwithstanding anything else provided herein, the Trustee shall not be obligated to
disburse the 2010 Loans any faster or to any greater extent than it has available EPA
Capitalization Grants, Bond proceeds and other amounts available therefor in the Revolving
Fund. The DNRC shall not be required to do “overmatching” pursuant to Section 5.04(b) of the Indenture, but may do so in its discretion. The Borrower acknowledges that if Project costs are
incurred faster than the Borrower projected at Closing, there may be delays in making Loan
disbursements for such costs because of the schedule under which EPA makes EPA
Capitalization Grant money available to the DNRC. The DNRC will use its reasonable best
efforts to obtain an acceleration of such schedule if necessary.
(i) Upon making each 2010A Loan disbursement, 2010B Loan disbursement, and 2010C
Loan Disbursement, the Trustee shall note such disbursement on Schedule A to the Series 2010A
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Bond, Series 2010B Bond, and the Series 2010C Bond, respectively. A Schedule A reflecting
the amount of the 2010B First Advance and the 2010C First Advance will first be attached to the
Series 2010B Bond and the Series 2010C Bond, respectively, at Closing.
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(j) The Borrower agrees that it will deposit in the Reserve Account upon receipt thereof, on the date of the 2010B First Advance and any subsequent disbursement dates, any proceeds of the 2010B Loan borrowed for the purpose of increasing the balance in the Reserve Account to
the Reserve Requirement. The Borrower further acknowledges and agrees that any portions of
the 2010 Loans representing capitalized interest shall be advanced only on Payment Dates and
shall be transferred by the Trustee on the Payment Date directly to the Revenue Bond Account. The amount of any such transfer shall be a credit against the interest payments due on the Series 2010 Bonds and interest thereon shall accrue only from the date of transfer.
(k) Compliance by the Borrower with its representations, covenants and agreements
contained in the Original Resolution, this Supplemental Resolution and the Collateral Documents
shall be a further condition precedent to the disbursement of the Loan in whole or in part. The DNRC and the Trustee, in their sole and absolute discretion, may make one or more
disbursements, in whole or in part, notwithstanding such noncompliance, and without liability to
make any subsequent disbursement of the Loan.
Section 4.2 Commencement of Loan Term. The Borrower’s obligations under this
Supplemental Resolution and the Collateral Documents shall commence on the date hereof unless otherwise provided in this Supplemental Resolution. However, the obligation to make
payments under ARTICLE V hereof shall commence only upon the first disbursement by the
Trustee of the 2010B Loan proceeds.
Section 4.3 Termination of Loan Term. The Borrower’s obligations under the
Resolution and the Collateral Documents in respect of the Series 2010 Bonds shall terminate upon payment in full of all amounts due under the Series 2010 Bonds and the Resolution in
respect thereof; provided, however, that the covenants and obligations provided in ARTICLE VI
and Section 10.3 of this Supplemental Resolution shall survive the termination of the Resolution.
Section 4.4 Loan Closing Submissions. On or prior to the Closing, the Borrower will
have delivered to the DNRC and the Trustee the closing submissions required by Section 7.05 of the Indenture.
ARTICLE V
REPAYMENT OF 2010 LOANS
Section 5.1 Repayment of 2010 Loans. The Borrower shall repay the amounts lent to it pursuant to Section 4.1 hereof in accordance with this Section 5.1.
5.1.1. Interest and Surcharges. Until an ARRA Statement is delivered by
the DNRC to the Borrower and so long as the Borrower’s obligation to repay the principal of the
2010A Loan is forgiven as provided in Section 5.1.2 below, amounts disbursed by the DNRC
under Section 4.1 hereof that are evidenced by (i) the Series 2010A Bond bear interest at the rate
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of zero percent (0.00%) per annum from the date of each advance; and (ii) the Series 2010B
Bond bear interest at the rate of one and seventy-five hundredths of one percent (1.75%) per
annum; provided, however
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, if the DNRC delivers to the Borrower an ARRA Noncompliance
Statement, then all principal of the Series 2010A Bond advanced by the DNRC shall be payable and amounts disbursed by the DNRC under Section 4.1 hereof that are evidenced by the Series 2010A Bond and the Series 2010B Bond shall bear interest at the rate of two percent (2.00%) per
annum and in addition the Borrower shall pay the Administrative Expense Surcharge and the
Loan Loss Reserve Surcharge from the date of each advance under the Series 2010A Bond and
Series 2010B Bond. The 2010C Loan shall bear interest at the rate of two percent (2.00%) per annum and the Borrower shall pay the Administrative Expense Surcharge and Loan Loss Reserve Surcharge on the outstanding principal amounts of the 2010C Loan. If the obligation of
the Borrower to repay the principal amount of the 2010A Loan is not forgiven under Section
5.1.2 below, for purposes of this Resolution and the Program, with respect to the 2010A Loan,
the 2010B Loan, and the 2010C Loan, the term “interest on the 2010 Loans” or “interest on the 2010A Loan” or “interest on the Series 2010B Loan” or “interest on the Series 2010C Loan” when not used in conjunction with a reference to any surcharges, shall include the
Administrative Expense Surcharge and the Loan Loss Reserve Surcharge. The Borrower shall
pay all Loan Repayments and surcharges in lawful money of the United States of America to the
DNRC. Interest, Administrative Expense Surcharge, and Loan Loss Reserve Surcharge shall be calculated on the basis of a year of 360 days comprising 12 months of 30 days each.
5.1.2. Repayment of 2010A Loan; Principal Forgiveness.
(a) The Borrower is obligated to repay the principal of and interest and Administrative
Expense Surcharge and Loan Loss Reserve Surcharge on the 2010A Loan, unless the DNRC
forgives the Borrower’s obligation to repay the principal of the 2010A Loan as provided in Section 5.1.2(b). Subject to the provisions of Section 5.1.2(b), the Loan Repayments and the
Administrative Expense Surcharge and Loan Loss Reserve Surcharge on the 2010A Loan shall
be due on each Payment Date, as follows:
(1) interest and the Administrative Expense Surcharge and the Loan Loss
Reserve Surcharge on the outstanding principal balance of the 2010A Loan shall be payable from and after the date of each advance of principal
of the 2010A Loan on each Payment Date at the rate of 3.75% per annum,
beginning on the first Payment Date following the date of delivery by the
DNRC of a Noncompliance Statement and concluding on January 1, 2030;
and
(2) the principal of the 2010A Loan shall be repayable on each Payment Date,
beginning on the Payment Date that is the first to occur following delivery
by the DNRC of an ARRA Noncompliance Statement, and concluding on
January 1, 2030, and the amount of each principal payment shall be
calculated on the basis of a substantially level debt service at the rate of 3.75% per annum.
(b) Notwithstanding Section 5.1.2(a), so long as the Borrower is proceeding diligently to
completion of the 2010 Project through the final advance of principal of the 2010B Loan and the
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Borrower has executed and delivered the ARRA Certificate and Request to the DNRC in form
and substance satisfactory to the DNRC and the DEQ within thirty (30) days after the date that
the ARRA Certificate and Request is provided to the Borrower by the DNRC, the DNRC will,
following review and approval of the ARRA Certificate and Request, deliver to the Borrower an ARRA Forgiveness Statement and the Borrower will thereafter have no obligation to repay
amounts advanced under the Series 2010A Bond or interest or surcharges thereon and the Series
2010A Bond will be marked “CANCELLED” and returned by the DNRC to the Borrower.
However, in the event the Borrower fails to deliver timely the ARRA Certificate and Request, or
the Borrower cannot submit the ARRA Certificate and Request because it cannot make the certifications required therein, including without limitation, those related to ARRA, or the
ARRA Certificate and Request is delivered in a form that deviates materially from that attached
hereto as Appendix D as determined in the sole and complete discretion of the DNRC or the
DEQ, or the DNRC or the DEQ determine at any time that the 2010 Project or any portion
thereof or of the work relating thereto fails to comply with ARRA, then the DNRC will deliver to the Borrower an ARRA Noncompliance Statement. Upon delivery of an ARRA Noncompliance
Statement by the DNRC to the Borrower, all principal advanced or to be advanced under the
Series 2010A Bond, together with interest, Administrative Expense Surcharge, and Loan Loss
Reserve Surcharge thereon from the date of each advance, shall be payable as provided in
Section 5.1.2 (a).
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(c) In addition, in the event the DNRC delivers an ARRA Noncompliance Statement (i)
the Series 2010A Bond will continue in effect as a Subordinate Obligation, and (ii) the Borrower
will forthwith comply with the rate covenant set forth in Section 6.7 of the Original Resolution,
as implemented as described in Section 12.2 below, and, if necessary, increase the rates and
charges of the System to satisfy such rate covenant as soon as practicable and in any event no later than three (3) months after the date of delivery to the Borrower by the DNRC of an ARRA
Noncompliance Statement.
5.1.3. Repayment of 2010B Loan.
(a) Subject to the provisions of Section 5.1.3(b), the Loan Repayments on the
2010B Loan from and after the 2010B First Advance and all subsequent advances of the 2010B Loan are as follows:
(1) interest on the outstanding principal balance of the 2010B Loan shall be
payable on each Payment Date, beginning on July 1, 2010 and concluding
on January 1, 2030 at the rate of 1.75% per annum;
(2) the Borrower shall have no obligation to pay any Administrative Expense Surcharge or any Loan Loss Reserve Surcharge; and
(3) the principal of the 2010B Loan shall be repayable on each Payment Date,
beginning on July 1, 2010 and concluding on January 1, 2030, and the
amount of each principal payment shall be calculated on the basis of
substantially level debt service at an interest rate of 1.75% per annum.
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(b) Notwithstanding the provisions of Section 5.1.3(a), upon the delivery by
the DNRC to the Borrower of an ARRA Noncompliance Statement, Loan Repayments and the
Administrative Expense Surcharge and Loan Loss Reserve Surcharge on the 2010B Loan
required by this Section 5.1 shall be due on each Payment Date from and after the delivery of such statement, as follows:
(1) interest and the Administrative Expense Surcharge and the Loan Loss
Reserve Surcharge on the outstanding principal balance of the 2010B
Loan shall be payable from and after the date of the 2010B First Advance
and each advance of principal of the 2010B Loan thereafter on each Payment Date following the date of delivery of an ARRA Noncompliance
Certificate at the rate of 3.75% per annum, beginning on the first Payment
Date to occur after the ARRA Noncompliance Certificate has been
delivered and concluding on January 1, 2030; and
(2) the principal of the 2010B Loan shall be repayable on each Payment Date, beginning on the first Payment Date to occur after the date of the delivery of an ARRA Noncompliance Certificate and concluding on January 1,
2030, and the amount of each principal payment shall be calculated on the
basis of a substantially level debt service at the rate of 3.75% per annum,
taking into account each Loan Repayment, if any, made pursuant to Section 5.1.3(a).
(c) The adjustment to the rate of interest paid on the Series 2010B Bond
resulting from the provisions of Section 5.1.3(b) will not extend the final maturity date of the
Series 2010B Bond and interest at the adjusted rate, including surcharges, shall be payable on
each advance of principal of the Series 2010B Bond from the date of the advance, beginning with the 2010B First Advance, at the rates specified in Section 5.1.3(b); provided that, the
Borrower is entitled to a credit against such payments equal to an amount then paid by the
Borrower under Section 5.1.3(a).
5.1.4. Repayment of 2010C Loan. The Loan Repayments on the 2010C Loan
required by this Section 5.1 shall be due on each Payment Date, as follows:
(1) interest and Administrative Expense Surcharge and Loan Loss Reserve
Surcharge on the outstanding principal balance of the 2010C Loan shall be
payable on each January 1 and July 1, beginning on the first to occur of
either of such dates following the date of the 2010C First Advance, which
is the first Payment Date after the 2010C First Advance, but in any event no earlier than July 1, 2010 and concluding on January 1, 2030; and
(2) the principal of the 2010C Loan shall be repayable on each Payment Date,
beginning on the January 1 or July 1 that is the first to occur following the
date of the 2010C First Advance, but in any event no earlier than July 1,
2010, and concluding January 1, 2030, and the amount of each principal payment shall be calculated on the basis of a substantially level debt
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service at a rate of 3.75% per annum; provided that principal of the 2010C
Loan is payable only in amounts that are multiples of $1,000.
5.1.5. Details Regarding 2010 Loan Repayments. Loan Repayments and
the Administrative Expense Surcharge and the Loan Loss Reserve Surcharge on the 2010C Loan and, if applicable, on the 2010A Loan and the 2010B Loan, shall be due on the dates specified above and on the dates and in the amounts shown in Schedule B to the Series 2010A Bond, the
Series 2010B Bond, and the Series 2010C Bond, as such Schedule B shall be modified from time
to time as provided in Sections 5.1.2 and 5.1.3 and below. Schedule B will first be attached to
the Series 2010A Bond and the Series 2010B Bond at Closing. The portion of each such Loan Repayment consisting of principal and the portion consisting of interest shall be set forth on Schedule B to the Series 2010B Bond and the portion of each Loan Repayment consisting of
principal and the portion consisting of interest and the amount of each Administrative Expense
Surcharge and the amount of each Loan Loss Reserve Surcharge shall be set forth in Schedule B
to the Series 2010A Bond at Closing and in Schedule B to the Series 2010C Bond on the date of the 2010C First Advance (and in Schedule B to the Series 2010B Bond upon delivery of an ARRA Noncompliance Statement). Upon each disbursement of 2010 Loan amounts to the
Borrower pursuant to Section 4.1 hereof, the Trustee shall enter or cause to be entered the
amount advanced on Schedule A to the applicable Series 2010A Bond, the Series 2010B Bond,
and the Series 2010C Bond under “Advances” and the total amount advanced under Section 4.1, including such disbursement, under “Total Amount Advanced.”
Interest in respect of the Series 2010B Bond on such advance shall accrue
from the date the advance is made at the rate of 1.75% per annum and shall be payable on each
Payment Date thereafter, subject to the operation of the following sentence. If the DNRC shall
have delivered an ARRA Noncompliance Statement, then the Trustee shall revise the Schedule B to the Series 2010B Bond to reflect interest and surcharges totaling 3.75% per annum in
accordance with Section 5.1.3(b), and Schedule B to the Series 2010A Bond shall continue to
reflect interest and surcharges on amounts advanced under the Series 2010A Bond at 3.75% per
annum, as may be revised to reflect the full principal amount advanced under the Series 2010A
Bond, the initial Payment Date, and the periodic total loan payment, and the Trustee shall send a copy of such schedules to the Borrower within one month after delivery by the DNRC of the
ARRA Noncompliance Statement. If the DNRC delivers an ARRA Forgiveness Statement,
Schedule B to the Series 2010A Bond will be disregarded and of no effect and Schedule B to the
Series 2010B Bond will continue to reflect a debt service schedule with payments at 1.75% per
annum, and the Trustee shall send a copy of the final Schedule B to the Series 2010B Bond showing the full principal amount advanced under the Series 2010B Bond to the Borrower within
one month after the delivery of such ARRA Forgiveness Statement.
The payments of principal of and interest and Administrative Expense
Surcharge and Loan Loss Reserve Surcharge on the 2010C Loan shall be due on the dates and in
the amounts shown in Schedule B to the Series 2010C Bond, as such Schedule B shall be modified from time to time as provided below. The portion of each such Loan Repayment
consisting of principal and the portion consisting of interest and the amount of each
Administrative Expense Surcharge and the amount of each Loan Loss Reserve Surcharge shall
be set forth in Schedule B to the Series 2010C Bond. Upon each disbursement of 2010C Loan
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amounts to the Borrower pursuant to Section 4.1 hereof, the Trustee shall enter or cause to be
entered the amount advanced on Schedule A to the Series 2010C Bond under “Advances” and
the total amount advanced under Section 4.1, including such disbursement, “Total Amount
Advanced.” Interest and Administrative Expense Surcharge and Loan Loss Reserve Surcharge on such advance shall accrue from the date the advance is made and shall be payable on each
Payment Date thereafter. Once the completion certificate for a Project has been delivered to the
DNRC, the Trustee shall revise Schedule B to the Series 2010C Bond in accordance with this
Section 5.1 and the Trustee shall send a copy of such Schedule B to the Borrower within one
month after delivery of the completion certificate.
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Past-due Loan Repayments and the Administrative Expense Surcharge and
the Loan Loss Reserve Surcharge shall bear interest at the rate of ten percent (10.00%) per
annum, until paid.
Any payment of principal and interest as to the Series 2010B Bond and the
Series 2010C Bond and, if applicable, the Series 2010A Bond, and the Administrative Expense Surcharge and the Loan Loss Reserve Surcharge as to the Series 2010C Bond, and, if applicable, the Series 2010A Bond and the Series 2010B Bond under this Section 5.1 shall be credited
against the same payment obligation under each of the Series 2010C Bond and, as applicable, the
Series 2010B Bond and the Series 2010A Bond.
Section 5.2 Additional Payments. The Borrower shall also pay, within 30 days after receipt of a bill therefor, from any legally available funds therefor, including proceeds of the
Loan, if the Borrower so chooses, all reasonable expenses of the DNRC and the Trustee in
connection with the 2010 Loans, the Collateral Documents and the Series 2010 Bonds, including,
but not limited to:
(a) the cost of reproducing this Supplemental Resolution, the Collateral Documents and the Series 2010 Bonds;
(b) the fees and disbursements of bond counsel and other Counsel utilized by
the DNRC and the Trustee in connection with the Loan, the Resolution, the Collateral
Documents and the Series 2010 Bonds and the enforcement thereof; and
(c) all taxes and other governmental charges in connection with the execution and delivery of the Collateral Documents or the Series 2010 Bonds, whether or not the Series
2010 Bonds are then outstanding, including all recording and filing fees relating to the Collateral
Documents and the pledge of the State’s right, title and interest in and to the Series 2010 Bonds,
the Collateral Documents and the Resolution under the Resolution (and with the exceptions
noted therein) and all expenses, including attorneys’ fees, relating to any amendments, waivers, consents or collection or enforcement proceedings pursuant to the provisions hereof or thereof.
Section 5.3 Prepayments. The Borrower may not prepay all or any part of the
outstanding principal amount of the Series 2010B Bond, the Series 2010C Bond, and, if
applicable, the Series 2010A Bond, unless (i) an ARRA Statement has been delivered, (ii) it
obtains the prior written consent of the DNRC thereto, and (iii) no Loan Repayment or Administrative Expense Surcharge or Loan Loss Reserve Surcharge is then delinquent. Any
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prepayment permitted by the DNRC must be accompanied by payment of accrued interest and, if
applicable, Administrative Expense Surcharge and Loan Loss Reserve Surcharge to the date of
prepayment on the amount of principal prepaid. If the Series 2010 Bonds are prepaid in part
pursuant to this Section 5.3, such prepayments shall be applied to principal payments in inverse order of maturity.
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Section 5.4 Obligations of Borrower Unconditional. The obligations of the Borrower
to make the payments required by the Resolution and the Series 2010 Bonds and to perform its
other agreements contained in the Resolution, the Series 2010 Bonds and Collateral Documents
shall be absolute and unconditional, except as otherwise provided herein or in such documents. The Borrower (a) shall not suspend or discontinue any payments provided for in the Resolution
and the Series 2010 Bonds, (b) shall perform all its other agreements in the Resolution, the Series
2010 Bonds and the Collateral Documents and (c) shall not terminate the Resolution, the Series
2010 Bonds or the Collateral Documents for any cause, including any acts or circumstances that
may constitute failure of consideration, destruction of or damage to the 2010 Project or the System, commercial frustration of purpose, any dispute with the DNRC or the EPA, any change
in the laws of the United States or of the State or any political subdivision of either or any failure
of the DNRC to perform any of its agreements, whether express or implied, or any duty, liability
or obligation arising from or connected with the Resolution.
Section 5.5 Limited Liability. All payments of principal of and interest on the 2010 Loans and other payment obligations of the Borrower hereunder and under the Series 2010
Bonds shall be special, limited obligations of the Borrower payable solely out of the Net
Revenues or, as appropriate, Surplus Net Revenues, and shall not, except at the option of the
Borrower and as permitted by law, be payable out of any other revenues of the Borrower. The
obligations of the Borrower under the Resolution and the Series 2010 Bonds shall never constitute an indebtedness of the Borrower within the meaning of any state constitutional
provision or statutory or charter limitation and shall never constitute or give rise to a pecuniary
liability of the Borrower or a charge against its general credit or taxing power. The taxing
powers of the Borrower may not be used to pay principal of or interest on the Series 2010 Bonds,
and no funds or property of the Borrower other than the Net Revenues or, as appropriate, Surplus Net Revenues may be required to be used to pay principal of or interest on the Series 2010
Bonds.
Section 5.6 Reallocation of 2010 Loans. The Borrower understands that the principal
amounts of the 2010A Loan and the 2010B Loan have been sized based on the understanding
and expectation that the 2010 Project costs at least $750,000 and that the Borrower will request disbursement of the full amount of the 2010A Loan and 2010B Loan. Notwithstanding any
provision to the contrary herein, the Borrower acknowledges and agrees that in the event there is
any Undisbursed Committed Amount, then the DNRC reserves the right in its sole and complete
discretion to reallocate loan amounts as between the 2010A Loan and 2010B Loan on the basis
of the amounts of the 2010A Loan and the 2010B Loan that the Borrower would have been entitled to had the 2010 Loans initially equaled the Committed Amount less the Undisbursed
Committed Amount. The reallocation between the 2010A Loan and 2010B Loan will reflect the
same proportions of the 2010 Loans originally allocated to the 2010A Loan and 2010B Loan.
Upon making such reallocation, the DNRC shall deliver to the Borrower a replacement Series
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2010A Bond and a replacement Series 2010B Bond reflecting adjusted principal amounts, which
bonds shall supersede and render of no effect the original bonds and be payable on the same
dates as described in the original bonds, but in an adjusted amount owing on each Payment Date
because of the reallocation of principal amounts. The Borrower shall execute and deliver the replacement Series 2010A Bond and the replacement Series 2010B Bond to the DNRC within
thirty (30) days after delivery of such bonds to the Borrower by the DNRC. Contemporaneous
with the delivery of the replacement Series 2010A Bond and the replacement Series 2010B Bond
to the DNRC by the Borrower, the Borrower shall determine whether the Net Revenues of the
System total at least 125% of the maximum principal of and interest payable on the Bonds outstanding in any Fiscal Year, and, if they do not, the Borrower shall increase its rates and
charges to satisfy the rate covenant set forth in Section 6.7 of the Original Resolution, as
implemented as described in Section 12.2 below, within three (3) months after the date of
delivery of the replacement Series 2010A Bond and the replacement Series 2010B Bond to the
DNRC by the Borrower.
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ARTICLE VI
INDEMNIFICATION OF DNRC AND DEQ
The Borrower shall, to the extent permitted by law, indemnify and save harmless the
DNRC and the DEQ and their officers, employees and agents (each an "Indemnified Party" or, collectively, the “Indemnified Parties") against and from any and all claims, damages, demands,
expenses, liabilities and losses of every kind asserted by or on behalf of any Person arising out of
the acts or omissions of the Borrower or its employees, officers, agents, contractors,
subcontractors, or consultants in connection with or with regard or in any way relating to the
condition, use, possession, conduct, management, planning, design, acquisition, construction, installation or financing of the 2010 Project. The Borrower shall also, to the extent permitted by
law, indemnify and save harmless the Indemnified Parties against and from all costs, reasonable
attorneys’ fees, expenses and liabilities incurred in any action or proceeding brought by reason of
any such claim or demand. If any proceeding is brought against an Indemnified Party by reason
of such claim or demand, the Borrower shall, upon notice from an Indemnified Party, defend such proceeding on behalf of the Indemnified Party.
ARTICLE VII
ASSIGNMENT
Section 7.1 Assignment by Borrower. The Borrower may not assign its rights and obligations under the Resolution or the Series 2010 Bonds.
Section 7.2 Assignment by DNRC. The DNRC will pledge its rights under and
interest in the Resolution, the Series 2010 Bonds and the Collateral Documents (except to the
extent otherwise provided in the Indenture) as security for the payment of the State Bonds and
may further assign such interests to the extent permitted by the Indenture, without the consent of the Borrower.
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Section 7.3 State Refunding Bonds. In the event the State Bonds and Additional State
Bonds are refunded by bonds which are not Additional State Bonds, all references in the
Resolution to State Bonds and Additional State Bonds shall be deemed to refer to the refunding
bonds and any bonds of the State on a parity with such refunding bonds (together, the “Refunding Bonds”) or, in the case of a crossover refunding, to the State Bonds and Additional
State Bonds and the Refunding Bonds. In the event the State Bonds are refunded by an issue of
Additional State Bonds, all references in the Resolution to the State Bonds shall be deemed to
refer to such Additional State Bonds or, in the case of a crossover refunding, both the State
Bonds and such Additional State Bonds.
ARTICLE VIII
THE SERIES 2010 BONDS
Section 8.1 Net Revenues Available. The Borrower is authorized to charge just and
equitable rates, charges and rentals for all services directly or indirectly furnished by the System, and to pledge and appropriate to the Series 2010B Bond and the Series 2010C Bond the Net Revenues (and in respect of the Series 2010A Bond, if necessary, the Surplus Net Revenues) to
be derived from the operation of the System, including improvements, betterments or extensions
thereof hereafter constructed or acquired. The Net Revenues to be produced by such rates,
charges and rentals during the term of the Series 2010B Bond and the Series 2010C Bond are expected to be more than sufficient to pay the principal and interest when due on the Series
2010B Bond and the Series 2010C Bond, and to create and maintain reasonable reserves therefor
and to provide an adequate allowance for replacement and depreciation, as prescribed herein.
For purposes of the foregoing statement, principal of and interest on the 2010A Loan are
disregarded, and interest on the Series 2010B Bond is assumed to be 1.75%. The Borrower acknowledges and agrees that if the DNRC delivers an ARRA Noncompliance Statement to the
Borrower as provided in Section 5.1.2 as determined in the sole and complete discretion of the
DNRC, then principal and interest and surcharges will become due and owing on the 2010A
Loan evidenced by the Series 2010A Bond and the 2010B Loan evidenced by the Series 2010B
Bond as provided in Section 5.1 and the Borrower shall thereupon, and no later than three months after delivery of such a statement, to the extent required by Section 6.7 of the Original
Resolution, as implemented as described in Section 12.2 below, adjust its schedule of fees, rates,
and charges applicable to the System to cause Net Revenues and Surplus Net Revenues to be
produced in an amount at least equal to that required by the Resolution.
Section 8.2 Issuance and Sale of the Series 2010 Bonds. The Commission has investigated the facts necessary and hereby finds, determines and declares it to be necessary and
desirable for the Borrower to issue the Series 2010 Bonds to evidence the 2010 Loans. The
Series 2010 Bonds are issued to the DNRC without public sale pursuant to Montana Code
Annotated, Section 7-7-4433(2)(a).
Section 8.3 Terms. The Series 2010A Bond, the Series 2010B Bond, and the Series 2010C Bond shall be in the maximum principal amount equal to the original 2010A Committed
Amount, 2010B Committed Amount, and 2010C Committed Amount, respectively, shall each be
issued as a single, fully registered bond numbered R-1, shall be dated as of the date of delivery to
the DNRC, and shall bear interest at the rate charged by the DNRC on the 2010A Loan, 2010B
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Loan, and 2010C Loan, respectively. The principal of and interest on the Series 2010B Bond
and the Series 2010C Bond, and, if applicable, the principal of and interest on the Series 2010A
Bond and any Administrative Expense Surcharge and Loan Loss Reserve Surcharge shall be
payable on the same dates and in the same amounts on which principal and interest of the Loan Repayments are payable. Advances of principal of the Series 2010A Bond or Series 2010B
Bond or Series 2010C Bond shall be deemed made when advances of the 2010A Loan or 2010B
Loan or 2010C Loan, respectively, are made under Section 4.1, and such advances shall be
payable in accordance with Schedule B to the Series 2010B Bond, the Series 2010C Bond, and,
if applicable, the Series 2010A Bond, as the case may be, as it may be revised by the DNRC from time to time in accordance with Section 5.1. The Series 2010A Bond is a Subordinate
Obligation payable only from the Surplus Net Revenues available in the Fund. The Series
2010B Bond and the Series 2010C Bond are Bonds.
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The Borrower may prepay the Series 2010 Bonds, in whole or in part, only upon the
terms and conditions under which it can prepay the 2010 Loans under Section 5.3.
Section 8.4 Negotiability, Transfer and Registration. The Series 2010 Bonds shall be
fully registered as to both principal and interest, and shall be initially registered in the name of
and payable to the DNRC. While so registered, principal of and interest on the Series 2010
Bonds shall be payable to the DNRC at the Office of the Department of Natural Resources and
Conservation, 1625 Eleventh Avenue, Helena, Montana 59620-1601 or such other place as may be designated by the DNRC in writing and delivered to the Borrower. The Series 2010 Bonds
shall be negotiable, subject to the provisions for registration and transfer contained in this
Section. No transfer of the Series 2010 Bonds shall be valid unless and until (1) the holder, or
his duly authorized attorney or legal representative, has executed the form of assignment
appearing on the Series 2010 Bonds, and (2) the Director of Finance of the Borrower (or successors, the “Registrar”), as Bond Registrar, has duly noted the transfer on the Series 2010
Bonds and recorded the transfer on the registration books of the Registrar. The Registrar may,
prior to noting and recording the transfer, require appropriate proof of the transferor’s authority
and the genuineness of the transferor’s signature. The Borrower shall be entitled to deem and
treat the Person in whose name the Series 2010 Bonds is registered as the absolute owner of the Series 2010 Bonds for all purposes, notwithstanding any notice to the contrary, and all payments
to the registered holder shall be valid and effectual to satisfy and discharge the Borrower’s
liability upon such Bond to the extent of the sum or sums so paid.
Section 8.5 Execution and Delivery. The Series 2010 Bonds shall be executed on
behalf of the Borrower by the manual signatures of the Mayor, the Director of Finance, and the Clerk of the Commission. Any or all of such signatures may be affixed at or prior to the date of
delivery of the Series 2010 Bonds. The Series 2010 Bonds shall be sealed with the corporate
seal of the Borrower. In the event that any of the officers who shall have signed the Series 2010
Bonds shall cease to be officers of the Borrower before the Series 2010 Bonds are issued or
delivered, their signatures shall remain binding upon the Borrower. Conversely, the Series 2010 Bonds may be signed by an authorized official who did not hold such office on the date of
adoption of this Supplemental Resolution. The Series 2010 Bonds shall be delivered to the
DNRC, or its attorney or legal representative.
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Section 8.6 Form. The Series 2010A Bond shall be prepared in substantially the form
attached as Appendix B-1, the Series 2010B Bond shall be prepared in substantially the form
attached as Appendix B-2, and the Series 2010C Bond shall be prepared in substantially the form
attached as Appendix B-3.
Section 8.7 Acquisition and Construction Account. To the Acquisition and
Construction Account shall be credited as received the portion of the proceeds of Series 2010
Bonds for costs of the 2010 Project and for costs of issuance of the Series 2010 Bonds and any
other funds appropriated by the Borrower to the Acquisition and Construction Account for
improvements to the System, and all income received from the investment of the Acquisition and Construction Account.
ARTICLE IX
SECURITY FOR THE SERIES 2010 BONDS
The Series 2010B Bond and the Series 2010C Bond are issued as Bonds under the Original Resolution, as implemented as described in this Supplemental Resolution, and shall, with any other Additional Bonds issued under the provisions of Article 10 of the Original
Resolution be equally and ratably secured by the provisions of the Resolution and payable out of
the Net Revenues appropriated to the Revenue Bond Account of the Sewer System Fund,
without preference or priority, all as provided in the Resolution, and secured by the Reserve Account, as further provided in Section 11.5 of the Original Resolution. Upon advancement of
principal of the Series 2010B Bond and the Series 2010C Bond, the Director of Finance of the
Borrower shall transfer from proceeds of the Series 2010B Bond and the Series 2010C Bond
such amount or amounts to the Reserve Account to cause the balance therein to equal the
Reserve Requirement, treating such principal amount as outstanding. Upon the each advance of the Series 2010B Bond and the Series 2010C Bond, the deposit to the Reserve Account shall be
sufficient to cause the balance in the Reserve Account to equal the Reserve Requirement in
respect of the Series 2010B Bond and the Series 2010C Bond so advanced. The Series 2010A
Bond is a Subordinate Obligation issued under Section 10.4 of the Original Resolution and
payable from the Surplus Net Revenues that are available after required credits to the Operating Account, the Revenue Bond Account, and the Reserve Account. No payment of principal or
interest shall be made on any Subordinate Bond, including the Series 2010A Bond, if the City is
then in default in the payment of principal of or interest on any Bond or if there is a deficiency in
the Operating Account or the Revenue Bond Account or the balance in the Reserve Account is
less than the Reserve Requirement. In the event the principal of and interest and Administrative Expense Surcharge and Loan Loss Reserve Surcharge become payable under the Series 2010A
Bond, the Borrower shall cause rates and charges to be increased to produce Net Revenues at
least equal to the amount required under Section 6.7 of the Original Resolution, as implemented
by Section 12.2 below, within three (3) months following delivery of an ARRA Noncompliance
Statement. The Borrower shall keep, perform and observe each and every one of its covenants and undertakings set forth in the Resolution for the benefit of the registered owners from time to
time of the Series 2010 Bonds.
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ARTICLE X
TAX MATTERS
Section 10.1 Use of 2010 Project. The 2010 Project will be owned and operated by the Borrower and available for use by members of the general public on a substantially equal basis. The Borrower shall not enter into any lease, use or other agreement with any non-governmental
person relating to the use of the 2010 Project or the System or security for the payment of the
Series 2010B Bond and the Series 2010C Bond which might cause the Series 2010B Bond or the
Series 2010C Bond, or any one of them, to be considered a “private activity bond” or “private loan bond” within the meaning of Section 141 of the Code.
Section 10.2 General Covenant. The Borrower covenants and agrees with the owners
from time to time of the Series 2010B Bond and the Series 2010C Bond that it will not take or
permit to be taken by any of its officers, employees or agents any action which would cause the
interest on the Series 2010B Bond and the Series 2010C Bond to become includable in gross income for federal income tax purposes under the Code and the Regulations, and covenants to
take any and all actions within its powers to ensure that the interest on the Series 2010B Bond
and the Series 2010C Bond will not become includable in gross income for federal income tax
purposes under the Code and the Regulations.
Section 10.3 Arbitrage Certification. The Mayor, the Director of Finance, and the Clerk of the Commission, being the officers of the Borrower charged with the responsibility for
issuing the Series 2010B Bond and the Series 2010C Bond pursuant to this Supplemental
Resolution, are authorized and directed to execute and deliver to the DNRC a certificate in
accordance with the provisions of Section 148 of the Code, and Section 1.148-2(b) of the
Regulations, stating that on the basis of facts, estimates and circumstances in existence on the date of issue and delivery of the Series 2010B Bond and the Series 2010C Bond, it is reasonably
expected that the proceeds of the Series 2010B Bond and the Series 2010C Bond will be used in
a manner that would not cause the Series 2010B Bond and the Series 2010C Bond to be an
“arbitrage bond” within the meaning of Section 148 of the Code and the Regulations.
Section 10.4 Arbitrage Rebate. The Borrower acknowledges that the Series 2010B Bond and the Series 2010C Bond are subject to the rebate requirements of Section 148(f) of the
Code. The Borrower covenants and agrees to retain such records, make such determinations, file
such reports and documents and pay such amounts at such times as are required under said
Section 148(f) and applicable Treasury Regulations to preserve the exclusion of interest on the
Series 2010B Bond and the Series 2010C Bond from gross income for federal income tax purposes, unless the Series 2010B Bond and the Series 2010C Bond qualify for the exception
from the rebate requirement under Section 148(f)(4)(B) of the Code and no “gross proceeds” of
the Series 2010B Bond and the Series 2010C Bond (other than amounts constituting a “bona fide
debt service fund”) arise during or after the expenditure of the original proceeds thereof. In
furtherance of the foregoing, the Mayor, the Director of Finance, and the Clerk of the Commission are hereby authorized and directed to execute a Rebate Certificate, substantially in
the form to be prepared by Bond Counsel, and the Borrower hereby covenants and agrees to
observe and perform the covenants and agreements contained therein, unless amended or
terminated in accordance with the provisions thereof.
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Section 10.5 Information Reporting. The Borrower shall file with the Secretary of the
Treasury, not later than May 15, 2010, a statement concerning the Series 2010B Bond and the
Series 2010C Bond containing the information required by Section 149(e) of the Code.
Section 10.6 “Qualified Tax-Exempt Obligations.” Pursuant to Section 265(b)(3)(B)(ii) of the Code, the Borrower hereby designates the Series 2010B Bond and the Series 2010C Bond as a “qualified tax-exempt obligation” for purposes of Section 265(b)(3) of the Code. The
Borrower has not designated any obligations in 2010 other than the Series 2010B Bond and the
Series 2010C Bond under Section 265(b)(3). The Borrower hereby represents that it does not
anticipate that obligations bearing interest not includable in gross income for purposes of federal income taxation under Section 103 of the Code (including refunding obligations as provided in Section 265(b)(3) of the Code and including “qualified 501(c)(3) bonds” but excluding other
“private activity bonds,” as defined in Sections 141(a) and 145(a) of the Code) will be issued by
or on behalf of the Borrower and all “subordinate entities” of the Borrower in 2010 in an amount
greater than $30,000,000.
ARTICLE XI
CONTINUING DISCLOSURE
The Borrower understands and acknowledges that the DNRC is acquiring the Series 2010
Bonds under the Program pursuant to which the State issues from time to time State Bonds to provide funds therefor. The Borrower covenants and agrees that, upon written request of the
DNRC from time to time, the Borrower will promptly provide to the DNRC all information that
the DNRC reasonably determines to be necessary or appropriate to offer and sell State Bonds or
to provide continuing disclosure in respect of State Bonds, whether under Rule 15c2-12 (17
C.F.R. § 240.15c2-12) promulgated by the Securities and Exchange Commission under the Securities Exchange Act of 1934, as amended, or otherwise. Such information shall include,
among other things and if so requested, financial statements of the Borrower prepared in
accordance with generally accepted accounting principles promulgated by the Financial
Accounting Standards Board as modified in accordance with the governmental accounting
standards promulgated by the Governmental Accounting Standards Board or as otherwise provided under Montana law, as in effect from time to time (such financial statements to relate to
a fiscal year or any period therein for which they are customarily prepared by the Borrower, and,
if for a fiscal year and so requested by the DNRC, subject to an audit report and opinion of an
accountant or government auditor, as permitted or required by the laws of the State). The
Borrower will also provide, with any information so furnished to the DNRC, a certificate of the Mayor and the Director of Finance of the Borrower to the effect that, to the best of their
knowledge, such information does not include any untrue statement of a material fact or omit to
state any material fact required to be stated therein to make the statements made, in light of the
circumstances under which they are made, not misleading.
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ARTICLE XII
IMPLEMENTATION
This Article XII describes the implementation of the provisions of the Original Resolution as they apply to the Series 2009 Bonds.
Section 12.1 Clean Water Act. References to the “Clean Water Act” shall include any
amendments or supplements to such act as are effected by ARRA.
Section 12.2 Implementation of Original Resolution Section 6.7. For purposes of
construing Section 6.7 of the Original Resolution, principal of and interest on the Series 2010A Bond shall initially be disregarded and interest on the Series 2010B Bond shall be 1.75% per annum. However, in the event the Borrower’s obligation to repay the principal of the Series
2010A Bond is not forgiven as described in Section 5.1.2 of this Supplemental Resolution, the
Borrower shall forthwith, and in any event not later than three (3) months after delivery of an
ARRA Noncompliance Statement, cause the rates, charges and rentals to be charged to all recipients of water services to be maintained and to be revised whenever and as often as may be necessary, according to schedules such that gross revenues for each fiscal year will be at least
sufficient to pay the current expenses of operation and maintenance as defined in the Original
Resolution, to maintain the Operating Reserve herein established, to maintain the amounts in the
Reserve Account at the Reserve Requirement (including, without limitation, the Reserve Requirement determined with the Series 2010B Bond with interest at 3.75% per annum), to
produce Net Revenues during each fiscal year, not less than 125% of the maximum annual
principal and interest payable on any outstanding Bonds in the current or any future fiscal year
(including, without limitation, interest on the Series 2010B Bond at 3.75% per annum), and to
produce sufficient Surplus Net Revenues to pay Subordinate Obligations (including, without limitation, the Series 2010A Bond with interest at 3.75% per annum) as and when due.
ARTICLE XIII
MISCELLANEOUS
Section 13.1 Notices. All notices or other communications hereunder shall be sufficiently sent or given and shall be deemed sent or given when delivered or mailed by
certified mail, postage prepaid, to the parties at the following addresses:
DNRC: Department of Natural Resources and Conservation
1625 Eleventh Avenue
P. O. Box 201601 Helena, Montana 59620-1601
Attn: Conservation and Resource
Development Division
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Trustee: U.S. Bank National Association
c/o Corporate Trust Services
1420 Fifth Avenue, 7th Floor
Seattle, Washington 98101
Borrower: City of Bozeman P.O. Box 1230
Bozeman, Montana 59771-1230
Attn: Director of Finance
Any of the above parties may, by notice in writing given to the others, designate any further or different addresses to which subsequent notices or other communications shall be sent.
Section 13.2 Binding Effect. This Supplemental Resolution shall inure to the benefit of
and shall be binding upon the DNRC, the Borrower and their respective successors and assigns.
Section 13.3 Severability. If any provision of this Supplemental Resolution shall be
determined to be unenforceable at any time, it shall not affect any other provision of the Resolution or the enforceability of that provision at any other time.
Section 13.4 Amendments. This Supplemental Resolution may not be effectively
amended without the written consent of the DNRC.
Section 13.5 Applicable Law. This Supplemental Resolution shall be governed by and
construed in accordance with the internal laws of the State.
Section 13.6 Captions; References to Sections. The captions in this Supplemental
Resolution are for convenience only and do not define or limit the scope or intent of any
provisions or Sections of this Supplemental Resolution.
Section 13.7 No Liability of Individual Officers, Directors or Trustees. No recourse
under or upon any obligation, covenant or agreement contained in this Supplemental Resolution shall be had against any director, officer or employee, as such, past, present or future, of the
DNRC, the DEQ or the Trustee, either directly or through the DNRC, the DEQ or the Trustee, or
against any officer, or member of the governing body or employee of the Borrower, past, present
or future, as an individual so long as such individual was acting in good faith. Any and all
personal liability of every nature, whether at common law or in equity, or by statute or by constitution or otherwise, of any such officer or member of the governing body or employee of
the DNRC, the Trustee or the Borrower is hereby expressly waived and released by the Borrower
and by the DNRC as a condition of and in consideration for the adoption of this Supplemental
Resolution and the making of the Loan.
Section 13.8 Payments Due on Holidays. If the date for making any payment or the last date for performance of any act or the exercise of any right, as provided in this Supplemental
Resolution or the Series 2010 Bonds, shall not be Business Day, such payments may be made or
act performed or right exercised on the next succeeding Business Day with the same force and
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effect as if done on the nominal date provided in this Supplemental Resolution or the Series 2010
Bonds.
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Section 13.9 Right of Others To Perform Borrower’s Covenants. In the event the
Borrower shall fail to make any payment or perform any act required to be performed hereunder, then and in each such case the DNRC or the provider of any Collateral Document may (but shall not be obligated to) remedy such default for the account of the Borrower and make advances for
that purpose. No such performance or advance shall operate to release the Borrower from any
such default and any sums so advanced by the DNRC or the provider of any Collateral
Document shall be paid immediately to the party making such advance and shall bear interest at the rate of ten percent (10.00%) per annum from the date of the advance until repaid. The DNRC and the provider of any Collateral Document shall have the right to enter the 2010 Project
or the facility or facilities of which the 2010 Project is a part or any other facility which is a part
of the System in order to effectuate the purposes of this Section.
Section 13.10 Authentication of Transcript. The officers of the Borrower are hereby authorized and directed to furnish to the DNRC and to Bond Counsel certified copies of all proceedings relating to the issuance of the Series 2010 Bonds and such other certificates and
affidavits as may be required to show the right, power and authority of the Borrower to issue the
Series 2010 Bonds, and all statements contained in and shown by such instruments, including
any heretofore furnished, shall constitute representations of the Borrower as to the truth of the statements of fact purported to be shown thereby.
Section 13.11 Effective Date. This Supplemental Resolution shall take effect
immediately.
Adopted by the City Commission of the City of Bozeman, Montana, on this 19th day of
January, 2010.
____________________________________
Mayor
Attest: ___________________________
Clerk of the Commission
(SEAL)
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A-1
APPENDIX A
Description of the 2010 Project
The 2010 Project generally consists of construction of a sewer system administration building and related improvements.
Estimated 2010 Project Budget
Source: ARRA
Forgiveness $390,700 (A)
Source: ARRA
Loan 1.75% $359,300 (B)
Source: SRF
Loan 3.75% $1,223,000 (C) Total:
Debt Service Reserve $21,810.00 $87,225.00 $109,035.00
Costs of Issuance $1,980.00 1,821.00 6,199.00 10,000.00
Construction 388,720.00 335,669.00 1,129,576.00 1,853,965.00
TOTAL PROJECT COSTS $390,700.00 $359,300.00 $1,223,000.00 $1,973,000.00
Green Infrastructure
Of the amount shown above for construction of and improvements to be included in the 2010
Project, the Borrower estimates that $200,000 of the proceeds of the Series 2010A Bond and of the
Series 2010B Bond will be applied to the costs of Green Infrastructure.
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B-1-1
APPENDIX B-1
[Form of the Series 2010A Bond]
UNITED STATES OF AMERICA
STATE OF MONTANA COUNTY OF GALLATIN
CITY OF BOZEMAN
SUBORDINATE LIEN SEWER SYSTEM REVENUE BOND
(DNRC WATER POLLUTION CONTROL STATE REVOLVING LOAN PROGRAM)
TAXABLE SERIES 2010A
R-1 $390,700
FOR VALUE RECEIVED, THE CITY OF BO ZEMAN, MONTANA (the “Borrow er”),
a duly organized m unicipal corporation and polit ical subdivision of the State of Montana,
acknowledges itself to be specially indebted and hereby prom ises to pay to the Departm ent of
Natural Resources and Conservation of the State of Montana (the “D NRC”), or its registered assigns, solely out of available S urplus Net Revenues in the Replacem ent and Depreciation
Account or the Surplus Account of its Sewer Sy stem Fund (the “Fund”), the principal sum equal
to the sum of the amounts entered on Schedul e A attached hereto under “Total Am ount
Advanced,” with interest on each such amount from the date such amount is advanced hereunder
at the rate of two per cent (2.00%) per annum on the unpaid bala nce until paid, t ogether with an Administrative Expense Surcharge and Loan Loss Reserve Surcharge on the outstanding
principal amount of this Bond from the date of e ach advance of principal at the rate of seventy-
five hundredths of one percent (0.75%) and on e percent (1.00%) per a nnum, respectively, all
subject to the effect of the imm ediately fo llowing paragraph. Interest and Adm inistrative
Expense S urcharge and Loan L oss Reserve Su rcharge shall be payable in sem iannual installments payable on each January 1 and July 1 (each a “Loan Repayment Date”) commencing
with the Loan Repayment Date that is the first to occur following de livery by the DNRC to the
Borrower of a statem ent that the Borrower’s ob ligation to repay the pr incipal amount of the
2010A Loan is not forgiven and ending on the January 1, 2030, all as described in the Resolution
(as hereinafter defined), subject to earlier redemption. Principal shall also be payable on the dates set forth in Schedule B hereto. Each in stallment shall be in th e amount set forth opposite
its due date in Schedule B att ached hereto un der “Total Loan Payment.” Th e portion of each
such payment consisting of princi pal, the portion consisting of interest, the portion consisting of
Administrative Expense Surcharge, and the porti on consisting of Loan Loss Reserve Surcharge
shall be as set forth in Schedule B attached hereto. Upon each disbu rsement of 2010A Loan amounts to the Borrower pursuant to the Resolution described below, the DNRC shall enter (or
cause to be entered) the amount advanced on Schedule A under “Advances” and the total amount
advanced under the Resolution (as hereinafte r defined), including such disbursem ent, under
“Total Amount Advanced.” The DNRC shall prepare Schedule B and any revised Schedule B,
or cause Schedule B and any revised Schedule B to be prepared, as provided in Section 5.1 of the
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supplemental resolution authorizing the Bond, and the final Schedule B will reflect repaym ents
under Section 5.1.5 of such resolu tion. Schedule B shall be calcu lated and recalculated on a
level debt service basis assum ing an interest ra te of three and sevent y-five hundredths percent
(3.75%) per annum . Past-due paym ents of pri ncipal and interest and Ad ministrative Expense Surcharge a nd Loan Loss Reserve Surcharge shall be ar interes t at the rate of ten percen t
(10.00%) per annum, until paid. Interest and Adm inistrative Expense Surcharge and Loan Loss
Reserve Surcharge shall be calculated on the basis of a 360-day year comprising 12 months of 30
days each. All payments under this Bond shall be made to the re gistered holder of this Bond, at
its address as it appears on the Bond register, in lawful money of the United States of America.
B-1-2
NOTWITHSTANDING THE FOR EGOING PROVISIONS OF THIS BOND, IN THE
EVENT THAT THE BORROWER TIMELY DELIVERS AN ARR A CE RTIFICATE AND
REQUEST (AS DEF INED IN THE RE SOLUTION) IN FOR M AND SUBST ANCE
SATISFACTORY TO THE DNRC AND T HE DNRC IN RESPONSE THERETO SUPPLIES
TO THE BORROWER AN ARRA FORGIVEN ESS STATEMENT, THEN THEREUPON INTEREST SHALL BE DEEMED TO ACCRUE ON THE PRINCI PAL OF THIS SERIES
2010A BOND FROM THE DATE OF EACH ADVANCE AT THE RATE OF ZERO
PERCENT (0.00%) PER ANNUM AND THE BORROWER’S OBLIGATION TO REPA Y
PRINCIPAL ADVANCED HEREUNDER SHALL BE F ORGIVEN, AND THE BOR ROWER
SHALL HAVE NO OBLIGATION TO REPAY THE DNRC OR ITS REGISTERED ASSIGNS ANY AMOUNTS ADVANCED HEREUNDER OR INTEREST OR ANY SURCHARGE
THEREON. THIS BOND S HALL THERE UPON BE MARKED “CANCEL LED” AN D
RETURNED B Y T HE HOL DER TO T HE B ORROWER, AND T HIS B OND S HALL NO
LONGER CONSTITUTE AN OBL IGATION OF THE BORROWER OR OF THE SYSTEM
(AS HEREINAFTER DEFINED). IN ADDITION, UNTI L THE DELIVERY OF AN AR RA STATEMENT BY THE DNRC TO THE BORROWER, T HE OBLIGATION OF T HE
BORROWER TO REP AY THE OUTSTANDI NG PRINCIPAL AMOUNT HE REOF SHALL
BE DEFERRED UNTI L THE LOAN REPA YMENT DATE FIRST OCCURRING AFTER
DELIVERY OF AN ARR A ST ATEMENT AN D INTEREST SHALL BE DEEMED T O
ACCRUE ON THE PRINCIPAL OF THIS SERIES 2010A BOND FR OM THE DATE OF EACH ADVANCE UNTIL DELIVERY OF SUCH A STATEMENT AT THE RATE OF ZERO
PERCENT (0.00%) PER ANNUM.
This Bond is one of an issue of Sewe r System Revenue Bonds of the Borrower
authorized to be issued in one or m ore series from time to time, and constitutes a series in the
maximum authorized principal am ount of $390,700 (the “Series 2010A Bond”). The Series 2010A Bond is issued to finance a portion of the costs of the c onstruction of certain
improvements to the municipal sewer system of the Borrower (the “System”) and to pay costs of
issuance of the Series 2010 Bonds. The Series 2010A Bond is issued pursuant to and in full
conformity with the Constitution and laws of the State of Montana thereunto enabling, including
Montana C ode Annotated, Title 7, Chapter 7, Part 44, as am ended, and ordinances and resolutions duly adopted by the governing body of the Borrower, including Resolution No 4220
of the City adopted on N ovember 16, 2009, as su pplemented by Resolution No. [____], adopted
January 19, 2010 (as so supplem ented, the “Resolution”). Terms used with initial capital letters
but not defined herein have the m eanings given to them in the Resolution. The Series 2010A
Bond is issuable only as a single, fully register ed bond. The Series 2010A Bond is issued as a
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Subordinate Obligation payable ou t of available Surplus Net Re venues in the Replacem ent and
Depreciation Account or the Surplus Account in the Fund of the Borrower. Simultaneously
herewith, the Borrower is issuing its Sewe r System Reve nue Bond (DNRC Water Pollution
Control State Revolving Loan Program), Series 2010B (the “Series 2010B Bond”) and its Sewer System Revenue Bond (DNRC W ater Pollution Control State Revolvi ng Loan Program), Series
2010C (the “Series 2010C Bond”) which are payable from the Revenue Bond Account in the
Fund of the Borrower. Following the 2010B First Advance, principal am ounts of this Series
2010A Bond are advanced until all of the principal of this Series 2010A Bond is advanced prior
to advances under the Series 2010B Bond or the Series 2010C Bond.
B-1-3
Reference is m ade to the Resolution f or a more com plete statement of the term s and
conditions upon which the Series 20 10A Bond ha s been issued, the conditions upon which the
Resolution may be amended, the rights, duties and ob ligations of the Borrower, and the rights of
the owners of the Series 2010A Bond.
The Borrower may prepay the principal of the S eries 2010A Bond only if (i) an ARRA Statement has been delivered, (ii) it obtains th e prior written consent of the DNRC thereto, and (iii) no Loan Repayment or Administrative Expense Surcharge or Loan Loss Reserve Surcharge
is then delinquent. Any prepayment permitted by the DNRC must be accompanied by payment
of accrued interest, and Administrative Expense Surcharge and Loan Loss Reserve Surcharge to
the date of prepayment on the amount of principal prepaid. If the Series 2010A Bond is prepaid in part, such prepayments shall be applied to principal payments in inverse order of maturity.
This Series 2010A Bond, including interest a nd any premium for the redemption thereof,
are payable solely from the Surplus Net Revenue s available for the paym ent hereof and do not
constitute a debt of the Borrowe r within the meaning of any constitutional or statutory limitation
or provision.
The Borrower may deem and treat the person in whose nam e this Series 2010A Bond is
registered as the absolute owner hereof, whethe r this Series 2010A Bond is overdue or not, for
the purpose of receivin g payment and for all ot her purposes, and the Borrower shall not b e
affected by any notice to the contrary. The Series 2010A Bond may be transferred as hereinafter
provided.
The Borrower understands that the principal amounts of the 2010A Loan and the 2010B
Loan have been sized based on the understanding and expectation that the 2010 Project costs at
least $750,000 and that the Borrower will request di sbursement of the full amount of the 2010A
Loan and 2010B Loan. Notwithstanding any provi sion to the contrary herein, the Borrower
acknowledges and agrees that in the event there is any Undisbursed Committed Amount, then the DNRC reserves the right in its sole and complete discretion to reallocate loan am ounts as
between the 2010A Loa n and 2010B Loan on the basis of the a mounts of the 2010A Loan and
the 2010B Loan that the Borrower would have b een entitled to had the 2010 Loans initially
equaled the Committed Amount less the Undisbursed Committed Amount. The reallo cation
between the 2010A Loan and 2010B Loan will re flect the same proportions of the 2010 Loans originally allocated to the 2010A Loan and 2010B Loan. Upon m aking such reallocation, the
DNRC shall deliver to the Borrower a replacement Series 2010A Bond and a replacement Series
2010B Bond reflecting adjusted principal amounts, which bonds shall supersede and render of no
141
effect the original bonds and be payable on the same dates as described in the original bonds, but
in an adjusted am ount owing on each Paym ent Da te because of the r eallocation of principal
amounts. The Borrower shall execute and deli ver the replacement Series 2010A Bond and the
replacement Series 2010B Bond to the DNRC within thirty (30) days af ter delivery of such bonds to the Borrower by the DNRC. Conte mporaneous with the delivery of the replacem ent
Series 2010A Bond and the repl acement Series 2010B Bond to the DNRC by the Borrower, the
Borrower shall determine whether the Net Revenues of the System total at least 1 25% of the
maximum principal of and interest payable on th e Bonds outstanding in a ny Fiscal Year, and, if
they do not, the Borrower shall increase its rates and charges to satisfy the rate covenant set forth in Section 6.7 of the Resolution, as im plemented as described in Section 12.2 of the
supplemental resolution authorizing this Bond, within three (3) months after the date of delivery
of the replacement Series 2010A Bond and th e replacement Series 2010B Bond to the DNRC by
the Borrower.
B-1-4
IT IS HEREBY CERT IFIED, RE CITED, COVENANTED AND AGREE D that the Borrower will forthwith construct and com plete the improvements to the System hereinabove described; that it will prescribe an d collect reasonable rate s and charges for all services and
facilities afforded by the System , includ ing all additions thereto and replacem ents and
improvements thereof, and has created a specia l Sewe r S ystem Fund into which the g ross
revenues of the System will be pa id, and a sepa rate and special Replacement and Depreciation Account and Surplus Account in th at Fund, into which will be pa id, subject to the prior lien
thereon of the Operating Account, the Revenue Bond Account and the Reserve Account, Surplus
Net Revenues; that the rates and charges for the System will from time to time be made and kept
sufficient, to provide gross incom e and revenue s adequate to pay promptly the reasonable and
current expenses of operating and maintaining th e System, to produce in each fiscal year Net Revenues in excess of such current expenses, eq ual to at least 125% of the m aximum amount of
principal and interest payable from the Revenue Bond Account in any subsequent fiscal year and
to produce in each fiscal year adequate Surplus Ne t Revenues to pay the principal of and interest
on the Series 2010A Bond as and when due; that additional bonds issued on a parity with the
Series 2010B Bond and the Series 2010C Bond (s uch bonds, collectively with the Series 2010B Bond and the Series 2010C Bond, the “Bonds”) and refunding Bonds may be issued and m ade
payable from the Revenue Bond Account on a parity with the Series 2010B Bond, the Series
2010C Bond, and other parity Bonds, upon certain c onditions set forth in the Resolution, but no
obligation will be otherwise incurred and made payable from the Net Revenues of the System,
unless the lien thereof shall be expressly made subordinate to the lien of the Series 2010B Bond, the Series 2010C Bond, and any ad ditional parity Bonds on such Net R evenues (such as is th e
case with this Series 2010A Bond); that all provisions for the security of the holder of this Series
2010A Bond set forth in the Resolution will b e punctually and faithfully perform ed as therein
stipulated; that all acts, conditi ons and things required by th e Constitution and laws of the State
of Montana and the ordinances and resolutions of the Borrower to be done, to exist, to happen and to be perform ed in order to m ake this Series 2010A Bond a valid and binding special
obligation of the Borrower according to its term s have been done, do exist, have happened an d
have been perform ed in regular and due for m, time and manner as so required; and that this
Series 2010A Bond and the interest hereon are payable solely out of available Surplus Net
Revenues in the Replacement and Depreciation Account or the Surplus Account of the Fund and do not constitu te a debt of the Borrower within the meaning of any constitu tional or statu tory
142
limitation or provision and the issuance of the Se ries 2010A Bond does not cause either the
general or the specia l indebtedness of the Bo rrower to ex ceed any co nstitutional or sta tutory
limitation.
B-1-5
IN W ITNESS WHEREOF, the City of Bozem an, Montana, by its governing body, has caused this Bond to be executed by th e signatures of the Ma yor, the Director of Finance, and the Clerk of the Commission, and has caused the official seal of the Borrower to be
affixed hereto, and has caused this Bond to be dated as of the day of February, 2010.
______________________________________ Mayor
(Seal)
_______________________________________
Director of Finance
_______________________________________
Clerk of the Commission
143
B-1-6
REGISTRATION AND TRANSFER
This Bond shall be fully registered as to both principal and interest. No transfer of this
Bond shall be valid unless and until (1) the register ed holder of the Bond, or his duly authorized
attorney or legal representative, executes the form of assignment appearing on this Bond, and (2) the Director of Finance as bond registrar (the “Registrar”), ha s duly noted the transfer on the
Bond and recorded the transfer on the Regist rar’s registration books. The Borrower shall be
entitled to deem and treat the pe rson in whose nam e this Bond is registered as absolute owner
thereof for all purposes, notwithstanding any notice to the contrary. Payments on account of the
Bond shall be made only to the order of the registered holder thereof, and all such payments shall be valid and effectual to satisfy and discharge the Borrower’s liability upon the Bond to the
extent of the sum or sums so paid.
REGISTER
The ownership of the unpaid Principal Bala nce of this Bond and the interest accruing
thereon is registered on the books of the City of Bozeman, Montana in the name of the registered holder appearing on the first page hereof or as last noted below:
Date of Name and Address Signature of
Registration of Registered Holder Director of Finance
, 2010 Department of Natural
Resources and Conservation 1625 Eleventh Avenue
Helena, MT 59620
THE FOLLOWING ENTRIES ARE TO BE MADE ONLY BY THE BOND
REGISTRAR UPON REGISTRATION OF EACH TRANSFER
The Director of Finance of the City, acting as Bond Registrar, has transferred, on the books of the City, on the date last noted below, ownership of the principal amount of and the
accrued interest on this Bond to the new registered holder noted next to such date, except for
amounts of principal and interest theretofore paid.
Date of Transfer
Name of New
Registered Holder
Signature of
Bond Registrar
144
B-1-7
THE FOLLOWING ENTRIES ARE TO BE MADE ONLY BY THE BOND
REGISTRAR UPON REGISTRATION OF EACH TRANSFER
The Director of Finance of the City of Bozeman, Montana, acting as Bond Registrar, has
transferred, on the books of the Borrower, on the date last noted below, ownership of the principal amount of and the accrued interest on this Bond to the new registered holder noted next to such date, except for amounts of principal and interest theretofore paid.
Name of New Signature of
Date of Transfer Registered Holder Bond Registrar
FORM OF ASSIGNMENT
For value received, this Bond is hereby transferred and assigned by the undersigned
holder, without recourse, to
on this day of , .
By:
(Authorized Signature)
For:
(Holder)
145
B-1-8
SCHEDULE A
SCHEDULE OF AMOUNTS ADVANCED
Date Advances
Total Amount
Advanced Notation Made By
146
B-1-9
SCHEDULE B
Loa n Loss Administrative Reserve Total Loan Date Princi pal Intere st Ex pense Surcharge Surcharge Payment
147
B-2-1
APPENDIX B-2
[Form of the Series 2010B Bond]
UNITED STATES OF AMERICA
STATE OF MONTANA COUNTY OF GALLATIN
CITY OF BOZEMAN
SEWER SYSTEM REVENUE BOND
(DNRC WATER POLLUTION CONTROL STATE REVOLVING LOAN PROGRAM)
SERIES 2010B
R-1 $359,300
FOR VALUE RECEI VED, THE CITY OF BOZ EMAN, MONT ANA (the
“Borrower”), a duly organized m unicipal corporation and political subdivision of the State of
Montana, acknowledges itself to be specially indebted and he reby prom ises to pay to the
Department of Natural Resources and Conservation of the State of Montana (the “DNRC”), or its registered assigns, solely from the Revenue Bond Account of its Sewer System Fund, t he
principal sum equal to the sum of the am ounts entered on Schedule A a ttached hereto under
“Total Amount Advanced,” with interest on each such a mount from the date such a mount is
advanced hereunder at the rate of one and se venty-five hundredths percent (1.75%) per annum
on the unpaid balance until paid , subject to the provisions of the imm ediately following paragraph. Interest shall be payable on each January 1 and July 1 (each a “Loan Repaym ent
Date”) commencing July 1, 2010. Principal shall be payable on the dates set forth in Schedule B
hereto. E ach installment shall be in the am ount set forth oppos ite its due date in S chedule B
attached hereto under “Total Loan Paym ent.” The portion of each such paym ent consisting of
principal and the portion c onsisting of interest shall be as se t forth in Schedule B hereto. Upon each disbursement of 2010B Loan amounts to the Borrower pursuant to the Resolution described
below, the DNRC shall enter (or cause to be en tered) the amount advanced on Schedule A under
“Advances” and the total am ount advanced under the Resolution (as hereinafter defined),
including such disbursem ent, under “Total Amount Advanced.” The DNRC shall prepare
Schedule B and any revised Schedule B, or cause Schedule B and any revised Schedule B to be prepared, as provided in Secti on 5.1 of the supplem ental resolution author izing this Bond.
Schedule B shall be calculated and recalculated on a level debt service basis assuming an interest
rate of 1.75% per annum. Past-due paym ents of principal and interest sha ll bear interest at the
rate of ten percent (10.00%) per annum, until paid. Interest shall be calculated on th e basis of a
360-day year com prising 12 m onths of 30 day s each. All paym ents under th is Bond shall be made to the registered holder of this Bond, at its address as it appears on the Bond register, in
lawful money of the United States of America.
NOTWITHSTANDING THE PROVISIONS OF THE FOR EGOING
PARAGRAPH OR ANY OTHE R PROVISION TO THE CONTR ARY HER EIN, IN THE
148
EVENT THE DNRC DELIVERS TO THE BORROWER AN AR RA NONC OMPLIANCE
CERTIFICATE, THEN PRINCIPAL AMOUNTS ADVANCED HEREUNDER SHALL BEAR
INTEREST FROM AND AFTER THE DATE OF EACH ADVANCE COMMENCING WITH
THE 2010B FIRST ADVANCE (A S DEFINED IN THE RESOLUTI ON) AT A RATE OF TWO PERCENT (2.00%) PER ANNUM AND THE BORROWER SHALL PAY THE
ADMINISTRATIVE EXPENSE SURCHARGE AND LOAN LOSS RESERVE SURCHARGE
ON AMOUNTS ADVANCE D HEREUNDE R FROM AND AFT ER THE 2 010B FIRST
ADVANCE AT THE RATES OF SEVENTY-FIVE HUNDRE DTHS OF ONE PERCE NT
(0.75%) A ND ONE PERCE NT (1.00%) PE R ANNUM, RESPECTIVEL Y, AND T HE IMMEDIATELY FOLLOW ING PARAGRAP H W ILL THEREUPON GOVERN AND
SUPERSEDE THE LOAN REPAYMENT PROVI SIONS OF THE INITIAL PARAGRAPH
ABOVE.
B-2-2
In the event of delivery of an ARRA Noncom pliance Statement, interest at a rate of two
percent (2.00%) per annum and an Administrative Surcharge and Loan Loss Reserve Surcharge on each adv ance of prin cipal of this Bond from and after the 2010B First Advance shall be payable in sem iannual installments payable on each Loan Repaym ent Date commencing with
the Loan Repayment Date that is the first to occur following delivery by the DNRC of an ARRA
Noncompliance Statem ent (as defined in the Resolution described below) and taking into
account payments, if any, made on each Loan Repayment Date pursuant to the initial paragraph of this Bond prior to the delivery of such stat ement, all as described in Section 5.1 of the
Resolution. Principal shall be payable on the dates set f orth in Schedule B hereto. Loan
Repayments and payments of Adm inistrative Expense Surcharge and Loan Loss Reserve
Surcharge shall be due or owing on each Payment Date co mmencing with the Loan Repayment
Date that is the first to occur after delivery of an ARRA Noncompliance Statement, through and including January 1, 2030. Each installment shall be in the amount set forth opposite its due date
in Schedule B attached h ereto under “Total Loan Payment.” The portion of each such paym ent
consisting of principal, the portion consisting of interest, the portion consisting of Administrative
Expense Surcharge and the portion consisting of Loan Loss Reserve Surcharge s hall be as s et
forth in Schedule B hereto. Am ounts, if any, paid by the Borrower under the initial paragrap h above will be credited against the paym ents owing by the Borrower under this paragraph. The
DNRC shall prepare Schedule B and any revise d Schedule B, or cause Schedule B and any
revised Schedule B to be prepared, as provided in Section 5.1, and particularly Section 5.1.5, of
the supplemental resolution authorizing this Bo nd. Schedule B under this paragraph shall be
calculated and recalculated on a level debt service basis assuming an interest rate of three and seventy-five hundredths percent (3.75%) per annum . Past-due paym ents of principal, interest,
Administrative Expense Surcharge and Loan Loss Reserve Surcharge s hall bear interest a t the
rate of ten percent (10.00%) per annum, until paid. Interest, Administrative Expense Surcharge
and Loan Loss Reserve Surcharge shall be calcu lated on the basis of a 360-day year com prising
12 months of 30 days each. All payments under this Bond shall be made to the registered holder of this Bond, at its address as it appears on the Bond register, in lawful m oney of the United
States of America.
This Bond is one of an issue of Sewe r System Revenue Bonds of the Borrower
authorized to be issued in one or m ore series from time to time, and constitutes a series in the
maximum authorized principal am ount of $359,300 (the “Series 2010B Bond”). The Series
149
2010B Bond is issued to finance a portion of the costs of the c onstruction of certain
improvements to the sewer system of the Borrower (the “System”), to fund a reasonably required
reserve and to pay costs of i ssuance of the Series 2010 Bonds. The Series 2010B Bond is issued
pursuant to and in f ull conf ormity with the Constitution and laws of the State of Montana thereunto enabling, including Montana Code Annotated, Title 7, Chapter 7, Part 44, as amended,
and ordinances and resolutions duly adopted by the governing body of the Borrower, including
Resolution No 4220 of the City adopted on Nove mber 16, 2009, as supplemented by Resolution
No. [___________], adopted January 19, 2010 (as so supplemented, the “Resolution”). Term s
used with initial capital letters but not defined herein have the m eanings given to them in the Resolution. The Series 2010B B ond is issuable only as a singl e, fully registered bond. The
Series 2010B Bond is issued on a parity with the Borrower’s Sewer System Revenue Bond
(DNRC Water Pollution C ontrol State Revolving Loan Pr ogram), Ser ies 2010C (the “Series
2010C Bond”), which is being issued sim ultaneously herewith. The Borro wer is also issuing
simultaneously herewith its Subordinate Li en Sewer Sys tem Revenue Bond (DNRC W ater Pollution Control State Revolving Loan Program ), Taxable Series 2010A (the “Series 2010A
Bond”). The 2010B First Advance has been advanced at Closing. Following the 2010B First
Advance, the remaining principal amounts of this Series 2010B Bond are advanced only after the
full advance of the principal amount of the Series 2010A Bond.
B-2-3
Reference is m ade to the Resolution f or a more com plete statement of the term s and conditions upon which the Series 2010B Bond has been issued, the Net Revenues of the System
pledged and appropriated for the paym ent and security thereof, th e conditions upon which
additional bonds may be issued under the Resolution and made payable from such Net Revenues
on a parity with the Series 2010B Bond and the Series 2010C Bond (such parity bonds, together
with the Series 2010B Bond and the Series 2010C Bond, the “B onds”) or otherwise, the conditions upon which the Resolution m ay be amended, the rights, duties and obligations of the
Borrower, and the rights of the owners of the Series 2010B Bond.
The Borrower may prepay the principal of the Series 2010B Bond onl y if (i) an ARRA
Statement has been delivered, (ii) it obtains th e prior written consent of the DNRC thereto, and
(iii) no Loan Repaym ent is then delinquent. Any prepayment permitted by the D NRC must be accompanied by paym ent of accrued interest an d Administrative Expense Surcharge and Loan
Loss Reserve Surcharge, if any, to the date of pr epayment on the amount of principal prepaid. If
the Series 2010B Bond is prepaid in part, such prepaym ents shall be applied to principal
payments in inverse order of maturity.
The Series 2010B Bond, including interest a nd any premium for the redemption thereof, are payable solely from the Net Revenues pledged for the payment thereof and do not constitute
a debt of the Borrower within the m eaning of any constitutional o r statuto ry lim itation or
provision.
The Borrower may deem and treat the person in whose nam e this Series 2010B Bond is
registered as the absolute owner hereof, whethe r this Series 2010B Bond is overdue or not, for the purpose of receivin g payment and for all ot her purposes, and the Borrower shall not b e
affected by any notice to the contrary. The Seri es 2010B Bond may be transferred as hereinafter
provided.
150
B-2-4
This Series 2010B Bond has been designated by the Borrower as a “qualified tax-exempt
obligation” pursuant to Section 265 of the Internal Revenue Code of 1986, as amended.
The Borrower understands that the principal amounts of the 2010A Loan and the 2010B
Loan have been sized based on the understanding and expectation that the 2010 Project costs at least $750,000 and that the Borrower will request di sbursement of the full amount of the 2010A Loan and 2010B Loan. Notwithstanding any provi sion to the contrary herein, the Borrower
acknowledges and agrees that in the event there is any Undisbursed Committed Amount, then the
DNRC reserves the right in its sole and complete discretion to reallocate loan am ounts as
between the 2010A Loa n and 2010B Loan on the basis of the a mounts of the 2010A Loan and the 2010B Loan that the Borrower would have b een entitled to had the 2010 Loans initially equaled the Committed Amount less the Undisbursed Committed Amount. The reallo cation
between the 2010A Loan and 2010B Loan will re flect the same proportions of the 2010 Loans
originally allocated to the 2010A Loan and 2010B Loan. Upon m aking such reallocation, the
DNRC shall deliver to the Borrower a replacement Series 2010A Bond and a replacement Series 2010B Bond reflecting adjusted principal amounts, which bonds shall supersede and render of no effect the original bonds and be payable on the same dates as described in the original bonds, but
in an adjusted am ount owing on each Paym ent Da te because of the r eallocation of principal
amounts. The Borrower shall execute and deli ver the replacement Series 2010A Bond and the
replacement Series 2010B Bond to the DNRC within thirty (30) days af ter delivery of such bonds to the Borrower by the DNRC. Conte mporaneous with the delivery of the replacem ent
Series 2010A Bond and the repl acement Series 2010B Bond to the DNRC by the Borrower, the
Borrower shall determine whether the Net Revenues of the System total at least 1 25% of the
maximum principal of and interest payable on th e Bonds outstanding in a ny Fiscal Year, and, if
they do not, the Borrower shall increase its rates and charges to satisfy the rate covenant set forth in Section 6.7 of the Resolution, as im plemented as described in Section 12.2 of the
supplemental resolution authorizing this Bond, within three (3) months after the date of delivery
of the replacement Series 2010A Bond and th e replacement Series 2010B Bond to the DNRC by
the Borrower.
IT IS HEREBY CERT IFIED, RE CITED, COVENANTED AND AGREE D that the Borrower h as duly authorized and will forthwith undertak e the im provements to the System
hereinabove described, has fixed and established and will collect reasonable rates and charges for
the services and facilities afforded by th e System , including all additions thereto and
replacements and im provements thereof, and ha s created a special Sewer System Fund into
which the gross revenues of the System will be paid, and a separate and special Revenue Bond Account in that Fund, into which will be paid each m onth, from and as a first and prior lien on
the Net Revenues of the System then on hand, a n amount equal to not less than the sum of one-
sixth of the interest to become due within the next six months and one-twelfth of the principal to
become due within the next twel ve months with respect to all Bonds payable from that Account;
that the Borrower has created a Reserve Account in such fund into which shall be paid additional Net Revenues, after required cr edits to the Revenue Bond Account sufficient to establish and
maintain a reserve therein equal to, as of the date of calculation, the Reserve Requirement (as
defined in the Resolution); that the Revenue Bond Account will be used only to pay the principal
of, premium, if any, and interest on the Series 2010B Bond, the Series 2010C Bond, and any
other additional Bonds issued pursuant to the Reso lution on a parity therewith; that the rates and
151
charges for the System will f rom time to tim e be made and kept suf ficient, to p rovide gross
income and revenues adequate to pay promptly the reasonable and current expenses of operating
and maintaining the System and to produce in each fiscal y ear Net Revenues in excess of such
current expenses, equal to 125% of the m aximum amount of principal and interest payable from the Revenue Bond Account in any subsequent fi scal year (calculated assum ing the DNRC has
delivered a ARRA Forgiveness S tatement); that additional Bonds and refunding Bonds m ay be
issued and m ade payable from the Revenue B ond Account on a parity with the S eries 2010B
Bond, the Series 2010C Bond, and additional p arity Bonds upon certain conditions set forth in
the Resolution, but no obligation will be oth erwise incurred and m ade payable from the Net Revenues of the System, unless the lien thereof shall be expressly made subordinate to the lien of
the Series 2010B Bond, the Series 2010C Bond, and addition al parity Bonds on such Ne t
Revenues and such obligations ar e payable only from Surplus Net Revenues (as is the case with
the Series 2010A Bond) ; that all provisions for the security of the holder of this Series 2010B
Bond set forth in the Resolution will be punctually and faithfully performed as therein stipulated; that all acts, conditions and things required by the Constitution and laws of the State of Montana
and the ordinances and resolutions of the Borrower to be done, to exist, to happen and to be
performed in order to make this Series 2010B Bond a valid and bi nding special obligation of the
Borrower according to its term s have been done, do exist, have happened and have been
performed as so required; and that this Series 2010B Bond and the premium, if any, and interest hereon are payable solely from the Net Revenues of the System pledged and appropriated to the
Revenue Bond Account and do not constitu te a debt of the Borrower within the meaning of any
constitutional or statutory or charter limitation or provision and the issuance of the Series 2010B
Bond does not cause either the general or the special indebtedness of the Borrower to exceed any
constitutional or statutory or charter limitation.
B-2-5
IN W ITNESS WHEREOF, the City of Bozem an, Montana, by its governing
body, has caused this Bond to be executed by th e signatures of the Ma yor, the Director of
Finance, and the Clerk of the Commission, and has caused the official seal of the Borrower to be
affixed hereto, and has caused this Bond to be dated as of the day of February, 2010.
______________________________________
Mayor
(Seal)
_______________________________________
Director of Finance
_______________________________________
Clerk of the Commission
152
B-2-6
REGISTRATION AND TRANSFER
This Bond shall be fully registered as to both principal and interest. No transfer of this
Bond shall be valid unless and until (1) the register ed holder of the Bond, or his duly authorized
attorney or legal representative, executes the form of assignment appearing on this Bond, and (2) the Director of Finance as bond registrar (the “Registrar”), ha s duly noted the transfer on the
Bond and recorded the transfer on the Regist rar’s registration books. The Borrower shall be
entitled to deem and treat the pe rson in whose nam e this Bond is registered as absolute owner
thereof for all purposes, notwithstanding any notice to the contrary. Payments on account of the
Bond shall be made only to the order of the registered holder thereof, and all such payments shall be valid and effectual to satisfy and discharge the Borrower’s liability upon the Bond to the
extent of the sum or sums so paid.
REGISTER
The ownership of the unpaid Principal Bala nce of this Bond and the interest accruing
thereon is registered on the books of the City of Bozeman, Montana in the name of the registered holder appearing on the first page hereof or as last noted below:
Date of Name and Address Signature of
Registration of Registered Holder Director of Finance
, 2010 Department of Natural
Resources and Conservation 1625 Eleventh Avenue
Helena, MT 59620
THE FOLLOWING ENTRIES ARE TO BE MADE ONLY BY THE BOND
REGISTRAR UPON REGISTRATION OF EACH TRANSFER
The Director of Finance of the City, acting as Bond Registrar, has transferred, on the books of the City, on the date last noted below, ownership of the principal amount of and the
accrued interest on this Bond to the new registered holder noted next to such date, except for
amounts of principal and interest theretofore paid.
Date of Transfer
Name of New
Registered Holder
Signature of
Bond Registrar
153
B-2-7
THE FOLLOWING ENTRIES ARE TO BE MADE ONLY BY THE BOND
REGISTRAR UPON REGISTRATION OF EACH TRANSFER
The Director of Finance of the City of Bozeman, Montana, acting as Bond Registrar, has
transferred, on the books of the Borrower, on the date last noted below, ownership of the principal amount of and the accrued interest on this Bond to the new registered holder noted next to such date, except for amounts of principal and interest theretofore paid.
Name of New Signature of
Date of Transfer Registered Holder Bond Registrar
FORM OF ASSIGNMENT
For value received, this Bond is hereby transferred and assigned by the undersigned
holder, without recourse, to
on this day of , .
By:
(Authorized Signature)
For:
(Holder)
154
B-2-8
SCHEDULE A
SCHEDULE OF AMOUNTS ADVANCED
Date Advances
Total Amount
Advanced Notation Made By
155
B-2-9
SCHEDULE B
Total Loan Date Princi pal Intere st Payment
156
B-3-1
APPENDIX B-3
[Form of the Series 2010C Bond]
UNITED STATES OF AMERICA
STATE OF MONTANA COUNTY OF GALLATIN
CITY OF BOZEMAN
WATER SYSTEM REVENUE BOND
(DNRC DRINKING WATER STATE REVOLVING LOAN PROGRAM)
SERIES 2010C
R-1 $1,223,000
FOR VALUE RECEIVED, the City of Bo zeman, Montana (the “Borrower”), a
duly organized m unicipal corporation and politic al sub division of the Sta te of Montana ,
acknowledges itself to be specially indebted and, for value received, hereby prom ises to pay to
the Department of Natural Resources and Conser vation of the State of Montana (the “DNRC”), or its registered assigns, sole ly from the Revenue Bond Account of its Sewer System Fund, the
principal sum equal to the sum of the am ounts entered on Schedule A a ttached hereto under
“Total Amount Advanced,” with interest on each such a mount from the date such a mount is
advanced hereunder at the rate of two percen t (2.00%) per annum on the unpaid balance until
paid. As described more part icularly in the Resolution (d efined below), the 2010C First Advance will be m ade following the advance of the full principal am ount of the Series 2010 A
Bond and the Series 2010B Bond (a s such term s are defined belo w or in the Resolution), and
upon the making of the 2010C First Advance, th e DNRC shall enter the applicable a mount on
Schedule A hereto and attach th e applicable Schedule B hereto. In addition, the Borrower shall
pay an Adm inistrative Expense Surcharge and a Loan Loss Reserve Surch arge on the outstanding principal amount of this Bond at the rates of seventy-five hundredths of one percent
(0.75%) and one percent (1.00%), respectively, per annum. Interest and Administrative Expense
Surcharge and Loan Loss Reserve Surcharge shall be payable in semiannual installments payable
on each January 1 and July 1 (each a “Loan Repa yment Date”) commencing on the date first set
forth in the colum n headed “Date” or “Payme nt Date” on Schedule B attached hereto and concluding on January 1, 2030. Pr incipal shall be payable on the dates set forth in Schedule B
hereto. E ach installment shall be in the am ount set forth oppos ite its due date in S chedule B
attached hereto under “Total Loan Paym ent.” The portion of each such paym ent consisting of
principal, the portion consisting of interest, the portion consis ting of Adm inistrative Expense
Surcharge, and the portion consis ting of Loan Loss Reserve Surcharge shall b e as set f orth in Schedule B hereto. Upon each disbursem ent of Loan amounts to the Borrower pursuant to the
Resolution described below, the DNRC shall enter (o r cause to be entered) the amount advanced
on Schedule A under “Advances” and the total amount advanced under the Resolution (as
hereinafter defined), including such disbursem ent, under “Tot al Amount Advanced.” The
DNRC shall prepare Schedule B and any revise d Schedule B, or cause Schedule B and any
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revised Schedule B to be prepared, as provide d in Section 5.1 of the Resolution. Schedule B
shall be calculated and recalculated on a level debt service basi s assuming an interest rate of
3.75% per annum . Pa st-due payments of princi pal and interest and Ad ministrative Expense
Surcharge a nd Loan Loss Reserve Surcharge shall be ar interes t at the rate of ten percen t (10.00%) per annum, until paid. Interest and Adm inistrative Expense Surcharge and Loan Loss
Reserve Surcharge shall be calculated on the basis of a 360-day year comprising 12 months of 30
days each. All payments under this Bond shall be made to the re gistered holder of this Bond, at
its address as it appears on the Bond register, in lawful money of the United States of America.
B-3-2
This Bond is one of an issue of Sewe r System Revenue Bonds of the Borrower authorized to be issued in one or m ore series from time to time, and constitutes a series in the maximum authorized principal am ount of $1,22 3,000 (the “Series 2010C Bond”). The Series
2010C Bond is issued to finance a portion of the costs of the c onstruction of certain
improvements to the sewer system of the Borrow er (the “System ”), to fund deposits to the
Reserve Account, and to pay costs of issuan ce of the Series 2010C Bond. The Series 2010C Bond is issued pursuant to and in full conform ity with the Constitution and laws of the State of Montana thereunto enabling, includi ng Montana Code Annotated, Title 7, Chapter 7, Part 44, as
amended, and ordinances and resolutions duly adopted by the governing body of the Borrower,
including Resolution No 4220 of the City a dopted on November 16, 2009, as supplem ented by
Resolution No. [____], adopted January 19, 2010 (a s so supplemented, the “Resolution”). The Series 2010C Bond is issuable only as a single, fully registered bond. The Series 2010C Bond is
issued on a parity with the Borrower’s Sewe r System Revenue Bond ( DNRC Water Pollution
Control State Revolving Loan Program ), Series 2010B (the “Series 2010B Bond”), which is
being issued simultaneously herewith. The Borrow er is also issuing simultaneously herewith its
Subordinate Lien Sewer System Revenue Bond (DNRC Water Pollution Control State Revolving Loan Program), Taxable Series 2010A (the “S eries 2010A Bond”). Principal am ounts of this
Series 2010C Bond are advanced on ly after the full principal amount of the Series 2010A Bond
and the Series 2010B Bond have been advanced. Terms used with initia l capital lette rs but not
defined herein have the meanings given them in the Resolution.
Reference is made to the Resolution for a more complete statement of the terms and conditions upon which the Series 2010C Bond has been issued, the Net Revenues of the
System ple dged and appropriated for the paym ent and s ecurity thereof, the conditions upon
which additional bonds m ay be issued under the Re solution and m ade payable from such Net
Revenues on a parity with the Series 2010B Bond, and Series 2010C B ond (collectively, the
“Bonds”) or otherwise, the c onditions upon which the Resolutio n may be amended, the rights, duties and obligations of the Borrower, and the rights of the owners of the Series 2010C Bond.
The Borrower may prepay the principal of the Series 2010C Bond only if (i) an
ARRA Statem ent has been deliv ered, (ii) it obtains the prio r writte n consen t o f the DNRC
thereto, and (iii) no Loan Repaym ent or Adm inistrative Expense Surcharge or Loan Loss
Reserve Su rcharge is then delinqu ent. Any prepaym ent perm itted by the DNRC m ust be accompanied by payment of accrued interes t, and Administrative Expense Surcharge and Loan
Loss Reserve Surcharge to the date of prepayme nt on the amount of principal prepaid. If the
Series 2010C Bond is prepaid in part, such prepayments shall be applied to principal payments in
inverse order of maturity.
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B-3-3
The Series 2010C Bond, including intere st and any prem ium for the redem ption
thereof, are payable solely from the Net Reve nues pledged for the pa yment thereof and do not
constitute a debt of the Borrowe r within the meaning of any constitutional or statutory limitation
or provision.
The Borrower may deem and treat the person in whose nam e this Series 2010C
Bond is registered as the absolute owner hereof , whether this Series 2010C Bond is overdue or
not, for the purpose of receiv ing payment and for all other purposes, and the Borrower shall not
be affected by any notice to the contrary. The Series 2010C Bond m ay be t ransferred as
hereinafter provided.
This Series 2010B Bond has been designated by the Borrower as a “qualified tax-
exempt obligation” pursuant to Section 265 of the Internal Revenue Code of 1986, as amended.
IT IS HEREBY CER TIFIED, RECITED, COVENANTED AND AGR EED that
the Borrower will forthwith construct and complete the improvements to the System hereinabove
described; that it will prescribe an d collect reasonable rate s and charges for all services and facilities afforded by the System , includ ing all additions thereto and replacem ents and
improvements thereof, and has created a specia l Sewe r S ystem Fund into which the g ross
revenues of the System will be paid , and a s eparate and special Revenu e Bond Account in that
Fund, into which will be paid each month, from and as a first and prior lien on the Net Revenues
of the System then on hand, an amount equal to not less than the sum of one -sixth of the interest to become due within the next six months and one -twelfth of the principal to become due within
the next twelve months with respect to all B onds payable from that Account; that the Borrower
has created a Reserve Account in such fund into which shall be paid ad ditional Net Revenues,
after required credits to the Revenue Bond Accoun t sufficient to maintain a reserve therein equal
to the m aximum amount of principal and interest payable in any subseque nt fiscal year on all such Bonds; that the Revenue Bond Account will be used only to pay the principal of, premium,
if any, and interest on the Bonds and any othe r additional Bonds issued pursuant to the
Resolution on a parity therewith; that the rates and charges for the System will from time to time
be made and kept sufficient, to provide gross in come and revenues adequate to pay promptly the
reasonable and current expenses of operating and maintaining the System and to produce in each fiscal year Net Revenues in excess of such cu rrent expenses, equal to 125% of the m aximum
amount of principal and interest payable from the Revenue Bond Account in any subsequent
fiscal year; that additional Bonds and refunding Bonds may be issued and made payable from the
Revenue Bond Account on a pari ty with the Series 2010B B ond, Series 2010C Bond, and other
parity Bonds, upon certain conditio ns set forth in the Res olution, bu t no obligation will b e otherwise incurred and m ade payable from the Net Revenues of the System , unless the lien
thereof shall be expressly made subordinate to the lien of the Series 2010B Bond, Series 2010C
Bond, and additional parity Bonds on such Net Revenues; that all prov isions for the security of
the holder of this Series 2010C Bond set forth in the Resolution will be punctually and faithfully
performed as therein stipulated; that all ac ts, conditions and things required by the Constitution and laws of the State of Montan a and the ordinances and resoluti ons of the Borrower to be done,
to exist, to happen and to be performed in order to m ake this Series 2010C Bond a valid and
binding special obligation of the Bo rrower according to its terms have been done, do exist, have
happened and have been performed in regular and due form, time and manner as so required; and
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that this Series 2010C Bond and the interest hereon are payable solely from the Net Revenues of
the System pledged and appropriated to the Revenue Bond Account and do not constitute a debt
of the Borrower within the meaning of any constitutional or statutory limitation or provision and
the issuance of the S eries 2010C Bond does not cause either the ge neral or the special indebtedness of the Borrower to exceed any constitutional or statutory limitation.
B-3-4
IN W ITNESS WHEREOF, the City of Bozem an, Montana, by its governing
body, has caused this Bond to be executed by th e signatures of the Ma yor, the Director of
Finance, and the Clerk of the Commission, and has caused the official seal of the Borrower to be
affixed hereto, and has caused this Bond to be dated as of the day of February, 2010.
______________________________________
Mayor
(Seal)
_______________________________________ Director of Finance
_______________________________________
Clerk of the Commission
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B-3-5
REGISTRATION AND TRANSFER
This Bond shall be fully registered as to both principal and interest. No transfer of this
Bond shall be valid unless and until (1) the register ed holder of the Bond, or his duly authorized
attorney or legal representative, executes the form of assignment appearing on this Bond, and (2) the Director of Finance as bond registrar (the “Registrar”), ha s duly noted the transfer on the
Bond and recorded the transfer on the Regist rar’s registration books. The Borrower shall be
entitled to deem and treat the pe rson in whose nam e this Bond is registered as absolute owner
thereof for all purposes, notwithstanding any notice to the contrary. Payments on account of the
Bond shall be made only to the order of the registered holder thereof, and all such payments shall be valid and effectual to satisfy and discharge the Borrower’s liability upon the Bond to the
extent of the sum or sums so paid.
REGISTER
The ownership of the unpaid Principal Bala nce of this Bond and the interest accruing
thereon is registered on the books of the City of Bozeman, Montana in the name of the registered holder appearing on the first page hereof or as last noted below:
Date of Name and Address Signature of
Registration of Registered Holder Director of Finance
, 2010 Department of Natural
Resources and Conservation 1625 Eleventh Avenue
Helena, MT 59620
THE FOLLOWING ENTRIES ARE TO BE MADE ONLY BY THE BOND
REGISTRAR UPON REGISTRATION OF EACH TRANSFER
The Director of Finance of the City, acting as Bond Registrar, has transferred, on the books of the City, on the date last noted below, ownership of the principal amount of and the
accrued interest on this Bond to the new registered holder noted next to such date, except for
amounts of principal and interest theretofore paid.
Date of Transfer
Name of New
Registered Holder
Signature of
Bond Registrar
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B-3-6
THE FOLLOWING ENTRIES ARE TO BE MADE ONLY BY THE BOND
REGISTRAR UPON REGISTRATION OF EACH TRANSFER
The Director of Finance of the City of Bozeman, Montana, acting as Bond Registrar, has
transferred, on the books of the Borrower, on the date last noted below, ownership of the principal amount of and the accrued interest on this Bond to the new registered holder noted next to such date, except for amounts of principal and interest theretofore paid.
Name of New Signature of
Date of Transfer Registered Holder Bond Registrar
FORM OF ASSIGNMENT
For value received, this Bond is hereby transferred and assigned by the undersigned
holder, without recourse, to
on this day of , .
By:
(Authorized Signature)
For:
(Holder)
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B-3-7
SCHEDULE A
SCHEDULE OF AMOUNTS ADVANCED
Total Amount Notation
Date Advances Advanced Made By
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B-3-8
SCHEDULE B
Loa n Loss Administrative Reserve Total Loan
Date Princi pal Intere st Ex pense Surcharge Surcharge Payment
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C-1
APPENDIX C
ADDITIONAL REPRESENTATIONS AND COVENANTS
None
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D-1
APPENDIX D
$1,973,000
Sewer System Revenue Bonds
(DNRC Water Pollution Control State Revolving Loan Program) consisting of $390,700 Subordinate Lien Taxable Series 2010A Bond
$359,300 Series 2010B Bond and $1,223,000 Series 2010C Bond
City of Bozeman, Montana
ARRA CERTIFICATE AND REQUEST
We, ___________________, ____________________, and ____________, hereby
certify that we are on the date hereof the duly qualified and acting Mayor, the Director of
Finance, and the Clerk of the Commission, respectively, of the City of Bozeman, Montana (the
“Borrower”), and that:
1. Pursuant to Resolution No. 4220 of the City adopted on November 16, 2009, as amended and supplemented by Resolution No. [______] of the City adopted on January 19, 2010, entitled “Resolution Relating to $1,973,000 Sewer System Revenue Bonds (DNRC Water
Pollution Control State Revolving Loan Program), Consisting of $390,700 Series 2010A Bond,
$359,300 Series 2010B Bond, and $1,223,000 Series 2010C Bond; Authorizing the Issuance and
Fixing the Terms and Conditions Thereof” (as so supplemented, the “Resolution”), the Borrower issued its Subordinate Lien Sewer System Revenue Bond (DNRC Water Pollution Control State
Revolving Loan Program), Taxable Series 2010A, dated, as originally issued, as of __________,
2010, in the maximum aggregate principal amount of $390,700 (the “Series 2010A Bond”), its
Sewer System Revenue Bond (DNRC Water Pollution Control State Revolving Loan Program),
Series 2010B, dated, as originally issued, as of __________, 2010, in the maximum aggregate principal amount of $359,300 (the “Series 2010B Bond”), and its Sewer System Revenue Bond
(DNRC Water Pollution Control State Revolving Loan Program), Series 2010C, dated, as
originally issued, as of __________, 2010, in the maximum aggregate principal amount of
$1,223,000 (the “Series 2010C Bond”). The Series 2010A Bond and the Series 2010B Bond are
referred to herein collectively as the “ARRA Bonds.” The Borrower has reviewed the Resolution, including, without limitation, Articles II and III thereof, and the definitions relating
thereto. The Borrower acknowledges and agrees that the ARRA Bonds evidence loans made to
the Borrower from the DNRC from funds made available to the DNRC under the American
Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5 (2009) (“ARRA”), and that this
Certificate is being relied upon by the DNRC for ensuring compliance with ARRA requirements applicable to the Borrower, the DNRC, and the 2010 Project (as hereinafter defined).
Capitalized terms used herein without definition shall have the meanings given them in the
Resolution.
2. The ARRA Bonds were issued to finance a portion of the costs of construction
and installation of various improvements to the System, generally described as the 2010 Project (the “2010 Project”) in the Resolution. Construction of the 2010 Project has complied with all
federal and state standards, including, without limitation, EPA regulations and standards and the
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requirements of ARRA. The 2010 Project is expected to be completed and placed in service on
or about _________, 20__.
D-2
3. Costs of the 2010 Project in the amount of $___________ have been paid as of
the date of delivery of this Certificate. The Borrower hereby waives its right to any remaining 2010A Committed Amount or 2010B Committed Amount not advanced or to be advanced upon delivery hereof, and acknowledges that the DNRC has reserved the right to reallocate amounts of
the Series 2010A Bond and Series 2010B Bond and deliver a replacement Series 2010A Bond
and Series 2010B Bond, which shall each be a binding obligation of the City, as described more
particularly in the Resolution. The Borrower specifically confirms and agrees that any remaining amounts of the 2010 Loans to be lent to the Borrower, if any, shall be evidenced by the Series 2010C Bond.
4. As of the date hereof, the Borrower has spent the following amounts in
connection with the 2010 Project and costs related thereto:
Debt Service Reserve
Costs of Issuance
Construction
TOTAL PROJECT COSTS
Of such amounts, $750,000 were paid from advances of proceeds of the ARRA Bonds.
In addition, as of the date hereof, and $_____________ of the proceeds of the ARRA Bonds
have been applied to Green Infrastructure. The Borrower certifies that proceeds of the ARRA Bonds, once made available to the Borrower, were applied to costs of the 2010 Project before
other funds available to the Borrower.
5. The Trustee has delivered to the Borrower a copy of Schedule B to be attached to
the Series 2010A Bond and Schedule B to be attached to the Series 2010B Bond, each of which
reflects the amortization of all advances made or to be made on the date hereof of proceeds of the Series 2010A Bond and the Series 2010B Bond, respectively (i.e., $________ in respect of the
Series 2010A Bond (the sum of the amounts of the Series 2010A Bond applied to pay costs of
the 2010 Project or costs of issuance of the Series 2010 Bonds) and $_________ in respect of the
Series 2010B Bond (the sum of the amounts of the Series 2010B Bond applied to pay costs of the
2010 Project and costs of issuance of the Series 2010 Bonds and deposited in the Reserve Account as described in paragraph 6 hereof)), as required under Section 7.08(a) of the Indenture.
The Borrower hereby acknowledges and agrees that each Schedule B has been calculated in
accordance with the provisions of the Resolution and the Indenture, and that each of the Series
2010A Bond and the Series 2010B Bond, with said Schedule B attached thereto, has been duly
issued pursuant to the Resolution and is a valid and binding obligation of the Borrower in accordance with its terms and the terms of the Resolution; provided, however, if the DNRC
delivers an ARRA Forgiveness Statement, the Borrower’s obligation to repay the principal of the
Series 2010A Bond and interest and surcharges thereon is thereupon forgiven, and if the DNRC
delivers an ARRA Noncompliance Certificate, amounts advanced under the 2010A Loan and
2010B Loan evidenced by the Series 2010A Bond and the Series 2010B Bond, respectively, shall
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bear interest from and after the 2010B First Advance at the rate of two percent (2.00%) per
annum and the Borrower shall pay currently with interest the Administrative Expense Surcharge
and the Loan Loss Reserve Surcharge, all as described in Sections 5.1.2 and 5.1.3 of the
Supplemental Resolution.
D-3
6. Pursuant to the Resolution, the Borrower has established a Reserve Account in the
Fund (the “Reserve Account”) to secure its Series 2010B Bond, and its Series 2010C Bond
(together, the “Bonds”). The amount on deposit therein on the date hereof totals $_________, of
which $_________ secures the Bonds. The amount in the Reserve Account is equal to the
maximum amount of principal and interest payable on the parity Bonds in the current or any future fiscal year (i.e. $_______), based on the amortization of the Series 2010B Bond in
accordance with Schedule B thereto.
7. The representations of the Borrower contained in Articles II and III of the
supplemental Resolution are true and complete as of the date hereof as if made on this date,
except to the extent that the Borrower has specifically advised the DEQ and the DNRC otherwise in writing.
8. No default in any covenant or agreement on the part of the Borrower contained in
the Resolution has occurred and is continuing.
9. The Borrower is delivering this Certificate to the DNRC, in part, to ensure
compliance with ARRA. The Borrower certifies that the iron, steel, and manufactured goods used in the 2010 Project comply with the “buy American” requirements of Section 1605 of
ARRA, as those requirements are further interpreted by applicable EPA guidance. The Borrower
further certifies that all laborers and mechanics employed by contractors and subcontractors on
the 2010 Project have been and will be paid wages at rates not less than those prevailing on
projects of a character similar in the locality as determined by the United States Secretary of Labor in accordance with subchapter IV of chapter 31 of title 40, United States Code.
10. The Borrower acknowledges and agrees that this Certificate completed by the
Borrower in form satisfactory to the DNRC must be executed and delivered to the DNRC by the
date that is 30 days after receipt of the form of this Certificate from the DNRC. By submitting
this Certificate, the Borrower requests that the DNRC forgive the obligation of the Borrower to repay the principal of the Series 2010A Bond, together with interest and surcharges thereon. The
Borrower acknowledges and agrees that (i) the forgiveness of principal of and interest and
surcharges on the Series 2010A Bond by the DNRC is contingent on the timely delivery of this
Certificate by the Borrower in satisfactory form as determined in the DNRC’s sole and complete
discretion, (ii) the DNRC has no obligation to grant such forgiveness; (iii) if the DNRC delivers to the Borrower an ARRA Noncompliance Certificate, (a) the obligation of the Borrower to
repay the principal of the Series 2010A Bond plus interest and Administrative Expense
Surcharge and Loan Loss Reserve Surcharge thereon shall continue in full force and effect until
the principal of the Series 2010A Bond advanced and interest, Administrative Expense
Surcharge, and Loan Loss Reserve Surcharge thereon are paid in full, as set forth in Schedule B delivered pursuant to paragraph 5 above, and as provided in the Series 2010A Bond and the
Resolution, (b) the Borrower shall thereupon be obligated to repay the principal of the Series
2010B Bond together with interest thereon at two percent (2.00%) per annum and to pay the
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Administrative Expense Surcharge and the Loan Loss Reserve Surcharge on all amounts
advanced from and after the 2010B First Advance until the principal of the Series 2010B Bond
advanced and interest, Administrative Expense Surcharge, and Loan Loss Reserve Surcharge
thereon are paid in full, as set forth in Schedule B delivered pursuant to Section 5.1.5 of the supplemental Resolution, and (c) the Borrower shall, as necessary, within the 3-month period
specified in the supplemental resolution authorizing the ARRA Bonds, adjust its rates and
charges to produce Net Revenues and Surplus Net Revenues required by the rate covenant in the
Resolution.
D-4
WITNESS our hands on behalf of the Borrower and the seal of the Borrower as of this _____ day of __________, 2010.
CITY OF BOZEMAN, MONTANA
By ________________________________
(SEAL) Mayor
By ________________________________
Director of Finance
By ________________________________ Clerk of the Commission
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